REPORTS OF INTERNATIONAL ARBITRAL AWARDS RECUEIL DES SENTENCES ARBITRALES
REPORTS OF INTERNATIONAL
ARBITRAL AWARDS
RECUEIL DES SENTENCES
ARBITRALES
Mixed Claims Commission (United States v. Germany) constituted under the
Agreement of August 10, 1922, extended by Agreement of December 31, 1928
VOLUME
VIII pp. 1-468
NATIONS UNIES - UNITED NATIONS
Copyright (c) 2006
MIXED CLAIMS COMMISSION
UNITED STATES-GERMANY
CONSTITUTED UNDER THE AGREEMENT OF
AUGUST 10, 1922
EXTENDED BY
AGREEMENT OF DECEMBER 31, 1928
Decisions, Part Two
WATERMAN A. TAFT ET AL.
(UNITED STATES) v. GERMANY
(August 31, 1926, pp. 801-806.)
EVIDENCE : CIRCUMSTANTIAL EVIDENCE, REBUTTAL THROUGH DIARIES OF
GERMAN SUBMARINES.—WAR: "SINKING WITHOUT TRACE".
Loss of American
vessel after departure on April 5, 1918, from New York to Campana, Argen-
tina. Held that there is no evidence that vessel was destroyed through act of
war. Evidence: see supra; alleged German practice of "sinking without
trace" held not to deprive submarine diaries of evidential value: practice
not established.
PARKER, Umpire, rendered the decision of the Commission.
This case is before the Umpire for decision on a certificate of disagreement
of the National Commissioners.
The claimants on whose behalf it is put forward are and have been on all
dates material herein American nationals. A recovery is sought against Ger-
many for the value of the Avon, an iron sailing vessel of 1,573 gross tons, of
American registry, which sailed from New York April 5, 1918, in charge of an
experienced master with a crew of 19, carrying a cargo of about 2,000 tons of
kerosene in tins and bound for Campana, Argentina. Diligent inquiries to
discover any one who had seen or heard of the Avon since she got well under
way out of New York have been barren of results. She was without auxiliary
power; she had no wireless apparatus, which would have enabled her to send
out distress signals in the event of fire or other disaster.
The claimants' effort is to establish by affirmative evidence a strong pro-
bability that the Avon was destroyed by a German submarine operating in the
vicinity of the Azores or of the Cape Verde Islands. To that end, they have
satisfactorily proven (1) that the Avon, although 34 years old, was staunch,
well-found, and seaworthy, (2) that she was navigated by a competent and
experienced master and manned by a capable and adequate crew, and (3)
from reliable records, painstakingly compiled from reports of ships which were
at the material times in waters contiguous to the course the Avon would almost
certainly have taken, that on such course she would have encountered no
storms or heavy winds. It is agreed that on this course the Avon could have
encountered no minefields planted by either group of belligerents. This course
has been carefully plotted in connection with the known operations of certain
German submarines off the west coast of Africa and in the vicinity of the
Azores, the Canary Islands, and the Cape Verde Islands, and also off the east
coast of the United States, and it is urged that one of these submarines could
have encountered the Avon, whose route lay through the western portion of the
"barred zone" around both the Azores and the Cape Verde Islands, and that
as these submarines were in those waters for the purpose of destroying enemy
shipping the conclusion is justified that the Avon encountered and was de-
stroyed by one of them. While this evidence is far from conclusive, it is under the
4 UNITED STATES/GERMANY
circumstances the best evidence within the claimants' reach and is entitled to
be considered and weighed as tending to establish their contention.
In litigation between marine insurers and war-risk insurers where the facts
were somewhat similar to the case here presented, the English courts have
held (1) that notwithstanding the absence of evidence of unseaworthiness or
unusual storms there was a presumption, even in time of war, that the loss
was due to an ordinary marine peril, yet (2) that while the marine insurer
must rebut this presumption it could do so by circumstantial evidence tending
to establish that the loss was only consistent with some sudden overwhelming
catastrophe not reasonably attributable to the ordinary perils of the sea and
that the course of the missing vessel exposed her to the perils of war.
1 These
cases, however, were all decided during the war at a time when reports from
enemy sources of enemy action were not available and in the absence of all
testimony from such sources negativing the conclusions drawn by the courts
of destruction through enemy action.
To rebut the conclusions which the claimants would draw from the circum-
stantial evidence put forward by them, the German Agent has established by
affirmative evidence that the only instruments of war which Germany or her
allies at any time had in the waters off the west coast of Africa, in the vicinities
of the barred zones around the Azores and the Cape Verde Islands, and off
the east coast of the United States were seven transformed commercial sub-
marine cruisers, designated U-151 to -157 inclusive. A full disclosure has been
made to the Commission by the German Agent of the activities of each of these
cruisers covering the period in which, according to the claimants' contention,
the Avon might have encountered German submarines; and it is clearly esta-
blished that only three of them were anywhere near the course asserted by
claimants as that laid by the Avon. These three were designated U-151, U-153,
and U-154 respectively. The war diaries of the first two have been produced
accounting for their every movement, day by day and hour by hour, with the
name of every ship sighted or encountered and the result of each encounter.
Not only is the Avon not mentioned but it is affirmatively shown that neither of
these cruisers could have encountered the Avon if she sailed a course approxi-
mating that laid down for her by the claimants.
The German cruiser U-154 was sunk off the southwest coast of Portugal by
a torpedo from a British submarine on May 11, 1918. Her war diary cannot
be produced by the German Agent because it was lost with her. However, it
affirmatively appears from the war diary of the U-153 and from other sources
that the two cruisers U-153 and U-154 were closely cooperating and were in
daily contact during the entire time when, according to the claimants' conten-
tion, the Avon might have been encountered and sunk. The war diary of the
U-153 reflects with considerable detail the daily activities of the U-154 during
all of this period. The commanders of the two submersibles visited each other
on their respective ships and together formulated plans and exchanged infor-
mation and experiences. The war diary of the commander of the U-153 affir-
matively establishes the fact that the U-154 not only did not report having
sighted any ship fitting the description of the Avon but that she could not have
1 The British and Burmese Steam Navigation Company (Limited) and others v.
The Liverpool and London War Risks Insurance Association and The British and
Foreign Marine Insurance Company (Limited), K. B. Div., December 11, 1917,
34 L. T. R. 140; The Euterpe Steamship Company (Limited) v. The North of
England Protecting and Indemnity Association (Limited), K. B. Div., July 25, 1917,
33 L. T. R. 540; Macbeth and Co. (Limited) v. King, K. B. Div., June 6, 1916,
32 L. T. R. 581.
DECISIONS 5
encountered the Avon if the latter followed anything approximating the course
laid for her by the claimants.
By these full disclosures, coupled with the statement made by the German
Agent that the German Government has no information whatsoever con-
cerning the Avon or of the destruction of any ship fitting her description during the
period when she was probably lost, the circumstantial evidence relied upon by
the claimants to establish destruction by a German submarine has been fully
met and rebutted.
The claimants very earnestly contend that the war diaries of the German
submarine cruisers, purporting accurately to reflect the contemporaneous
record of their activities, are not entitled to credit in view of the alleged prac-
tice of German commanders to "sink without trace " —that is, not only to sink
without warning, but wilfully to destroy not only vessels and their cargoes but
their entire crews in such manner as to leave no physical trace or human
witnesses and to make no record thereof. The German Government, through
the German Agent, emphatically denies that such a practice was ever author-
ized or countenanced or ever in fact obtained. The claimants' counsel rely on
the Luxburg letters and produce no other evidence to support this allegation.
Not only does this record fail to establish this allegation but the evidence
strongly indicates that had one of her submarines encountered and sunk the
Avon, a vessel of one of her enemies, Germany would have been quick to adver-
tise the fact rather than to suppress it. During this period of the war Germany
was not only at great pains to make accurate records of all belligerent vessels
destroyed by her but through her powerful wireless station at Nauen and
otherwise to advertise to her own and her allied forces and to the world her
successes in prosecuting her unrestricted submarine warfare, and far from
understating she had every incentive for enlarging on the tonnage sunk.
The extensive record filed herein contains data and information with respect
to the activities of the German submarine cruisers here dealt with assembled
from all available sources by the Navy Department of the United States.
These records in the main confirm those submitted by the German Agent.
After referring to the movements of the only three German submarines which
were anywhere near the Azores or the Gape Verde Islands on the dates mate-
rial to the loss of the Avon, the United States Navy Department, over the signa-
ture of the Secretary of the Navy, referring to the loss of the Avon wrote, " it
will be seen from the submarines' positions shown that there was little, if any,
likelihood of this ship [the Avon] encountering any of the three German sub-
marines whose positions are plotted."
In February, 1919, the claimants collected $102,500, the aggregate amount
of all marine insurance, on the hull of the Avon, for " disbursements (only) "
and for " disbursements and/or ship owner's liability ". In connection with
these payments, it assigned to the extent of $22,500 its interest in war-risk
insurance written by one of the marine insurance companies, this being the
amount of the marine insurance paid by this particular insurer. The total
amount of war-risk insurance on the Avon was $150,000. The statement is
made under oath by a representative of the claimants that in making these
settlements with the marine insurance companies the " rights to sue later for
the war risk insurance were reserved ", that is, to the extent of $127,500, the
amount remaining after deducting $22,500 war-risk insurance assigned. This
transaction is explained by the statement " It was a question of taking $102,500
cash or suing to get $150,000 under the war risk policies." It is also explained
that the marine insurers were anxious to retain the goodwill and the business
of the claimants which influenced them in making settlements. No effort has
been made by the claimants to enforce from the war-risk insurers the payment
2
6 UNITED STATES/GERM ANY
of any amount. If the Avon was sunk by a German submarine or by other act
of war, the claimants were not entitled to receive the $102,500 which they have
received from marine insurers but were entitled to the full payment of $150,000
from the war-risk insurers. While the Umpire's conclusion has been reached
independently of these transactions, still the insurance settlements made, as
well as those which have not been made, are significant as in some measure
reflecting the conclusions of the interested parties in weighing the probabilities
of the cause of the loss of the Avon in the absence of positive evidence of such
cause.
The record indicates that all available evidence tending however remotely
to establish the loss of the Avon through an act of war has been diligently
assembled and presented by able counsel. Weighing the evidence as a whole
the Umpire finds that the claimants have failed to discharge the burden resting
upon them to prove that the Avon was lost through an act of war.
Wherefore the Commission decrees that under the Treaty of Berlin of
August 25, 1921, and in accordance with its terms the Government of Germany
is not obligated to pay to the Government of the United States any amount on
behalf of Waterman A. Taft and others, claimants herein.
Done at Washington August 31, 1926.
Edwin B.
PARKER
Umpire.
ROBERT DAVIE TRUDGETT
(UNITED STATES) v. GERMANY
(August 31, 1926, pp. 818-822; Certificate of Disagreement by the National
Commissioners, May 14, 1926, pp. 806-818.)
DAMAGES : PERSONAL INJURIES, PERSONAL PROPERTY TAKEN AND NOT RETURNED,
LOST EARNINGS. — WAR: TREATMENT OF PRISONERS OF WAR, RESPON-
SIBILITY UNDER GENERAL INTERNATIONAL LAW, TREATY OF BERLIN, MEANING
OF
" CRUELTY, VIOLENCE, MALTREATMENT ". Claim for personal injuries
(temporarily impaired health through confinement) suffered by American
captain of captured and sunk vessel from June 16, 1917, when taken aboard
German auxiliary cruiser, until February 25, 1918, when landed at Kiel,
Germany, and for loss of personal property. Held that Commission not
concerned with legality or illegality under general international law of clai-
mant's capture, confinement and detention: Germany liable under Treaty
of Berlin, claimant's seizure and imprisonment being acts of " violence "
(Part VIII, Section I, Annex I, para. 2, Treaty of Versailles, carried into
Treaty of Berlin). Held also that Germany not liable for loss of claimant's
earnings. Damages allowed for personal injuries, personal property.
Certificate of Disagreement by the National Commissioners
The American Commissioner and the German Commissioner have been
unable to agree as to the liability of Germany in the claim of Robert Davie
Trudgett, Docket No. 4890, for damages on account of his treatment by German
authorities while held as a prisoner, and also as to the value of personal pro-
perty taken from him during his imprisonment, their respective Opinions
being as follows:
DECISIONS 7
OPINION OF MR. ANDERSON, THE AMERICAN COMMISSIONER
This is a claim on behalf of Robert Davie Trudgett for damages on account
of his treatment by the German authorities while held as a prisoner, and for
the value of personal property taken from him during his imprisonment, and
also for loss of salary which he was prevented from earning during the time of
his captivity.
As to the portion of the claim which comprises the loss of prospective ear-
nings, the National Commissioners both agree that under the decisions hitherto
rendered by this Commission Germany is not obligated under the Treaty of
Berlin to make compensation for that portion of the claim.
The facts upon which the claim arises are briefly as follows:
The claimant, an American citizen, was on the 24th day of May, 1917, the
master of the schooner Winslow, a vessel of American registry. On the day
mentioned the Winslow sailed from Sydney, Australia, bound for Apia, Samoa,
with a cargo consisting of 250 tons of coal, 1500 firebricks, and 100 cases of
gasoline.
On June 16, 1917, when the schooner Winslow was about 10 miles off the
coast of Raoul Island, Kermadec Group, in the Pacific Ocean, in latitude
about 29 degrees south and longitude about 179 degrees west, she was captured
by the German armed raider Wolf. The claimant and the crew of the Winslow
were thereupon transferred to the Wolf, and the Winslow was taken to Raoul
Island, where she was destroyed after the cargo was taken off.
The Wolf was a war vessel of about 5,000 tons displacement, with a crew
of about 350 men.
The claimant and the cook of the Winslow, who was a Japanese subject, were
treated as prisoners of war, and the claimant was placed in hold No. 4 between-
decks with other prisoners of war already on the Wolf. The rest of the crew
of the Winslow, who were all Scandinavians and of neutral nationality, were
placed with other neutral prisoners in a special part of the deck with the crew
of the Wolf.
No. 3 hold of the Wolf was at that time filled with mines and thereafter the
Wolf proceeded to lay mines in Cook Strait, Bass Strait, and off Singapore.
The place where the claimant was confined on the Wolf was very crowded and
badly ventilated and whenever any other vessel was sighted the hatches were
battened down, thus practically shutting off all ventilation.
During the latter part of August, 1917, the Wolf anchored in a harbor in the
Dutch East Indies, within the territorial waters of the Kingdom of Netherlands,
and remained there for a period of three weeks for the purpose of cleaning her
bottom and stripping a captured British steamer, the Matanuga. During all
the time that the Wolf was in said neutral territorial limits the claimant was
kept under guard below decks except for a little while during the middle of
the day.
Later the Wolf proceeded to the Arctic Ocean and during the months of
December, 1917, and January, 1918, was off Iceland and Greenland. During
all of this cruise the claimant was confined in the same quarters and permitted
on deck only at intervals.
From the time of the capture of the Winslow in June, 1917, for a period of
about eight months the claimant was given very little, if any, fresh food and
was kept in a half-starved condition on account of the scarcity and poor quality
of the food furnished. During this period there were approximately 400 cap-
tives on the Wolf in addition to its crew of 350 men, and by reason of the poor
food furnished to the prisoners and the manner in which they were confined,
scurvy broke out among them.
8 UNITED STATES/GERMANY
The Wolf entered German waters on the 17th of February, 1918, and
remained there for the period of a week before any fresh food was given to the
claimant. At the end of that week the claimant was taken ashore and sent to
the German military camp at Karlsruhe, and later to the military camp at
Heidelberg, and on May 1, 1918, to the military camp at Villingen, and on
November 1, 1918, to Switzerland, and then was placed in the quarantine
camp at Alleroy where he remained until December 14, 1918, when he pro-
ceeded to Brest, France, and from there was transported back to the United
States.
The facts above stated are found in the sworn statements submitted by the
claimant and they are not challenged or contradicted in any important parti-
cular by the evidence submitted by the German Agent. It is true that in the
report submitted under date of July 14, 1924, by Captain Nerger, who was in
command of the Wolf during this period, it is stated that the Wolf's " stern
middle decks were high, roomy and well ventilated ", but he also says that
" When during the last part of the voyage the prisoners (earlier than our own
crew although the latter had been at sea from three to twelve months longer
than the different groups of prisoners) were beginning to suffer from scurvy,
I withdrew the small residue of fresh food still on board the H. M. S. Wolf
entirely from our own crew and had it reserved for those prisoners who were
ill or in danger of becoming ill." It thus appears that scurvy broke out first
among the prisoners and from three to twelve months more quickly than
among the crew, and from this it is reasonable to conclude that the breaking
out of scurvy among the prisoners was due to the combined effect of the lack of
fresh food and the reduced power of physical resistance to disease among them
resulting from the confined and unhealthy condition under which they were
obliged to live during the eight months cruise of the Wolf.
Captain Trudgett does not allege that he himself was attacked by scurvy,
but he does show by a doctor's certificate dated August 26, 1919, that upon
his arrival in New York in January, 1919, he submitted himself to medical care,
that his general health was poor at that time, and that six months later he was
still in the need of medical attention.
Among the provisions of the Treaty of Versailles which are incorporated in
the Treaty of Berlin, Germany is required and undertakes to make compensa-
tion, under Article 232, " for all damage done to the civilian population of the
Allied and Associated Powers and to their property during the period of the
belligerency of each as an Allied or Associated Power against Germany " by
aggressions " by sea ", among others, " and in general all damages as defined in
Annex I hereto."
Annex I provides that —
" Compensation may be claimed from Germany under Article 232 above in
respect of the total damage under the following categories :
*******
(2) Damage caused by Germany or her allies to civilian victims of acts of
cruelty, violence or maltreatment (including injuries to life or health as a consequence
of imprisonment, deportation, internment or evacuation, of exposure at sea or of being
forced to labour), wherever arising, and to the surviving dependents of such victims.
*******
" (4) Damage caused by any kind of maltreatment of prisoners of war."
In this case the civilian status of the claimant is beyond question, so that in
his case category (2) is applicable as well as category (4).
If the claimant had been subjected during imprisonment on land to the
same treatment to which he was subjected during his imprisonment at sea that
DECISIONS 9
would unquestionably have constituted maltreatment within the meaning of
that term as used in the provisions above-quoted.
The only excuse given by Captain Nerger in his statement above-mentioned
for submitting the claimant to such treatment is that " Nautical military
reasons forbade the landing of the detained persons before February 25, 1918
at Kiel." It appears nevertheless that in the latter part of August, 1917, the
Wolf lay for a period of three weeks in a harbor in the territorial waters of the
Kingdom of Netherlands in the Dutch East Indies. There certainly were no
nautical military reasons which forbade the landing of the claimant at that
time and at that place or at some other place in neutral territory, and there
was no justification for the action of the captain in placing and detaining on a
warship of only 5,000 tons some 300 or 400 prisoners in addition to a crew of
350 men, and carrying them for an eight months' voyage from tropical to arctic
regions under conditions which any competent naval officer must have known
were bound to produce physical suffering and disease.
Confining the claimant as a prisoner on a warship for an eight months'
raiding cruise under the conditions which have been established in this case
was not demanded by any existing military necessity and in any event was a
departure from the recognized requirements of decent and humane treatment
of prisoners, as defined in the 1899 Hague Convention II which was in force
when this capture was made, and by Article XXIV of the Treaty of July 11,
1799, between the United States and Prussia, as revived by Article XII of the
Treaty of May 1, 1828, and subsequently accepted by the German Govern-
ment as binding upon the Empire. Furthermore by the Agreement of No-
vember 11, 1918, between the Governments of the United States and Germany
concerning prisoners of war humane treatment is explicitly recognized and
defined as the required standard for treatment of prisoners.
It follows, therefore, that any treatment of prisoners which violates the
standards so declared must be characterized as maltreatment within the meaning
of that term as used in the above-quoted extracts from the subsequent
Treaties of Versailles and Berlin.
Captain Trudgett was already over fifty years of age at the beginning of his
imprisonment on the Wolf, and even though the evidence on his behalf does
not show that his maltreatment resulted in any permanent ailment or physical
disability, nevertheless such specific evidence is not required to bring the case
within the terms of the Treaty provisions. Germany is required to make com-
pensation for any damage which has even caused by such maltreatment and it
has been sufficiently shown in this case that the claimant suffered treatment of
a character which at his age inevitably had the effect of impairing his health
and reducing his vitality, thus not only reducing his capacity for earning a
living and for enjoying the remaining years of his life, but also tending to
shorten his life-expectation period.
In the opinion of the American Commissioner the amount of $1,500, which
is claimed for the damage thus caused, is fully justified and should be awarded
to the claimant with interest thereon from the 1st of November, 1923.
The claimant has presented in detail under oath the items and value of the
personal property which was taken from him while he was a prisoner, which
value he fixes at $419.00.
The National Commissioners agree that this personal property, in the circum-
stances of this case, does not come within the classification of " naval and
military works or materials " for the loss of which a claim cannot be made. It
is objected, however, on the part of Germany that among the documents sub-
mitted is a receipt from the German authorities for railway freight for personal
luggage from Kiel to Karlsruhe amounting to marks 18.15, and it is inferred
10 UNITED STATES/GERMANY
from this that the claimant must have had some personal property when he left
the Wolf. The point of this objection is that in the claimant's affidavit he
alleges that all of his property was confiscated by the officers in charge of the
Wolf, and if the statement ended there the objection might be tenable. The
claimant's affidavit goes on to state, however, that this property was never
returned and was totally lost to him, and a fair interpretation of the statement
taken as a whole is that it was not returned to him when he left Germany at
the end of his imprisonment and was totally lost for that reason.
The American Commissioner is of the opinion, therefore, that the entire
amount of 8419.00 claimed for the value of personal property lost should be
awarded, with interest thereon from November 11, 1918.
Chandler P. ANDERSON
Opinion of Dr. Kiesselbach, the German Commissioner
The present claimant, the master of the American merchant schooner
Winslow, is alleged to have sustained damages as the result of treatment to
which he was subjected while a prisoner of war aboard the German cruiser
H. M. S. Wolf. Claim is also made for the value of personal property alleged
to have been taken from him at the time of his capture and for loss of earnings
during the period of his detention. The National Commissioners are agreed
that there can be no recovery for this last item of damage under Administrative
Decision No. VII.
The claimant was made a prisoner of war on June 16, 1917, at the time of the
capture and destruction of the Winslow by the Wolf off Raoul Island in the
Pacific Ocean. He was detained aboard the Wolf eight months, until the end
of her cruise at Kiel, in February, 1918, where he was discharged and taken
to the prison camp at Karlsruhe. He was liberated and sent to Switzerland
November 1, 1918, whence he later returned to his home in the United States.
The claimant's allegations as to mistreatment are confined to the period of
his detention aboard the cruiser Wolf. These allegations have to do with the
poor ventilation of the quarters assigned to him, the deficiency of fresh food,
and the conditions resulting from the number of prisoners aboard the Wolf.
It is further alleged that the result was to impair the claimant's health.
The claimant, in Exhibit VIII, specifically states that he was not subjected
to abuse and rests his whole case upon the allegation that his health was
impaired through lack of food, fresh and other kinds, and to the condition and
kind of living and sleeping quarters furnished.
Viewed objectively, the claimant's contention is found to be in fact merely
that detention on board the cruiser Wolf was a hardship in itself. It appears
through the evidence that the claimant was treated with every consideration
possible in the circumstances and at least as well as the crew of the Wolf. In
the matter of food, the commander of the Wolf, Captain Nerger, states (Ex-
hibit 5 annexed to the German Agent's Reply, paragraph?) that "The food was
for all persons named under No. 4 [that is, all prisoners] at least equal to that
of our own crew * * *. The captains [of whom claimant was one] received
frequently additional rations ". The fact that " during the last part of the
voyage " both prisoners and crew began to suffer from scurvy, due, no doubt,
to deficiency of fresh green foods in the diet, is itself without point since the
claimant did not suffer from the disease. It is Captain Nerger's testimony that
" When during the last part of the voyage the prisoners * * * were beginning
to suffer from scurvy, I withdrew the small residue of fresh food still on board
the H. M. S. Wolf entirely from our own crew and had it reserved for those
prisoners who were ill or in danger of becoming ill " — that is, the prisoners
DECISIONS 1 I
were given the preference over the crew of the Wolf although it is clear from
the testimony that the crew were also suffering from scurvy.
As to the quarters provided for the claimant aboard the Wolf, they were
situated in the stern middle deck of the vessel, and had the same equipment as
the crew quarters on the same deck forward in the bow (paragraph 5 of exhibit
last cited), except for the lack of heating equipment. This deficiency was
supplied by the installation of a good heating equipment before the Wolf left
the warmer regions. In the same way, partitions were erected whereby the
captains who were prisoners of war could have special quarters for themselves
(ibidem, paragraph 4 c).
There is a conflict of testimony as to the ventilation of the prisoners' quarters.
The commander of the Wolf testifies that the prisoners' quarters on the stern
middle deck were " high, roomy and well ventilated " (ibidem, paragraph 5),
while the claimant contends that they were very close and badly ventilated.
In a later statement (Exhibit 8) he contented himself with the allegation that
the ventilation was " not good."
Claimant's statement that the quarters furnished him were crowded may be
true in so far as the space available on a raider of about 5,000 tons displacement
with a naval crew of 350 men and with captives to the number of about 400
certainly was not abundant. But since only nationals of enemy states were
considered as prisoners of war and since only such were lodged together in the
stern middle deck of the Wolf, and since for instance in the case of the Winslow
only two of the whole crew — the claimant and the Japanese cook — were of
enemy nationality (Exhibit 3), the number of men located there can not have
been excessive. This is corroborated by the fact that according to Commander
Nerger's statement it was possible to provide special partitions for the captains,
to which group claimant belonged.
As to the confinement of the claimant below decks when other vessels were
approaching, this action was dictated by considerations of military necessity
and was also in accord with international law. The Hague Convention of
1907, in Article V, recognizes that prisoners may be confined as an indispensable
measure of safety while the circumstances which necessitates the measure
continue to exist. The commander's action was obviously dictated by the
desire to avoid mutiny or to prevent a warning to other craft. That it was
from no desire to cause discomfort or hardship is shown by the fact that the
Wolf's crew was frequently under the same restrictions at such times (the
exhibit 5 mentioned above).
Like reasons dictated the action of the commander of the Wolf in restricting
the prisoners to below decks under guard while in neutral waters in order to
prevent their escape. International law recognizes that a prisoner may be
" confined with such rigour as is necessary for his safe custody " (Hall's Inter-
national Law, 7th Edition, page 428).
Moreover, it is clear from the evidence that at all other times the claimant
was permitted on deck. Captain Nerger states that " The prisoners were
always permitted to be on deck in the open air, unless there existed compulsory
reasons against it, as for instance, if other vessels were approaching " (aforesaid
Exhibit 5, paragraph 6). Claimant's original testimony (Exhibit 4) is substan-
tially in accord with this version of the facts, for he restricts his allegation as to
confinement below decks to the statement that he was so confined " whenever
there was anything in sight from said raider ".
It is apparent from the testimony that the treatment of the claimant aboard
the Wolf was in accord with the rules of international law, which require that
prisoners of war should not be singled out and made to bear burdens not
12 UNITED STATES/GERMANY
imposed upon the forces of the captor — in other words, the test is like treat-
ment of prisoners and troops.
This principle is recognized by all leading writers upon international law
(see, for instance, Hyde's International Law, volume II, page 538) and is
found embodied in Article 7 of the Hague Convention of 1907 already men-
tioned.
Further, by implication the validity of this rule is recognized in the decision
of the Umpire in the claim of George L. Hawley, Docket No. 1322, where the
Umpire said:
" As an evidence of maltreatment emphasis is laid by the claimant on the use
of paper bandages by the German hospital authorities in dressing his wounds, but
there is no evidence that any other bandages were available, and it appears
from the records in other cases before this Commission that German authorities
were forced to use paper bandages in the dressing of wounds of German soldiers."
The ruling recognized that a hardship which arose from necessity and which
was borne alike by the captured and the captors would not constitute " mal-
treatment ".
It is argued that the claimant would have been spared the discomfort inci-
dental to his detention aboard the cruiser Wolf had he been released in a
neutral port, and the American Commissioner sees " no nautical military
reasons which forbade the landing of the claimant at that time and at that
place or at some other place in neutral territory " and states that there was
no justification for the action of the captain in placing and detaining on a
warship of only 5,000 tons some 300 or 400 prisoners in addition to a crew of
350 men. The American Commissioner does not accept the explanation of
the raider's commander that " Nautical military reasons forbade the landing
of the detained persons before February 25, 1918 at Kiel." Now, it cannot
be denied that in August, 1917, when the raider stopped in Dutch waters for
three weeks, and in the winter of 1917-1918 the Allied Powers were the masters
of the seas. If, therefore, the Wolf, being a merchantman with the character of a
war vessel and with a naval crew and having an outward appearance which
did not show her military and naval character, after a trip of many months in
tropical waters was to be repaired and readjusted (by " cleaning her bottom
and stripping the British steamer ", as claimant expresses it — Exhibit 2) in
order to continue her perilous voyage, the only protection she had in the Dutch
port and the only chance she got to escape through the British-controlled North
Sea was to keep absolute secrecy. Thus it is self-evident that under all circum-
stances the only thing the commander was not allowed to do if he intended to
fulfill his military and naval task was to release the captives on board the Wolf.
The confining of the claimant on the warship during the stay in neutral waters
was therefore, though a hardship, demanded by military necessity, certainly
not a maltreatment.
There remains the question whether under the provisions of the Treaty of
Versailles as cited by the American Commissioner Germany would be liable
for an injury to life or health as a consequence of imprisonment or of exposure at
sea even in the absence of maltreatment.
I do not think that the treatment of claimant by Germany could ever be
brought under the term of " exposure at sea ", but I agree that it can be
brought under the term of imprisonment.
But to apply the provisions of paragraph 2 of the Annex I following Article
244 it does not suffice that a person suffered an injury to life or health as a
consequence of imprisonment, etc., but the injury to the imprisoned, deported,
or interned person must be caused by an act of cruelty, violence, or maltreat-
DECISIONS 13
ment. If it had been the intention of the framers of the Treaty to make Ger-
many generally liable for injuries to life or health in the specific cases enume-
rated in paragraph 2, they would have said so in a general way and not by
way of parenthesis to a provision establishing Germany's liability for acts of
cruelty, violence, or maltreatment. The leading idea was to make Germany's
liability for acts of cruelty, violence, or maltreatment in a specific sense as
broad as possible : wherever arising. And to make this intention clear and certain
they described the " wherever arising " — id est, of acts of cruelty, violence, or
maltreatment — by expressly stating that they intended to include the con-
sequence of such acts, if resulting in injuries to life or health, and if being a
consequence of imprisonment, deportation, etc.
My conclusion therefore is that under the provisions of said Annex I in the
absence of maltreatment the mere fact of the existence of an injury to health
as a consequence of imprisonment, etc., does not establish Germany's liability.
Moreover I can not admit that claimant has suffered such injury to his
health for which he would be entitled to claim compensation.
It is already noted that claimant himself was not attacked by scurvy.
In Exhibit 4 (answer to question 63) claimant says " The condition of my
health at the present time [i. e., August 26, 1919] as the result of the experiences
stated is fairly good." And the only medical affidavit submitted, executed the
same day, is as follows:
" That Robert Davie Trudgett has been under my professional care since January
22, 1919; that he has an enlargement of the right epididymis, which is quite sensitive
and painful at times; that his general health was poor at the time of his first visit
to me."
This evidence makes no attempt to connect claimant's alleged ill health with
his experiences aboard the Wolf; nor is there any evidence as to the nature of
the malady or the pathological condition from which the claimant is alleged
to be suffering other than a brief reference to a purely local condition not
uncommon among men of claimant's years. Moreover, the medical exami-
nation in question was made eleven months after the claimant left the Wolf.
There is no allegation that claimant required medical attention in the German
prison camps during the nine months which he spent therein immediately
following his discharge from the Wolf.
In answer to question 17 of the State Department's questionnaire (Exhibit 4)
as to residence, he states that he was engaged in going to sea in United States
merchant ships from November 30, 1918, to June 26, 1919, with San Fran-
cisco as his home port and Alameda, California, as his residence, and that
he was returning from Germany to San Francisco from November 30, 1918,
to January 15, 1919. This evidence, taken in connection with his statement
that he worked his passage from France back to the United States in an Ameri-
can vessel, shows that upon his arrival at San Francisco he immediately found
employment at his regular trade. This evidence is material on the condition
of claimant's health at that time.
It seems a fair conclusion from the evidence that no impairment of the
claimant's health has been shown.
The claim for loss of property is not disputed as to the amount of $185, the
value of the claimant's sextant and marine glasses. The contention, however,
that all his personal property was taken from him does not seem to be sustained
by the evidence. The evidence submitted contains a " Quittung ", a receipt,
for " Gepackfracht " or excess baggage for personal use from Kiel to Karlsruhe,
amounting to marks 18.15. The receipt is held out by claimant as being for
railway fare from Kiel to Karlsruhe. As claimant was landed at Kiel and from
14 UNITED STATES/GERM AN Y
there was, according to his own statement, transferred directly to Karlsruhe
and as the amount of marks 18.15 for freight on personal luggage indicates
that claimant must have possessed a rather considerable amount of personal
luggage, since the rate for passenger baggage is rather low, it is certain that the
claimant was not stripped of " all his personal property " since leaving the
Wolf. Such personal property as was taken from him by the commander of
the Wolf was taken as prize because of its nautical nature. According to Cap-
tain Nerger's testimony, such property was turned over to the Imperial Dock-
yard at Kiel and a valuation there placed upon the sextant of marks 25, while
the marine glasses were sold at auction for marks 130.
In view of the fact that it thus appears from the German records that the
sextant and marine glasses were the only property seized and inasmuch as the
claimant's testimony that he was stripped of all his personal property is shown
by the above receipt to be inaccurate, the award for personal property should
be limited to the amount of $185, the value placed upon the sextant and the
marine glasses by the claimant.
This claim should therefore be dismissed except as to the claim for the
sextant and marine glasses.
W. KlESSELBACH
The National Commissioners accordingly certify to the Umpire of the Com-
mission for decision the points of difference which have arisen between them,
as shown by their respective Opinions above set forth.
Done at Washington May 14, 1926.
Chandler P. ANDERSON
American Commissioner
W. KlESSELBACH
German Commissioner
Decision
PARKER,
Umpire, rendered the decision of the Commission.
This case is before the Umpire for decision on a certificate of disagreement
of the National Commissioners accompanied by their respective opinions.
So far as necessary to a decision of this case the facts are as follows :
The American merchant schooner Winslow was captured and sunk by
the German auxiliary cruiser Wolf on June 16, 1917. The claimant, an
American national, who was master of the Winslow, and then 50 years of age,
was taken and held a prisoner on board the Wolf from that date until on or
about February 25, 1918, when he was landed at Kiel and sent at once to a
German prison camp. He was held as a civilian prisoner of war in German
prison camps, at Karlsruhe, Heidelberg, and Villingen successively, until
November 30, when he was sent to Switzerland and placed in the quarantine
camp at Alleroy, where he remained until December 14, 1918, when, on
instructions of the military authorities he reported to the United States Consul
at Brest, from which port he returned to the United States, arriving in New-
York January 8, 1919.
During the more than eight months' imprisonment of the claimant on board
the Wolf, that vessel, in pursuit of its operations of laying mines and capturing
enemy craft, cruised through the tropics, to the arctic regions, and back to
Germany, under circumstances entailing numerous hardships both to its cap-
tives and to the members of its own crew. The quarters which the claimant
was compelled to occupy with other prisoners of his rank and station were
DECISIONS 15
necessarily cramped and frequently the ventilation was bad. The food was
restricted in variety and quantity and most of the time no fresh or green foods
were supplied. As a consequence a number of the prisoners and a part of the
crew became ill from scurvy, although it does not appear from the record that
the claimant suffered from this malady. It does appear, however, that as a
result of claimant's confinement on the Wolf he suffered great discomfort and
inconvenience and his health was temporarily but not permanently impaired
and his vitality substantially reduced. There is no suggestion that claimant
suffered from any indignities or abuse, physical or otherwise, or that he was
wilfully subjected to any discomforts. On the contrary, it appears that he was
lodged and fed approximately as well as the members of the crew of the Wolf,
although when nearing a port or a ship he and the other prisoners were confined
to their cramped and ill-ventilated quarters to prevent their communicating
with the outside world. This Germany seeks to justify as rendered necessary
by the very nature of the daring military operations of the Wolf, to the success
of which secrecy of whereabouts, operations, and purpose was essential.
Likewise the failure earlier to land claimant at either a neutral or a German
port, the German Agent maintains, was justified by considerations of secrecy
and nautical military strategy.
No complaint is made of the treatment of claimant on being landed at Kiel
and thereafter held a prisoner. The claim for impairment of health is
predicated wholly on his capture, confinement, and detention on the Wolf
and the treatment there accorded him. It will not be profitable here to consider
the legality or illegality as tested by rules of international law of such capture,
confinement, and detention
1. As this Commission has frequently held, Ger-
many's liability in claims presented here is determined not by rules of inter-
national law but by the terms of the Treaty of Berlin irrespective of the legality
or illegality of the act complained of.
Assuming without deciding that under the laws of war the considerations
relied on by the German Agent justified the treatment accorded to claimant by
Germany, nevertheless they do not enter as factors in determining whether or
not such damages are embraced within those categories for which Germany is
obligated to make compensation by the terms of the Treaty of Berlin, or the
extent of the damage, if any, suffered by claimant as a consequence of such
treatment. That Treaty provides (paragraph 2 of Annex I to Section I of
Part VIII — Reparation — of the Treaty of Versailles, carried into the Treaty
of Berlin) that Germany shall compensate for
" Damage caused by Germany or her allies to civilian victims of acts of cruelty,
violence or maltreatment (including injuries to life or health as a consequence of
1 It is interesting to note in passing that during the Franco-Prussian War Count
Bismarck vigorously denied that sailors found in merchant vessels can be made
prisoners of war (see Hall's International Law, 7th edition, page 426, note). The
generally accepted rule at that time seems to have been that sailors on board an
enemy's merchant ship may be taken as prisoners of war because of their fitness for
immediate use on ships of war. The claimant Trudgett was a noncombatant past
fifty years of age and hardly available for military duty. It is not necessary here to
decide how far that rule had, at the time of claimant's capture and enforced confi-
nement, been modified, especially by Article 6 of the Hague Convention XI of 1907,
which was formally ratified by most of the nations engaged in the World War,
including Germany, which provides:
" The captain, officers, and members of the crew [of a captured enemy
merchant ship], when nationals of the enemy state, are not made prisoners of
war, on condition that they make a formal promise in writing not to undertake,
while hostilities last, any service connected with the operations of the war. "
16 UNITED STATES/GERMANY
imprisonment, deportation, internment or evacuation, of exposure at sea or of
being forced to labour), wherever arising, and to the surviving dependents of such
victims."
Does the claim here put forward fall within this provision? The Umpire
decides that it does. This provision requires Germany to compensate for
damage caused to civilian victims by Germany or her allies through acts of
cruelty, violence, or maltreatment wherever arising. The terms " cruelty,"
" violence," and " maltreatment " are general. Ordinarily they connote the
exercise of force by a human agency, frequently but not necessarily in such
manner as to inflict injury through physical contact. However, violence may
consist of the exercise of force, without physical contact, in such manner as to
produce fear, terror, apprehension, or restraint. Realizing that the use of
these general terms might give rise to controversy with respect to their scope
and meaning, the draftsmen of the Treaty, without undertaking to enumerate
all " acts of cruelty, violence or maltreatment " embraced within this category,
and being careful not to exclude those not enumerated, expressly provided that
damages to civilians caused by acts of cruelty, violence, or maltreatment should
include "injuries to life or health as a consequence of" (a) imprisonment,
(b) deportation, (c) internment or evacuation, (d) exposure at sea, or (e) being
forced to labor. It may well be that Germany's act of imprisoning the claimant
did not constitute either " maltreatment " or " cruelty " within the meaning
of the provision quoted, but his seizure and imprisonment by Germany were
certainly acts of violence. Any doubt which might have existed with respect
to the impairment of claimant's health, directly attributable to those acts of
violence, being embraced within this category is removed by the express pro-
vision that " injuries to life or health as a consequence of imprisonment " are
included in " Damage caused by Germany * * * to civilian victims of acts of
cruelty, violence or maltreatment "
2. Here is an express enumeration of
particulars embraced within the preceding general terms without, however,
limiting the generality of such terms or excluding acts of the same nature not
enumerated.
The claimant, a civilian American national, through acts of violence was
seized and long imprisoned by Germany. As a consequence of such acts he
suffered a temporary impairment of health. Injuries to the health of a civilian
as a consequence of imprisonment are expressly included in the damages for
which Germany must compensate. The claim therefore falls within the cate-
gory above quoted fixing Germany's liability.
The claimant has not sought to exaggerate the hardships suffered by him or
their consequence to his health or the amount of his damage as measured by
pecuniary standards. The Umpire agrees with the American Commissioner
that on this particular count an award should be made in favor of the claimant
for the full amount claimed, namely, $ 1,500.
2 The British Reparation Claim against Germany under a schedule dealing with
" injury to persons or injury to health of civilians "includes an item of 2,454 "intern-
ment "cases with damages aggregating £687,120. The Umpire prefers to believe
that the British Government in presenting this claim construed paragraph 2 of
Annex I to Section I of the Reparation provisions (Part VIII) of the Treaty quoted
above as construed in this opinion rather than in accordance with the contention
of the German Agent and the opinion of the German Commissioner herein. From
the latter construction it would result that the British Reparation Claim embraces
a large item for damages alleged to have been suffered by 2,454 interned British
civilian victims of acts of Germany involving moral turpitude, acts wilful and
malicious in their nature and impairing the health of the victims.
DECISIONS 17
On the record presented the Umpire further finds that the personal property
surrendered by the claimant to the agents of Germany and not returned to
him was of the value of$419, the full amount claimed, for which Germany is liable.
As pointed out in the opinions of the National Commissioners, Germany is
not liable under the Treaty to pay the other amount claimed herein, for the
loss of claimant's earnings from the time of his capture to the date of return to
his home.
Applying the rules announced in previous decisions of the Commission to
the facts as disclosed by this record, the Commission decrees that under the
Treaty of Berlin of August 25, 1921, and in accordance with its terms the
Government of Germany is obligated to pay to the Government of the United
States on behalf of Robert Davie Trudgett the sum of one thousand five hun-
dred dollars (SI,500.00) with interest thereon at the rate of five per cent per
annum from November 1, 1923, and the further sum of four hundred nineteen
dollars ($419.00) with interest thereon at the rate of five per cent per annum
from November 11, 1918.
Done at Washington August 31, 1926.
Edwin B.
PARKER
Umpire
HARRISS, IRBY & VOSE (UNITED STATES) v. GERMANY
(August 31, 1926, pp. 822-827.)
SEA WARFARE: DESTRUCTION OF VESSEL BY MINE. — WAR: RESPONSIBILITY
UNDER GENRAL INTERNATIONAL LAW, TREATY OF BERLIN; NEGLIGENCE.
DAMAGE: RULE OF PROXIMATE CAUSE. — DAMAGES: MARKET VALUE. —
PROCEDURE: CONFIRMATION BY NATIONAL COMMISSIONERS OF AGREEMENT
BETWEEN AGENTS. — EVIDENCE: REPORT BY GERMAN NAVAL OFFICER,
TESTIMONY OF CAPTAIN, PILOT; PROBABILITIES.
Destruction of vessel on
February 19, 1915, by floating German mines. Held that there is no evidence
that claimants or their agents did not exercise care of reasonably prudent
man and that, therefore, Germany's act in planting mines was proximate
cause of loss. Held also that Commission not concerned with legality or
illegality of planting mines under general international law: Germany
liable under Treaty of Berlin. Agreement between Agents on fair market-
value of vessel confirmed by National Commissioners. Evidence: see supra.
PARKER, Umpire, rendered the decision of the Commission.
This case is before the Umpire for decision on a certificate of disagreement
of the National Commissioners.
It is put forward by the United States on behalf of Harriss, Irby & Vose,
claimants, a copartnership which in December, 1914, was and ever since has
been composed of American nationals. An award is sought for the value of the
American Steamship Evelyn, alleged to have been destroyed off the Dutch
coast on February 19, 1915, by contact with a submerged mine planted by
Germany. The Evelyn was an iron steamship, 32 years old at the time of loss,
of 2,800 deadweight tons registered at the port of New York. She was in
excellent condition and had a classification of *100 A-l Lloyd's Register.
The Agents of the United States and of Germany have agreed, confirmed by the
National Commissioners, that the fair market value of this ship at the date of
loss was $210,000. At that time her owners carried war-risk insurance on her
to the amount of $100,000 which was collected in full, deducting which from
the agreed market value leaves a net loss to the claimants of $110,000.
18 UNITED STATES/GERMANY
Germany's liability is denied by the German Agent because as alleged by
him (1) it is not established that the mine which destroyed the Evelyn was
planted by Germany and (2) the planting of the mine was not the proximate
cause of the loss, which he alleges was proximately caused by the intervening
negligence of the claimants and/or the master and/or the pilot of the vessel.
Much testimony has been introduced and much speculation indulged in by
both Agents with respect to the exact location of the Evelyn when sunk and the
nationality of the mine or mines which worked her destruction.
Without undertaking to review this testimony in detail, the facts as disclosed
by the record are briefly these :
( 1 ) From the report of Lieutenant-Commander v. Wallenberg of the German
Navy of February 23, 1915, it appears that Captain Smith, master of the Evelyn,
was very young but skillful.
(2) This was Captain Smith's first voyage on the Evelyn. Before sailing from
New York on January 29, 1915, with a cargo of cotton for Bremen, he made
inquiries from his owner's chartering agents and others and was advised by a
master of one of the Savannah Line steamers who had just returned from a trip
to Germany that he had taken the course via the coast of Holland in safety.
(3) Captain Smith also sought information as to the course at the office of
the German Consul in New York, who sent him to some shipping agents
where he was shown a copy of instructions issued by the German Admiralty on
November 4, 1914, which prescribed that " All merchant ships bound for the
Eider, Elbe, Weser and Jade must first steer towards Listertief-buoy. Ships
bound for the Ems must steer directly toward the Ems." and that " Ships, to
insure their own safety, are obliged, after leaving the Listertief-buoy, to be
piloted." A previous notice gave the " approximate position of the Listertief-
buoy " as 55° 3-3/4' N. and 8° 17-1/2' E.
(4) Captain Smith testifies that he was shown and had no instructions as to
what route to follow to Listertief. He says he knew there were two routes, one
up the east coast of England and via the Nase of Norway, and the other via
the coast of Holland. He concluded to make inquiries from time to time and
get all the information and advice he could from every available source; and
testifies that he had no reason to believe that the instructions of the German
Admiralty were permanent but considered that conditions might change by
the time he reached the English Channel.
(5) He made careful inquiry of the British boarding officer at the Downs in
the English Channel, where he arrived on February 15, and was shown two
routes, one up the coast of England via Farn Island, the other across the
Channel to the coast of Holland. The British boarding officer declined to
recommend either as the safer course but did state that most American vessels
bound for Germany had gone via Holland.
(6) Captain Smith made inquiries of the masters of steamers which were
in the Downs at the time bound for Germany and all of them were taking the
Holland route. He states that he considered that he could get the latest and
most authentic information at Rotterdam with respect to the safest route to
Bremen and could there obtain a Dutch pilot to take him if not to Bremen at
least to the German line. He had in mind the provisions of the German
Admiralty instructions of November 4 to the effect that ships bound for the
Ems must steer directly toward the Ems and considered that he would be safe
off the Dutch coast as far as the German boundary line.
(7) At Rotterdam, where he arrived February 15, he made inquiries of
persons in the steamship business and secured a Dutch pilot who held himself
out as an experienced North Sea pilot. This pilot laid a course along the
Dutch coast to Bremen and stated that several other ships had taken this route
DECISIONS 19
in safety. Captain Smith determined to rely on the judgment of this pilot as
far as the trip along the Dutch coast was concerned, the pilot assuring him
that they were almost certain to pick up a German patrol boat off the German
coast and could obtain from it definite instructions about reaching Bremen.
In the light of the information he had procured from various sources he conclu-
ded that the notice to steer for Listertief-buoy was for the purpose of there
securing pilots, and as he had secured what he believed to be a competent pilot
he did not believe it necessary to go so far north only to lay a course due south
to the mouth of the Weser.
(8) The Dutch pilot testified that he told Captain Smith that Listertief-buoy
was only the steering point for ships from the north, that is, for ships taking the
alternative route which Captain Smith did not take, up the east coast of
England and via the Nase of Norway, but that it was not necessary for ships
taking the route along the coast of Holland to go up to Listertief and then down
again to the mouth of the Weser.
(9) At 4 :05 a. m. on February 19, when the Evelyn was still off the Dutch
coast and some miles west of a prolongation of the German-Dutch boundary
line and the mouth of the Ems, she struck a floating mine. Captain Smith was
in the pilothouse at the time, having been up all night. He at once caused the
boats to be lowered and all members of the crew to take their places therein.
He was just leaving with the owner's money, ship papers, and some blankets,
being the last to leave the ship, when at 4:20 the second explosion came. The
first explosion was right ahead, the second on the starboard side.
(10) The ship settled and shortly thereafter sank. This was in latitude 53°
50' N. longitude 6° 20' E. or about ten miles E. N. E. of the position of Borkum
Lightship.
(11) The evidence strongly indicates and the Umpire finds that the Evelyn
was destroyed by floating mines which had been torn loose from their anchorage
by storms or other mishaps or from rust. The heavy storms of January and the
first part of February had caused mines to be torn from their moorings.
(12) There is much confusion in the record concerning a British minefield
lying a short distance north of the point where the Evelyn was sunk and also a
German barrage lying immediately south of this point. It now appears,
however, that the British mines were not planted until long after February,
1915, and the German barrage was not planted until about October 1, 1915.
Manifestly the destruction of the Evelyn cannot be attributed to either of these
minefields.
(13) Sometime prior to the loss of the Evelyn the German Admiralty had
planted and there then existed an extensive barrage beginning at a point west
of Helgoland and extending in a general southerly and southwesterly direction
toward but not reaching the mouth of the Ems. This minefield was nearer
than any other to the point where the Evelyn was destroyed. The strong
probabilities are and the Umpire finds that the mines which destroyed the
Evelyn were floating German mines that had been torn loose from their moorings.
(14) It will serve no useful purpose to detail the evidence offered by the
German Agent in support of his contention that the claimants were guilty of
negligence in placing in command of the Evelyn an inexperienced master; that
the master was guilty of negligence in disregarding warnings given by Germany
to the shipping world and failing to follow the route prescribed by Germany in
entering the German port to which the Evelyn was destined and in employing
at Rotterdam an inexperienced pilot; that the pilot was guilty of negligence;
and that the negligence of the claimants and their agents was the intervening
and proximate cause of the destruction of the ship rather than the planting of
the mine or mines. There is evidence tending to support these contentions.
20 UNITED STATES/GERMANY
It seems probable that had the Evelyn set her course along the east coast of
Great Britain and the Nase of Norway and thence via Listertief to the mouth
of the Weser she would have arrived in safety. Or it may well be that had she
laid a true course for Listertief of 51° from Terschelling Lightship off the Dutch
coast she would have reached there in safety, and after there taking on a
German pilot have landed her cargo at Bremen by this roundabout course.
Certain it is that it was to the interest of Germany that the Evelyn and her cargo
should reach her destination. Viewing the acts of the claimants and their agents
in retrospect, it is easy to point out measures which they might have taken, and
which they failed to take, to insure greater safety in the navigation of the ship.
But for obvious reasons it was extremely difficult at that time to procure
dependable information with respect to shipping conditions. There is evidence
in this record suggesting that the master of the Evelyn was wilfully misinformed
and sent into a zone of danger by the enemies of Germany. Be this as it may,
the master, after making diligent inquiry from time to time, was compelled to
act upon his own judgment and responsibility. The Umpire finds that the
evidence falls short of establishing the contention that under all the circum-
stances and conditions existing at the time the claimants and their agents failed
to exercise that care which a reasonably prudent man similarly situated would
have exercised in manning and navigating the ship.
Therefore the Umpire holds that Germany's act in planting the mine or
mines which he finds destroyed the Evelyn was the proximate cause of her loss.
The question discussed by counsel dealing with the legality of the act of
Germany in planting mines off the Dutch coast and beyond the limits of her
territorial waters is not material here. As this Commission has frequently held,
Germany's liability is determined by the provisions of the Treaty of Berlin
rather than by the legality or illegality of her acts as measured by rules of
international law.
Based on the foregoing findings of fact and the agreement of the Agents of
the United States and of Germany, confirmed by the National Commissioners,
with respect to the fair market value of the Streamship Evelyn, the Commission
decrees that under the Treaty of Berlin of August 25, 1921, and in accordance
with its terms the Government of Germany is obligated to pay to the Govern-
ment of the United States on behalf of Harriss, Irby & Vose, the claimants
herein, the sum of one hundred ten thousand dollars ($110,000.00) with
interest thereon at the rate of five per cent per annum from February 19, 1915.
Done at Washington August 31, 1926.
Edwin B.
PARKER
Umpire
WALKER, ARMSTRONG & COMPANY
(UNITED STATES) v. GERMANY
(August 31, 1926, pp. 827-832.)
SEA WARFARE: DESTRUCTION OF VESSEL BY MINE. —WAR: NEGLIGENCE. —
DAMAGE: RULE OF PROXIMATE CAUSE. — DAMAGES: MARKET VALUE. —
PROCEDURE: CONFIRMATION BY NATIONAL COMMISSIONERS OF AGREE-
MENT BETWEEN AGENTS.
Destruction of vessel on February 22, 1915, by
submerged German mine. Held that there is no evidence that claimants
or their agents did not exercise care of ordinarily prudent man and that,
DECISIONS 21
therefore, Germany's act in planting mines was proximate cause of loss.
Agreement between Agents on fair market value of vessel confirmed by
National Commissioners.
(Text of decision omitted.)
GANS STEAMSHIP LINE
(UNITED STATES) v. GERMANY
(August 31, 1926, pp. 832-836.)
EXPROPRIATION OF VESSELS: CHARTERER'S INTEREST IN VESSELS, SOVEREIGN
POWER OF EXPROPRIATION. —DAMAGE: CAUSED IN PROSECUTION OF WAR;
EXCEPTIONAL WAR MEASURES, MEASURES OF TRANSFER.
Sixteen German
vessels chartered by claimant between October 26, 1915 and December 18,
1916, to be delivered to her after conclusion of peace, but expropriated by
Germany for transfer in property to Allies free from encumbrances etc. as
required by Treaty of Versailles, Part VIII, Section I, Annex III, as carried
into Treaty of Berlin. Claim for value of charterer's interest in vessels. Held
that seizure and deprivation of claimant's rights do not fall within terms
of Treaty of Berlin: (1) no damage caused in the prosecution of war (reference
made to Administrative Decision No. I, see Vol. VII, p. 21): interest in
vessels, in any case subject to Germany's sovereign power of expropriation,
expropriated in pursuance of terms of peace dictated by victorious powers ;
(2) no exceptional war measures or measures of transfer (Treaty of
Versailles, Part X, Section IV, Annex, para. 3).
PARKER, Umpire, rendered the decision of the Commission.
This case is before the Umpire for decision on a certificate of disagreement of
the National Commissioners.
An award in the sum of 56,821,813.74 is sought on behalf of the claimant,
Gans Steamship Line, an American corporation, being the alleged value of its
interest as charterer in sixteen steamships, all owned by German nationals at
the time the charters were entered into. The case presented by the claimant,
briefly stated, is this:
(1) Between October 26, 1915, and December 18, 1916, during the period
of American neutrality, the claimant entered into charter-parties with the
German owners of sixteen German ships varying from a one-way voyage
charter from the United States to Europe to twelve-month time charters, to
run from the date of delivery of each vessel thereunder.
(2) In varying forms of expression the charters provided for delivery " after
peace has been concluded and trading for German ships is free in all waters ",
or " after official conclusion of peace ", or " after officially declared conclusion
of peace ", or " after general conclusion of peace ", or similar expression.
(3) At the time the charters were fixed the vessels were tied up at different
ports, among them Hamburg, Luebeck, Antwerp, Bergen, Bilbao, Cadiz, and
Barcelona, and one was building at Stettin, another at Luebeck.
(4) Annex III to Section I of the Reparation Provisions (Part VIII) of the
Treaty of Versailles required that " The German Government, on behalf of
themselves and so as to bind all other persons interested, cede to the Allied and
Associated Governments the property in all the German merchant ships ",
described so as to include those on which claimant's charters were fixed. By
22 UNITED STATES/GERMANY
the same annex it was provided that " the German Government will : (a) Deliver
to the Reparation Commission in respect of each vessel a bill of sale or other
document of title evidencing the transfer to the Commission of the entire
property in the vessel, free from all encumbrances, charges and liens of all
kinds, as the Commission may require ".
(5) To fulfill these obligations the German National Assembly on August 31,
1919, enacted a law providing machinery for the acquisition through expro-
priation by the German Government of the ships which Germany was required
to deliver to the Allied and Associated Powers through the Reparation Com-
mission.
(6) The memorial filed on behalf of the claimant alleges that " Heretofore
and on various dates during the year 1919 all right, title and interest, including
the rights therein of claimant, to these steamers were seized by the German
Government acting under the obligations assumed by said Government in the
Versailles Treaty, Part VIII, Annex III, Section I, and claimant was deprived
of said rights therein by said action."
The defenses put forward by the German Agent are: (1) that the allegations
of the memorial do not bring the claim within the Treaty of Berlin; (2) that the
claimant suffered no loss or damage; and (3) that a substantial part of the
stock of the claimant corporation, at the times the charters were entered into
and at all material times since, has been owned by German nationals and to
this extent the claim is not impressed with American nationality.
The first only of these defenses will be considered. The allegation quoted in
the preceding paragraph numbered (6) is the only ground upon which a
recovery is sought against Germany and sharply presents the sole question
certified to the Umpire, viz. : Do the acts of Germany complained of fall
within the terms of the Treaty of Berlin?
The Umpire decides that they do not.
The financial obligation of Germany to the United States on behalf of its
nationals arising under that Treaty with respect to so-called reparation claims
were defined by this Commission in its Administrative Decision No. I.
1 Such
claims are restricted to damages suffered by American nationals caused by
Germany or her agents (or in certain categories by her allies or by any belli-
gerent) in the prosecution of the war, or, as expressed in Article 231 of the
Treaty of Versailles, such " loss and damage to which the Allied and Associated
Governments and their nationals have been subjected as a consequence of the
war imposed upon them by the aggression of Germany and her allies."
Manifestly Germany's acts, of which claimant complains, far from being
acts of aggression, were acts of submission ; far from being acts committed in
the prosecution of the war, were acts performed to carry into effect the terms
of peace imposed upon her by the victorious powers.
Assuming for the purposes of this opinion that the claimant had an interest
in the ships which were expropriated by Germany and delivered to the Allied
Powers through the Reparation Commission in pursuance of the provisions of
the Treaty of Versailles, nevertheless that interest was when acquired and
continued to be an interest in German ships subject to the sovereign power of
expropriation by Germany in accordance with her laws. Germany not only
acted within her sovereign power and in strict accordance with her laws but
those very laws were enacted in pursuance of the terms of peace dictated by
the victorious powers. It is not within the competency of this Commission to
adjudicate the right if any to demand compensation which this claimant may
have arising under the German statute of August 31, 1919, as applied by
1 Decisions and Opinions, pages 1-3. (Mote by the Secretariat, Vol. VII, pp. 21-22).
DECISIONS 23
Germany in German territory, which demand must be governed by German
municipal law, administered by German domestic tribunals, which are clothed
with the exclusive power to administer justice within German territory where,
as in this case, this sovereign power has not been expressly surrendered to an
international tribunal or other agency.
But is it urged that if this is not a reparation claim as defined in Administra-
tive Decision No. I it nevertheless falls within a category expressly excepted from
that decision but embraced within the Treaty, namely, " claims arising out of
the application of either exceptional war measures or measures of transfer as
defined in paragraph 3 of the Annex to Section IV of Part X of the Treaty of
Versailles." This contention is rejected.
Germany was required by Article 297 (a) of the Treaty immediately to
discontinue and stay all exceptional war measures and measures of transfer
with respect to the property, rights, and interests of nationals of the Allied or
Associated Powers, and all such measures taken by Germany or the German
authorities subsequent to November 11, 1918, were declared void (see 2nd
clause of paragraph 1 of the annex last cited). So much of the Treaty defini-
tions of these measures as are prospective in their scope apply to the Allied and
Associated Powers but not not to Germany. But Annex III to Section I of
part VIII of this same Treaty, in pursuance of which the acts of Germany here
complained of were taken, compelled " The German Government, on behalf of
themselves and so as to bind all other persons interested," to cede to the Allied
Powers the German ships chartered by claimant. Reading these provisions
together, it is manifest that the measures taken by Germany and here com-
plained of were not exceptional war measures or measures of transfer, as those
terms are defined in the Treaty which expressly stripped Germany of the
power to take such measures subsequent to November 11, 1918. As heretofore
pointed out, they were measures looking toward peace, not measures of war.
But it is urged that Article 304 of the Treaty of Versailles (carried by reference
into the Treaty of Berlin) clearly confers jurisdiction on this Commission to
adjudicate this claim. The particular provision of that article relied on reads:
" In addition, all questions, whatsoever their nature, relating to contracts con-
cluded before the coming into force of the present Treaty between nationals of the
Allied and Associated Powers and German nationals shall be decided by the Mixed
Arbitral Tribunal."
The relevancy of this provision as applied to this case is not apparent. It is
unnecessary here to determine whether this provision is restricted to claims
arising between nationals of the Allied and Associated Powers and German
nationals which are within the competency of the Mixed Arbitral Tribunals
constituted under the Treaty of Versailles or whether it also embraces claims
against the German Government. It will be noted in passing that many of the
provisions of the Treaty of Versailles with respect to contracts concluded
between former enemies (section V of Part X) have no application to the
United States or its nationals (see Article 299 (c)).
This claim is put forward on behalf of an American national against the
German Government. The agreement between the United States and Ger-
many in pursuance of which this Commission is constituted confers jurisdiction
on it to adjudicate all claims falling within those terms of the Treaty of Berlin
which define the pecuniary obligations of Germany to the United States and
its nationals. The only question here presented is, Under the Treaty of Berlin
is Germany obligated to compensate this claimant for the damages which it
alleges it sustained? This Commission has jurisdiction to decide this question
and, if answered in the affirmative, to assess the damage. A negative answer
24 UNITED STATES/GERMANY
has already been given. Hence it follows that the demand, if any, not based
on any provision of that Treaty, which claimant may have against Germany
or anyone else does not fall within the jurisdiction of this Commission.
Wherefore the Commission decrees that under the Treaty of Berlin of
August 25, 1921, and in accordance with its terms the Government of Germany
is not obligated to pay to the Government of the United States any amount on
behalf of the claimant herein on account of the acts herein complained of.
Done at Washington August 31, 1926.
Edwin B.
PARKER
Umpire
S. STANWOOD MENKEN, ADMINISTRATOR OF THE ESTATE OF
ALICE E. TESSON, DECEASED, AND OTHERS
(UNITED STATES) v. GERMANY
ANDREW C. McGOWIN, ADMINISTRATOR OF THE ESTATE OF
FRANK B. TESSON, DECEASED, AND OTHERS
(UNITED STATES) v. GERMANY
(August 31, 1926, pp. 837-839.)
PROCEDURE: REHEARING AFTER FINAL JUDGMENT. — DAMAGE: (1) RULE OF
PROXIMATE CAUSE, (2) SPECULATIVE DAMAGE. — DAMAGES IN DEATH CASES.
— EVIDENCE: DECISION OF MUNICIPAL COURT OF LAST RESORT. Rehearing
granted, although final decree entered before. Claims for alleged losses
suffered by children by first marriage of woman, whose second husband
carried life insurance payable to her in case she survived him, but who,
according to decision of highest court of New York State, simultaneously
with him went down with Lusitania. Held that wife's children cannot claim
damages: (1) damage (insurance moneys lost) too remote, (2) Germany not
liable for consequences of wife's not surviving her husband, but only for
damages proximately resulting from her death, (3) no speculation permissible
as to effect on her children of either her survival or her husband's.
PARKER, Umpire, made the announcement following:
In the cases numbered and styled as above, » which were consolidated, a final
decree on the decision of the Umpire was entered by this Commission on
February 21, 1924.
x The claimants in the first case have presented
through their attorneys to the American Agent a petition for rehearing praying
for an additional award, which has been called to the attention of the Umpire.
The rules of this Commission make no provision for a rehearing of any case
in which a final decree has been entered. However, in deference to the earnest
insistence of eminent counsel the Umpire has carefully reviewed the record in
these cases in the light of the petition for rehearing. But he finds nothing in
either the record or the petition which had not been taken into account and
carefully weighed before the decision was rendered.
The instant petition apparently fails to take into account and correctly
appraise the pertinent considerations following:
a Note by the Secretarial, Original report: Docket Nos. 217, 293, and 544.
1 Decisions and Opinions, pp . 361-364 (Note by the Secretariat, not included in
Vol. VII).
DECISIONS 25
(1) The claim is grounded on damages alleged to have been sustained by
claimants resulting from the death of Alice E. Tesson, who, with her husband,
went down with the Lusitania, the two (according to the decision of the highest
court of the State of New York in McGowin v. Menken, 223 N. Y. 509) dying
simultaneously. They both died intestate.
(2) Mrs. Tesson's separate estate amounted to approximately $5,400 and
was inherited equally by the claimants William, Charles, and Roy Atkins, her
sons of a former marriage. Mr. Tesson's separate estate, supplemented by
insurance on his life collected by his administrator, aggregated $22,828.80,
which was inherited by his mother, brother, and two sisters.
(3) At the time of their deaths Mrs. Tesson was 60 years of age and her
husband 49 and his life expectancy therefore much greater than hers.
(4) Mrs. Tesson derived no income from her personal efforts and it is not
established that she possessed any pecuniary earning power. Such contri-
butions as she made to her children were made from her husband's earnings.
Her two eldest sons, William and Charles, were 39 and 38 years old at the
time she died and were able-bodied and had domestic establishments of their
own. They were not dependent upon their mother to any extent. The
contributions which she made to them were in the nature of occasional gifts,
alleged to average $300 and $200 per annum to William and Charles respec-
tively.
(5) It was Mr. Tesson's death that cut off the source of the contributions
which their mother had made to these three claimants, who were not his
children.
(6) The argument that the claimants through their mother's death have
lost the insurance on Tesson's life, which was payable to her in the event she
survived him, aside from being in legal contemplation too remote to support
a claim for damages, ignores the realities. Tesson and his wife died simultane-
ously. His life expectancy was greater than hers. He made no provision that
the policies should be payable in whole or in part to the claimants or any of
them in the event his wife did not survive him. The payments were in fact
made to his heirs. The argument put forward on behalf of these claimants
amounts to a complaint that one group of American nationals (Tesson's heirs)
benefited at the expense of another group of American nationals (these claimants)
because Mrs. Tesson died simultaneously with her husband. Germany
cannot be held liable because she did not survive him, but only for damages
suffered by claimants proximately resulting from her death.
(7) It is not permissible to speculate with respect to the pecuniary effect on
claimants had their mother survived Tesson or had Tesson survived her. The
fact is, as a competent court of last resort has found, that they died simultane-
ously and the claimants' demand is based on the pecuniary damage suffered
by them resulting from their mother's death.
(8) But if it were competent for this Commission to indulge in such specula-
tions they would not lead to a different result. Had Tesson been lost with the
Lusitania and his wife survived, it is apparent that her interest in his small
estate and her smaller estate, supplemented by the insurance on his life which
was for her benefit should she survive him, would scarcely have provided for
her own needs and would not have put her in a position to make any sub-
stantial contributions to her sons. On the other hand, had Tesson survived
his wife the record does not justify the conclusion that his contributions to the
sons of his wife would have exceeded the equivalent of the award made.
(9) Notwithstanding this state of the record the Umpire in his opinion of
February' 21, 1924, said: " It is evident from the record that if either Tesson
or his wife had lived her crippled son Roy would probably have continued to
26 UNITED STATES/GERMANY
receive small contributions of not less than $25 per month for his maintenance
and support." An award was accordingly made on behalf of this son Roy,
who was 28 years of age when his mother died, in the sum of $5,000 and a
further award on behalf of the administrator of Mrs. Tesson's estate for $2,325,
the value of her personal property lost, with interest on both amounts.
(10) In this state of the record no award was justified on behalf of Mrs.
Tesson's sons William Atkins and Charles Atkins.
The petition is found to be without merit and is hereby dismissed.
Done at Washington August 31, 1926.
Edwin B.
PARKER
Umpire
AMERICAN-HAWAIIAN STEAMSHIP COMPANY
(UNITED STATES) v. GERMANY
(September 30, 1926, pp. 843-848.)
SEA WARFARE: DAMAGE TO, DESTRUCTION OF, VESSEL BY MINE, SUBMARINE. —
WAR: RESPONSIBILITY UNDER GENERAL INTERNATIONAL LAW, TREATY OF
BERLIN.
DAMAGES: (1) Loss OF USE, (2) MARKET VALUE. INTERPRETA-
TION OF TREATIES: INTENTION OF PARTIES.—PROCEDURE: CONFIRMATION
BY NATIONAL COMMISSIONERS OF AGREEMENT BETWEEN AGENTS.
Damage
to hull of American vessel by German mine on December 18, 1916, followed
by sinking by German submarine on July 10, 1917. Claim for loss of use
pending repairs, and for value of vessel, respectively. Held that under
Treaty of Berlin, Germany not liable for loss of use or enjoyment of property
injured but not destroyed outside German territory through act of war
(reference made to Administrative Decision No. VII, see Vol. VII, p. 203) :
(1) Commission not concerned with Germany's liability under general inter-
national law (according to which loss of profit from, or use of, vessel pending
repairs of injuries resulting from maritime tort is proper element of damage
to be taken into account in determining tort feasor's liability) : Germany's
liability limited by Treaty of Berlin, (2) intention of parties to Treaty of
Berlin with respect to provisions of Treaty of Versailles embodied therein by
reference, shown by intention of parties to Treaty of Versailles as authorita-
tively expressed by Reparation Commission, whose decisions, though not
binding on Commission, are entitled to great weight. Agreement between
Agents on fair market value of vessel confirmed by National Commissioners.
Damages allowed for loss of vessel.
Bibliography:
a Kiesselbach, Problème, pp. 35, 120.
PARKER, Umpire, on a certificate of disagreement of the National Com-
missioners delivered the opinion of the Commission.
This case is put forward on behalf of the claimant, an American corporation,
the owner of the American Steamship Kansan, to recover damages on two
distinct counts, the first arising out of an injury to the hull of that vessel when
she struck a German mine in December, 1916. and the second resulting from
her destruction by a German torpedo in July, 1917.
a References in this section are to publications referred to in the bibliography in
Vol. VII, p. 7, to be augmented with Woolsey, L. H., " The Sabotage Claims
against Germany ", A.J.I.L., Vol. 34 (1940), pp. 23-35, and to the Annual Digest.
DECISIONS 27
From the record it appears that the Kansan sailed from Boston on December 6,
1916, with a general cargo for St. Nazaire. On December 18, at a point
about eight miles distant from St. Nazaire, she struck and was seriously damaged
by a German mine. Temporary repairs were made at St. Nazaire which
were completed and made permanent at New York. The vessel was again
seaworthy and ready for use on June 22, 1917. The physical damage to the
hull was fully covered by insurance and no claim is here made for the cost of
repairs for which through such insurance the claimant has been fully reim-
bursed. A consequential damage suffered by the claimant was the loss of the
use of the vessel for a period of 156 days and a claim is here put forward for
approximately $512,000, the amount of the alleged damage resulting there-
from.
On June 28, 1917, the Kansan with a general cargo sailed from the port of
New York, again bound for St. Nazaire. On July 10 she was torpedoed and
sunk by a German submarine off the French coast. The American and German
agents have agreed that the fair market value of the Kansan at the time of her
destruction was $3,268,564: that the war-risk insurance received by the claimant
on account of her loss was $2,318,564; and that under the rules established
by the decisions of this Commission the net amount of damage suffered by the
claimant resulting from her loss is $950,000 with interest thereon from Novem-
ber 11, 1918. This agreement has been confirmed by the National Com-
missioners as the basis of an award on this count.
There remains for consideration only the claim for the loss of the use of the
vessel pending the repair of her physical injury. This clearly presents the
question. Under the Treaty of Berlin is Germany liable for the loss of the use
or enjoyment of property injured but not destroyed outside of German territory
through an act of war? The Umpire holds that she is not. The reasons for this
decision are fully developed and foreshadowed in Administrative Decision
No. VII. Suffice it here to point out that (save in cases arising in German
territory) the provisions of the Treaty of Berlin defining Germany's obligations
to compensate for property injured or destroyed limit such obligations to
physical or material damage to tangible things and do not extend them to
damages in the nature of the loss of profit, the loss of use, or the loss of enjoy-
ment of the physical property injured or destroyed. It is quite true that this
treaty rule does not follow that established by the jurisprudence of England
and of America to the effect that the loss of profit from or the use of a vessel
pending repairs of injuries resulting from a maritime tort is a proper element
of damage to be taken into account in determining the amount of the tort
feasor's liability. But the Treaty of Berlin is this Commission's charter, and its
terms establish the rules which must be applied by this Commission to all cases
presented to it. The exhaustive review of the American and English cases
forcefully presented by able counsel in the briefs filed herein are not particu-
arly helpful in arriving at the intention of the parties as expressed in the perti-
nent provisions of that Treaty. The soundness of such decisions is not questioned,
and the principles they announce would be here applied if Germany's
liability had to be determined either by rules of municipal law obtaining in
the jurisdiction of the cases cited or by rules of international law in the absence
of a treaty fixing the basis of liability. But. as has been repeatedly pointed out
in the decisions of this Commission, the United States, as well as the other
Allied and Associated Powers, recognized by the express terms of the Treaties
that Germany's resources were inadequate to make complete reparation for all
war damages, and her liability is limited to damages of the nature defined by
the treaty terms, without regard to the legality or illegality or the other qualities
of the acts resulting in the damages complained of. In Administrative Decision
28 UNITED STATES/GERMANY
No. VII this Commission held that the Treaty of Berlin does not place upon
Germany a heavier burden with respect to damage or injury to the persons or
property of American nationals than that placed upon her by the Treaty of
Versailles.
1 The reasons leading to this conclusion were there fully set forth
and it would not be profitable to repeat them here. But in arriving at the
intention of the parties to the Treaty of Berlin the intention of the parties to the
Treaty of Versailles in dealing with the same or similar matters, as that inten-
tion has been expressed by the Reparation Commission, the agency empowered
to declare it,
2 may be profitably considered.
On March 4, 1921, the Reparation Commission, constituted under the
provisions of the Treaty of Versailles, in an unanimous decision formally inter-
preting that Treaty held that while Germany was obligated to compensate for
the value of property destroyed or converted, or for the cost of repairing a
material injury short of destruction, where such destruction, conversion, or
injury resulted from acts of Germany or her allies or directly in consequence of
hostilities or of any operations of war by either group of belligerents, neverthe-
less Germany was not obligated to compensate for the loss of enjoyment of or
profit from such property.
3 Applying this rule to the devastated regions of
north and northeastern France, it results that Germany is not liable for the loss
by the French nationals of the use of their factories and industrial plants in the
" occupied territory " during the period of German occupation, or during the
period of reconstruction following the Armistice, sometimes extending over
several years; that Germany is not obligated to compensate for the loss of the
use of their lands suffered by the French farmers in the devastated regions
during the war and for the, period thereafter required to bring them back to
productivity through fertilization or otherwise; and that the compensation to
be made by Germany for account of the landowners whose orchards, planta-
tions, and vineyards were destroyed is limited to the cost of replanting, plus
the shrinkage in value of the land after replanting as compared with its
value had it not been damaged.
4 This rule applies to all devastated regions of
France, Belgium, Italy, and elsewhere.
The shipping losses, which constitute a substantial portion of the Allied
Reparation Claim against Germany, as originally prepared and presented by
the maritime services of the respective Powers included damages suffered
through the detention of ships from any cause. But the Reparation Commis-
sion unanimously decided (the British member of the Commission being parti-
cularly clear and emphatic in his statements in support of the decision) that
Geimany was not obligated to compensate for the heavy damages suffered by
Allied nationals through the loss of the use and enjoyment of their vessels
damaged or detained by the enemy, and by the application of this decision
eliminated from the British shipping claim items aggregating in amount
£46,930,000.
5 Items of a similar nature but for much smaller amounts embo-
died in the Italian, Japanese, Greek, Portuguese, and Brazilian shipping claims
were by the application of this decision likewise eliminated.
1 Administrative Decision No. VII, Decisions and Opinions, page 320. [Note by
the Secretariat, Vol. VII, p. 235).
2 Paragraph 13 (/) of Annex II to Section I of Part VIII of the Treaty of Ver-
sailles.
3 Decision No. 998 of the Reparation Commission, dealing with " Claims for
loss of enjoyment ", embodied in its Minutes No. 146, March 4, 1921.
4 Minutes No. 172 of the Reparation Commission, April 15, 1921.
5 Joint Report of the Maritime Service and the Valuation Service on maritime
losses dated April 20, 1921, Annex 735-j, being a continuation of Annex 735-g,
of the records of the Reparation Commission.
DECISIONS 29
While the decisions of the Reparation Commission constituted under the
Treaty of Versailles are not binding on this Commission, nevertheless in seeking
the intention of the framers of the Treaty of Berlin with respect to provisions
of the Treaty of Versailles embodied therein by reference the decisions of the
Reparation Commission construing these provisions, taken long prior to the
signing of the Treaty of Berlin and presumably in the minds of the parties to
that Treaty at the time of its conclusion, are entitled to great weight. Especially
is this true when, as in the instances cited, the decisions were unanimous, were
taken a comparatively short time after the Treaty became effective, and denied
to the nations whose members composed the Commission the right to demand
of Germany extremely heavy payments which it was believed by the most
exacting of the victorious Powers were not included in her Treaty obligations
and had they been so included would have swelled the reparation demands
against Germany far beyond her capacity to pay.
Counsel for claimant cite several decisions by Mixed Arbitral Tribunals
constituted under the Treaty of Versailles in support of the contention that
Germany is liable for the loss of use of property requisitioned or detained by
Germany in German territory. As pointed out in Administrative Decision No.
VII at page 344,k such cases are within the " Economic Clauses " (Part X) of
the Treaty, which deal with enemy property in German territory, and under
which rules for measuring damages obtain different from those applicable to
the " Reparation Provisions " (Part VIII) of the Treaty. Not only was
Germany directly and solely responsible for what happened within her territo-
rial limits, but she and her nationals in the cases cited enjoyed the use of the
requisitioned property, for which use she was required to pay. The Reparation
Commission clearly distinguished between damages suffered by Allied nationals
on account of requisitions, sequestrations, and other war measures applied by
the German authorities in German territory and similar measures applied by
German authorities in territory invaded by German forces. Claims belonging
to the first class were not included in the reparation claims but fell within the
jurisdiction of the Mixed Arbitral Tribunals constituted under Article 304 in
Part X of the Treaty; while claims belonging to the second class were dealt with
by the Reparation Commission as reparation claims under the provisions of
Part VIII of the Treaty.
6 While claims on behalf of American nationals
embraced within both classes mentioned fall within the jurisdiction of this
Commission, the distinction between them is recognized and will be applied.
Nothing herein contained will be taken as affecting the right of the United
States to recover on behalf of its nationals for the loss of the use or enjoyment
of property seized and held or used by Germany in German territory.
The claimant's ship was injured by contact with a German mine off a
French port. The claimant has been fully reimbursed through insurance for
the cost of repairing the material injury wrought. The Umpire holds that
under the Treaty of Berlin Germany is not obligated to make compensation for
claimant's loss of the use of its vessel pending repair. This item of the claim is
rejected. Germany is, however, obligated to pay the net loss sustained by the
claimant resulting from the destruction of the Kansan by a German submarine
on July 10, 1917.
Applying the rule herein announced and others established by the decisions
of this Commission to the facts as disclosed by the record herein, the Commis-
sion decrees that under the Treaty of Berlin of August 25, 1921, and in accord-
b Note by the Secretariat, Vol. VII, p. 251.
6 Se e letter which th Reparatio n Commissio addressed to President of
Franco-German Mixed Arbitral Tribunal September 15, 1922.
30 UNITED STATES/GERMANY
ance with its terms the Government of Germany is obligated to pay to the
Government of the United States on behalf of American-Hawaiian Steamship
Company the sum of nine hundred fifty thousand dollars (1950,000.00) with
interest thereon at the rate of five per cent per annum from November 11, 1918.
Done at Washington September 30, 1926.
Edwin B.
PARKER
Umpire
TIMANDRA SHIPPING COMPANY
(UNITED STATES) v. GERMANY
(January 5, 1927, pp. 859-860.)
EVIDENCE: CIRCUMSTANTIAL EVIDENCE, REBUTTAL THROUGH DIARY OF
GERMAN RAIDER, TESTIMONY.
WAR: " SINKING WITHOUT TRACE ". Loss
of American vessel after departure on March 6, 1917, from Norfolk (Virginia)
to Campana, Argentina. Alleged " sinking without trace " by German
raider. Held that there is no evidence thai, vessel was destroyed through
act of war. Evidence: see supra.
PARKER, Umpire, rendered the decision of the Commission.
This case is before the Umpire for decision on a certificate of disagreement
of the National Commissioners. It is put forward on behalf of the Timandra
Shipping Company, which was on all material dates an American corporation.
The claim is impressed with American nationality. A recovery is sought
against Germany for the value of the American Ship Timandra, an iron sailing
vessel, without auxiliary power, constructed at Glasgow in 1885, which on
March 6, 1917, cleared from the port of Norfolk, Virginia, for the port of
Campana (Buenos Aires), Argentine Republic, with a cargo of coal and so
far as appears from this record has never since been heard from.
The claimant has sought to prove that the loss of the Timandra with all
hands on board did not result from ordinary marine perils. To that end
evidence has been offered tending to prove, and the Umpire finds, that the
Timandra was staunch, well-found, and seaworthy, navigated by a competent
and experienced master, and manned by a capable and adequate crew. Evi-
dence in the form of weather reports tends to indicate that the Timandra on
this particular voyage, had she pursued the usual route to her destination,
would have encountered no unusual storms. The claimant contends that the
Timandra was due to reach the equator about April 1 and that the strong
probabilities are that about that time and place she encountered the German
raider Seeadler and was sunk by the latter with all hands without trace.
In response to the highly speculative evidence offered in support of this
contention the German Agent has pointed out that a state of war between the
United States and Germany was not declared to exist until April 6, 1917, and
that the Timandra, being neutral, would not have been molested had the
Seeadler actually encountered her on or about April 1 ; that the German orders
for prosecuting an unrestricted submarine warfare had no application to
German cruisers operating outside of the " prohibited zones "; and that the
record of the Seeadler affirmatively establishes the fact that she scrupulously
observed the prize ordinances and never destroyed a ship and her crew without
a trace.
DECISIONS 31
But. quite independent of these contentions, the German Agent has produced
a translation of the war diary of the Seeadler covering a period from March 6 to
April 26, 1917, and has accounted for her position, movements, and activities
during that entire period. From this it appears that from March 6 to 10, 1917,
inclusive, the Seeadler was operating in the vicinity of the equator between a
longitude of 25° 14' and 28° 2' \V.; that on and after March 10 the Seeadler took
a generally southerly and southwesterly course and rounded Cape Horn on
April 18; that on the morning of April 1 the Seeadler was in the vicinity of
latitude 39° 58' S. and longitude 36° 35' W., and that at no time after leaving
the equator on March 10 did she return thereto but held to a general southerly
and southwesterly course.
Her commander, Count von Luckner, testifies unequivocally that the
Seeadler did not encounter and did not sink the Timandra, and his testimony is
unequivocally corroborated by that of a wireless apprentice on the Seeadler.
By these full disclosures the circumstantial evidence relied upon by the claimant
to establish the destruction of the Timandra by the Seeadler has been fully met
and rebutted. Weighing the evidence as a whole, the Umpire finds that the
claimant has failed to discharge the burden resting upon it to prove that the
Timandra was destroyed by Germany's act or was lost through an act of war.
Wherefore the Commission decrees that under the Treaty of Berlin of
August 25, 1921, and in accordance with its terms the Government of Germany
is not obligated to pay to the Government of the United States any amount on
behalf of the Timandra Shipping Company, claimant herein.
Done at Washington January 5, 1927.
Edwin B.
PARKER
Umpire
SAMUEL ROSENFIELD AND BERTHA ROSENFIELD
(UNITED STATES) v. GERMANY
(January 5, 1927, pp. 861-862.)
WAR: CIVILIANS AND CIVILIAN POPULATION AS DISTINCT FROM PERSONS WITH
MILITARY STATUS.
Held that applicant for enlistment in U.S. Marine Corps
who, on May 1. 1918, after preliminary examination, went down with
American vessel, still was " civilian " within meaning of Treaty of Berlin.
Bibliography : Kiesselbach, Problème, p. 140.
PARKER, Umpire, on a certificate of disagreement of the National Commis-
sioners rendered the decision of the Commission.
This claim is put forward on behalf of the parents of Harry Rosenfield, who.
according to the agreed statement of the American and German Agents filed
herein, went down and was lost with the American Steamship City of Athens.
which was sunk on May 1, 1918. The sole question presented by the agreed
statement of the Agents is. At the time of his death was the deceased a " civi-
lian " within the meaning of that term as found in the applicable provisions
of the Treaty of Berlin?
The German Agent contends that this inquiry must be answered in the
negative, from which it would follow that under that Treaty Germany is not
financially obligated to compensate the claimants for the pecuniary damages,
if any, which they sustained as a result of their son's death. He invokes the
32 UNITED STATES/GERMANY
principles announced by this Commission in the Hungerford case, Docket
No. 5950, and in the Damson case, Docket No. 4259.! But the application of
these principles to the facts in the case presented by this record does not pro-
duce the result contended for by the German Agent.
The deceased had applied at New York on April 30, 1918, for enlistment in
the United States Marine Corps and had passed a preliminary examination.
He was on the City of Athens en route from New York to the marine barracks at
Parris Island, South Carolina, for further examination, after which if accepted
he might have completed his enlistment by taking the prescribed oath. But
he was subject to rejection by the military authorities and he remained free
to enlist or not at his election. He was not engaged in the direct furtherance
of the military effort against Germany but continued to belong to the civilian
population of the United States.
Wherefore the Commission holds that at the time he came to his death
Harry Rosenfield was a " civilian " as that term is used in Article 232 and in
paragraph (1) of Annex I to Section I of Part VIII of the Treaty of Versailles,
carried into the Treaty of Berlin.
Done at Washington January 5. 1927.
Edwin B.
PARKER
Umpire
LESLIE H. CRABTREE
(UNITED STATES) v. GERMANY
(January 14, 1927, pp. 863-866.)
DAMAGES: PERSONAL INJURIES, PERSONAL PROPERTY TAKEN AND NOT RETUR-
NED.— WAR: TREATMENT OF PRISONERS OF WAR, RESPONSIBILITY UNDER
LAW OF WAR, TREATY OF BERLIN; MEANING OF "MALTREATMENT":
CIRCUMSTANCES, CONDITIONS, SITUATION. — DAMAGE: RULE OF PROXIMATE
CAUSE, REASONABLY FORESEEABLE RESULT.
Claim for personal injuries
(permanent partial disability) suffered by American private from July 15,
1918, when taken prisoner, until December 7, 1918, when repatriated, and
for loss of personal property. Held that under Treaty of Berlin (Part VIII,
Section I, Annex I, para. 4, Treaty of Versailles, as carried into Treaty of
Berlin) " maltreatment " dependent on circumstances, conditions, situation
of parties: (1) privations resulting from exhaustion of warfare and borne
alike by captured and captors do not constitute maltreatment; (2) neither do
hardships of war on battlefield; (3) but heavy manual labour under working
command fell short of treatment to which claimant, weakened by gas absorp-
tion in combat, was entitled by law of war even under prevailing conditions:
permanent impairment of health reasonably foreseeable. Damages allowed
for personal injuries, personal property.
PARKER, Umpire, rendered the decision of the Commission.
This case is before the Umpire for decision on a certificate of disagreement
of the National Commissioners.
Leslie H. Crabtree, an American national, was inducted into the military
service of the United States on April 2, 1918, and on May 3, 1918, as a private
1 Decisions and Opinions, pages 766 and 258 respectively. (Note by the Secretariat,
Vol. VII, pp. 368 and 184.)
DECISIONS 33
in Company M, 109th Infantry, sailed for service with the American Expedi-
tionary Force in France. In action at Doromore in the Marne sector on
July 15, 1918, he and several other members of his company were taken priso-
ners by the German forces, and he was held a prisoner of war until December 7.
1918, when he was repatriated. At the time of his induction into the United
States military service he was almost 22 years of age, unmarried, physically
sound, but slight of stature, weighing only 130 pounds. He was been engaged
in the mica-manufacturing business in Philadelphia and not accustomed to
heavy or continuous physical labor. He alleges that while held by Germany
as a prisoner of war he was subjected to maltreatment resulting in pecuniary
damage to him.
The claim is based on that provision of the Treaty of Berlin which obligates
Germany to make compensation for " Damage caused by any kind of maltreat-
ment of prisoners of war." ' In order to bring this claim within that provision
of the Treaty the burden is upon the claimant to prove (a) that while held as a
prisoner of war he suffered maltreatment for which Germany was responsible;
(b) that as a result of such maltreatment he sustained pecuniary damage; and
(c) the extent of such damage measured by pecuniary standards.
The circumstances and conditions existing at the time and place and the
situation of the parties concerned must be taken into account in determining
the quality of the acts or omissions alleged to constitute maltreatment. The
supplies and accommodations available to the captor nation must be considered
in determining whether or not it has discharged its duty in caring for a prisoner
of war. While the standard for the measurement of that duty does not vary,
the application of that standard to varying circumstances and conditions
necessarily produces varying results. Acts or omissions which would
clearly constitute maltreatment in normal times, with foodstuffs relatively
plentiful and housing accommodations relatively accessible, would take on an
entirely different color in a country impoverished through the exhaustion of
long-continued military and economic warfare. At the time claimant was held
a prisoner of war both the civilian population and the military forces of Ger-
many were compelled to endure great hardships and suffering due to the
inability of Germany to procure nutritious foodstuffs and other necessaries of
life. Privations resulting from conditions existing in Germany at that time,
which were borne alike by the captured and the captors, do not constitute
" maltreatment " as that term is used in the Treaty.
The claimant complains of maltreatment on the battlefield at the time of
his capture. After carefully weighing the evidence on this issue the Umpire
finds that this treatment and the great hardships to which the claimant was
then subjected were hardships of the war in which the claimant was engaged
as a combatant and for which Germany cannot be held liable under the Treaty.
The claimant also contends that he was subjected to maltreatment while a
prisoner in the citadel of Laon, immediately back of the actual firing front,
then temporarily used for the concentration of both troops and prisoners ; that
he was also subjected to maltreatment in the prison camps of Langensalza and
Rastatt, and also while under working commands at Waghaeusel near Karls-
ruhe, Baden, where for a considerable period he was required to perform
heavy manual labor in a sugar mill.
The evidence on these issues is voluminous and in hopeless conflict. It will
not here be profitable to analyze it in detail or to state the respective conten-
tions put forward by the claimant and by Germany. Suffice it to say that the
1 Paragraph 4 of Annex I to Section Part VIII the Treaty Versailles,
carried by reference into the Treaty of Berlin.
34 UNITED STATES/GERMANY
general and sweeping charges of maltreatment of the claimant at Laon, Langen-
salza, and Rastatt are not sustained by the preponderance of the evidence in
this case.
But the Umpire finds that the treatment for which Germany was responsible
accorded claimant while under working commands at Waghaeusel fell short
of that to which he was entitled by the law of war even under the conditions
existing at that time and place.
It appears from the record that prior to and at the time of his capture the
claimant inhaled and absorbed phosgene gas resulting in at least temporary
partial disability. The German Agent earnestly contends that claimant's
tubercular condition and diseased heart, resulting in a present rating by the
United States Veterans Bureau for compensation purposes as permanent par-
tial disability of 63 per cent, is attributable to his inhalation and absorption of
gas in combat, for which Germany is not liable. There is evidence in the
record supporting this contention. But there is also evidence supporting the
view that the treatment accorded claimant while under working commands at
the sugar mill at Waghaeusel aggravated the effects of gas absorption and
resulted, to some extent at least, in the further impairment of his health.
Notwithstanding claimant's weakened condition he was required to perform
heavy manual labor for 12 out of 24 hours in unloading sugar beets from railroad
cars and work of a similar character. On Sunday, October 27, 1918, the clai-
mant and a number of his fellow prisoners, after working 12 hours per day for
six days, were called upon to continue shoveling sugar beets over the high sides
of captured Russian freight cars for a further period of 24 hours with an inter-
mission of four hours, the alleged reason for this unusual demand being that
the beets would spoil if not promptly handled. The claimant, who because of
his ability to speak German acted as interpreter for the American and English
prisoners, protested that they were not physically able to go on with the work,
whereupon the German sergeant-major in charge of the guards struck claimant
with his sword and required him and his fellow prisoners to comply with the
demand of the sugar-mill authorities to proceed with the work. The happen-
ing of this incident as here recited is established by the record, although the
testimony is conflicting with respect to the force of the blow, its effect upon the
claimant, and the alleged necessity for the use of force to suppress threatened
mutiny.
The housing accommodations at this sugar factory available to claimant
and his fellow prisoners were crude and the food with respect both to quantity
and quality afforded little nourishment. In these circumstances claimant was
compelled, under protest, to perform heavy manual labor while in a weakened
condition as a result of gas absorption, and it is fairly inferable from the record
tha
f it could reasonably have been foreseen that this treatment would result,
and that it did in fact result, in reducing his already impaired vitality and
contributed to the permanent impairment of his health. To the extent that
this improper treatment resulted in pecuniary damage to claimant Germany,
under the Treaty, is obligated to make compensation.
From the testimony submitted it appears that personal property belonging
to the claimant of the value of $323.00 was taken from and not returned to
him by the German authorities.
Applying the rules and principles heretofore announced in the decisions of
this Commission to the facts as disclosed by the record herein, the Commission
decrees that under the Treaty of Berlin of August 25, 1921, and in accordance
with its terms the Government of Germany is obligated to pay to the Govern-
ment of the United States on behalf of Leslie H. Crabtree the sum of five thous-
and dollars ($5.000.000) with interest thereon from November 1, 1923, and
DECISIONS 35
three hundred twenty-three dollars ($323.00) with interest thereon from
November 11. 1918, both at the rate of five per cent per annum.
Done at Washington January 14, 1927.
Edwin B.
PARKER
Umpire
F. E. ATTEAUX & CO., INC.
(UNITED STATES) v. GERMANY
(February 2, 1927, pp. 866-869.)
INTERPRETATION OF CONTRACTS: PRICE OWING WHEN SALES CONTRACT
SILENT, MARKET-VALUE. —JURISDICTION: DEBT. — INTEREST. — EVI-
DENCE: AFFIDAVIT, CORRESPONDENCE BETWEEN PARTIES. Purchase by
claimant from German firm, before United States' entry into war, of prepaid
dyestuffs, not delivered. Delivery at various times from April 19 to August
12, 1921, on basis of new agreement. Held that price not agreed upon
between parties and that seller, therefore, entitled to market-value at time
and place of deliveries. Held also that any remainder of prepaid moneys
constitutes " debt " of German firm to claimant as term is used in Treaty
of Berlin, and shall bear 5 per cent interest per annum from date of last
delivery. Evidence : see supra.
PARKER, Umpire, rendered the decision of the Commission.
This case is before the Umpire for decision on a certificate of disagreement
of the National Commissioners.
It is put forward on behalf of F. E. Atteaux & Co., Inc., an American
corporation, to recover a pre-war indebtedness, less certain credits hereinafter
referred to, owing to the claimant by a German debtor.
From the record it appears that toward the end of 1915 and in the early part
of 1916 claimant contracted to purchase from the Chemikalienwerk Griesheim
G.m.b.H., of Frankfurt, Germany, hereinafter referred to as German debtor,
certain specified dyestuffs for which claimant paid to the German debtor in
Germany as follows:
September 10, 1915, M. 126,300.
November 12, 1915, M. 107,550.
April 4, 1916, $141,394.85.
June 15. 1916, 17,671.52.
The dyestuffs so purchased were invoiced to the claimant in the currency in
which these remittances were made, the invoices reciting " We keep at your
disposal and shall ship according to your instructions — as soon as the embargo
is lifted ". No shipments were made when, in August, 1919, the claimant
cabled to the German debtor inquiring whether or not the dyestuffs purchased
were then available for shipment, and on August 15 received a reply reading:
" Your colors are not ready for shipment as they had to be used up but we
will replace same soonest possible unless you prefer to have money refunded".
In the affidavit of Hermann C. A. Seebohm. director of the German debtor,
dated May 8, 1923, it is stated that " In April 1921 we accordingly made
arrangements with F. E. Atteaux & Co., Inc., to apply the money which they
had already paid us toward the purchase of such colours as they might then
designate."
36 UNITED STATES/GERMANY
From the record it appears, and the Umpire finds, that prior to and on the
date of the declaration by the United States of the existence of a state of war
with Germany there was owing to the claimant by the German debtor a dollar
debt in the amount of $149,066.37 and a mark debt in the sum of Marks 233.850
and that after the cessation of hostilities between the United States and Ger-
many the claimant and the German debtor agreed that this indebtedness
without interest should be credited with the value of such dyestuffs as might
be purchased by the claimant from the German debtor. Thereafter the Ger-
man debtor delivered to the claimant several parcels of dyestuffs at various
times beginning with April 19, 1921. Under the certificate the Umpire must
determine the basis for accounting by the claimant for the dyestuffs so delivered
to it.
The German debtor contends that it agreed to ship to the claimant certain
products described and listed with respect to quantity and quality in a schedule
sent to claimant on July 27, 1920, which the claimant agreed to accept in full
satisfaction of the debt owing to it. The claimant on the other hand contends
that the schedule in question was simply submitted for it to select from, with
the understanding that it should give the German debtor credit for the dye-
stuffs selected and received by it at the mark prices named in the schedule, but
that there was no agreement with respect to the rate of exchange which should
obtain in liquidating the dollar debt. The German debtor insists that these
mark prices were specified solely as a basis for the assessment of duties on
imports into the United States and did not affect the agreement under which,
according to the German debtor's contention, the claimant was to receive
particular dyestuffs or their equivalent in dyestuffs in full satisfaction of the debt.
It will serve no useful purpose to detail the voluminous correspondence
between the parties. From its careful analysis the Umpire concludes that the
parties failed to reach an agreement with respect to the basis on which the
claimant should account for the dyestuffs shipped to it by the German debtor
from time to time for a period of several months beginning with April 19, 1921.
Therefore the debtor is entitled to credits for the goods which were delivered
by it in Germany for export to the United States on the basis of their market
value at the time and place of such delivery.
After the schedule of July 27, 1920, hereinbefore mentioned, was submitted,
and before the first shipment of April 19, 1921, was made, there was a great
decline in the exchange value of the German mark. It appears from the record
that, because of the instability of the mark and its constant decline in exchange
value, sales of dyestuffs made in the German market for export to America
after the resumption of trade relations between Germany and the United States
were made on the basis and in terms of American currency. While the German
debtor invoiced the shipments which it made to the claimant in terms of
German paper marks, it contended prior to such shipments, has ever since
contended, and now contends that " these invoices are only for customs pur-
poses". The United States customs authorities adopted this view and declined
to accept the invoice paper-mark values as the basis for the collection of import
customs duties, but after extended hearings undertook to assess the shipments
on the basis of the dollar export value of the dyestuffs in Germany at the time
the shipments were made.
The Umpire holds that prior to the delivery of the dyestuffs in question by
the German debtor it was indebted to the claimant in the sum of $149,066.37
and in the further sum of Marks 233,850 and that this has been satisfied to the
extent of the value of the dyestuffs so delivered, using as a basis the market
value obtaining in Germany at the time of delivery for dyestuffs intended for
export to the United States. The facts should be further developed with a
DECISIONS 3 7
view to determining what, if anything, is still due claimant after crediting the
German debtor with the value of the dyestuffs delivered by it computed on this
basis. As the German debtor contends that its debt has been liquidated and
declines to make further payment through the delivery of additional dyestuffs
or otherwise, the Umpire holds that the amount, if any, still owing by it is a
" debt " owing to the claimant as that term is used in the Treaty of Berlin
which debt, if any, so ascertained, shall bear interest at the rate of five per
cent per annum from August 12, 1921, the date of the last delivery made by
the debtor to the claimant.
Done at Washington February 2, 1927.
Edwin B.
PARKER
Umpire
UNIVERSAL STEAMSHIP COMPANY
(UNITED STATES) v. GERMANY
(February 2, 1927. pp. 871-877.)
EVIDENCE: INSURANCE ADJUSTER'S REPORT; CIRCUMSTANTIAL EVIDENCE, EX
PARTE AFFIDAVITS OF MEMBERS OF CREW OF CAPTURED AND SUNK BRITISH
VESSEL: REBUTTAL THROUGH DIARIES OF GERMAN RAIDERS, AFFIDAVIT OF
RAIDER'S COMMANDER, REPORTS U.S. NAVY DEPARTMENT, AFFIDAVITS OF
MEMBERS OF CREW OF CAPTURED AMERICAN VESSEL. LOSS of American
vessel which left Brunswick, Georgia, on October 25, 1916, and was last
seen on December 16, 1916. Held that there is no evidence that vessel was
destroyed through act of war. Evidence : see supra.
PARKER, Umpire, rendered the decision of the Commission.
This case is before the Umpire for decision on a certificate of disagreement
of the National Commissioners. It is put forward on behalf of the Universal
Steamship Company, an American corporation, and is impressed with Ameri-
can nationality. A recovery is sought against Germany for the value, less
insurance collected, of the wooden sailing bark Brown Brothers, which cleared
from the port of Brunswick, Georgia, on October 25, 1916, bound for Troon,
Scotland, laden with a cargo of sawn pine sleepers. She had a deadweight
carrying capacity of 1,450 tons, was constructed in 1875 but completely over-
hauled in 1916. On December 16, 1916, in latitude 41° 13' N., longitude
43° 11 ' W. she was spoken by the westbound steamship Thorvald Halvorsen, the
master of which, testifying from her log, states in substance that at the request
of the master of the Brown Brothers he prepared to take on board from the
Brown Brothers a shipwrecked crew which, however, declined to be transferred.
Whereupon the Thorvald Halvorsen proceeded to New York, arriving there on
December 24. At that time the Brown Brothers appeared " in good shape and
reported all well". Neither the bark, any member of her crew, nor any member
of the shipwrecked crew which she carried has since been heard from.
The bark carried with British insurers both war-risk and marine insurance.
The loss appears to have been promptly and thoroughly investigated by an
impartial adjuster whose report, dated July 16, 1917, is in the record. It
recites his authority to compromise the claim " by directing that both sets of
38 UNITED STATES/GERMANY
Underwriters shall contribute to the loss " notwithstanding which he finds
that " the probability of this vessel being lost by a War Risk is not sufficiently
great to justify me in saying that I cannot come to a conclusion as to how she
was lost". After reviewing the evidence submitted this adjuster concludes that
the bark " succumbed to the bad weather " and decides " that the claim must
be borne wholly by the Underwriters on the Marine Risk Policy".
This finding of the insurance adjuster is not binding on anyone save the
parties to the adjustment, but the evidence assembled and submitted following
the loss and at a time when the claimant was not asserting any demand against
Germany may be looked to in determining the cause of the loss. The claimant
points out that it was not interested in which group of insurers paid the loss and
contends that the adjuster failed to take cognizance of the activities of the
German raiders which might have encountered and destroyed the vessel.
It is sought by circumstantial evidence to prove that the German raider
Seeadler could and probably did encounter and destroy the missing vessel.
Starting with the known location of the Brown Brothers, when she was last spoken
by the Thorvald Halvorsen on December 16, which was 1.985 miles from Bruns-
wick, Georgia, from whence she sailed, and 2,080 miles from the Troon head-
land, her destination, claimant has caused an experienced master-mariner and
marine surveyor to plot the probable course the vessel would have taken had
she completed her voyage. This witness testifies that had her progress not
been interrupted she would probably have reached her destination on January
8 or 9, 1917. It is clearly established that the Seeadler passed the Shetland
Islands southbound on December 25, 1916, and that on January 9, 1917, she
captured and sank by bombs the British coal steamer Gladys Royle at latitude
35° N. longitude 25° W. It is argued that between December 25 and January 9
" the course of these two vessels could have converged " and the Brown Brothers
have been destroyed by the Seeadler.
The German Agent has produced the war diary of the cruise of the Seeadler
covering the period from December 16, 1916, to January 9, 1917, inclusive,
purporting to give a complete and detailed account of her activities during
that period. The accuracy and completeness of this diary is vouched for by
the German Admiralty and Count Felix Luckner, commander of the Seeadler,
and no mention is made in it of sighting the Brown Brothers or any bark answer-
ing her description. On the contrary, it affirmatively appears that the Seeadler
did not engage any vessel prior to January 9, 1917, when she sank the Gladys
Royle. This testimony is supplemented by the affidavit of Count Luckner, who
states unequivocally that the Seeadler did not sink the Brown Brothers and he
knows nothing of the latter's fate. The reports assembled from all available
sources and on file in the Historical Section of the United States Navy Depart-
ment corroborate this testimony. On this record the Umpire finds that the
Brown Brothers was not destroyed by the German cruiser Seeadler.
But the claimant contends that if the missing vessel was not destroyed by the
Seeadler then she was destroyed by the German raider Moewe, which was opera-
ting in waters contiguous to those in which the Brown Brothers was last spoken.
In support of this contention there are offered the ex parte affidavits of four
members of the crew of the armed English merchant ship Géorgie, captured and
sunk by the Moewe on December 10, 1916. The principal cargo of the Géorgie
was 1,200 horses destined to France in charge of a number of attendants.
The crew and all of these attendants were transferred to the Moewe. On
December 13 they, with other prisoners, 469 in all, were transferred to the
Yarrowdale, which latter vessel with her valuable cargo of munitions, including
machine guns, automobiles, and the like, was captured by the Moewe on
December 11 and with all of the Moewe's prisoners started for Germany on.
DECISIONS 39
December 14.' One of the four affiants mentioned, passing under an assumed
name, states that he was then serving as a " seaman ". His own mother writes
disparagingly of him. Another of these affiants states that he was serving " in
the capacity of horseman ". Elsewhere he is decribed as a " cook ". Neither
the vocation nor anything concerning the other two is disclosed. The meager
statements signed by the three last mentioned, evidently emanating from the
same source with essentially the same phraseology although purporting to have
been taken separately, are not convincing.
They recite in effect that while confined as prisoners on the Tarrowdale they
saw a bark with the words " Brown Brothers " and with the American flag and
U.S.A. painted on her side in the course of the Moewe and one of them recites
that " from an open port while imprisoned on board the S/S ' Yarrowdale ' "
he saw " the mast of the ' Brown Brothers ' after she had been torpedoed ".
The ex parte affidavit of the " seaman " is quite full. He states that " during
the period of six days subsequent to my transfer to the Yarrowdale, I recall
distinctly hearing cannon firing nearby on several occasions * * *. On
December 22nd from the fiddly I saw the Moewe cruising on the port side of
the Yarrowdale. I recall that on one of the occasions when the firing was
heard, namely, on December 23rd, the engines of the Yarrowdale had been
silenced and there was considerable commotion on deck ; * * * there was firing,
and two or three hours later I distinguished clearly from the steps of the fiddly the
wreckage of bark or barkentine rig, three masts being visible, the masts being
tilted at an angle of approximately 80 degrees, the hull of the vessel being sub-
merged." This man, had he been in a position of vantage on the steps of the
fiddly of the Yarrowdale, had a more expansive view and a better opportunity
to have witnessed a naval engagement, had there been one, than the others
through " an open port " of the Yarrowdale on which all four of them were held
prisoners. Yet this affiant who goes into considerable detail does not pretend
to have seen the name " Brown Brothers " and the American flag and U.S.A.
painted on the side of the bark, the hull of which he states was submerged.
He does, however, identify the date as December 23. He does state that on the
previous day he saw the Moewe cruising on the port side of the Yarrowdale.
He does state that six days subséquent to his transfer to the Yarrowdale he heard
cannon fire and thereafter witnessed the wreck described. Can these state-
ments be true?
A photostatic copy of the war diary of the Moewe, a contemporaneous record
of all of her activities, covering a period from December 10, 1916, the date
upon which the Géorgie was captured and destroyed, to January 10, 1917, one
day after the Brown Brothers should have reached her destination according to
the testimony of claimant's experts, has been produced by the German Agent.
It gives in detail an account of the Moewe's activities not only from day to day
but from hour to hour. It sets out in detail the capture of the Yarrowdale, the
discovery that she had a supply of coal for 30 days and carried a valuable cargo
resulting in a decision to transfer all of the Moewe's prisoners to her and send her
to Germany. It details the plan for carrying this decision into effect, the fact
that the heavy sea rendered it impossible to transfer the prisoners until the
morning of December 13, and that because the sea was then still heavy it
required about two hours to make the transfer of all of the Moewe's prisoners,
consisting of seven captains, 68 ship officers, and 104 members of neutral and
1 See 3rd volume of Diplomatic Correspondence between the United States and
Belligerent Governments Relating to Neutral Rights and Commerce (Special
Supplement to XI American Journal of International Law), pages 236 to 241
inclusive: also Fayle's " Seaborne Trade", Volume III, page 29.
40 UNITED STATES/GERMANY
290 of enemy crews, a total of 469. It details the complement of the German
prize crew put in charge of the Yarrowdale and lists the provisions for 21 days.
At 6.05 p.m. on December 13 the Yarrowdale was detached from the Moewe
and the latter never saw her again. On December 14 the Yarrowdale started for
Germany laying a course to the far north to elude British patrols, following a
route just south of Iceland and the territorial waters of Norway through Danish
and Swedish waters, and, favored by the long nights and stormy weather,
arrived at Swinemiinde, Germany, on December 31. This is confirmed in
every detail by information assembled by the Navy Department of the United
States from British and other sources. On February 5, 1917, two American
nationals, seamen on the Yarrowdale, appeared before the American Consul
General at London and made an affidavit of the capture and movements of the
Yarrowdale which confirms in every detail the records of the German Admiralty
submitted by the German Agent. A copy of this affidavit transmitted by the
American Consul General to the Secretary of State February 6, 1917, is found
in the 3rd volume of the diplomatic correspondence referred to above at
pages 240-241.
After dismissing the Yarrowdale on December 13 the Moewe next day laid a
course to the south. Her activities for the following month are well known to
the British Admiralty and to the United States Navy, whose records corroborate
her war diary produced by the German Agent. On December 18 the Moewe
sank the British Steamship Dramatist at approximately latitude 33° 2' N.
longitude 37° 29.2' W. On December 26 the Moewe sank the French Bark
Nantes in latitude 12° 37' longitude 34° 0' W.
When the Brown Brothers eastbound was last spoken (hour not given),
December 16, 1916, she was in latitude 41° 13' N. longitude 43° 11' W. At
midnight of December 15 - 16 the Moewe was in latitude 39° 27.3' N. longitude
39° 24' W. and at noon December 16 the Moewe's position was latitude 38°
42.8' N. longitude 39° 17.3' W. Presumably the Brown Brothers continued on
her eastern course, but, no matter what course she took, as it is known that the
Moewe continued on her southern course their paths could not have crossed.
The claimant's witness fixes the date of the alleged sinking of the Brown
Brothers by the Moewe " off the Azores " as December 23. At noon on Decem-
ber 23 the Moewe's position was latitude 14° 56.2' N. longitude 40° 1.8' W. or
approximately 1,380 miles south of her position at noon December 13, on which
latter date the Yarrowdale separated from her and next day began steaming
north with all possible speed by the route just south of the coast of Iceland. It is
estimated by the Historical Section of the United States Navy Department
that on December 23 the Moewe and the Yarrowdale were approximately
3,100 miles apart.
There were 465 other prisoners on the Yarrowdale ; seven of them were ship
captains and 68 other ship officers. A large percentage of the officers were
British. Eighty-seven of the prisoners were American citizens. Both Great
Britain and the United States have been diligent in assembling all procurable
information concerning the activities of the Moewe and the vessels destroyed
by her. Yet so far as disclosed by this record and the data assembled by the
Historical Section of the United States Navy Department none of the other
prisoners on the Yarrowdale, including the seven ship captains and the 68 ship
officers, has ever reported witnessing the naval engagement described in the
four affidavits offered by the claimant. No mention is made of it by the two
American seamen whose affidavits were taken before the American Consul
General at London on February, 5, 1917, although had they acquired know-
ledge while prisoners on the Yarrowdale of the destruction of an American
vessel, or any other vessel for that matter, by the Moewe or any other German
DECISIONS 41
raider, this fact would almost certainly have been developed by the American
Consul General. That the four affiants whose statements are offered by the
claimant were prisoners on the Yarrowdale there can be no doubt.
On the record presented it is equally clear, and the Umpire finds, than they
did not see the Moewe destroy the bark Brown Brothers on December 23 or on
any other day.
Applying the principles announced in Docket No. 6552. Waterman A. Taft
et al., claimants (Decisions and Opinions, pages 801-806).
a and other deci-
sions of this Commission, and weighing as a whole the record presented, the
Umpire finds that the claimant has failed to discharge the burden resting upon
it to prove that the Brown Brothers was lost through an act of war.
Wherefore the Commission decrees that under the Treaty of Berlin of
August 25, 1921, and in accordance with its terms the Government of Germany
is not obligated to pay to the Government of the United States any amount on
behalf of the Universal Steamship Company, claimant herein.
Done at Washington February 2, 1927.
Edwin B.
PARKER
Umpire
STANDARD OIL COMPANY (NEW JERSEY)
(UNITED STATES) v. GERMANY
(November 23, 1927, pp. 877-878.)
DAMAGE: INDIRECT (TO STOCKHOLDER), JURISDICTION. — WAR: PROPERTY
BEYOND LIMITS OF ENEMY TERRITORY.
Destruction in 1914 by Belgian
military authorities in Belgium of property of Dutch corporation in which
claimant was majority stockholder. Held that, thought claim within Com-
mission's jurisdiction, Germany not liable: destruction not Germany's act
under Treaty of Berlin.
BY THE COMMISSION: —
This claim is put forward on behalf of an American corporation to recover
damages sustained by it as a majority stockholder in a corporation organized
under the laws of the Kingdom of Holland growing out of the destruction in the
latter half of 1914 by the Belgian military forces of petroleum products and
installations belonging to the Dutch corporation and located in Belgian territory.
From the record it appears that the petroleum products and installations
were destroyed by the Belgian military forces to prevent their seizure and use
by the advancing German troops as military materials in furtherance of military
operations.
The destruction of the property operated indirectly upon, and resulted in
damage to, the claimant as a stockholder in the Dutch corporation. Therefore
the claim falls within the jurisdiction of this Commission (Decisions and
Opinions, page I2).
h
But inasmuch as the property was destroyed during the period of neutrality
of the United States the test of Germany's liability is: Was the property
destroyed by an act " committed by the German Government or by any German
authorities " or by an act " of the Imperial German Government, or its agents",
within the meaning of the Treaty of Berlin as interpreted by this Commission?
a Note by the Secretariat, this volume, p . 3
b Note by the Secretariat, Vol. VII, p. 29.
42 UNITED STATES/GERMANY
Applying this test the Commission holds that Germany is not obligated to
compensate the claimant for its interest in the property destroyed.
The act of the Belgian military authorities in destroying materials of neutral
ownership susceptible of use for military purposes, in order to prevent their
being used by Germany in military operations, was an act in the prosecution
of the war. But it was not Germany's act any more than any other act of
Germany's enemies in the prosecution of the war was, within the meaning of
the Treaty, the act of Germany. The Treaty clearly differentiates between
damage caused by acts of Germany or her agents during the period of neutrality
of the United States and damage in consequence of hostilities or of any operation
of war caused by the act of any belligerent after the United States entered the
war (Decisions and Opinions, pages 2, 3, 11, 66, 316, 324).
a
Wherefore the Commission decrees that under the Treaty of Berlin of
August 25, 1921, and in accordance with its terms the Government of Germany
is not obligated to pay the Government of the United States any amount on
behalf of the claimant in connection with the claim here put forward.
Done at Washington November 23, 1927.
Edwin B.
PARKER
Umpire
Chandler P. ANDERSON
American Commissioner
W. KlESSELBACH
German Commissioner
BANK OF NEW YORK AND TRUST COMPANY, ADMINISTRATOR
WITH WILL ANNEXED OF THE ESTATE OF FRITZ ACHELIS
(DECEASED) (UNITED STATES) v. GERMANY
(December 6, 1927, pp. 879-880.)
NATIONALITY OF CLAIMS: ASSIGNMENT OF CLAIM. —APPLICABLE LAW: MUNI-
CIPAL LAW. Assignment in May, 1919, by British subjects to their American
Unterbeteiligter of German national's indebtedness dating back to December
31, 1914. Held that, under applicable German law, original debt was not
owing to assignee at time of United States' entry into war and, consequently,
that claim was not impressed with American nationality continuously
during period of United States' belligerency.
BY THE COMMISSION : —
From the record it appears that in 1909 Konig Brothers of London, British
nationals, entered into a contract with one Heinrich Otto Traun, a German
national of Hamburg, by the terms of which Konig Brothers became a partner
en commandita in Traun's business located at Hamburg to the extent of
Marks 3,000,000. It was stipulated that the capital contributions made by
Konig Brothers should be repaid in installments. Under this contract, which
was twice amended, the entire amount invested by Konig Brothers was repaid
to them with the exception of Marks 359,666.75, for which amount with interest
claim is here made.
a Note by the Secretarial, Vol. VII, pp. 22, 28, 68, 232 and 238.
DECISIONS 43
The basis of this claim is that Fritz Achelis, an American national, contributed
the amount here claimed and more to Konig Brothers to be invested by them
under their contract with Traun and that it was so invested with Traun's
knowledge.
The Commission finds that there was no privity of contract between Traun
and Achelis. But as against Konig Brothers Achelis had a " subparticipation "
interest in Konig Brothers' investment with Traun. This interest was an
" Unterbeteiligung " (" under-participation "), a term familiar to German
jurisprudence connoting that behind a party to a contract are others who are
not parties but who have a financial interest in the transaction as against such
contracting party only but not as against the other contracting party.
The Commission further finds that the amount here claimed became payable
by Traun as of December 31, 1914. At that time Great Britain and Germany
were at war, and notwithstanding Traun's willingness so to do he was unable
to make payment to Konig Brothers.
Thereafter in May, 1919, Konig Brothers executed and delivered a formal
assignment to Achelis of Traun's indebtedness, which indebtedness is the basis
of this claim.
The contract of partnership between Traun and Konig Brothers had its
situs in Germany and its interpretation, and all rights and liabilities based upon
it, are controlled by German law. Applying that law as developed in this case
to the facts as disclosed by this record, the Commission holds that the debt
owing by Traun, a German national, was not a debt owing to an American
creditor at the time of America's entering the war on April 6, 1917.
It may be that there exists in the Estate of Achelis rights arising under
German law which may be asserted and enforced against Traun before German
courts, and that under the assignment to Achelis of May, 1919, his estate will,
under the German revaluation law, be entitled to recover a substantial amount
from Traun. Be this as it may, the Commission holds that on the facts submitted
this claim was not impressed with American nationality continuously during
the period of America's belligerency and that under the Treaty of Berlin of
August 25, 1921, and under the rules and principles heretofore laid down by
this Commission Germany is not obligated to pay to the Government of the
United States any amount on behalf olthe claimant herein.
Done at Washington December C, 1927.
Edwin B.
PARKER
Umpire
Chandler P. ANDERSON
American Commissioner
W. KlESSELBACH
German Commissioner
UNITED STATES OF AMERICA ON ITS OWN BEHALF THROUGH
THE ALIEN PROPERTY CUSTODIAN v. GERMANY AND KALLE
& CO. AKTIENGESELLSCHAFT, IMPLEADED
(March 8, 1928, pp. 881-882.)
NATIONALITY OF CLAIMS: ASSIGNMENT TO ALIEN PROPERTY CUSTODIAN.—
DEBT. — INTERPRETATION OF TREATIES: LETTER, SPIRIT, MUNICIPAL LAW.
Assignment to Alien Property Custodian, prior to coming into force of
44 UNITED STATES/GERMANY
Treaty of Berlin, of German two-third interest in American corporation.
Held that claim against German corporation presented by Custodian was not
American on coming into force of Treaty of Berlin: " debts " under Treaty
and under Agreement of August 10, 1922, limited to those owing to American
nationals (letter, spirit of Treaty and Agreement, Settlement of War Claims
Act).
Crosi-refeience: A.J.I.L., Vol. 22 (1928), pp. 683-684.
BY THE COMMISSION : —
From the record in the above captioned case it appears that the Kalle Color
and Chemical Company, Inc., a New York corporation (hereinafter designated
New York corporation), during the period of American neutrality sold goods,
wares, and merchandise and made advances to Kalle & Co. Aktiengesellschaft
(hereinafter designated German corporation). It is alleged that as a result
of these transactions the German corporation was on September 29, 1917,
indebted to the New York corporation in the sum of S182,881.63.
The Government of the United States, through its Alien Property Custodian,
during the period of American belligerency lawfully seized as German-owned
1,000 shares (being two-thirds) of the capital stock of the New York corporation,
and through voting these shares elected a board of directors of its selection.
This board caused the New York corporation to be dissolved and liquidated in
pursuance of the laws of the State of New York. In the course of such liquida-
tion the alleged claim of indebtedness of the New York corporation against
the German corporation was on February 15, 1921, proportionately assigned
by the liquidating trustees to the stockholders of record of the New York
corporation as their respective interests then appeared, one-third of such claim
being assigned to stockholders of American nationality and the remaining
two-thirds to the Alien Property Custodian as such. It is for this two-thirds —
amounting to $121,921.08 — that an award is here sought against Germany.
It will be noted that the New York corporation, vvhich possessed American
nationality, had been dissolved and liquidated prior to the coming into force
of the Treaty of Berlin on November 11, 1921. In the course of such liquidation
the Alien Property Custodian, through the board of directors designated by
him, caused the German interest to be carved out of the claim of the New York
corporation against the German corporation and, because it was German-
owned, assigned to the Custodian in his official capacity.
It is apparent therefore that on the coming into force of the Treaty of Berlin
no American national had any interest in the claim here asserted.
Under the Treaty of Berlin and the Agreement between the United States
and Germany in pursuance of which this Commission was constituted, " debts "
for the payment of which Germany is obligated are limited to those owing
by the German Government or by German nationals to American nationals.
The Commission holds that the debt here asserted by the United States
through its Alien Property Custodian as an obligation of Germany is not
embraced within either the letter or the spirit of the Treaty and of the Agreement
mentioned.
This view is strengthened by the Act of the Congress of the United States
designated " Settlement of War Claims Act of 1928 ", providing among other
things for the ultimate return of all property of German nationals held by the
Alien Property Custodian. Considering the claim here asserted in the light
of the provisions of that Act, the United States through its Alien Property
Custodian is, in the last analysis, seeking an award against Germany on behalf
not of American nationals but of German nationals.
DECISIONS 45
Wherefore the Commission decrees that under the Treaty of Berlin of AugusL
25, 1921, and in accordance with its terms the Government of Germany is not
obligated to pay to the Government of the United States any amount on account
of the claim asserted herein.
Done at Washington March 8, 1928.
Edwin P.
PARKER
Umpire
Chandler P. ANDERSON
American Commissioner
W. KlESSELBACH
German Commissioner
ROSA VOLLWEILER (UNITED STATES) v. GERMANY
(Mauh 8, 1928, pp. 883-893.)
WAR: EXCEPTIONAL WAR MEASURES; PROPERTY, RIGHTS, INTERESTS IN
ENEMY COUNTRY. — DAMAGE: RULE OF PROXIMATE CAUSE, DEPRECIATION
OF MARKET-VALUE OF BONDS, ACTUAL AND POTENTIAL LOSS. — EVIDENCE:
BURDEN OF PROOF, PRESUMPTIONS, CLAIMANT'S UNSUPPORTED TESTIMONY.
Purchase by claimant from broker, on September 28, 1915, and February 7,
1916, of German war bonds, deposited with German bank. Claim for loss
through depreciation in market-value of bonds suffered during period from
November 10, 1917, when exceptional war measure prohibited their with-
drawal from Germany, to September 25, 1919, when bonds delivered to
broker. Held that period from November 10, 1917, to July 23, 1919, when
first unconditional instructions to deliver given, immaterial, and that no
evidence submitted that exceptional war measure was proximate cause of
(actual, not potential) loss through depreciation in market-value between
July 23, 1919, and September, 25 1919: claimant failed to prove that she
would have sold or exchanged bonds had she had possession of them during
this period (burden of proof on claimant, no presumption in favour of
intention to sell or exchange, claimant's unsupported testimony not suffi-
cient).
Cross-reference: A.J.I.L., Vol. 22 (1928), pp. 685-693.
Bibliography: Annual Digest, 1927-28, p. 276.
BY THE COMMISSION: —
From the record it appears that the claimant, Rosa Vollweiler, an American
national, purchased from Zimmermann & Forshay, bankers and brokers of
New York City, Imperial German Government bearer bonds of the face value
of M. 15,000, of which M. 10,000 were purchased September 28, 1915, and
M. 5,000 were purchased February 7, 1916. At the time of such purchases
Zimmermann & Forshay issued and delivered to the claimant so called " Inte-
rim Certificates " signed by them, the terms of which will be hereinafter
examined. The definitive bonds were not received by Zimmermann & Forshay
until September 25, 1919, and not delivered by them to the claimant until
December 11, 1919.
46 UNITED STATES/GERMANY
Claimant seeks compensation from Germany for damages alleged to have
been suffered by her resulting from the above-mentioned bonds having been
subjected by Germany to " exceptional war measures " which prevented
their withdrawal from Germany for the purpose of sale or exchange by claimant
prior to their depreciation in value.
This is one of a group of cases put forward on behalf of American nationals
who purchased from Zimmermann & Forshay during the period of American
neutrality German war bonds and received from Zimmermann & Forshay
" Interim Certificates " but did not receive the definitive bonds until after
September 25, 1919. In each case an award is sought against Germany under
that clause of the Treaty of Berlin which provides, in substance, that Germany
is obligated to compensate American nationals for " damage or injury inflicted
upon their property, rights or interests * * * in German territory as it
existed on August 1, 1914, by the application " of" exceptional war measures "
as that term is defined in the Treaty (Article 297 (e) and paragraph 3 of the
Annex to Section IV of Part X). As the facts in many of these cases are identical
so far as pertains to the purchase of these bonds by Zimmermann & Forshay
and their delivery to them, it will be useful concisely to state here these facts
as disclosed by the records in this group of cases.
From these records it appears that prior to the war and during the period
of American neutrality Zimmermann & Forshay specialized in German
securities and German exchange and during the period of American neutrality
cooperated with the German authorities and with German bankers in making
a market in the United States for German war bonds. The circular issued by
them advertising these bonds for sale recited that " This issue will be listed
on all the German Exchanges, and after the war at other European financial
centers, and the holders will be able to dispose of them at any time through
our House." Leopold Zimmermann, senior member of the firm, testifies
that " most every other German banker in the United States sold German
securities with the understanding that they were not to be delivered until after
the war was over ". Assuming the truth of this testimony it appears that the
general practice of the American purchasers of German war bonds was to
leave the definitive bonds in Germany — the principal market for German
bonds. Zimmermann & Forshay did not adopt this general practice but with
respect to the bonds which they purchased by and through the Deutsche Bank
they instructed that bank to " hold subject to our instructions, in a separate
portfolio, marked ' property of Zimmermann & Forshay, New York ' ".
This circular further recited that the bonds would be " delivered free of all
expense "; that they were offered " subject to change in price, owing to the
possibility of violent fluctuations in the rate of exchange "; that " These bonds
are exempt from all tax in Germany "; and that " Owing to the present lov\
rate of German Exchange, these bonds yield a very high interest return ".
This suggestion of the desirability of taking advantage of the German exchange
rate while it was still low, coupled with an extensive advertising campaign and
German propaganda frankly participated in by Zimmermann & Forshay,
enabled them to sell to " upwards of three thousand persons residing in the
United States " the " several million dollars worth " of German war bonds
which they had purchased in Germany (Leopold Zimmerman's affidavit,
February 24, 1926, Exhibit 9).
The circular further recited that " Delivery will be made upon receipt of
New York funds in the form of our own temporary receipt, exchangeable for
the definitive bonds upon their arrival from Europe." This " temporary
receipt " took the following form:
DECISIONS 47
" ZlMMERMANN & FoRSHAY
Members of the New York Stock Exchange
170 Broadway New York
No. Dated 19
THIS IS TO CERTIFY THAT
Mr
has paid S
Dollars
for
The aforesaid securities are to be delivered by us, at our office against return
of this Interim Certificate, upon arrival from Europe.
ZlMMERMANN & FoRSHAY."
Reading the circular of Zimmermann & Forshay offering these bonds for
sale in connection with the " Interim Certificate " issued by them, the Commis-
sion holds that they were obligated to use reasonable diligence to deliver the
definitive bonds to their customers in New York within a reasonable time, but
the time of delivery was uncertain and necessarily so on account of the uncer-
tainties of communication and transportation.
It is apparent from the record that Zimmermann & Forshay made purchases
from and had dealings with several German banking institutions, but we are
here concerned only with German war bonds purchased by them from or
through the Deutsche Bank of Berlin. These purchases were made from time
to time in large amounts. The bank charged Zimmermann & Forshay's
account with the price of the bonds subscribed and held the bonds for Zimmer-
mann & Forshay subject to their order. As the coupons matured they were
clipped and surrendered by the bank and the proceeds were credited by the
bank to the account of Zimmermann & Forshay, who, at least so far as the
Deutsche Bank was concerned, were the absolute owners of these bonds. The
customers of Zimmermann & Forshay were unknown to the bank and there
was no privity of contract between such customers and the bank.
It is contended on behalf of the claimants in this group of cases that as
claimants' agents Zimmermann & Forshay during 1915 and thereafter sought
to have the Deutsche Bank forward to them in New York the definitive bonds
which they had agreed to deliver to the claimants " upon arrival from Europe ".
so that delivery to claimants could be effected upon surrender of the interim
certificates. The bonds were not in fact delivered to Zimmermann & Forshay
until September 25. 1919.
The first question presented is. Were the bonds in question subjected to
exceptional war measures by Germany which prevented their delivery at an
earlier date?
The Commission answers this question in the affirmative, but holds that
such delay was limited to the time intervening between the date of the first
unconditional instructions by Zimmermann & Forshay to deliver, July 23,
1919, to the date delivery was actually effected in Holland, September 25, 1919.
It will serve no useful purpose to review the voluminous evidence from which
this conclusion is drawn. The Commission finds that in the latter part of
1915 and from time to time thereafter Zimmermann & Forshay did suggest
several plans having in view the forwarding of these bonds to them in New
48 UNITED STATES/GERMANY
York without risk to them and without cost to them for insurance exceeding
1
8
of 1 %. But the record is barren of evidence of any unconditional requests or
instructions given by Zimmermann & Forshay prior to July 23, 1919, to ship
these bonds to New York, and the record indicates that ihe plans for shipment
proposed by them prior to that date were not workable. There is much
evidence indicating not only that the officers of the Deutsche Bank but the
German Government authorities in both the United States and Berlin as well
were anxious to cooperate with Zimmermann & Forshay to have their bonds
delivered in America on terms acceptable to them. As pointed out by Zimmer-
mann & Forshay in their letter of November 15, 1916, to the Deutsche Bank,
the delivery at New York of the actual bonds was in the interest of Germany as
tending to stimulate further sales. But notwithstanding all this, the difficulties
of communication and transportation incident to the war were such as to
prevent the transmission of the bonds from Berlin to New York on terms
acceptable to Zimmermann & Forshay during some two years of American
neutrality when exceptional war measures taken by Germany did not apply
to or operate upon American-owned securities in a way to prevent their being
shipped out of Germany.
But there were many practical difficulties in the way of shipping bearer
bonds from Germany to the United States. That Zimmermann & Forshay
were keenly alive to these difficulties is evidenced by the interesting opinion of
Lord Sumner speaking for the Judicial Committee of the Pri\
ry Council in the
case of Steamship " Noordam " and Other Vessels.
1 It appears from this
opinion that Baltimore & Ohio Railroad Company stock certificates and
Japanese bonds owned by Zimmermann & Forshay were, by virtue of the
Reprisals Order in Council of March 11, 1915, seized by British authorities
while being transported on a neutral mail steamer from Holland to the United
States. The judgment of the Judicial Committee was delivered May 4, 1920,
after the Treaty of Versailles became effective, notwithstanding which the
Judicial Committee decreed that the order of the prize court releasing Zimmer-
mann & Forshay's securities should be vacated and an "order for their detention,
till it be otherwise ordered ", substituted. In construing and applying this
British order in council Lord Sumner held that it was " made for the purpose
of further restricting the commerce of Germany ", that its general object was
" to prevent commodities of any kind from reaching or leaving Germany ",
and that " in order to deter neutrals from assisting the enemy by engaging in
his commerce, the Order tells them that their goods, if of German origin, are
exposed to detention ".
These conditions and the resulting high cost of insurance — not exceptional
war measures taken by Germany — to some extent deterred American nationals
owning securities and other valuables in Germany from shipping them to the
United States during the period of American neutrality. But it is evident from
the records in numerous cases before this Commission that during that period
American-owned securities could have been shipped, and were in fact shipped,
from Germany to the United States if their owners were willing to pay the
cost and take the risk of such shipment. In fact it appears from the record
in one of these cases that Zimmermann & Forshay's Berlin representative on
December 3, 1915, gave instructions for the shipment from Germany of M.
100,000 4% German Government Loan via Amsterdam to Zimmermann &
Forshay at New York, the receipt of which shipment was acknowledged by
Zimmermann & Forshay by their letter of January 3, 1916 (Exhibit H-l,
Docket No. 6733, Abraham S. Rosenthal, claimant).
1 IX Lloyd's Reports of Prize Cases 232.
DECISIONS 49
The Commission finds that during the period of American neutrality it was
not an act of Germany but the unwillingness of Zimmermann & Forshay to
incur the expense or take the risk of shipment which prevented the delivery
of the bonds in question to them in New York.
After the United States entered the war the risk of transmission and the
cost of insurance increased. The record does not justify the conclusion that
Zimmermann & Forshay then sought to reverse the course they had long
adopted or that they would then have incurred the increased expense and
increased risk of shipping the bonds to New York had the bonds not been
subjected to the exceptional war measure of the decree of November 10, 1917.
issued by Germany.
When it was apparent that the United States would enter the war against
the Central Powers Zimmermann & Forshay's chief concern was for the
safety of their securities in German territory. Through their representative,
one Willy Cale, they were given the strongest assurances, not only from their
banking correspondents but also from the German Government authorities,
that their securities would not be confiscated or subject to governmental
sequestration. Leaving out of account instructions and requests made by
Zimmermann & Forshay direct by mail and wire which are in the record,
whatever action was taken by them in Berlin was taken for them by Willy
Cale, who represented them in Germany from October 1, 1915, throughout
the war, and he testifies (translation] :
" * * * j
never attempted to withdraw the bonds from their deposit at this
place [Berlin] and to transfer them to somewhere else. I had no reason whatsoever
to do so after the assurances given to me by the Deutsche Bank and in the light of
conferences which I had with Geh. Rat Schmiedicke of the Reichsbank Direktorium,
who is now deceased. From these conferences I gained the absolute certainty that
the securities of the firm of Zimmermann & Forshay, even in case of war with the
United States, would be absolutely safe at the Deutsche Bank and would remain
there untouched. I also remember that after these conferences I sent a cablegram to
Zimmermann & Forshay to the effect that they had no reason to be worried in the
least concerning the sequestration of their securities."
So far as disclosed by the record the first unconditional request made by
Zimmermann & Forshay to ship their bonds from Berlin to New York was
their cable to the Deutsche Bank of July 23, 1919, reading:
" Ship all our securities as soon as possible cable best insurance rate."
To this the Deutsche Bank replied by cable :
" Shipment securities and disposal old balance about four millions eight hundred
thirty-nine thousand marks impossible at present consequent peace conditions."
Here it is evident that the obstacles to making shipment which the Deutsche
Bank had in mind were provisions embodied in the Treaty of Versailles —
peace measures, not exceptional war measures. However, the Treaty of
Versailles which had been signed had not at that time come into effect and the
German exceptional war measures were still, nominally at least, in effect.
Following the receipt of this cable the senior member of the firm of Zimmermann
& Forshay went to Berlin and arranged for their bonds to be delivered to him
at Rotterdam September 25, 1919.
The Commission therefore finds that a German exceptional war measure
prevented the delivery of the bonds in question during the time intervening
between the first unqualified request for their delivery made on July 23, 1919,
and the date of their actual delivery, September 25, 1919.
50 UNITED STATES/GERMANY
The questions then arise: Did this delay result in pecuniary damage or
injury to the claimant? If so, how and to what extent?
The claim is predicated on the alleged depreciation in the market value
of the bonds during the period of delay. The Commission holds (Order of
May 7, 1925) that these bonds were subjected to an exceptional war measure
by Germany's issuance of the decree of November 10, 1917. But the burden
is upon the claimant to prove (1) that the alleged depreciation in market
value occurred and (2) that through such depreciation claimant suffered
damage proximately caused by the subjection of these bonds to this exceptional
war measure.
The record is barren of any testimony indicating that the bonds in question
depreciated in market value between July 23 and September 25, 1919. But
there is evidence before this Commission that during the month of July, 1919,
the average rate of exchange in Germany was 15.157 paper marks per dollar,
while in September, 1919, the average rate was 24.067 paper marks per dollar.
The Commission finds that the value of the mark declined during the two-
month period when the delivery of the bonds was prevented by German
exceptional war measure. The extent of the decline affects the amount of
the damage, if any, suffered by the claimant and need not be here decided,
because the claimant has failed to prove that through such depreciation she
suffered damage caused by the exceptional war measure to which her bonds
were subjected.
Ordinarily fluctuations in market value result in a potential but not an
actual profit or loss, as the case may be, to an owner of securities who volun-
tarily continues to hold them. Therefore in order to establish a claim against
Germany under the Treaty of Berlin the claimant must not only prove depre-
ciation in market value during the period her bonds were subjected to an
exceptional war measure but go further and prove that through sale or other-
wise she would have realized on her securities at a time and on conditions
which would have avoided the loss complained of had not she been prevented
from so doing by such war measure.
This Commission has held that if the reasonable inference to be drawn from
the evidence adduced in any particular case is that the claimant would have
withdrawn his bonds from Germany for the purpose of sale or exchange, and
was prevented from so doing by an exceptional war measure of Germany,
then the exceptional war measure will be regarded as the proximate cause of a
damage sustained by claimant to the extent of the depreciation in value between
the date such sale or exchange would have been made but for such war measure
and the date of the removal of this obstacle to making the sale (Order of
Commission entered May 7, 1925, particularly paragraphs 11 to 15. inclusive).
It is contended on behalf of the claimant herein that the Commission must
presume that the customers of Zimmermann & Forshay would have acted as
" a careful and prudent person would have acted " and that " they would have
sold or exchanged the bonds " had they been shipped out of Germany. If the
claimant had intended or desired to sell or exchange her bonds, that fact can
and should be established by competent evidence, direct or circumstantial, as
any other fact is established. Such competent evidence should be something
more than the mere testimony of claimant after the lapse of many years of an
intention to sell or exchange, unsupported by testimony of any act on claimant's
part toward carrying such intention into effect. Numerous records before
this Commission are replete with evidence demonstrating the unsoundness
of a rule that a presumption of fact will be indulged that a holder of securities
would have disposed of them by sale or exchange had he not been prevented
from so doing by a German exceptional war measure.
DECISIONS 5 ]
This particular case aptly illustrates the danger of indulging such a presump-
tion of fact. The claimant's testimony is in the record. It appears from it
that she first purchased war bonds from Zimmermann & Forshay on September
28, 1915. During the ensuing year Zimmermann testifies that his customers
were demanding the delivery of the definitive bonds which they had purchased
and he in turn was seeking to procure them for delivery. But there is not a
syllable in claimant's testimony indicating that she ever requested Zimmermann
& Forshay to deliver the definitive bonds to her or that she desired to dispose
of them. On the contrary she testifies that on February 7, 1916, she invested
through Zimmermann & Forshay M. 5,000 in the purchase of additional war
bonds; during February, 1917, she bought marks for which she paid $5,212
and deposited them in the Deutsche Bank of Berlin; on October 14, 1919, she
invested $850 in marks and deposited them in the same bank ; on December 11,
1919, she invested $200 and on February 10, 1920, $228 in marks and deposited
them in the same bank; on February 18. 1920, she paid $540 and on March
5. 1920, $1,440 for municipal bonds issued by German cities. It is significant
that while Zimmermann & Forshay received their bonds September 25, 1919,
they did not deliver her bonds to claimant until about two and one-half months
later — December 11,1919. It is evident that the claimant had confidence in
German securities and in the recovery of the mark, and instead of selling on a
declining market to stop her losses she continued to invest additional funds,
taking advantage of what she and many thousands of others speculatively
inclined believed to be an opportune time to buy. It may fairly be deduced
from this record that the Commission is urged to indulge a presumption in
order to supply the absence of evidence which never existed in fact.
In a case before this Commission, Docket No. 8123, Percy K. Hudson,
claimant, we find an experienced New York banker visiting Germany during
the fall and winter of 1916 and the early part of 1917 and investing American
dollars in the purchase of German securities of the face value of approximately
one-half million marks. We even find the firm of Zimmermann & Forshay
buying during the spring and summer of 1916 M. 2,100,000 of German war
bonds, although Zimmermann testifies that during 1915 he in vain endeavored
to have shipped, without excessive risk or expense, the war bonds already
purchased by him. These heavy purchases would seem to indicate that able
and experienced financiers confidently expected the ultimate recovery of the
mark.
These instances, which might be multiplied, demonstrate the soundness
of the Commission's rule that, in order to establish a right to recover compensa-
tion on account of depreciation in the value ol securities subjected to except-
ional war measures, it is not sufficient to prove depreciation during the period
of such subjection, but the claimant must go farther and prove by competent
evidence that he would have disposed of such securities by sale or exchange
had he not been prevented from so doing by such war measures.
The ultimate issue of any war is necessarily uncertain. The varying fortunes
of the belligerents as variously viewed by different individuals necessarily
influenced the market value of their respective securities. The fact that
different investors at different times held different views with respect to the
ultimate result of the war contributed to supplying both buyers and sellers,,
which made a market for these securities. Obviously this Commission can
indulge no presumption with respect to the intention of a particular claimant
to buy or sell at a particular time but must require this fact to be established
as any other fact. The Commission's rule is in harmony with decisions of the
Mixed Arbitral Tribunals constituted under the Treaty of Versailles (Hammer
v. German Government, decided by Anglo-German Mixed Arbitral Tribunal»
52 UNITED STATES/GERMANY
II Dec. M.A.T. 526 et seq.; Green v. German Government, same tribunal,
III Dec. M.A.T. 522 et seq.).
Because the record fails to establish that claimant would have sold or exchan-
ged her bonds had she had possession of them during the period delivery was
prevented by German exceptional v\ar measures, a decree must be entered
in favor of Germany.
Wherefore the Commission decrees that under the Treaty of Berlin of
August 25, 1921, and in accordance with its terms the Government of Germany
is not obligated to pay to the Government of the United States any amount
on behalf of the claimant herein.
Done at Washington March 8, 1928.
Edwin B.
PARKER
Umpire
Chandler P. ANDERSON
American Commissioner
W. KlESSELBACH
German Commissioner
RUDOLPH W. FRANK (UNITED STATES) v. GERMANY
(March 13, 1928, pp. 893-896.)
ESTATE CLAIMS: EXCEPTIONAL WAR MEASURES. — DAMAGE: RULES FOR
DETERMINATION, RATE OF EXCHANGE; DEPRECIATION OF SECURITIES; RULE
OF PROXIMATE CAUSE. — PROCEDURE: REFERENCE BACK TO AGENTS TO
ASCERTAIN AMOUNT DUE, REVISION.
Claim for loss through depreciation of
securities resulting from prevention by German exceptional war measure
of transmission of securities to American heir in German estate. Application
of rules announced in Administrative Decision No. IV, see Vol. VII, p. 117.
Held that depreciation until October 15, 1919, caused by executors' decision,
prior to enactment of German war legislation affecting American property,
to keep claimant's property in their custody, and that from that date on,
when executors appear to have changed their position, to January 10, 1920,
when German war legislation repealed, this legislation was proximate cause
for further retention (except for securities deposited with tax department
under German law). Case referred back to Agencies to ascertain amount
due claimant. Subsequent plea for revision dismissed.
BY THE COMMISSION : —
The principal issue in dispute in this case is whether or not Germany is
financially liable for the depreciation of the securities which belong to claimant's
share in the estate of Bertha Glazier and which remained in the hands of her
executors during the war.
In support of the contention that Germany is so liable the Agent of the
United States refers to section 15 (d) of the Order of the Commission of May 7,
1925, and to Administrative Decision No. IV. To these rules the Commission
adheres. They will neither be modified nor deviated from. However, in
applying these rules to the present case the Commission finds as a conclusion
of fact that the loss complained of, so far as the depreciation occurred prior to
August 15, 1919, was caused by certain definitely established circumstances
other than the application of German exceptional war measures.
DECISIONS 53
In the light of the depositions of Siegmund Wormser (Exh. a), Friedrich
Kohn (Exh. G) and Dr. Baerwald (Exh. B) the Commission is satisfied that
in or about August 1916 or prior thereto the three executors — whose diligence
and care in attending to their duties is illustrated by the investigations instituted
as early as 1913 — unanimously agreed (Naphtaly Kohn concurring by
correspondence with his brother) in accordance with the will of Bertha Glazier
to keep claimant's property in their custody beyond the completion of his
fortieth year. On the other hand even if Naphtaly Kohn, who lived at that
time in Switzerland, did not participate in that decision the record establishes
positively that Siegmund Wormser and Friedrich Kohn decided not to transmit
to the claimant his property upon the completion of his fortieth year. It is
immaterial in this connection whether this decision was prompted by the
result of the investigations concerning claimant's financial situation or on
account of the war-time conditions involving large expenses and heavy risk
of loss to the claimant in case of the transmittal of his property. This attitude
of at least two of the executors operated as an obstacle which by reason of
Article X of the will actually prevented, under German law, the transmittal
of claimant's property no matter whether or not the decision was concurred
in by the third executor.
It results that the record establishes definite and specific faits existing prior
to the enactment of the German war legislation affecting American property,
which facts, unless and until they ceased to exist subsequently, prevented the
transmittal of claimant's property even if there had been no German war
legislation.
So far as the period prior to October 15, 1919 is concerned there is nothing
on record to show that these conditions ceased to exist.
But it appears from the record that when the claimant made a demand in
September 1919 he was advised that his property was still under the control
of the German Government, and on February 25, 1921, the executors wrote
a letter to claimant (Exh. 2 attached to Exh. 3) which is susceptible of the
interpretation that, but for the exceptional war measures still existing in 1919,
the executors might have changed their position at that time following claimant's
demand. Thus the inference might be drawn that from that time on the
German war legislation became the virtual and proximate cause for the further
retention of claimant's property.
Still this inference remains somewhat doubtful. In the light of the testimony
of Friedrich Kohn (Exh. G) it would appear that it was the news of claimant's
marriage which ultimately caused the executors to release his property. On
the other hand, the record does not disclose at what time the executors received
the information of claimant's marriage, and the latter of the executors of
February 25, 1921, fails to refer to this fact or to give a clear statement of the
time when, and the reasons why, the executors became inclined to change
their former attitude. In these circumstances, it appears appropriate to allow
claimant the benefit of the doubt.
As claimant's letter was dated September 30, 1919 (page 17 of the American
Brief) and as at time that it took probably at least a fortnight for a letter to go
from the claimant in Texas to Frankfort o/'M. it would follow that claimant is
entitled to compensation for the depreciation of the value of his property
during the period from October 15, 1919, to January 10, 1920, when the German
war legislation was repealed.
This conclusion does not apply to M. 26,000. — 3
1/
a% Prussian Consols
which were deposited with the tax department in order to secure the inheritance
taxes (see letter of March 8, 1921 of the executor's attorney). Such deposit
has to be made under the German law of inheritance taxes on the demand of
54 UNITED STATES/GERMANY
the tax department, and the retention of this amount of the securities therefore
has nothing to do either with the executor's attitude or with German exceptional
war measures. But the conclusion applies to
87.200 Marks S
1!^ Prussian Consols
10.000 Marks 4% Moskau & Jarosaw Archangel EB priority 1997 and
34.680 Marks 4% Russian Southwestern Railroad priorities.
Following the rules laid down by this Commission in Administrative Decision
No. IV the measure of damages to which the claimant is entitled is the market
value of the securities as of October 15, 1919, less their market value as of
January 10, 1920, together with interest at the rate of 5% from October 15,
1919. The case is accordingly referred back to the Agencies of the two govern-
ments to ascertain the dollar amount to which claimant is entitled under such
computation.
In addition to the amount thus to be ascertained the claimant is, furthermore,
entitled to an award in the amounts admitted by the German Agent, to wit:
$2869.80 with 5% interest from December 11, 1921,
$101.57 with 5% interest from October 27, 1919, and
$401.83 with 5% interest from January 1, 1920 for a bank balance in the
amount of M. 2511.46 due from the Frankfurter Bank.
Done at Washington March 13, 1928.
Chandler P. ANDERSON
American Commissioner
W. KlESSELBACH
German Commissioner
[Extract from the Minutes of the meeting of the Commission held on June 14, 1928.]
In the case of Rudolph W. Frank, claimant, Docket No. 8130, the American
Commissioner announced on behalf of the National Commissioners that the
petition filed on April 13, 1928, by the American Agent for a revision of the
interlocutory decree has been brought to their attention and, after careful
consideration of the arguments set forth therein both as to the facts and the
law, the Commission does not find justification for the contention of the Ameri-
can Agent that the aforesaid decree conflicts with the rules adopted by this
Commission in Administrative Decision No. IV or with subsection (d) of
paragraph 15 of the Order of May 7, 1925, as interpreted by this Commission,
or with any decisions or decrees heretofore rendered in estate claims, and
accordingly dismissed the Petition and reaffirmed the interlocutory decree
and ordered that a final decree be entered in accordance therewith.
[JVb/c. — The National Commissioners under date of January 31, 1929, entered
an award in Docket No. 8130 in favor of the Government of the United States on
behalf of Rudolph W. Frank, claimant, against the Government of Germany in
the amounts of $1,953.98. $101.57, $401.83, and $2,869.80 with interest thereon at
the rate of 5% per annum from October 15, 1919, October 27, 1919, January 1,
1920, and December 11, 1921, respectively, to the date of payment.]
DECISIONS 55
JAMES A. BEHA, SUPERINTENDENT OF INSURANCE OF THE
STATE OF NEW YORK, AS LIQUIDATOR OF NORSKE LLOYD
INSURANCE COMPANY, LIMITED, FOR AMERICAN
POLICYHOLDERS (UNITED STATES) o. GERMANY
(Ap'il 12, 1928, pp. 901-903.)
DAMAGE: RULE OF PROXIMATE CAUSE. Insolvency of Norwegian insurance
company alleged to be caused by destruction by Germany of non-American
property insured by it. Claim for extent to which, on account of insolvency,
certain American policyholders, owners of property destroyed, but not by
Germany, will not be paid their contracted indemnities. Held that destruction
of non-American property resulting in company's insolvency is not
proximate cause of inability to collect full indemnity.
BY THE COMMISSION: —
This claim is put forward by the United States on behalf of the Superintendent
of Insurance of the State of New York as statutory liquidator for American
policyholders of the Norske Lloyd Insurance Company, Limited, a Norwegian
corporation, which, in January, 1916, pursuant to the laws of the State of
New York, was admitted to transact and thereafter transacted business in that
State. The corporation was adjudged insolvent in 1921. The claimant as
liquidator of its assets in the United States found them sufficient for the payment
of all claims of all American policyholders. But the Court of Appeals of the
State of New York held that only those American nationals (designated class 1
policyholders) whose policies were issued through the United States branch
of the Norske Lloyd were entitled to preferential payment from the assets in
the United States, and that the American nationals (designated class 2 policy-
holders) holding policies issued to them by the corporation but not through the
United States branch thereof were not entitled to such preferential payment
but as common creditors must share pro rata with all policyholders. It is
alleged that while class 1 policyholders will be paid in full class 2 policyholders,
whose claims are estimated at $432,000, will recover from the Norwegian
corporation as general creditors only 23' per cent of their claims.
The argument put forward in support of this claim may be briefly stated thus :
It is claimed that the Norske Lloyd, a Norwegian national, was rendered
insolvent through the destruction by Germany of property insured by it
belonging to other than American nationals, which insurance, in the light of
Germany's effective war activities, proved to have been unprofitable and
therefore improvidently written. American nationals holding policies written
by this neutral insurer, but not through its American branch, whose property
was destroyed, but not by Germany, will, because of the insolvency of this
neutral insurer, be unable to collect from it 77 per cent of the amount of the
indemnity for which they contracted. While Germany is not obligated under
the Treaty of Berlin to reimburse the neutral insurer for the losses paid by it,
nevertheless demand is now made that Germany reimburse insured American
nationals to the extent of their losses which the neutral insurer cannot pay in
full because of its insolvency.
The claimant's counsel frankly state that this claim is asserted not to collect
insurance under policies written by the Norwegian insurer but rather to collect
damages resulting from the insurer's inability to pay because of its insolvency
caused by Germany's acts.
56 UNITED STATES/GERMANY
Assuming the truth of the facts upon which this argument rests, the vice in
it is that the inability of these American policyholders to collect from the
Norwegian insurer indemnity in full was not the natural and normal conse-
quence of the acts of Germany in destroying property not American-owned
which happened to be insured by the same Norwegian insurer.
The property of the American class 2 policyholders, for whom the claimant
herein is acting, has been destroyed to their damage. It is not contended
that the destruction resulted from any act of Germany. They have sought
indemnity from the neutral insurer under policies written by it, but because of
its insolvency it cannot discharge its contractual obligations. To these contracts
Germany was not a party, of them she had no notice, and with them she was
in no way connected. In destroying non-American-owned property insured
by this neutral insurer Germany inflicted damage on such insurer. But
Germany did not directly or indirectly touch any property owned by these
American policyholders or in which they held a property interest. The
destruction by Germany of non-American-owned property insured by this
Norwegian insurer which resulted in its insolvency cannot, in legal contem-
plation, be attributed as the proximate cause of damages sustained by American
nationals resulting from their inability, because of the insurer's insolvency, to
collect full indemnity for the loss of their property not touched by Germany.
But for the existence of a state of war this neutral insurer would have written
no war-risk insurance. The heavy premiums charged were intended to be
commensurate with the risks assumed. The insurer doubtless thought it was
being adequately compensated for such risks. It knew, and all of its policy-
holders must be presumed to have known, that, speaking generally, it at the
time had no recourse against Germany or any other belligerent for losses
which it might sustain under its contracts of indemnity. The fact that subse-
quent events proved that the premiums collected were not sufficient in amount
to justify the risks assumed and hence that its contracts of indemnity were
improvidently entered into by it, resulting in its insolvency and its inability
to pay in full American policyholders whose property was not damaged or
destroyed by any act of Germany, cannot be attributed to Germany's acts
as a proximate cause.
Applying the principles announced in numerous cases heretofore decided
by this Commission, it is decreed that under the Treaty of Berlin of August25,
1921, and in accordance with its terms the Government of Germany is not
obligated to pay to the Government of the United States any amount on
behalf of the claimant herein.
Done at Washington April 12. 1928.
Edwin B.
PARKER
Umpire
Chandler P. ANDERSON
American Commissioner
W. KlESSELBACH
German Commissioner
DECISIONS 57
EDWARD GALVIN, REPRESENTATIVE AND AGENT OF
POLICYHOLDERS ASSOCIATION (UNITED STATES)
v. GERMANY
(•ipril 12, 1928, pp. 904-905.)
DEBT: ASSIGNMENT, UNLIQUIDATED INDEBTEDNESS, JURISDICTION. Held that no
evidence submitted of title or interest, through assignment or otherwise, in
alleged indebtedness, and that claim not within Commission's jurisdiction:
indebtedness unliquidated and no " debt ", therefore, as term used in
Treaty of Berlin.
BY THE COMMISSION : —
This claim is put forward by the United States on behalf of Edward Galvin.
Representative and Agent of Policy Holders Association, a voluntary association
existing under the provisions of the civil code of the State of California.
The claimant seeks to recover debts alleged to be due American nationals,
members of the association, under policies of fire insurance issued by companies
organized under the laws of Germany and covering losses sustained by such
members in the San Francisco conflagration.
The record is barren of any evidence that the claimant or the Policy Holders
Association has acquired by assignment or otherwise any title or interest in the
alleged indebtedness upon which the claim is founded. For this reason the
claim must be dismissed.
It is alleged that many of the members of the association received payments
from the German insurance companies in full settlement of their losses covered
by their insurance policies, but that such settlements were in fact made under
duress and threats that unless the policyholders accepted the comparatively
small sums paid them they would get nothing, and demand is made for the
difference between the amount actually received by the policyholders and the
full amount which they claim they were entitled to receive under the policies.
Even if the truth of these allegations be admitted, still, as the indebtedness is
unliquidated and there exists no " debt " as that term is used in the Treaty
of Berlin, the claim does not fall within the jurisdiction of this Commission as
an obligation of Germany. It follows that if the claims of those members of
the association who seek to set aside settlements made by them with German
insurance companies were properly before the Commission there is no warrant
under the Treaty of Berlin for entering awards on their behalf.
Wherefore it is ordered by the Commission that under the Treaty of Berlin
of August 25, 1921, and the Agreement of August 10, 1922, in pursuance of
which this Commission is constituted, this case be, and it is hereby, dismissed.
Done at Washington April 12, 1928.
Edwin B. PARKER
Umpire
Chandler P. ANDERSON
American Commissioner
W. KlESSELBACH
German Commissioner
58 UNITED STATES/GERMANY
KNICKERBOCKER INSURANCE COMPANY OF NEW YORK,
SUCCESSOR TO EQUITABLE UNDERWRITERS OF NEW YORK
(UNITED STATES) v. GERMANY
(April 18, 1928, pp. 912-914.)
PROCEDURE : REHEARING AFTER FINAL JUDGMENT. — DISTRIBUTION OF AMOUNTS
PAID. Contestation of transfer to claimant of claims forming basis of final
judgment. Request for rehearing. Held that question must be decided by
municipal tribunal according to local jurisprudence (reference made to
Administrative Decision No. II, Vol. VII, p. 23).
BY THE COMMISSION : —
In the case numbered and styled as above a a final judgment was entered
by this Commission on September 18, 1924, decreeing that
" the Government of Germany is obligated to pay to the Government of the
United States on behalf of Knickerbocker Insurance Company of New York,
Successor to Equitable Underwriters of New York, the sum of Two Hundred
Twelve Thousand, Eight Hundred Eleven and 71/100 Dollars ($212,811.71),
with interest thereon at the rate of 5 per cent, per annum from November 11,
1918, to the date of payment."
The American Agent now presents and brings to the attention of the Com-
mission a " Petition in the nature of a petition for rehearing and protesting
against the certification of any award on the claim of the Equitable Under-
writers of New York to the Knickerbocker Insurance Company " dated March
20, 1928, filed by Thomas A. Duffey for himself and as attorney-in-fact for
Estate of W. Eitingon, Herman Basch, James Stuart Lowry, Herbert Buxton,
Simon J. Steiner, E. H. Fischer, Philip B. Fouke, F. Jarrigeon, Henry J. Fuller,
Alfred dejonge, I. Galland, Charles I. McLaughlin, S. Schild, A. V. Berner,
R. S. Charlton, and B. M. Crosthwaite, for themselves and on behalf of all
other individual members of the Equitable Underwriters of New York.
The Equitable Underwriters of New York was a Lloyds unincorporated
association which, during the years 1917 and 1918, underwrote war risks,
the payment of which forms the basis of the award in this case.
On December 31, 1919, the Equitable Underwriters of New York was
converted under the laws of the State of New York into a stock insurance
corporation under the name of New York Equitable Assurance Company,
which was on March 11, 1920, consolidated or merged with the Knickerbocker
Insurance Company of New York, a corporation created under the laws of
that State.
The petitioners, Duffey and others, now assert that the claims against
Germany which formed the basis of the award herein were never transferred
to or vested in the New York Equitable Assurance Company and through it
to the Knickerbocker Insurance Company of New York but remained and
still remain the property of the individual members of the Equitable Under-
writers of New York.
It is apparent that both the petitioners and the Knickerbocker Insurance
Company of New York claim through and under the Equitable Underwriters
of New York, a juridical entity. Neither challenge the correctness of the award
with respect to the obligation of Germany to pay the Equitable Underwriters
of New York, their successor or successors.
a Note by the Secretariat, Original report: Docket No. 3172.
DECISIONS 59
This Commission in its Administrative Decision No. II (Decisions and
Opinions, page 10)
a held in effect that while this Commission, as an inter-
national tribunal applying the terms of the Treaty of Berlin in the light of
established rules of international law and such rules of municipal law as may
be applicable, has the exclusive and final power to determine the existence or
non-existence of the original obligations, if any, of Germany, all questions
involving conflicts in interests between American nationals or the transfer of
interests in or to such original obligation must be decided by municipal tribunals
according to local jurisprudence.
1
So far as concerns the original claimant's primary right to recover this Commis-
sion's jurisdiction is exclusive and final, but all controversies over asserted
rights to receive payment arising (1) between the original claimants and those
claiming under them or (2) between two or more whose rights are derivative,
not original, claiming through assignments or otherwise, voluntary or involun-
tary, from the original claimants, must be decided by municipal tribunals.
It follows that this is not the forum in which the petitioners should seek
relief.
Although the rules of this Commission make no provision for a rehearing
of any case in which a final decree has been entered, this petition has been
carefully considered. It is hereby dismissed.
Done at Washington April 18, 1928.
Edwin B.
PARKER
Umpire
Chandler P. ANDERSON
American Commissioner
W. KlESSELBACH
German Commissioner
GEORGE ACHELIS, JULIE ACHELIS SPIES, JOHN ACHELIS,
ESTATE OF ANNIE ACHELIS VIETOR, DECEASED, AND ESTATE
OF FRITZ ACHELIS, DECEASED, HEIRS AND LEGATEES OF THE
ESTATE OF THOMAS ACHELIS, DECEASED (UNITED STATES)
v. GERMANY
(Ap'il 25, 1928, pp. 914-920.)
ESTATE CLAIMS: EXCEPTIONAL WAR MEASURES. — DAMAGE: RULE OF PROXI-
MATE CAUSE.
Claim for loss resulting from prevention by German except-
ional war measures of distribution of estate prior to August, 1921. Appli-
a Note by the Secretariat, Vol. VII, p. 28.
1 See Comegy s and Pettit v. Vasse , 1828 1 Peter (26 U.S.) 193 212; Frevall
Bache, 1840, 14 Peters (39 U. S.) 95, 97; Judson v. Corcoran, 1855, 17 Howard
(58 U.S.) 612, 614; Phelps v. McDonald, J879, 99 U. S. (9 Otto) 298, 307; Freling-
huysen v. Key, 1884, 110 U. S. 63, 71; Leonard v. Nye, 1878, 125 Massachusetts
455, 466; Brooks v. Ahrens, 1888, 68 Maryland 212, 221; Heard v. Sturgis, 1888,
146 Massachusetts 545, 547, and Williams v. Heard, 1891, 140 U.S. 529, 539-540;
Kingsbury v. Mattocks, 1889, 81 Maine 310, 315; Taft v. Marsily, 1890, 120 New
York 474, 477.
60 UNITED STATES/GERMANY
cation of rules announced in Administrative Decision No. IV, see Vol. VII.
p. 117. Held that delay in distribution of estate and transmission and
delivery to claimants of their interest therein was not proximately caused
by German exceptional war measures, but by executor's decision, prior to
enactment of German war legislation affecting American property, to wait
until documents relating to securities deposited in England and taken over
as enemy property by British Public Trustee for Enemy Property could be
procured.
BY THE COMMISSION : —
This claim is put forward by the United States on behalf of those named in
the foregoing caption as claimants, all American nationals, for compensation
claimed to be due them from Germany for damages and injuries alleged to
have resulted from the application of German exceptional war measures to
money and securities which they were entitled to receive as heirs and legatees
of the estate of Thomas Achelis.
From the record it appears that on April 6, 1911, Thomas Achelis, an
American national, died, leaving a large estate located partly in the United
States and partly in Europe. H. Hildebrand, Biirgermeister of Bremen, was
appointed and qualified German executor in charge of the European estate.
The five brothers and sisters of the decedent who were American nationals
and who are claimants herein, together with their sister, Marie Achelis Smidt,
of Bremen, Germany, a German national, were the residuary legatees.
At the outbreak of the war in July, 1914, certain of the securities constituting
a portion of the European estate were held by the Deutsche Bank (Berlin)
London branch in the name of Deutsche Bank, Bremen branch, but really
for the account of the estate of Thomas Achelis. These securities were taken
over as enemy property by the British Public Trustee for Enemy Property and
they or their proceeds were not released by him until after the taking effect
of the Treaty of Versailles (Exhibit 1).
Under the applicable German law Burgermeister Hildebrand as executor
was clothed with authority to liquidate and distribute the estate at such time
or times and in such manner as dictated by his sound judgment and discretion.
The record indicates that in the exercise of that discretion the German executor
determined not to force liquidation and distribution of the estate but from time
to time to sell the securities, which were of substantial value, when markets
and conditions were favorable to yielding the largest returns, and that through
his diligence, sound judgment, and discretion in the discharge of his duties
as executor practically the entire estate was profitably liquidated.
Distributions were made by the German executor to the claimants and to
their German sister and co-residuary legatee, each receiving one-sixth, as
follows :
Prior to May 6, 1912 (the exact date not being disclosed). . . M. 1,800,000.00
On May 6, 1912 509,771.97
November 30, 1912 720,000.00
March 12, 1914 180,000.00
While the liquidation proceeded, no further distributions were made by
the German executor until August, 1921.
In the meantime the checking account of the German executor showed
credit balances as follows:
DECISIONS 61
July 1, 1914 M. 95,230.00
January 1, 1915 75,736.90
July 1, 1915 111,277.10
January 1, 1916 244,312.00
July 1, 1916 288,649.00
December 31, 1916 478,764.15
January 31, 1917 628,029.80
On January 31, 1917, there was transferred from the checking account to
the deposit account of the German executor marks 600,000. As the deposit
account bore a higher rate of interest than the checking account, conditioned
upon the funds remaining on deposit for a definite period, this transfer indicated
an intention on the part of the German executor to leave these funds on deposit
for some time at least and reap the benefit of the higher interest rate.
A further sale of securities was made by the German executor February 23,
1917, so that on March 1, 1917, the checking account showed a credit balance
of marks 52,658.65 while the deposit account showed a credit balance of marks
600,000 plus accrued interest. At that time there remained undisposed of in
the hands of the German executor securities of the nominal value of only
marks 112,000.
The claimants contend that German exceptional war measures prevented
the German executor from distributing the estate prior to August, 1921, and
that this delay resulted in damage to claimants for which compensation is
demanded of Germany under Article 297 (c) of the Treaty of Versailles incor-
porated in the Treaty of Berlin.
The German Agent denies any obligation on the part of Germany to make
compensation, contending that the German executor's failure to make distri-
butions of the estate subsequent to March 12, 1914, was due to causes other
than German exceptional war measures and that no such distribution would
have been made had such war measures not been in effect.
The issue thus sharply drawn must be determined according to the rules
applicable to estate claims deduced from the Treaty of Berlin by this Commis-
sion and embodied in Administrative Decision No. IV, which are substantially
as follows:
(1) The amounts due from German executors, administrators, or other
German nationals in connection with the administration of estates in Germany
to American nationals claiming as heirs or legatees an interest in such estates
are not " debts " as that term is used in Section III of Part X of the Treaty
of Versailles incorporated in the Treaty of Berlin.
(2) If and when such executor, administrator, or other German national
became obligated to transmit money or securities constituting a part of an estate
in Germany to an American national residing beyond German territory and
was prevented from so doing by a German exceptional war measure as that
term is defined in the Treaty, such American national would, in pursuance of
Article 297 (e) of the Treaty, be entitled to compensation from Germany in
respect of resulting damage or injury, if any, inflicted thereby.
(3) By decree of the German Government effective August 9, 1917, it was
prohibited to anyone in Germany to make any payments from Germany either
directly or indirectly to creditors residing in the United States (or in an Allied
country to which the prohibition applied) " whether in cash or by means of
bills or checks or by transfer or in any other manner whatsoever, or to remove
or transfer money or securities directly or indirectly " to the United States
(or to such Allied country).
62 UNITED STATES/GERMANY
(4) By decree of the German Government effective November 10, 1917, it
was made unlawful for anyone in Germany " to remove abroad, either directly
or indirectly, property belonging to " American nationals, " in particular
securities and money, without the authority of the Imperial Chancellor ", etc.
(5) These two decrees of August 9, 1917, and November 10, 1917, were,
in pursuance of the provisions of the Treaty of Versailles, repealed by the
German Government effective January 11, 1920.
(6) On August 9, 1917, the rate of exchange for the German mark was
14.2 cents to the mark and on January 11, 1920, the rate of exchange was
2 cents to the mark.
(7) The repeal effective January 11, 1920, of the two decrees above mentioned
ended any statutory interference by the German Government through except-
ional war measures or measures in the nature of exceptional war measures
with the sending of money and securities by executors, administrators, and
heirs to American nationals entitled thereto. The German law of August 31,
1919, was enacted in pursuance of and to carry into effect the provisions of
the Treaty of Versailles and particularly subdivision (a) of Article 296 thereof,
and prohibited the payment by German debtors of " money demands and
debts " save through Clearing Offices constituted as provided by the Treaty
or until the Allied Opposing Power had formally elected not to adopt the
Clearing Office system. The Commission holds that this German law of
August 31, 1919, and the decree promulgated in pursuance thereof were peace
measures and not exceptional war measures within the meaning of the Treaty.
1
(8) In order to determine the damage or injury inflicted upon such American
nationals by the application of exceptional war measures to securities and
moneys of German estates to which they were entitled, there should be deducted
from the market value of securities and the exchange value of money at the
time delivery would have been made to them but for the application of German
exceptional war measures the market or exchange value, as the case may be,
as of January 11, 1920.
(9) Where it is made to appear that an obligation of a German executor
or administrator to transmit money or securities to an American national arose
during the period when the two German decrees above-mentioned were in
effect and that he failed to discharge such obligation, it will be presumed, in
the absence of evidence to the contrary, that these exceptional war measures
were the proximate cause of such failure.
(10) But if it appears, from the evidence presented in any particular case
and the reasonable inferences to be drawn therefrom, that such money or
securities would not have been distributed or transmitted and delivered to the
American national or nationals claiming as heirs or legatees of the estate even
had such exceptional war measures not been in effect, then the exceptional
war measures will not be held to have been the proximate cause of the damage
and injury complained of and Germany will not be held liable to make compen-
sation for the failure or delay in making such distribution and delivery.
Applying these rules to the facts as disclosed by the record in this case, the
Commission finds that the delay complained of in the distribution of the
German estate and the transmission and delivery to them of the claimant's
interest therein was not proximately caused by German exceptional war
measures.
As heretofore noted, a part of the European estate was seized as enemy
property by the British Public Trustee for Enemy Property and not released
1 Proctor v. German Government, decided by Anglo-German Mixed Arbitral
Tribunal December 8, 1927. [VII Dec. M. A. T. 479.]
DECISIONS 63
until after the coming into effect of the Treaty of Versailles. In response to a
request of the private counsel for claimants, the German executor, who was
responsible for the liquidation and distribution of the European estate, wrote
[translation, Exhibit 4] :
"... In regard to the various stocks and other investments, shares in joint stock
companies, etc., favorable conditions for paying off, which during the first years
after 1911 and even afterwards did not present themselves, had to be waited for,
inasmuch as documents relating to the matter were deposited in England and were
not realized until later. In connection therewith, the distribution of the bank
balance was likewise postponed."
This is the only positive estatement in the record with respect to the cause
of the delay in the distribution of the German estate. The claimants themselves,
by their own testimony or that of their representatives in Germany, do not
undertake to ascribe such delay to German exceptional war measures.
But it will be noted that no distribution was made between March 12, 1914,
and August, 1921, although the cash credit balances of the German executor
were considerable and, generally speaking, continued to increase practically
up to the time of the entry of the United States into the war, until on February
I, 1917, they amounted to more than marks 628, 000 and only slightly increased
thereafter. During the period of approximately three years and five months,
from March 12, 1914, the date of the last distribution, to August 9, 1917, the
date of the coming into force of the first exceptional war measure of Germany
against the United States and its nationals, there was in force no statute or
decree of the German Government which would have prevented the German
executor from making a further distribution of the cash assets in his hands to
the five American legatees and to the German legatee. This fact, coupled
with his transfer on January 31, 1917, from the checking account to the deposit
account of practically the entire credit balance, tends to corroborate the state-
ment of the German executor that, in the exercise of his discretion, he deter-
mined that a further distribution of the bank balances should be postponed
until the documents relating to the securities deposited in England could be
procured, the estate fully liquidated, and a final distribution made. That he
persisted in this determination throughout the period of American belligerency
is evidenced by the fact that during that period he made no payment to Mrs.
Marie Achelis Smidt, a German national living in Bremen, on account of her
one-sixth distributive share of the available bank balances, notwithstanding
there was no legal obstacle to his so doing.
By far the larger part of the German estate had been liquidated prior to
July 1, 1914. The legatees were financially strong and the distributive share
of each in the remainder was of comparatively small moment to them. The
German estate was being ably administered. Apparently no reason existed
for a further distribution prior to the final settlement.
Because the damage complained of was not proximately caused by German
exceptional war measures, the Commission decrees that under the Treaty
of Berlin of August 25, 1921, and in accordance with its terms the Government
of Germany is not obligated to pay to the Government of the United States
any amount on behalf of the claimants herein.
Done at Washington April 25, 1928. Edwin B.
PARKER
Umpire
Chandler P. ANDERSON
American Commissioner
W. KlESSELBACH
German Commissioner
64 UNITED STATES/GERMANY
EMIL F. HELPUP (UNITED STATES) v. GERMANY AND
KARL HELPUP, IMPLEADED
(April 25, 1928, pp. 922-923.)
ESPOUSAL OF CLAIMS: EFFECT OF COMPROMISE BETWEEN PRIVATE PARTIES. —
DAMAGE: RULE OF PROXIMATE CAUSE.
Held that debt discharged by
compromise between private parties entered into after espousal of claim by
United States (Comp. Order of May 7, 1925, No. 3, see p. 481 infra), and
that exceptional war measures not proximate cause of alleged depreciation
in value of inheritance.
BY THE COMMISSION : —
This claim is put forward by the United States on behalf of Emil F. Helpup,
born a German but, through naturalization in 1913, an American citizen.
It is based on two counts • ( 1 ) the existence of an alleged pre-war indebtedness
due claimant from his brother, a German national, and (2) for depreciation
in claimant's share of his father's estate alleged to have been due to the appli-
cation of exceptional war measures thereto causing delay in payment to him.
At the request of the claimant, the Government of the United States espoused
this claim against Germany prior to April 9, 1923. Thereafter, on May 7,
1925, claimant voluntarily negotiated a compromise (" Vergleich," referred
to in Exhibit 9) with his German debtor, realizing thereby more than he would
have realized had this part of the claim fallen within the jurisdiction of the
Commission and an award been made on his behalf. On this count, therefore,
no obligation of Germany could exist, the debt having been discharged by
direct action of the private parties.
From a careful examination of the record the Commission finds that the
claimant's share of his parent's estate would not have been distributed and
forwarded to him during the war period prior to January 11, 1920, had there
been no German exceptional war measures in effect applicable to property
of American nationals. The claimant therefore was not prevented from receiv-
ing the inheritance due him from the estate of his parent as the result of the
application thereto of a German exceptional war measure, and hence under the
rule laid down in this Commission's Administrative Decision No. IV Germany
is not liable for the depreciation in the value of the inheritance as claimed.
Wherefore the Commission decrees that under the Treaty of Berlin of
August 25, 1921, and in accordance with its terms the Government of Germany
is not obligated to pay to the Government of the United States any amount
on behalf of the claimant herein.
Done at Washington April 25, 1928.
Edwin B.
PARKER
Umpire
Chandler P. ANDERSON
American Commissioner
W. KlESSELBACH
German Commissioner
DECISIONS 65
WILLIAM J. QUILLIN ET AL. (UNITED STATES) v. GERMANY
(June 14, 1928, pp. 921-924.)
CORRECTION AND REVISION OF AWARDS. American motion to correct and
revise award granted, the German Agent concurring.
Whereas, the above numbered
a and entitled cause was certified by the
National Commissioners to the Umpire for decision and thereafter on April 21,
1926, a decision was handed down by the Umpire (Decisions and Opinions
of the Commission, page 654-657),b and
Whereas, thereafter on April 21, 1928, a motion to correct and revise the
said decree of April 21, 1926, was filed herein by the American Agent, concurred
in and approved by the German Agent, and
Whereas, the said motion with evidence filed in support thereof has been
submitted by the said Agents and considered by the Umpire;
Now, therefore, the Commission orders that the decree embodied in the
decision of the Umpire of April 21, 1926, be, and the same is hereby, corrected
and revised to read as follows:
The Commission decrees that under the Treaty of Berlin of August 25, 1921,
and in accordance with its terms the Government of Germany is obligated
to pay to the Government of the United States on behalf of the claimants
herein the sum of ninety-six thousand eight hundred fifty-three dollars and
sixty-three cents ($96,853.63) with interest thereon at the rate of five per cent
per annum from November 11, 1918, distributed as follows:
William J. Quillin 59,973.49
Oscar Bell 742.56
John W. Callaway 1,485.13
Annie S. Carey 1,485.13
James C. Conwell 1,485.13
Mary S. Coulbourn, Trustee of Joseph N. Coulbourn 1,485.13
A. D. Cummins 11,881.06
Alverda S. Elzey 1,485.13
Samuel J. Furniss 1,485.13
Harlan E. Goodell 1,485.13
Ethel Hastings 2,970.26
C. L. Horsey 742.56
Charles M. Kelley 1,485.13
S. Crowley Loveland 1,485.13
Francis J. McDonald 5,940.52
William Martino 1,485.13
Jonathan May & Sons 11,881.06
C. W. Riggin 1,485.13
F. H. Small 742.56
John Sullivan 1,485.13
Edward G. Taulane 2.970.26
George Taulane 2,970.26
Lewis B. Taulane 2,970.26
Herbert L. Black 1,485.13
Harold G. Foss 1,485.13
Géorgie S. Foster and Samuel K. Dennis, Administrators of the
Estate of Arthur D. Foster 1,485,13
a Note by the Secretariat, Original report: Docket No. 6120.
h Note by the Secretariat, Vol. VII, pp. 299-301.
66 UNITED STATES/GERMANY
Joseph F. O'Brien $1,485.13
David Baird Company 1,485.13
Clara Stetson Meigs, Executrix of the Estate of Mary L. Stetson . . 8,910.79
Clara Stetson Meigs 2,970.26
Mary J. Winsmore, Executrix of the Estate of Thomas Winsmore . . 5,940.52
Done at Washington June 14, 1928.
Edwin B. PARKER
Urn/, ire
[Editorial note. — The effect of the foregoing corrected and revised decree was
(1) to enter awards in favor of the holders of the remaining
1!/
61 interest in the
schooner, i. e., the three parties last named in the foregoing decree, (2) to apportion
to William J. Quillin instead of among the part-owners the value of the schooner's
stores lost with her, and (3) to correct certain inaccuracies in the names of the
part-owners discovered after the entry of the original decree, which in all other
respects remained unchanged.]
ALEXANDER SPRUNT & SON (UNITED STATES) v. GERMANY
(March 7, 1929, p. 927.)
WAR : DIRECT IMPACT OF EXCEPTIONAL WAR MEASURES ON PROPERTY, RIGHTS,
INTERESTS.
Claim for loss through prevention of German bank, by exceptio-
nal war measures, from paying British bank, with which claimants were in
contractual relation. Held that claim not within terms of Treaty of Berlin:
war measures did not operate directly on claimants' property, rights, or
interests.
BY THE COMMISSION : —
The title to the cotton held in Germany and involved in this claim was,
under the German law which controlled the transaction, in the Deutsche
Nationalbank as agent for the Anglo-Austrian Bank, London Branch. When
the cotton was sold its cash proceeds were held by the Deutsche Nationalbank
as agent for the Anglo-Austrian Bank, London Branch. The exceptional war
measures complained of by claimants prevented the Deutsche Nationalbank
from accounting to and making payment to its principal, the London Branch
of the Anglo-Austrian Bank. These war measures were not directed against
American nationals nor did they operate directly upon the property of, or the
debts owing by German nationals to, American nationals. The losses com-
plained of by claimants resulted not from any exceptional war measures
operating directly upon their property, rights, or interests within the meaning
of the Treaty, but only indirectly and remotely through their contractual
relations with the London Branch of the Anglo-Austrian Bank. There never
was a time during the war when the claimants were entitled to demand and
receive the cotton in question or the proceeds thereof nor when the Deutsche
Nationalbank was indebted to the claimants for the amount of such proceeds.
DECISIONS 67
The loss sustained by claimants is not one falling within the terms of the
Treaty of Berlin for which Germany is financially obligated.
The claim is dismissed.
Done at Washington March 7, 1929.
Edwin B.
PARKER
Umpire
Chandler P. ANDERSON
American Commissioner
W. KIESSEI.BACH
German Commissioner
PHILADELPHIA-GIRARD NATIONAL BANK
(UNITED STATES) v. GERMANY
(April 3, 1929, pp. 936-939.)
DEBT: RELATIONSHIP OF CREDITOR AND DEBTOR. — NEGLIGENCE, DEFAULT. —
WAR: EXCEPTIONAL WAR ME^SLRES.
Establishment by German bank, in
its own name, but for account and at risk of claimant, who made remittances
to this end, of rouble credits in Russian banks, against which claimant was
entitled to issue drafts. Failure of claimant shortly before outbreak of war,
to heed German bank's suggestion for instructions to sell out credits, followed,
immediately at outbreak of war, by Russian prohibition of transfer of credits
to claimant. Claim for losses resulting from termination and frustration
of arrangement between two banks. H'ld that no relationship of creditor
and debtor existed between claimant and German bank: latter merely
obliged to establish credits, which obligation is fulfilled; and that loss to
claimant not due to German bank's negligence or default, nor to action by
Germany; and that no exceptional war measures within meaning of Treaty
of Berlin involved: claimant American national, United States neutral at
time of transactions.
OPINION BY THE COMMISSION : —
The transactions between the Philadelphia-Girard National Bank 1 (herein-
below called the Philabank) and the Disconto-Gesellschaft (hereinbelow
called the Disconto), out of which this claim arises, were briefly as follows:
For several months prior to the outbreak of the World War, the Philabank
transmitted from time to time to the Disconto funds which the Disconto used
at the request of the Philabank to establish ruble credits in its own name but
for the account of the Philabank in unnamed banks in Russia. The Philabank
was entitled to issue drafts against these credits and did so in the course of its
business, which drafts were always honored up to the outbreak of the War
between Russia and Germany. Immediately before that date the Disconto
endeavored to arrange for a transfer to the Philabank of the entire remaining
ruble credit in Russia to which it was entitled under these transactions. The
then existing ruble credit of the Disconto in Russia was ample for this purpose,
but the attempted transfer was prevented because the Russian authorities,
1 Claimant bank's name having been changed, the award entered on April 3,
1929, was on behalf of " The Philadelphia National Bank".
68 UNITED STATES/GERMANY
immediately upon the outbreak of the War, prohibited the Russian banks from
carrying on any business dealings with German nationals
It also appears that the Disconto, shortly before the outbreak of the War,
suggested to the Philabank the advisability of selling ruble exchange in order
to close out its ruble credits, and asked for instructions, which the Philabank
failed to give. At that time the entire ruble interest of the Philabank could
have been sold out at a comparatively small loss.
As a matter of act, the Disconto, acting on its own responsibility, did sell
at that time for the Philabank 150,000 rubles without any substantial loss, but,
although the Philabank accepted this transaction, it failed to respond to the
Disconto's specific request for a " firm order " as to further sales.
The purpose of the Philabank in entering into these transactions with the
Disconto was to take advantage ol the latter's well known and extensive banking
interests in Russia in securing ruble credits there. It relied upon the Disconto
to maintain in Russia for its account ruble credits equivalent to the value of
its remittances to the Disconto, and it also relied upon the Disconto to make
these credits available wherever in Russia the Philabank might desire to draw
against them.
During all this period the ruble credits maintained by the Disconto in Russia
were far in excess of the remittances from the Philabank.
The above stated purposes of these transactions are confirmed in the
claimant's brie
r, which states that they were made " with the object of enabling
the claimant to invest in Russian exchange, and to obtain a higher rate of
interest on funds so invested than it could obtain at home, without any of the
risks to the claimant in establishing and operating against a ruble account in
Russia, with whose banks, and financial and industrial conditions and methods
the claimant was not at the time familiar ".
As a matter of law, the relationship established between the two banks by
these transactions did not constitute the Disconto a debtor of the Philabank,
as contended by that bank, because the Disconto's obligation was merely to
establish for the use of the Philabank ruble credits in Russia, which obligation
it completely fulfilled. It did not sell, and was not asked to sell, rubles or
ruble credits in Germany to the Philabank. On two occasions it bought for
the Philabank Russian rubles in Germany, but in both instances it acted under
special instructions outside of the general arrangements and transactions above
described. Those two purchases do not enter into the present claim. Neither
did the Disconto act as the agent of the Philabank in establishing ruble credits
for that bank in Russia because it did not establish in Russia any ruble credits
independently of its own credits there.
All that the Philabank asked the Disconto to do, and all that the Disconto
did, was to sell to the Philabank a participation, or a right to participate, in the
Disconto's ruble credits in Russia to the extent of the funds remitted for that
purpose, valorized in Russian rubles at the rate of exchange prevailing when
it invested those funds in ruble credits in Russia.
As above stated, up to the time of the outbreak of the War between Russia
and Germany, the Disconto fulfilled all of its obligations to the Philabank
under these arrangements. Indeed it went even beyond its legal obligation in
attempting to save the Philabank from anticipated loss on account of war
conditions.
The termination of these arrangements and the resulting loss to the Philabank
were not due to any negligence or default on the part of the Disconto, nor to
any action on the part of the German Government. In these circumstances
the relationship of debtor and creditor between the Disconto and the Philabank
did not arise. Neither does any question of exceptional war measures in Germa-
DECISIONS 69
ny, within the meaning of the Treaty of Berlin, enter into the case, because
the claimant is an American national, and the United States was still a neutral
at the time of these transactions.
The termination and frustration of the arrangement between these two
banks and the resulting losses were due solely to the action of the Russian
authorities in prohibiting further financial transactions between Russia and
Germany immediately upon the outbreak of the War between those two
countries. It is evident, therefore, that the damages resulting from the termi-
nation and frustration of these transactions were a consequence of circum-
stances for which the Disconto was not responsible, and they do not constitute
a financial obligation for which Germany is responsible under the terms of the
Treaty of Berlin as interpreted by this Commission.
Done at Washington April 3, 1929.
Chandler P. ANDERSON
American Commissioner
W. KlESSELBACH
German Commissioner
PHILADELPHIA-GIRARD NATIONAL BANK1 (UNITED STATES)
v. GERMANY AND DIREKTION DER DISCONTO GESELLSCHAFT,
IMPLEADED
(April 21, 1930, pp. 939-948.)
PROCEDURE: REHEARING AFTER FINAL JUDGMENT, ERROR IN FACT OR LAW,
NEW EVIDENCE, FINAL AND BINDING CHARACTER OF DECISIONS.
Requests
for rehearing after final judgment will be considered in case of manifest
error: (1) in establishing facts on evidence produced at time when claim
submitted for decision, not on ground that, by reason of newly submitted
evidence, facts are different: decisions final and binding (art. VI, Agreement
of August 10, 1922): (2) in applying principles of law and rules established
and applied in Commission's previous decisions.
DEBT: RELATIONSHIP OF CREDITOR AND DEBTOR.—NEGLIGENCE, DEFAULT.
WAR: EXCEPTIONAL WAR MEASURES. See headnote preceding previous
decision, p. 67 supra.
EVIDENCE: DECISION OF OTHER CLAIMS COMMISSION. Held that Commission
not bound by decisions of Tripartite Claims Commission under Treaty
of Budapest.
Decision on Petition to Reconsider Award
BY THE COMMISSION : —
In this case a final award was entered by the Commission on April 3, 1929.
A Petition for the reconsideration of this award, signed by the claimant and
presented through its attorneys to the American Agent, has been submitted
to the Commission together with certain additional evidence and a printed
Memorandum in support thereof, dated August 7, 1929, and prepared by the
private counsel for the claimant.
1 Bibliography: Woolsey, A.J. I.L., Vol. 34 (1940), p. 24. See editorial foot-
note to opinion immediately preceding this.
6
70 UNITED STATES/GERMANY
Although the rules of this Commission, conforming to the practice of inter-
national Commissions, make no provision for a rehearing in any case in which
a final decree has been made, this Petition and the supporting Memorandum
and evidence have been carefully considered by the Commission.
Before taking up the questions raised by this Petition, the Commission desires
to announce certain principles having general application to petitions and
requests for rehearings as to the claims originally listed, by which the Commis-
sion will be guided in dealing with this and other similar applications.
Where it appears that manifestly the Commission committed an error in
its findings of fact on the evidence produced by the Agents at the time the claim
was submitted for decision, or in applying the principles of law and the rules
of the Commission as established and applied in its previous decisions, the
Commission will take under consideration the question of reopening or changing
the award.
On the other hand, where a rehearing is demanded merely on the ground
that by reason of newly submitted evidence the underlying facts were different
from those appearing in the record as submitted at the time of the decision,
the Commission will not grant a reopening or a reconsideration of the award.
The reconsideration of a claim after a final decision has been rendered
would mean that the whole case would have to be dealt with anew. The new
evidence submitted would have to be brought to the attention of the opposing
party, which would have to be given a reasonable time to investigate and file
additional or rebuttal evidence on its side, and also an amended answer or a
reply, if that was found to be necessary, and then the whole case would have
to be reexamined and decided again. All of these consequences would result
from the failure or neglect of the moving party to produce the additional
evidence before the claim was originally submitted for the decision of the
Commission.
Moreover, if the production of new evidence by a party would give the
right to have the whole case reopened, such right would necessarily attach not
only to every claimant whose claim had been submitted and decided, but also
to the respondent in each case as well.
If such a right were granted and exercised at this advanced stage of the
proceedings of the Commission, it would affect awards which have already
been paid, and, apart from the confusion resulting from such procedure, it
would be clearly contrary to the express wording and manifest purpose of the
Agreement of August 10, 1922, between the United States and Germany.
According to that Agreement the decisions of the Commission are accepted
as final and binding upon both governments, and, inasmuch as the governments
are primarily the parties in interest, the private claimant, on whose behalf
the Government of the United States has finally submitted a claim for decision,
cannot be given the right to alter or nullify this situation by producing new
evidence changing the status of the claim as submitted and decided.
It is also pertinent to consider that most of the applications which have been
made for rehearing have arisen in cases in which the Commission has pointed
out wherein the claimant has failed to furnish evidence sufficient to establish
the liability of Germany under the Treaty of Berlin, as interpreted by this
Commission, and to grant a rehearing in those cases would mean a great
injustice to the great majority of the claimants whose claims were dismissed
by the Commission without indicating wherein the evidence submitted was
insufficient, and who, therefore, have been unable to discover new points of
attack. It may also be noted that in no case, as yet, has the Commission
granted an application to reopen a claim in which a final decision has been
rendered.
DECISIONS 71
The Commission will not reconsider questions of law, which have been
settled in its earlier decisions, as to the jurisdiction of the Commission and the
liability of Germany, under the Treaty of Berlin and the Agreements of August
10, 1922, and December 31, 1928, between the United States and Germany,
as interpreted by this Commission.
The law of the Commission, as established in its earlier decisions, will control
the decisions of the Commission in all later cases.
Turning now to the questions presented by the Petition in this case, it must
be noted at the outset that the Petition relates only to the legal effect of the
transactions between the claimant and the Disconto Bank concerning ruble
credits in Russia.
It will be convenient to recall that the Commission held in its decision on
the facts submitted that these transactions did not establish the ordinary
banking relationship of creditor and debtor between the claimant and the
Disconto Bank so far as these ruble credits were concerned. The Disconto
Bank was merely the intermediary through which the orders of the claimant
were transmitted in dealing with the ruble credits which had been established
in Russia at the claimant's request by the Disconto Bank, in its own name, but
for the account, and at the risk of the claimant. Its responsibility for risk
generally is questioned by the claimant, but there can be no question as to
its responsibility for risk on account of Force Majeure, or restraints imposed
by the Russian authorities.
The Petition and brief now presented by the claimant fail to show that the
Commission was in error in reaching this conclusion on the facts before it when
its decision was made, and the claimant also fails to produce any new evidence
which would justify a different conclusion.
The new evidence now offered in support of the claimant's Petition is relied
upon to show that the Russian banks in which these ruble credits were
established for the claimant's account were not justified by Russian law in refusing
to transfer these credits to the claimant, or to its order, when instructed to do
so by the Disconto Bank, upon the outbreak of the War between Russia and
Germany.
It is established by the uncontested evidence in the record that the refusal
of the Russian banks to honor the drawings by the Disconto Bank in favor of
the claimant was on account of the state of war existing between Russia and
Germany, and it is also established that upon the outbreak of that War the
Russian Minister of Finance issued instructions to the Russian banks to discon-
tinue any payments to, or transactions with, enemy banks, and that the Russian
banks acted in accordance with these instructions in refusing to carry out the
order of the Disconto Bank to transfer to the claimant's credit the rubles
carried for its account by the Disconto in the Russian banks.
The claimant now contends, however, that the Russian Minister of Finance
was not justified under Russian law in issuing the instructions which prevented
the Russian banks from transferring these credits because " it was not until
December 2, 1914 (Russian Style November 19, 1914), that Russia promulgated
any law, by legislation or Imperial Decree, prohibiting the transfer of money
and securities from Russia to German nationals, or preventing the Disconto
from carrying out its obligation to make ruble credits available to the claimant
in Russia " (Claimant's Memorandum in support of Petition, page 9).
This contention may be accepted without disturbing the conclusion reached
by the Commission that Germany was not liable under the Treaty of Berlin
for the resulting damages. The fact remains that the Disconto Bank had to
its credit in Russian banks sufficient rubles to cover the claimant's ruble account
with the Disconto Bank, and that the Russian banks refused to honor the
72 UNITED STATES/GERMANY
drawings of the Disconto in favor of the claimant because of the outbreak of
war between Russia and Germany. Neither the Disconto Bank nor the German
Government was in any way responsible for the refusal of the Russian banks
to transfer this credit to the claimant. Moreover, so far as the credit of 500,000
rubles is concerned, the claimant had not asked that this amount be paid to it
or its order, or transferred to its credit in the Russian banks, and the Disconto
was under no obligation to make such payment or transfer in the absence of a
request by the claimant that this be done. The instruction issued by the
Disconto Bank to the Russian banks to transfer this credit to the claimant was
merely a voluntary effort on the part of the Disconto Bank to protect the interests
of the claimant at the outbreak of war between Germany and Russia, and
demonstrated the good faith of the Disconto because the claimant had immedi-
ately prior thereto neglected the opportunity offered by the Disconto to sell
the claimant's rubles credits with only a comparatively small loss. The details
of this transaction are set out below.
On the other hand, the claimant's contention that the refusal of the Russian
banks to carry out the Disconto Bank's instruction to transfer these credits to
the claimant was illegal under Russian la\v suggests that if the claimant had
demanded of the Russian banks, as a matter of right under Russian law, that
the transfers ordered by the Disconto be carried out at the time the order was
given, the claimant would have received in its own name the entire rubles
credit carried for its account in the Russian banks, which would have saved it
from whatever loss resulted from the action of the Russian authorities in pro-
hibiting further financial transactions between Russia and Germany upon the
outbreak of war.
The claimant also contends in this Petition that even if the relationship of
debtor and creditor did not exist between the Disconto Bank and the claimant
as to its ruble account in Russia, nevertheless, the Disconto was under obligation
to sell rubles, when instructed to do so by the claimant, up to the extent of its
ruble credit, and that such instructions were given by the claimant and not
carried out by the Disconto. The evidence relied upon in support of this
contention consists of a series of cables exchanged between the two banks on
July 25, 27, 28 and 29, 1914, the details of which are fully set out in the claimant's
supporting Memorandum. This is not new evidence, as it was before the
Commission when its decision was made, but it is emphasized here with the
view of showing manifest error on the part of the Commission in its findings
of fact.
The claimant, by arbitrary assertions, which are inconsistent with the plain
meaning of these cables, endeavors to show that they constituted a firm order
to the Disconto to sell out claimant's rubles account, and, on that ground,
challenges the finding of this Commission that " the Disconto acting on its
own responsibility did sell at that time for the Philabank 150,000 rubles without
any substantial loss, but, although the Philabank accepted this transaction, it
failed to respond to the Disconto's specific request for a ' firm order ' as to
further sales ".
The circumstances under which the 150,000 rubles above mentioned were
sold are plainly shown by the first three of these cables. In its cable of July 25,
1914, the Disconto expressed the wish that the claimant would dispose imme-
diately of its rubles account. The claimant replied in its cable on July 27th,
" if advisable sell rubles best ". The Disconto accordingly effected the sale
of 150,000 rubles at 210, and cabled to the claimant on the same date reporting
this sale, and asking " Shall we continue. Give firm order." On the following
day the claimant cabled " We sold at your request only, but if you consider
advisable continue selling." This cable justifies the Commission's finding
DECISIONS 73
that Disconto on its own responsibility initiated this sale, and also the Com-
mission's finding that " the claimant failed to respond to the Disconto's specific
request for a ' firm order ' as to further sales ". This cable certainly was not
a firm order, and whatever discretionary power might have been read into the
final clause of the cable was nullified by the opening statement that the previous
sale was authorized only because requested by the Disconto.
The Disconto accordingly cabled again on July 29th, indicating a desire
that the claimant should continue drawing against the ruble account, by
again giving quotations, and renewing its request for a firm order. The claimant's
cable of the same date, in reply, was unresponsive and inadequate, consisting
merely of the conditional authority to " sell more rubles if reasonably possible
and desirable ".
The claimant's attorneys now allege in their Memorandum that the Com-
mission's finding that the claimant failed to respond to the Disconto's specific
request for a firm order " obliges us to infer that the Commission was unaware
of the three cables authorizing the Disconto to sell rubles in its discretion ".
This statement has the appearance of a deliberate distortion of obvious facts,
and cannot be excused on the ground of ignorance of the meaning of the
expression " firm order ", because the Memorandum says, in the course of
the discussion of this point, " When the Disconto asked for a ' firm order ' it
was asking for instructions to sell specified quantities at specified prices. It was
impossible for the Philabank to give such instructions because of the rapid and
progressive decline in the price of rubles as disclosed by the Disconto's cables
of July 27 and 28 ".
The claimant being a bank presumably was reasonably well informed about
stock market and exchange transactions, and if it was unwilling to give a
firm order to sell at whatever price could be obtained in the market, it cannot
call the Disconto to account for not taking a responsibility on its behalf, which,
as shown by its cables, it was unwilling to take for itself. The Disconto explained
in a letter written at the time to the claimant, dated July 27, 1914, that its
unwillingness to act upon these non-committal orders was because " In the
face of such rapid fluctuations we regret we cannot execute discretionary orders
and prefer to act only upon firm orders".
The claimant's Memorandum states that " the Disconto for some reason
was unwilling to execute the discretionary power given to it by the Philabank
to sell ruble exchange for the Philabank's account ", and suggests that " the
reason may have been that an effort to sell ruble exchange for the account of
the Philabank would have interfered with the sales which the Disconto was
making for its own account or for the account of German clients ". This is a
mere insinuation, unsupported either by evidence or argument, and the Com-
mission is not favorably impressed by it.
The importance of the point about the legal effect of these cables is unduly
magnified by the claimant, and the reasons advanced in the Memorandum
in support of it serve to confirm rather than to disturb the conclusions previously
arrived at by the Commission.
The claimant has also listed as new evidence supporting its Petition a copy
of the decision of the Tripartite Claims Commission between the United States,
Austria and Hungary, in the case of Adolfo Stahl, Docket No. 1206.» That
decision dealt with a claim for the pre-war value of certain Hungarian Treasury
notes which were held for the claimant by a German firm in Hamburg, and
Note by the Secretariat, Vol. VI, p. 290.
74 UNITED STATES/ GERMANY
exchanged by it during the War for a renewal issue without the claimant's
sanction, and the Tripartite Claims Commission held that neither the German
firm nor the Hungarian Government were liable under the Treaty of Budapest
for the loss suffered by the claimant in that transaction.
The submission of this decision of the Tripartite Claims Commission as
justification for the reconsideration of this Commission's decision is quite
in accord with the general inadequacy of the grounds upon which the
claimant's Petition rests. The decision of the Tripartite Claims Commission
has a very remote bearing, if any, on the question presented in this case, and,
in any event, it is irrelevant and immaterial because this Commission is
not bound by the decisions of the Tripartite Claims Commission under the
Treaty of Budapest.
The only other arguments presented in support of this Petition, which call
for special mention, deal with the meaning of the Treaty of Berlin, and seek to
reverse the interpretation of that Treaty on several points which have already
been settled by this Commission in its administrative and jurisdictional deci-
sions, and applied in literally thousands of preceding decisions.
For instance, it is contended on behalf of the claimant that even if the relation-
ship of debtor and creditor did not exist between the two banks, the claimant
was entitled to recover damages as losses " occasioned as a consequence of the
War, or of Exceptional War Measures ".
As to recovering on the ground that the losses were occasioned as a conse-
quence of the War, it is confidently asserted on behalf of the claimant that the
Commission was wrong in holding that, under the Treaty of Berlin, Germany
is not responsible for damages suffered in consequence of hostilities or operations
of war prior to the entry of the United States into the War, unless caused by
" the acts of Germany or her agents in the prosecution of the War ". This
interpretation of the Treaty was adopted by the Commission in the first decision
rendered by it (Administrative Decision No. l),
b and has been invariably
followed and applied in all of the later decisions of the Commission involving
this point. The claimant has not shown that it suffered any loss during the
neutrality period of the United States with respect to its rubles credits in Russia
which was caused by any action of Germany or her agents in the prosecution
of the War, within the meaning of the Treaty of Berlin as interpreted by this
Commission.
As to recovering on the ground that the losses were occasioned by the appli-
cation of Exceptional War Measures, it is asserted with equal confidence on
behalf of the claimant that the Commission is wrong in holding that no " question
of Exceptional War Measures in Germany within the meaning of the Treaty
of Berlin entered into this case because the claimant is an American national
and the United States was still a neutral at the time of these transactions."
If the counsel for the Peti tioner had taken the trouble to examine the Treaty
of Berlin on this point, they would have ascertained that the expression " Ex-
ceptional War Measures ", as used in the provisions of the Treaty of Versailles
incorporated in the Treaty of Berlin, is distinctly defined therein as meaning
measures taken with regard to enemy propeity in Germany, and accordingly,
could not apply to measures affecting American property before the United
States became an enemy of Germany, or affecting property in Russia or else-
where outside of Germany. The Petition cites paragraph 13 of the Rules
adopted by the Commission on May 7, 1925, as sustaining its contention on
this point, but here again an examination of the Treaty would have made it
clear that the only Exceptional War Measures mentioned in that Rule were
Note by the Secretariat, Vol. VII, p. 21.
DECISIONS 75
those applying during the belligerency period of the United States to American
owned property, rights or interests in Germany.
The Commission finds that the Petition for a reconsideration of its final
decision in this case is without merit, and it is accordingly dismissed.
Done at Washington April 21, 1930.
Chandler P. ANDERSON
American Commissioner
W. KlESSELBACH
German Commissioner
ADMINISTRATIVE DECISION No. IX
(May 1, 1929, pp. 951-952.)
JURISDICTION: TIME-LIMIT FOR PRESENTATION OF " LATE CLAIMS ". Held that,
under supplementary Agreement of December 31, 1928, Commission is
without jurisdiction to consider claims, notice of which in writing was not
received by Department of State prior to July 1, 1928.
BY THE COMMISSION: —
The American Agent by appropriate motion requests of this Commission
an administrative ruling with respect to its jurisdiction in a group of claims
against Germany put forward on behalf of Emilie Bernhardt and other claimants.
The facts upon which the ruling is requested are recited in the motion as
follows:
" On June 29, 1928, Max Sturm, an Attorney at Law of 147 Summit Avenue,
Union City, New Jersey, mailed a letter by registered mail at the United States
Post Office, Union City, New Jersey, addressed to the ' Department of State,
Washington, D. C.\ which contained notice of a claim against the Government
of Germany on behalf of Emilie Bernhardt, et al. This letter reached the Department
of State on July 2, 1928."
This Commission was established and exists in pursuance of the Agreement
between the United States and Germany dated August 10, 1922, as supple-
mented by the exchange of notes between the two Governments in the nature
of a Supplementary Agreement dated December 31, 1928.
Under the original Agreement the Commission was without jurisdiction
to consider any claims of American nationals not notified to the Commission
on or before April 9, 1923 (Administrative Decision VIII, Decisions and
Opinions, page 347 et seq.).
&
Subsection (j) of section 2 of the " Settlement of War Claims Act of 1928 "
provided in part as follows :
" The President is requested to enter into an agreement with the German Govern-
ment by which the Mixed Claims Commission will be given jurisdiction of and
authorized to decide claims of the same character as those of which the commission
now has jurisdiction, notice of which is filed with the Department of State before
July 1, 1928."
That Act came into effect March 10, 1928. It put American nationals
on notice that in order to secure the benefit of such Agreement, if any, as might
a Note by the Secretariat, Vol. VII, p. 252.
76 UNITED STATES/GERMANY
be entered into in pursuance of the above-quoted request embodied in the Act,
they were required to file notice of their claims with the Department of State
prior to July 1, 1928, unless such notice had already been so filed.
The request of the Congress to the President was complied with and the
two Governments entered into the Supplementary Agreement of December 31,
1928, above mentioned, which in effect extended the jurisdiction of the Com-
mission to include claims of the same character as those of which the Commission
has jurisdiction under the original Agreement, provided notice thereof was
filed with the Department of State prior to July 1, 1928.
It follows from the loregoing statement that this Commission is without
jurisdiction to consider any claim put forward on behalf of an American
national if notice in writing of the claim was not filed with the Department
of State prior to July 1, 1928.
This decision, in so far as applicable, will control the disposition of all claims
presented to the American Agent for submission to the Commission.
Applying it to the claims dealt with in the motion of the American Agent,
notice of which in writing was not filed with the Department of State prior
to July 1, 1928, it follows that the Commission is without jurisdiction to consider
them.
Done at Washington May 1, 1929.
Edwin B.
PARKER
Umpire
Chandler P. ANDERSON
American Commissioner
W. KlESSELBACH
German Commissioner
ELIZABETH A. ACHELIS, MARGARET ACHELIS SANSOME, AND
FREDERIC G. ACHELIS (UNITED STATES) v. GERMANY
(May 1, 1929, pp. 953-957.)
PROCEDURE : REHEARING AFTER FINAL JUDGMENT. — ESTATE CLAIMS : EXCEPTION-
AL WAR MEASURES, DEPRECIATION OF SECURITIES.
Death in October,
1916, of claimants' grandmother, whose will provided for postponement of
distribution of estate " until peace with England is concluded ". Liquidation,
nevertheless, under German exceptional war measure, after United States
entered war, including payment in April, 1918, and May, 1919, to Treu-
haender of securities, inherited by claimants' mother, an American national.
Final judgment by Commission refusing compensation for alleged losses
through depreciation of securities. Petition for rehearing on ground, that
decision contrary to Administrative Decision No. IV (see Vol. VII, p. 117).
Held that claim did not come under Administrative Decision No. IV, appli-
cable only when obligation arose to transmit money or securities to American
nationals : neither under will nor war measure, an obligation to transmit securi-
ties to claimants' mother could arise for executor and liquidator, respectively.
DAMAGE: RULE OF PROXIMATE CAUSE. — EVIDENCE: BURDEN OF PROOF,
PRESUMPTIONS.
//cWthat Administrative Decision NO. IV established presump-
tion, that administrators of estates are ordinarily under duty to transmit
shares to beneficiaries as soon as estate ready for distribution, and that they
DECISIONS 77
will ordinarily fulfill their duty; and, accordingly, relieved American bene-
ficiaries from burden of proving, that nonfulfillment of duty and loss resulting
from depreciation of estate are proximate results of application of German
exceptional war measure. Held also that, since in present case no duty to
transmit share existed, claimants had to prove causal connexion between
depreciation and war measure, but failed to succeed: had estate not been
liquidated, abovementioned provision of will would have prevented distri-
bution.
BY THE COMMISSION : —
A petition has been presented in this case on behalf of the claimants by the
Agent of the United States, asking for a reconsideration of their claim and an
additional award therein, on the ground that in its decision of February 6,
1929,
1 the Commission failed to render full and complete justice to the claimants
because that decision " is not only not in accordance with the Commission's
Administrative Decision No. IV, dealing with estate claims (Consolidated
Edition of Decisions, p. 141 ),
a but is contrary thereto so that the claimants
have not been afforded the relief accorded to the claimants in a like position
in applying the very same provisions of the Treaty of Berlin ".
The rules of this Commission make no provision for a rehearing of any case
in which a final decree has been entered. Nevertheless, this petition and the
arguments submitted in support thereof have been carefully examined. No
new evidence is submitted in support of this petition, which rests wholly upon
arguments questioning the legal effect of the facts previously presented and
already considered by this Commission in rendering its decision of February 6,
1929.
The contention of the claimants concerns specifically the refusal of the
Commission to award compensation on their behalf for losses resulting from
the depreciation in value of certain securities inherited by them from their
mother, which losses, they allege, were caused by the application to these
securities of exceptional war measures in Germany.
The facts are briefly as follows:
In October, 1916, the claimants' grandmother, Alette Koenig, a German
national, died in Germany, leaving her surviving several children and grand-
children, some of whom were of German nationality, others of British, and the
remainder, being the claimants herein, of American nationality. The interest
of these claimants in Mrs. Koenig's estate is derived through their mother,
Bertha Achelis, now deceased, also an American national and the daughter
of Mrs. Koenig, whom she survived.
In Mrs. Koenig's Last Will and Testament she provided that:
" In case I die before peace with England is concluded and intercourse with my
sons in London is free from all restrictions",
the ultimate disposition of her property should
" be deferred until peace with England is concluded and intercourse with my sons
in England is free from all restrictions " (Exhibit 5 A-2, p. 30).
1 Award entered by National Commissioners on behalf of claimants jointly in
amount of 530,698.86 (with interest at 5% per annum to date of payment of award
on 16,987.96 thereof from January 1, 1919, and on remaining $23,710.90 thereof
from December 11, 1921).
a Note by the Secretariat, Vol. VII, p. 117.
78 UNITED STATES/GERMANY
Her Will also provided that a " special capital ", as designated " in my
books ", but " not less than the sum of 1,000,000 marks out of my entire estate ",
shall be constituted " of which other disposition is hereinafter made ".
Under date of March 27, 1917, one George Mosler, a banker, was appointed
in accordance with the provisions of the Federal Decree of July 31, 1916, and
of an " Instruction regarding the liquidation of British and French enterprises '"
issued by the Prussian Royal Minister of Commerce, and Trade, compulsory
liquidator of the estate of Alette Koenig. The Instruction in so far as the
duties of the liquidator are concerned, reads:
" Proceeds of liquidation remaining for the persons interested in the enterprise
shall be distributed among them; in so far as they fall to enemy nationals they
shall be deposited for the account of the persons interested with the Koenit;l.
Preussische Seehandlung", subsequently changed to the Treuhànder. (Petition for
Rehearing, p. 4).
The Liquidator proceeded promptly with the liquidation of the estate with
the result that on or about August 28, 1917, he was able to submit to the
Minister of Commerce a proposal for the distribution of certain of the assets
of the estate (Exhibit 5 G-2, p. 5). This proposal being approved by the
Minister of Commerce on September 29, 1917, the Liquidator, on or about
October 30, 1917, distributed to the German heirs the major portion of their
share in the estate, but he did not turn over to Bertha Achelis her share, she
being then an enemy national residing in the United States. The Liquidator
held this share until April 18, 1918, when " he paid to the Treuhaender, for
account of the said Bertha Achelis, the bulk of her share in the estate of her
mother, Alette Koenig, and in May, 1919, he reported the remainder thereof
to the Treuhaender through Mendelssohn and Co.", with whom the securities
were deposited. (American Brief, p. 14.)
In these circumstances the claimants contend that their claim comes within
the ruling of this Commission in the Estate Claims Decision above mentioned.
This contention was fully discussed in the briefs of both Agents when the
claim was submitted, and was carefully considered by the Commission before
rendering its decision, and the Commission did not then, and does not now,
concur in this contention.
In the Estate Claims Decision the Commission held that "when an obligation
arose from an heir, administrator, or executor to transmit money or securities
to an American national and he was prevented from so doing by an exceptional
war measure, liability on the part of Germany for the resulting damages
would seem to be established".
The German Agent correctly stated the position of the Commission in
rendering this Decision in his brief (p. 9) in this case, from which the following
extract is quoted for convenience of reference:
" The Estate Decision is an interpretation of Art. 297 (e) of the Treaty of Ver-
sailles with special reference to such enemy property, rights, and interests as consti-
tute an estate or a share in an estate. The significance of the Estate Decision within
the frame of Art. 297 (e) of the Treaty of Versailles consists in the fact that certain
presumptions are established which operate to relieve the claimant to a certain
extent of the burden of proof ordinarily resting upon him. These presumptions are
based on the legal fact that persons in charge of the administration of an estate,
such as co-heirs, executors and administrators of an estate, are ordinarily under a
duty to transmit to the beneficiaries their respective shares therein as soon as the
estate is ready for distribution and that, as a matter of common experience, such
persons will ordinarily fulfill their duty. In case this duty arose during the time
when the German war legislation concerning the American property was in force
and remained unfulfilled at that time, the Estate Decision relieves the American
DECISIONS 79
beneficiary from the burden of proving that the nonfulfillment of the said duty
and the loss resulting from the depreciation of the estate were the proximate result
of the application of German exceptional war measures. It results that under the
Estate Decision Germany's liability to compensate the claimants for the depreciation
of Bertha Achelis' share in the estate of Alette Koenig depends on the condition
that the liquidator was under a duty to transmit this share to the United States
during the time when the German war legislation concerning American property
was in force."
In the present case there was no obligation on the part of the Executor of
the Will at any time to transmit to the claimants their share of the estate,
because the Will in terms postponed the distribution of the estate "until peace
with England is concluded ". This provision of the Will was superseded by the
Liquidation Decree pursuant to which the Liquidator took possession of the
estate and partially distributed it. If the Liquidator had been able and ready
to distribute the American owned share of the estate before the United States
became a belligerent, the Estate Claims Decision would have been applied,
and the claimants would have been entitled to an award under it. The fact
was, however, that, as above set forth, the Liquidator was not in a position to
distribute any part of this estate, even to the German heirs, until October 30,
1917, and meanwhile the United States had entered the War on April 6, 1917.
On that date the American heirs became enemy nationals, and under the terms
of the Liquidation Decree the Liquidator was obliged in distributing the estate
to deposit the share of the " enemy nationals " for their account with the
Treuhaendei, which was done in so far as the estate was ready for distribution.
It is evident from this sequence of events that the Liquidator was not ready
to distribute the American share of the estate before he was prevented from
transmitting it to the American heirs by the other provisions of the same Decree
which authorized liquidation. He, therefore, never was under an obligation
to transmit their share to the American heirs, and it is for that reason that
this claim must be distinguished from the ordinary estate claims, and excluded
from the application of the Estate Claims Decision, which is based both in
principle and in terms on the existence of such obligation.
The Liquidation Decree when originally adopted was not an exceptional
war measure within the meaning of the Treaty of Berlin so far as American
owned property rights and interests in Germany were concerned, but it did
become such an exceptional war measure immediately upon the entry of the
United States into the War on April 6, 1917. Accordingly, under Article
297 (e) of the Treaty of Versailles, the claimants would be entitled to an award
upon proper proof of damage or injury inflicted upon their property rights or
interests in Germany by the application of this exceptional war measure as
provided for in that Article.
Inasmuch, however, as the claimants are not entitled to the benefit of the
presumption recognized in the Estate Claims Decision, for the reasons above
set forth, they are required under the Treaty of Berlin, as interpreted by this
Commission, to establish Germany's liability for such damages in accordance
with Rule 15 of the Commission's Order of May 7, 1925, before they are
entitled to an award, but the evidence submitted by them is not sufficient in
the opinion of the Commission to sustain this burden of proof. The record
fails to show that the claimants sustained a loss due to the application of the
aforesaid Liquidation Decree as an exceptional war measure, and the Com-
mission is of the opinion that such a loss cannot be established within the
meaning of the Treaty of Berlin because, had the estate not been liquidated,
the provisions of the Will would have prevented its distribution until the end
of the War.
80 UNITED STATES/GERMANY
The Commission finds nothing either in the petition or in the record of
this case which would justify an additional award on behalf of the claimants.
Accordingly, the petition for a rehearing and an additional award is found
to be without merit and is hereby dismissed.
Done at Washington May 1, 1929.
Chandler P. ANDERSON
American Commissioner
W. KlESSELBACH
German Commissioner
ELECTRIC BOAT COMPANY (UNITED STATES)
v. GERMANY
(Apt il 21, 1930, pp. 960-965.)
USE UNDER GERMAN LICENCE OF INVENTION COVERED BY GERMAN PATENT. —
PROCEDURE: AGREEMENT BETWEEN AGENTS. — INTEREST: SPECIAL
CIRCUMSTANCES, SPECIAL BASIS.
Held that building in of appliances or
arrangements in submarines under construction constitutes use for which,
under licence, licence fee must be paid. Agreement between Agents on
number of devices for which licence fee due. Special basis adopted for
allowance of interest in view of special circumstances.
Bibliography: Woolsey, A.J.I.L., Vol. 35 (1941), p. 283, footnote 4.
BY THE COMMISSION :
The Commission, having carefully considered the issues presented in this
claim by the pleadings and the questions of fact and law raised in the briefs
on both sides, and having examined the evidence submitted, and after hearing
oral argument by counsel on both sides and after due deliberation thereon,
finds and decides as follows :
I. The Commission finds, on the evidence submitted, that the claimant's
contention that its German patents, No. 147,345 and No. 255,966, have been
infringed by the use of certain devices and appliances on German submarine
boats, has not been sustained, and decides that the German Government is
not liable, under the Treaty of Berlin, for damages for any alleged infringements
of these patents.
II. The Commission finds that the rights granted under the compulsory
license issued pursuant to German law by the Reichsgericht, by virtue of its
Decree of March 13, 1913, to the German Navy and to the Germania Wharf,
to use the invention protected by the claimants' German patent No. 133,607,
have been exercised by the licensees —
(a) In so far as the licensees have used in the construction of submarine
boats an arrangement for simultaneously moving a torpedo forward to the
expulsion tube, while compensating or balancing water is being moved in the
opposite direction to a containing tank or tanks, or for simultaneously moving
a mine in one direction and the water in the opposite direction, so as to maintain
the trim and equilibrium of the boat during the process, and
(b) In so far as the licensees have used in the construction of submarine
boats a " zwischen " water tank containing the exact volume of water required
DECISIONS 81
for filling the space left free by the torpedo in the expulsion tube, but only in
connection with the loading of reserve torpedoes.
The Commission also finds that the use of these appliances or arrangements,
up to the time of the expiration of this patent on August 27, 1916, in the con-
struction of a submarine boat, even before it has been placed in commission,
is sufficient to constitute a use under the compulsory license, for which the
license fee must be paid.
III. The Commission further decides that the claimant is entitled to com-
pensation at the rate fixed in the compulsory license, namely, 4,000 marks per
each expulsion tube on a submarine boat in which either or both of the patented
arrangements or appliances covered by the compulsory license were used as
above specified. If, however, the use on a boat of either of the protected
appliances or arrangements, as above specified, is only in connection with the
launching of mines, or only in connection with the launching of torpedoes,
then only the mine expulsion tubes, or the torpedo expulsion tubes, as the case
may be, are to be counted in computing the compensation under the
license.
Under the provisions of the Treaty of Berlin, as interpreted by this Com-
mission in its earlier decisions, the license fees due in this case are to be valorized
in American money at the rate, for debts, of sixteen cents to the mark.
IV. The Agents of the two Governments have agreed upon and submitted
a tabulation entitled " Summary of Torpedo and Mine Compensation Devices
Installed on the German Submarine Boats ", and showing the number of
torpedo and mine expulsion tubes on these boats, and also the time of completion
of the boats with reference to the date of the expiration of the claimant's patent
No. 133,607, to which this summary has reference.
This classification and figures given in this summary are as follows:
" I. Arrangement (a)
Older Torpedo Compensating Arrangement having 2 tanks,
namely TZT and TAT.
1) Boats in commission prior to expiration of Patent No. 133607
(August 27, 1916)
2 tubes each on following 18 boats,
U 1-4
U 9-22 36 tubes
4 tubes each on following 4 boats
U 5-8 16 „
52 tubes
2) Boats ordered before, completed after August 27, 1916,
18 boats having 4 tubes each, namely
UB 54-71 72 tubes
TOTAL ARRANGEMENT (a) 124 tubes
" II. Arrangement {b)
Newer torpedo compensating arrangement having one compen-
sating tank (TAT) only.
1) Boats in commission prior to August 27, 1916,
2 tubes each on following 54 boats,
U 23-41
U 51-58
U 63-65
82 UNITED STATES/GERMANY
UB 18-41
3 tubes each on following 13 boats,
UC 16-19
UC 22-30
4 tubes each on following 6 boats,
U 66-70
U 81
2) Boats ordered before, completed after August 27, 1916,
1 tube each on following 18 boats,
UB 54-71
2 tubes each on following 4 boats,
U 59-62
3 tubes each on following 51 boats
UC 20-21
UC 31-79
4 tubes each on following 21 boats,
U 82-86
U 99-104
U 117-126
5 tubes each on following 6 boats,
UB 48-53
6 tubes each on following 23 boats,
TOTAL ARRANGEMENT (i)
108 tubes
39 „
24 „
171 tubes
18 „
8 „
26 tubes
153 „
84 „
30 „
138 „
431 tubes
602 tubes
' III. Arrangement (c)
No compensation tank, but merely tank TZT.
1) Boats in commission prior to August 27, 1916,
1 tube each on following 5 boats,
U 66-70
2 tubes each on following 81 boats,
U 1-4
U9-41
U 51-58
U 63-65
U 71-80
UB 1-17
UB 42-47
6 tubes each on following 8 boats,
U 43-50
2) Boats ordered before, completed after August 27, 1916
2 tubes each on following 4 boats,
U 59-62
6 tubes each on following 6 boats,
U 87-91
TOTAL ARRANGEMENT (C)
5 tubes
162 tubes
48 „
215 tubes
36
44 tubes
259 tubes
DECISIONS 83
: IV. Mine Compensation Device.
1) Boats in commission prior to August 27, 1916
2 tubes each on following 10 boats
U 71-80 20 tubes
2) Boats ordered before, completed after August 27, 1916
2 tubes each on following 10 boats
U 117-126 20 „
TOTAL MINE COMPENSATION DEVICE 40 tubes
" V. Torpedo Compensating Device
on boats ordered prior to August 27, 1916, but never completed.
Character of device not known.
4 tubes each on following 8 boats,
U42
U 127-134 32 tubes"
V. In accordance with the hereinabove stated conclusions of the Commission
as to' the liability of the licensees under the compulsory license of March 13,
1913, for the use of the appliances or arrangements protected by this patent,
the Commission holds that the licensees are under obligation to pay the com-
pulsory license fee of 4,000 marks for each of the 124 expulsion tubes included
in the subdivisions of this summary " I. Arrangement (a) ", paragraphs (1)
and (2), and the 40 expulsion tubes included in subdivision " IV. Mine Com-
pensation Device ". The Commission also holds that the licensees must be
held liable for the compulsory license fee for the 32 expulsion tubes on the eight
boats included in the subdivision of this summary " V. Torpedo Compensating
Device ".
These three groups make a total of 196 expulsion tubes to which the com-
pulsory license fee attaches.
The Commission further holds that the licensees are not liable for com-
pensation to the claimant for a license fee for the use of any of the arrangements
or appliances included in the subdivisions of this summary " II. Arrangement
(b) " and " III. Arrangement (c) ".
VI. In view of the special circumstances of this case, the Commission has
adopted a special basis for the allowance of interest, which is to be computed
as follows : On the compensation for 52 tubes at 4,000 marks each, amounting
to 208,000 marks, which, valorized at 16 cents per mark, amounts to $33,280,
interest is allowed at the rate of five per cent per annum from January 1, 1910,
until the date of payment, and on the compensation for 144 tubes at 4,000
marks each, amounting to 576,000 marks, which, valorized at 16 cents per
mark, amounts to $92,160, interest is allowed at the rate of five per cent per
annum from January 1, 1916, until the date of payment.
VII. The Commission accordingly decides that under the Treaty of Berlin,
and in accordance with its terms, the Government of Germany is obligated
to pay to the Government of the United States, on behalf of the claimant
herein, as compensation due under the compulsory license above mentioned,
the sum of 784,000 marks, valorized at 16 cents to the mark, which amounts
to $125,440, with interest as above stated.
Done at Washington April 21, 1930. Roland W.
BOYDEN
Umpire
Chandler P. ANDERSON
American Commissioner
W. KlESSELBACH
German Commissioner
84 UNITED STATES/GERMANY
LEHIGH VALLEY RAILROAD COMPANY, AGENCY OF CANADIAN
CAR AND FOUNDRY COMPANY, LIMITED, AND VARIOUS
UNDERWRITERS (UNITED STATES) v. GERMANY
(Sabotage Cases, October 16, 1930, pp. 967-994.)
SABOTAGE DURING PERIOD OF AMERICAN NEUTRALITY. —EVIDENCE: WIT-
NESSES, AFFIDAVITS. —ARBITRATION: GOOD FAITH, OBLIGATION ot PARTIES
TO TRY TO ASCERTAIN TRUTH.
Fires at " Black Tom Terminal ", New
York Harbour, of Lehigh Valley Railroad Company, July 29-30, 1916, and
in Kingsland, N. J., plan t of Agency of Canadian Car and Foundry Company,
Limited, January 11, 1917. German sabotage? Analysis of evidence (testi-
mony by witnesses, affidavits). Held that in Kingsland case fire not caused
by authorized German agent, and that in Black Tom case such cause not
sufficiently proved. Governments who agreed to arbitrate are under obli-
gation in entire good faith to try to ascertain truth. (Decision subsequently
set aside: see decision of June 15, 1939, p. 225 infra.)
(.ros.-reference: A.J.I.L., Vol. 25 (1931), pp. 147-168.
Bibliography: Witenberg, Vol. VII, pp. 6-9; Woolsey, A.J.I.L., Vol. 33
(1939), p. 738.
These two cases involve claims for damages resulting from fires. The first
relates to the fire which occurred on the night of July 29-30, 1916, at the terminal
yard of the Lehigh Valley Railroad Company in New York harbor, known as
the Black Tom Terminal, and is known as the Black Tom Case. The second
relates to the destruction of the Kingsland plant of the Agency of Canadian
Car and Foundry Company, Limited, at Kingsland, New Jersey, and is
known as the Kingsland Case. This fire started in the late afternoon of January
11, 1917. The two cases have from the beginning been carried along together,
both in the taking of the evidence and in the arguments. It will be convenient
to deal with them in one opinion.
The questions involved are questions of fact. Germany and the United
States, now friendly nations, have entered into an agreement under which
Germany accepts liability for such damage during neutrality to citizens of
the United States, if the damage resulted from acts of her authorized agents.
The Commission has no difficulty with the question of authority in these
cases. The persons alleged to be responsible for causing these two fires to be
set — either by participating in the act themselves or by employing sub-agents
of their own — were in such relation to the German authorities, and some of
them in such special relation to Nadolny and Marguerre, who were in charge
of the Political Section of the German General Staff, or to Hinsch, that Germany
must be held responsible if they, or some of them, did cause the fires to be set.
The Commission does not need direct proof, but on the evidence as submitted
we could hold Germany responsible if, but only if, we are reasonably convinced
that the fires occurred in some way through the acts of certain German agents.
We have no doubt that authority was so given by Marguerre in February,
1916. Marguerre himself so testifies. Nadolny had on January 26, 1915, sent
a cable authorizing such sabotage. Nadolny in his evidence gives the impression
that the policy was abandoned shortly after his cable. Marguerre testifies
that the authority given by him in 1916 was not to be exercised during neu-
trality, but only in case the United States entered into the war. We do not believe
his evidence with respect to this alleged limitation of the authority, though.
DECISIONS 85
It is well recognized that Governments who have agreed to arbitrate are
under obligation in entire good faith to try to ascertain the real truth. Nadolny
may have suppressed evidence as to his knowledge of the instructions given
by Marguerre, and we think, though of course we may be mistaken, that
Marguerre did not tell the truth. Nadolny's examination was confined wholly
to his cable, and the Marguerre instructions were not at that time a feature of
the case. We cannot be sure of what Nadolny knew, and would not be willing
without further evidence to accuse him, but we have felt it necessary to mention
the possibility. It is also apparent that von Strempel of the German Legation
in Chile, in another connection, failed to communicate to the Commission
statements made to him by Herrmann, which tended strongly to cast doubt
upon an affidavit of Herrmann which von Strempel was forwarding to the
Commission, though it should be added that we can easily understand that
von Strempel did not believe these boasting tales of Herrmann, who even then,
apparently, did not admit complicity of himself or Hinsch in Black Tom or
Kingsland. Marguerre's personality does not seem important, but Nadolny
and von Strempel are diplomatic representatives of Germany. Von Strempel
was a young man, unfamiliar with the case, and probably did not fully realize
his obligation as a diplomatic representative to the Commission and to his
own Government.
In speaking as we have of Nadolny, Marguerre, and von Strempel we have
not the least intention to raise any doubt as to the entire good faith of the
present German Government in its management and presentation of these
cases, nor of the Agent who has represented Germany as counsel. And in
order that this last statement may not be construed as merely conventional
courtesy, we state specifically that we have no such doubts. We believe that
the present German Government was entirely prepared to bring out the truth
and to take the consequences, whatever they might be.
It is unnecessary to go further and determine whether such sabotage was
the general policy of the then German Government. The Foreign Office did
specifically authorize the cable, already referred to, which Nadolny sent to
the Embassy in Washington. We are inclined to think that the diplomatic
representatives in the United States were not in accord with the idea and did
nothing in the way of exercising this particular authority. There was an
admitted policy to destroy and damage property of the nations at war with
Germany at this time and later, and it is obvious that such acts if committed
in or from the United States were serious violations of neutrality, that agents
engaged therein were not likely to discriminate very carefully between acts
on United States territory and acts outside the United States, or between
property belonging to Germany's enemies and property not yet delivered, but
intended for Germany's enemies. But in general we are all inclined to the
opinion that Germany's diplomatic representatives in the United States were
averse to attacks on American property, that their opposition to such a policy,
so far as they, possibly, knew or suspected that it was being carried out, became
stronger as the relations between the United States and Germany became more
and more acute. We see no evidence in these cases, however, that such autho-
rity as the Political Section of the General Staff gave was ever modified. And
up to the entry of the United States into the war there were in the United
States certain German agents who were, or at least pretended to be, active
in sabotage work. But we are also convinced that the number of agents so
engaged was always small in proportion to the field to be covered, that they
were never organized effectively, and that their numbers and effectiveness
continually decreased, partly because of difficulty of communicating with
Germany and other difficulties inherent in their situation, and even more
86 UNITED STATES/GERMANY
because of efficient counter-work by the United States Secret Service and
prosecuting officers. We are convinced also that their pretensions in such
reports as they may have made and in their talk with each other were for the
most part gross exaggerations of their actual accomplishments.
With this background, which renders inferences against Germany easier
than they would otherwise be, we approach the evidence as to the German
agents and their alleged tools. We found ourselves absolutely in agreement
as to this background upon our first consultation after the close of the arguments
and before we had considered at all the responsibility of any of the German
agents.
These cases have been argued twice, the second argument having been
necessitated by the production of new evidence. The second argument has
occupied the most of ten days, and it has not been too long in view of the
enormous record of evidence and the details which the counsel were obliged
to cover. We have no intention of covering all these details in our opinion,
but it seems desirable that we should indicate as briefly as possible our views
as to some of the more prominent features of the evidence, although we will
begin by stating our final conclusions, viz.:
In the Kingsland Case we find upon the evidence that the fire was not caused
by any German agent.
In the Black Tom case we are not convinced that the fire was not attributable
to Hinsch and Kristoff, though we are convinced that it was not attributable
to Witzke or Jahnke. But we are quite a long way from being convinced that
the fire was caused by any German agent.
We therefore decide both cases in favor of Germany.
In the Kingsland Case the persons possibly involved as participants are
Witzke, Jahnke, Hinsch, Herrmann, Wozniak, Rodriguez, and Thorne. The
evidence relating to Witzke and Jahnke is mainly in the shape of alleged ad-
missions by Witzke and is intermingled with his alleged admissions in connection
with the Black Tom Case. This evidence makes no impresson whatever
upon us with respect to the Kingsland Case, but the fact that it does refer to
the Kingsland fire as well as to the Black Tom fire tends to weaken the effect
of the alleged admissions as to the Black Tom Case. On the evidence we are
satisfied that Witzke and Jahnke were not in the east at the time of the Kings-
land fire, and eliminate them from further consideration in connection with
Kingsland.
The Kingsland fire of January 11, 1917, started in a building devoted to
the cleaning of shells. It started at the bench of a workman named Wozniak.
The case against Germany in substance depends upon whether Wozniak
started this fire, under Herrmann's direction.
Until Herrmann, who was undoubtedly a German agent and had previously
testified that he had nothing whatever to do with the Kingsland fire, changed
his attitude and testified that he employed Wozniak to start the fire there was.
nothing from which we could reasonably infer either that Wozniak was a.
German agent or that he caused the fire. Hilken, another German agent,
since Herrmann changed his testimony, has testified that Herrmann told him
long ago the same story that Herrmann now tells. Hinsch, the man whom
Herrmann connects with himself in the story, has denied it. His denial contains
plausible details, but we could not rely on it if we felt that Herrmann was now
telling the truth, for though we have no evidence that Hinsch is a liar, there
is a strong presumption that he might be under circumstances which pointed
to his guilt.
Hilken and Herrmann are both liars, not presumptive but proven. No one
could in the light of all their evidence believe anything either says unless
DECISIONS 87
something other than his own assertion confirmed his statements. Hilken's
first long and detailed statement in these cases contained nothing of what he
now says in respect to Kingsland. He had previously testified before the Alien
Property Custodian and had lied continuously. In his first statement for the
Commission he professes his willingness to tell the entire truth. If he did, there
can be no truth either in his or Herrmann's present story. Later he admits
that he did not earlier tell the whole truth, and explains his failure to do so
by his unwillingness to implicate others. But after this first testimony to the
Commission he was sent by counsel for the claimants to Chile to persuade
Herrmann to testify, in which mission he failed. On his return he made an
affidavit covering his conversations in Chile with Herrmann. In this affidavit
it is evident that he had no further desire to shield Herrmann, if he ever really
had such a desire. He tells of various things which Herrmann said to him
which he knew were not true, and pretends to tell what he knows to the con-
trary. But he says nothing about his knowledge of the story Herrmann now
tells about Kingsland. If Hilken had not mentioned Kingsland in this affidavit,
his present story would be more credible. But he says that he asked Herrmann
about Kingsland and that Herrmann in Chile denied all knowledge of it.
Instead of reporting that Herrmann had previously told him all about it, as
he now testifies, he adds to Herrmann's denial merely the statement that
Herrmann had previously told him that he and one Gerdts once rode over to
look at Kingsland after the fire.
Herrmann's present story has in its favor whatever presumption arises,
even after repeated denials, from the fact that he is confessing his own partici-
pation in a crime of serious importance. We know also that some of the things
he previously denied are true. We know, or at least believe, that he was
authorized in Berlin by Marguerre to commit sabotage during neutrality, and
we know that he was supplied by Marguerre with inflammatory devices in the
form of pencils, containing glass tubes. Appropriately manipulated the
chemicals in the tubes would mix after an interval of from 15 to 30 minutes
and cause a flame. But his testimony now with respect to Kingsland and
Black Tom is not at all that of a witness who for reasons of conscience desires
to make a clean breast. Whether he now means to tell the truth or means to
lie, he is testifying solely because of the fact that he has lost his position in Chile,
that the German Government has not taken care of him, and that by testifying
he has secured the chance to get back to the United States with a guaranty of
immunity. We do not imply or think that anything improper was done to
induce him to testify, merely that it is sufficiently obvious that Herrmann
would not have turned his coat if the German Government or the German
Legation in Chile had offered him appropriate inducements, and that having
turned his coat because of advantage to himself he is pretty sure to be in a
mental attitude in which hostility to Germany and desire to make good with
the claimants play a substantial part. And there is nothing about Herrmann
of which we feel so sure as that he will lie if he thinks lying worth-while from
his own point of view.
His story is, in brief, that he planned in accordance with instructions from
Nadolny and Marguerre to commit sabotage in Kingsland, that he applied
to Hinsch to furnish a man, that Hinsch said he would and brought Wozniak
to him, that he learned from Wozniak, not from Hinsch, that Wozniak was
working in the Kingsland plant and that Wozniak thought he could accomplish
something, that after one or two interviews he got distrustful of Wozniak, who
seemed to him like a " nut ", told Hinsch so and asked him for another man.
Hinsch then brought Rodriguez to him. Herrmann then brought Wozniak
and Rodriguez together and asked Wozniak if he could get Rodriguez a job
88 UNITED STATES/GERMANY
at Kingsland. Wozniak said he could as he had a pull with the employment
bureau. Still later he met the two and learned that Rodriguez had the job.
He then gave them each some of the inflammatory pencils, told them how to
fix them up, and instructed them to put one in a coat pocket somewhere,
standing up straight. The chemicals would do the rest. He paid them not
over $40 a week — he did not seem very sure how much — during this short
period. After the fire he saw Rodriguez once, but he never saw Wozniak
again. He asked no questions whatever of Rodriguez, but paid him $500.
gave him a fictitious address and never saw him again.
Herrmann's story is somewhat confirmed by the fact that probably Rodriguez
was employed about the time Herrmann says, shortly before the fire, and by
the fact that Wozniak has peculiarities which might lead Herrmann to charac-
terize him as a " nut ", though the word " crank " would really be more
accurate. On the other hand, Herrmann before he had told this Wozniak
story had seen enough of the early arguments, briefs, and affidavits in the case
to know of Wozniak, to suspect him of being a bit queer, to know that the fire
started at his bench, to know that Rodriguez was supposed to have usually
worked next to Wozniak. But there is nothing to show that Herrmann could
have learned beforehand that Rodriguez had been employed only a short
time, though this is not impossible. Herrmann's attention would before his
testimony have been focussed somewhat on Rodriguez because in the early
stages of the case Herrmann himself was suspected of having been the Rodri-
guez who worked at the plant. This suspicion was probably due to the fact
that Herrmann used the name Rodriguez when he was in Mexico before going
to Chile. It is argued that the fact that he used this name is a confirmation
of his present story, that the name came into his head because he had employed
Rodriguez. But it seems to us unlikely that Herrmann would take in Mexico
the name of someone whom he had employed to set the Kingsland plant on fire,
and Rodriguez is a common enough name in Spanish countries. In fact
there were 20 different men named Rodriguez on the payroll at Kingsland at
different times.
Herrmann's story, as stated above, appears at its best, but there are internal
difficulties in the story itself. A man named Thome plays an important part
in the theory relating to Wozniak and Rodriguez. Thome was in the employ-
ment office of the Kingsland plant, and the theory is that he was well known
to Hinsch, that Hinsch had Wozniak and Rodriguez at his command, and that
Rodriguez must have obtained his employment through Thorne. There
is a good deal of evidence that throws suspicion of some sort on Thorne, so
far as sympathy with Germany, general lack of morals and willingness to do
shady things are concerned, but nothing convincing to show Thome's acquain-
tance with Hinsch. Hinsch denies acquaintance with Thorne, but it was
certainly possible that he did know him. Herrmann says he did not know
Thorne, though there is some evidence that he did. Wozniak had been in the
plant six months at least, and so had been there several months when Thorne
was employed as an assistant in the employment office. If Hinsch had had
Wozniak at his command and in the plant, there was no very good reason why
Herrmann should have taken part in the scheme to have Wozniak do the work.
If these other allegations are true, Herrmann would not have asked Wozniak
where he was working, as he says he did the first time he saw him. He would
not have asked Wozniak, as he says he did, if Wozniak could get Rodriguez
a job. And Hinsch would not have assented without any discussion, as Herr-
mann says he did, to Herrmann's estimate of Wozniak as unsuitable for his
purpose. Herrmann's story of his conversations with Wozniak and Rodriguez
is strangely lacking in the details which would be inevitable in such conver-
DECISIONS 89
sations. if he ever employed these men for the purpose and in the way he says he
did. He was pressed by German counsel for any further details of these conver-
sations, but we get no talk as to how or where they could set the fire, or whether
a fire was likely to be effective if set in Wozniak's building, no discussion of
particulars with either of them except the instructions as to the pencils which
were quite explicit. This lack of detail might have been explained by the
fact of which we are convinced that Wozniak's knowledge of either English
or German was extremely limited. But Herrmann says that the conversations
were in English and that Wozniak spoke English freely though with an accent,
a statement which in view of our judgment as to Wozniak's ability to speak
English at that time arouses further distrust.
And the job, according to Herrmann's story, seems to have been turned
over by Herrmann to Rodriguez after he came on the scene. Rodriguez, not
Wozniak, was the man relied on. Rodriguez was the only one of the two who
turned up after the fire, and Herrmann explicitly says that he asked him no
questions at all but paid him $500 and never saw him again. And yet Wozniak
set the fire if anyone did. And Rodriguez, the only man Herrmann saw after
the fire, the only man he paid after the fire, was not at the Kingsland plant
at all on the day of the fire.
If there is one thing sure about Wozniak, it is that Wozniak was keen for
money. That he would not have come after his money himself is inconceivable
to us with our knowledge of Wozniak's previous and contemporary life and
habits. We have a great deal of evidence about Wozniak's earnings and his
use of his money, but we get no indication whatever that he actually got any
of the money that Herrmann said he paid.
Again, Herrmann's description of Wozniak corresponds exactly with a poor
photograph of him which, we think. Herrmann had seen before he told his
story, and differs in two quite important particulars from the real Wozniak.
Herrmann's story of Wozniak's presence later in Mexico also arouses our
suspicion, partly because we are quite certain that Wozniak never was in
Mexico, partly because it is improbable that, if he had turned up in Mexico,
Herrmann would not have seen him. and partly because, whether Herrmann
saw him or not, his talk there in Mexico with Hinsch about Wozniak's presence
in Mexico could not possibly have been so casual and inconsequential as
Herrmann states that it was.
The discrepancies and improbabilities of Herrmann's story tend to strengthen
our very strong impression from Wozniak's acts and statements at the time of
the fire and shortly thereafter and from the circumstances of the fire that
Wozniak was not guilty. In the same way our impression of Wozniak, derived
from careful study of these acts and statements and circumstances, tends to
increase our doubt of Herrmann's sincerity in his latest evidence.
Our impression that Wozniak is innocent is not due to his own protestations
of innocence. Any man, however guilty, might claim innocence, and Wozniak
has shown in connection with matters having nothing to do with the fire that
he would not let a little thing like truth stand in his way.
Our impression is derived first from the circumstances connected with the
fire itself. Gasoline was used in cleaning the shells and the fire spread quickly,
so that there was great excitement and confusion. The interval between the
time when the first small flame was seen and the time when everyone present
ran for his life was very short. The pan of gasoline close to Wozniak's machine
(as in the case of all the 48 machines) would account for this, but in addition
one workman says that one of the men threw a pail of water on the bench
where the flame first appeared. (The fire buckets in the building contained
water instead of sand.) Wozniak says he made an effort to stifle the fire, and
90 UNITED STATES/GERMANY
there is evidence of another workman that he saw Wozniak make some such
effort. If we were called upon to guess what caused the fire from the evidence
of the circumstances, we should without hesitation turn to the machine which
held the shell which Wozniak was cleaning. There is strongly persuasive
evidence that these machines required constant watching, that when out of
order they squeaked and threw out sparks, and that fires, quickly extinguished,
had previously occurred from this source, and there is some evidence from a
workman close by of squeaking and of sparks from Wozniak's machine just at
the time of the starting of the fire. Wozniak himself does not mention this in
his contemporaneous statements, though he later mentioned it merely as a
possible explanation. In fact he says that his machine was running well that
day, though it had sometimes run very hot. To Wozniak the fire seemed to
originate in the rapidly revolving shellcase itself and to follow the rag wound
around a stick with which he was drying the shellcase when he withdrew the
rag. It is interesting to find that his own statement is the only one which
bears any resemblance to what would have happened if he had used one of the
inflammatory pencils with which Herrmann says he supplied him.
Wozniak, as we have said, is not a " nut ", but a crank, He is in a way
smart, though naive, and thinks he is smarter than he really is. How could
such a man, or any man who had for some time been studying and planning
how to set fire to the plant, start the fire at his own bench, where attention
would necessarily be directed to him, to say nothing of the fact that the parti-
cular place and the particular building would not, to persons planning before-
hand to set a fire, seem to be places where a fire once started would be parti-
cularly likely to be effective, as this fire certainly was? And that a smart crank
like Wozniak should after starting the fire with an inflammatory pencil describe
its beginning in a way which had even a slight resemblance to a pencil fire is
equally incomprehensible. Also incomprehensible is the fact that a man like
Wozniak should not have had ready, when he was examined a day or two later,
some plausible explanation of the cause of the fire, but he certainly had no
explanation at hand, though later he made various suggestions and possibilities.
Although, as we have said, Wozniak's description of the starting of the fire
bears some resemblance to what might have happened if a pencil had been
used, the resemblance is not close enough to make us suspect that a pencil was
actually used. But more important is the fact that Wozniak, if he used a pencil,
must have abandoned completely Herrmann's instructions as to how to use
the pencils. The pencil was intended to enable an incendiary to start the fire
at a time and place when and where he could not be connected with it. The
pencil was devised to operate only after the lapse of from 15 to 30 minutes. It
was not at all adapted to starting a fire at the place where the incendiary
intended to remain. Besides, the pencil needed to stand upright, and the shell
from which Wozniak said the fire seemed to start was in a horizontal position,
revolving in Wozniak's machine in the process of cleaning and drying. The
shells seem to have passed through the various phases of this process at the
rate of about three every two minutes, an average of about 40 seconds each.
Even if we assume that Wozniak had found some way — Herrmann evidently
had not — to make the pencil work faster, we cannot adapt the pencil idea
to the actual process, and cannot imagine that anyone planning the fire in
advance would have considered it possible to use the pencil there under the
eyes of the other workmen close by. Rodriguez and Wozniak are supposed
to be working together on this plot. They are instructed by Herrmann and
provided with pencils. They talk and plan together — supposedly — how
to do the job. There are toilets available; there are workmen's coats some-
where; there are even coats hanging about that particular room; there are
DECISIONS 91
cases of clean rags; there are dirty, gasoline-soaked rags; there must be other
opportunities of which we have no evidence. And yet we are asked to believe
that Wozniak started the fire with a pencil in a dry shellcase, which was
revolving in his own machine at the end of this process which as a whole lasted
about 40 seconds. And Rodriguez, the man really relied upon, was not there
that day.
The evidence as to Wozniak's conduct at the moment, his examinations,
his conduct during the weeks immediately succeeding, his relations with the
representatives of Russia, his life before the fire and afterwards almost to the
present, his disappearance, his reappearance and his subsequent testimony,
his alleged appearance in Mexico among the German agents there, occupy
many pages of the record and could be discussed here ad infinitum, as they have
properly been discussed almost ad infinitum by counsel in their briefs and
arguments. Suffice it to say that we do not believe that he was in Mexico;
that the letters he wrote the Russian Embassy before the fire are in our judgment
not a blind, but exactly such letters as Wozniak would compose, and indicate
to us that he really, as he says, was at heart Russian, intended to go to Russia,
and was shocked at the carelessness and, as he thought, corruption of the inspec-
tors at this plant which was assembling shells for Russia; that without relying
at all on his honesty of statement he nevertheless seems to us to act and talk
like a man who is really innocent in respect to this fire. It is of some signifi-
cance that through the Russian Consulate he sent $90 to Russia the day after
the fire — not the act of a man who the previous day had destroyed this supply
plant for Russian munitions, and whose money or part of it came as pay for
such destruction. The picture of him which one gets from reading the reports
of the four detectives who watched him night and day for about four weeks
following the fire is a picture of a man frugal in the extreme, living at the
Russian Immigrants' Home, buying and cooking his own meals, milk, bread,
occasionally a little fish or meat or fruit, reading Russian papers or books a
good deal, quiet, with no luxuries or dissipations, almost no acquaintances,
no suspicious actions, no suspicious meetings, no indication whatever that he
had anything to do with his supposed co-conspirator Rodriguez or anybody
connected with Germany.
And so, despite Herrmann's confession, the evidence in the Kingsland Case
has convinced us that Wozniak did not set the Kingsland fire, and that Germany
cannot be held responsible for it.
In connection with Black Tom we shall not mention some possibilities which
have practically been abandoned by the claimants, or some agents who have
not been abandoned in argument, like Sauerbeck for instance. We have not
ignored them, but we do not think them worth talking about in connection
with Black Tom.
The picture of the fire itself, which we have in our minds as the result of our
study of the voluminous, detailed, and often contradictory evidence, shows a
large railroad terminal on the Black Tom promontory which stretches out from
the Jersey side into New York harbor not far from Ellis Island. This terminal
is full of railroad cars, many of them loaded with ammunition. At one point
is a dock to which on that night were tied up a number of barges, some of
which, like the cars, were loaded with shells and TNT. The yard was guarded
and watched, but access to it by intentional incendiaries, particularly from
the New York harbor, was certainly not impossible, perhaps not difficult. The
fire started in the middle of a clear, fairly calm night at about 12:45 a.m., in
the form of a small blaze which was discovered by the watchmen, breaking out
around the door of a wooden boxcar which probably contained explosive
shells filled with smokeless powder. There is some claim of more than one
92 UNITED STATES/GERMANY
fire, but we do not believe there was. The fire spread, the explosions occurred,
and the damage was great. It is somewhat difficult to understand how incendi-
aries under the circumstances as we picture them could have secured access
to this car, broken into it, and set the fire without being seen or heard. Nor
does it seem likely that careful planning beforehand would have resulted in
setting fire at this part of the yard, or in one car, or in this particular car. There
were other points of approach and other methods which in advance would have
seemed more likely to produce results. But there is nothing in the circumstances
which excludes incendiarism. The fact that smokeless powder, properly
prepared, is conceded by experts not to be subject to spontaneous combustion
is a strong argument in favor of incendiarism. But the Lehigh Valley Railroad
Company in its defense to the suits brought against it for negligence relied
largely upon spontaneous combustion, and we get the impression that their
counsel had real faith in this particular defense. And yet they then had in
their possession a good deal of the evidence which we now have which tends
to implicate Kristoff.
So far as we can see, the circumstances of the fire leave the question of its
cause open. It may have been some fault in the preparation of the powder
in the shells in this car; it may have come from some other cause connected
with explosives, for though we know of no cause which would naturally be
suggested by the supposed contents of this car we are suspicious of explosives
in general; it may have come from some other accident of which no evidence
appears; of course the fire may have been of incendiary origin, and in this
connection it may be noted that all incendiaries are not German agents. We
can be sure, however, that any German agent seeking for a chance to destroy
munitions would have looked upon Black Tom with the keenest interest.
Leaving out of account some alleged suspects who are not worth attention,
there are two theories which attribute the fire to German agents. One of
these theories centers about Witzke and Jahnke; the other around Kristoff.
Both theories have been urged upon us strongly. The two theories may be
combined into one theory, viz., that all three took part. The two theories
never have been, in fact, so definitely separated in the arguments or in the
evidence as our statement above would imply. But we insist upon the separation.
We are sure that if Witzke and Jahnke were concerned in Black Tom no person
like Kristoff would have been needed or used. He would have been not only
a superfluity but a nuisance, even a menace. Witzke and Jahnke strike us as
capable, capable where German interests were involved of desperate measures
not in the least in need of assistance from an individual like Kristoff. We do
not believe that they would even have trusted Kristoff to row a boat, much
less to take a real part in any Black Tom expedition.
Witzke took part in an expedition from Mexico into Arizona after the United
States entered the war. He was betrayed by his companion, Altendorf. who
was in the employ of the United States as well of the Germans, convicted as a
spy by court-martial, sentenced to death. He was a spy and the sentence was
appropriate, but it was later commuted to life imprisonment and still later
he was released. The evidence of participation in Black Tom by Witzke and
Jahnke consists chiefly of admissions alleged to have been made by Witzke to
his companion Altendorf before he was captured, with some confirmation by
another companion, Gleaves, and by others including one or two guards who
talked to him during his confinement. The alleged admissions cover not only
Black Tom but also Kingsland. Witzke has consistently denied these admissions
during his trial and confinement and since his release. As we have so definite
an impression about Kingsland, the inclusion of Kingsland in his supposed
admissions would of itself make it almost impossible for us to accept the admis-
DECISIONS 93
sion so far as concerns Black Tom. Altendorf, the chief witness as to admissions
by Witzke, is also the chief liar who has appeared in the cases before us, a chief
among competitors of no mean qualifications. The details, so far as any details
appear in the supposed admissions, have little relation to probability, even if
we assume that Witzke and Jahnke were actually involved in Black Tom. It is
perhaps unnecessary to add anything to the above, but we are also satisfied
from the evidence that Witzke and Jahnke were not in the east at the time of
the Black Tom fire.
The only effect which all the evidence and argument with respect to Witzke
and Jahnke has had upon us is to add considerably to the doubts which we
would in any event have had with respect to the evidence implicating Kristoff.
Kristoff" never set the Black Tom fire alone. Witzke and Jahnke being elimi-
nated, there are no persons in the evidence who seem at all likely to have been
his companions, a fact which is nowhere near conclusive but which adds to
our doubts. And the actual evidence against Kristoffis so nearly of the same
nature as these categorical admissions attributed to Witzke that when we find
ourselves satisfied that Witzke's alleged admissions mean nothing to us our
doubts as to analogous admissions and other analogous testimony are
strengthened.
Suspicion was focussed very early on Kristoff in connection with Black Tom.
He lived at the time at Bayonne, N. J , with an aunt, Mrs. Rushnak, whose
daughter was Mrs. Chapman at whose house KristoflF had sometimes roomed
earlier. A day or two after Black Tom Mrs. Chapman reported to Lieutenant
Rigney, a police officer of Bayonne whom she knew well, that Kristoff had
reached home on the night of the fire at about four o'clock in the morning,
that he was greatly excited, and that her mother heard him walking in his
room and heard him say " What I do! What I do! " and that they suspected
him of being responsible for the Black Tom fire. We feel sure that this is all
they reported. Both Rigney and Charlock, a detective who was assigned to
the case and followed it assiduously, say so, and we take pleasure in adding
that we believe them. We also believe what Mrs. Chapman then reported
to Rigney, and we believe that the two women really suspected Kristoff. Later
Mrs. Chapman said that she at some earlier time saw something like a blueprint
or blueprints in Kristoff's room, when he was in her house, and that in his
absence she once read a letter, which he had written but had not yet sent, to
a man named Grandson or Grandor, demanding a large sum of money. We
do not believe that Kristoff had a blueprint, certainly not for his own use, for
we do not believe that he could use one. His own story about Graentsor makes
it possible that he wrote a letter such as Mrs. Chapman described, but we
doubt any story told by her after Kristoff's own story to the police came to her
knowledge. The value of any evidence by Mrs. Rushnak and Mrs. Chapman,
except as to Kristoff's late arrival, his excitement, and the " What I do! ",
will appear from their later statements. Mrs. Chapman said later thai Kristoff
was in the habit of going away on trips and that wherever he went there was
always an explosion, and they both said later, some ten years or more later,
that Kristoff told Mrs. Rushnak the morning after the fire that he had set the
fire. We feel quite sure that they really suspected Kristoff in spite of the fact
that Mrs. Chapman's husband later told Green in Charlock's presence that
his wife had reported the matter to Rigney merely because she was in a family
way and thought she might get some money from the Lehigh Valley Railroad.
As to the reasonableness of their then suspicion, we can judge only by our own
guess from the late arrival, the excitement, and the " What I do ". Mrs.
Chapman's and Mrs. Rushnak's judgments on a given state of facts are worth-
less. At this stage of the evidence we can only add that KristofTwas a man who
94 UNITED STATES/GERMANY
probably returned late at night at other times, that excitement whether for
a good reason or for a trivial reason was probably not an unusual event for
KristofF, and that if he was excited it is unlikely that he expressed his excitement
in the English language. The " What I do! What I do! " is probably Mrs.
Rushnak's translation of what she heard Kristoffsay. But at the same time it is
hardly likely that it is not a substantially correct translation.
The name Grantnor is of great significance in this case. The connection
between Kristoff and Hinsch, who was a German agent and who is alleged
to have used Kristoff as his tool in Black Tom, depends substantially on whether
Hinsch used the name Grantnor as an alias. One Frank Oscar Granson seems
to have been actually an individual who later was a witness in the Rintelen
case, whom Hinsch is supposed to have known. The theory pressed upon us is
that Hinsch in seeking aliases was accustomed to adopt names familiar to him
and so adopted Granson. Why he should have changed it to Grantnor, or
Graentnor, as it is more commonly spelled in the evidence, and why he should
have changed Frank to Francis, is not explained. The actual spelling is of
importance, for Grantnor is an English name and Graentnor is not, and Grantnor
and Graentnor are pronounced differently. The significance of the spelling
applies particularly to Herrmann's evidence, for Herrmann was obviously
in doubt as to the spelling. Herrmann to corroborate his testimony that
Hinsch used the name Grantnor says that he laughed at Hinsch for using the
name because it was an English name and Hinsch, as was obvious to anyone,
was a German. There is no sense in this testimony of Herrmann if the name
was spelled Graentnor or if Herrmann thought it might have been so spelled.
Herrmann, though born in the United States, was a thorough German — knew
the German language thoroughly. He could not have called Graentnor an
English name, and he could not have imagined that a name, which he had
heard often pronounced and was accustomed himself to pronounce Grantnor.
might possibly be spelled Graentnor.
The name, whatever it is, appeared first in Kristoff's story to the police on
his arrest in 1916. We have a verbatim report of one of these examinations.
As Kristoff first used the name here, it is spelled Graentsor. In the other places
in this report it appears as Graentor and many times. How it was then pro-
nounced we do not know. In the police examination of Kristoff later in 1921,
the name appears as Gramshaw, indicating that Kristoff when using the name
himself always insisted on the " s ". Kristoff does not seem to have raised
any question in his first police examination as to the dropping of the " s " by
his examiners, or as to the pronunciation, whatever it may have been. But
Kristoff was not the kind of man to worry about such changes so long as he
understood what man they were asking him about. And Kristoff was not the
kind of man to invent the name, whatever the name was. He must have known
some man who called himself either Grantsor, Grantnor, Graentnor, Grandor,
or perhaps Gramshaw.
Rigney and Charlock were of the Bayonne police force. As Black Tom was
in the jurisdiction of the Jersey City police, Rigney reported Mrs. Chapman's
story to them. At their request Rigney arrested Kristoff about 30 days after
the fire and turned him over to the Jersey City police. The case was in charge
of one Green, now dead, but Charlock kept in close touch with it. Kristoff
was committed as a suspicious person on a disorderly-conduct charge, held for
about 25 days, and then discharged. During this time the police became
convinced that he ought to be examined for insanity, and he was so examined
by Dr. King of the prison where he was confined. King, who seems to have
had substantial experience in this line, reported that his intelligence was of
low order, that his talk was rambling and he could not keep his mind on any given
DECISIONS 95
line, but that he was not in his opinion dangerous. King made up his mind
that Kristoff had nothing to do with Black Tom. Rigney and Charlock came
definitely to the same conclusion. We do not know what Green thought, but
the fact that Kristoff was discharged makes it certain that at the least the Jersey
City police had not sufficient evidence to make the charge against him, and it
is significant also that they did not keep Kristoff under surveillance or do
anything else towards pushing the matter further. Their judgment is important,
for they certainly had a good deal of the evidence now so strongly relied upon.
One of the main points now relied upon is the breaking-down of Kristoff's
alibi. But that alibi broke down at once. Kristoff on being questioned by
the police said he was at the time of the fire at the house of his aunt at Yonkers.
Green apparently went to his aunt's house and was told he had not been there
that night. It does not definitely appear that Green made further investigation
on this point.
But we can have no doubt that the police, before letting go of Kristoff, not
only cross-examined him thoroughly about this broken-down alibi but that
they catechized KristofFtime and again about this and everything else suspicious
or doubtful in his statements or his actions so far as they could learn of them;
his returning late, why he was excited, why he said " What I do! What I do! ",
his Graentsor story — everything they could possibly think of. Rigney said he
did his best before turning him over to the Jersey City police. Charlock said
he examined him many times, the last time when he was discharged. Green
and others of the Jersey police must have done the same thing. Green parti-
cularly could not have dropped the alibi after he had broken it down, or dropped
Kristoff until he had tried to get some explanation. They must have got
everything they could. We do not know whether Green was satisfied of
Kristoff's innocence, but Rigney and Charlock were. We cannot help giving
weight to the fact that they discharged Kristoff when it would have been the
great glory of any of these men to find and convict the culprit in this great
disaster. And we might even suggest that the gentlemen of the press doubtless
knew everything that the police knew, that many people who knew Kristoff
knew that he was arrested and why, that reporters were questioning and
hunting, and that any well-intentioned person who knew anything suspicious
about Kristoff would have been likely to bring it to the attention of reporters
or police authorities. The Black Tom disaster and Kristoff were certainly in
the limelight.
The most extraordinary part of Kristoff's story to the police was with respect
to the man with the kaleidoscopic name, whom we will for convenience call
Grantnor. According to Kristoff, Grantnor met him in the Pennsylvania
Station in New York, asked him the time, got to talking, and then and there
employed him to take with him a long trip, covering many cities, including
cities as far west as Chicago, Kansas City, and St. Louis, staying from one to
three days in these various places. He lent Grantnor S275, for which Grantnor
was to pay him $^,000. He received from Grantnor only a few cents at a
time, but at St. Louis Grantnor gave him a dollar to go to the theatre, and
when Kristoff came back Grantnor was gone, and Kristoff never saw him
again except once when he met him by chance on the street in New York,
when Grantnor agreed to get him a job and being in a hurry made an appoint-
ment for that night at the McAlpin Hotel, where, strangely enough, he was
not to be found when Kristoff went there to get the job. Kristoff knew nothing
whatever about what Grantnor did on these trips, except that Grantnor told
him he was trying to get contracts. Grantnor had two suitcases which Kristoff
said contained plans and blueprints. Kristoff's sole duties were to carry the
suitcases and to watch them when Grantnor was not in his room. Kristoff
96 UNITED STATES/GERMANY
did not go out with Grantnor in any of these cities, except for a casual ride or
two, and did not see any of the people with whom Grantnor talked. He had
asked Grantnor for his regular address but never got it. When first employed
he was supposed to be paid $20 per week, but he never got even that.
The story is suspicious enough in all conscience. If Grantnor can be shown
to be Hinsch, we can easily get a good deal of truth out of the story and add
a good deal of detail. Hinsch himself testifies that he never went further west
than Gettysburg.
But the first thing the story shows us is Kristoff himself. There is no danger
that the story represents real facts, but it does represent Kristoff. Whether
Kristoff was trying to tell the truth and couldn't, or whether he was trying to
make up a good-looking lie and couldn't, we get a vivid picture of a simpleton,
almost a plain fool, and we know that King is complimenting him when he
speaks of him as a man of a low order of intellect.
That is in substance all the direct testimony we have at that time from
Kristoff himself. The police had it and did their best with it. Charlock was
particularly interested in Grantnor and asked Kristoff to try to find him and
let Charlock know. Kristoff is now dead.
In the course of the later investigations of Kristoff we have alleged admissions
by him, which are seriously important testimony, whatever doubts we may
have regarding them.
These admissions are reported by a detective named Kassman, one of the
men of the Burns Detective Agency, which was employed by the Lehigh Valley
Railroad Company to shadow Kristoff. From October or November, 1916,
to April, 1917, Kassman devoted himself to Kristoff, working in the same
factory, getting intimate with him, eating with him, convincing Kristoff that
Kassman was an anarchist and so acquiring his confidence, talking to Kristoff
about the Black Tom fire and about the possibility of damaging other munition
plants, which Kassman professed to Kristoff to be very anxious to do. The
evidence shows that Kassman, whether a compatriot or not, could speak some
language which Kristoff spoke naturally, and spoke little English himself.
We judge therefore that their talk was not in English and that Kassman's
reports which in the evidence are in English must be translations of what
Kassman reported in the language which he used in talking with Kristoff.
We have not all of Kassman's reports. Why we do not know. We get the
impression that the reports we have, which run along from the beginning of
his employment to the end with varying intervals between the reports, were
selected and put together in the shape submitted to us; not selected for the
purpose of submission to us but for some other purpose. Very likely they
were so selected because they seemed to the person making the selection to
be the only important reports in a long series. Whatever the explanation, the
reports as submitted to us omit much that seems important to us. We cannot
accept at face value admissions appearing in reports from a detective when
other reports from the same detective are lacking, which may conceivably contain
denials, or explanations, or sidelights, or statements of fact which are inconsistent
with other circumstances which we know or with the alleged admissions.
And Kassman, entirely unconsciously, discredits every admission by Kristoff
which appears in his reports. In his affidawt to the Commission stating that the
attached are some oi his reports and that they are true, Kassman undertakes
to state, again in English, what Kristoff admitted to him, and this statement
not only changes the language of the admissions in the reports but also changes
the substance very materially. Where Kristoff in the alleged admissions speaks
of " steamboats " at Black Tom upon which he and his companions set fires,
Kassman in his affidavit speaks of " barges ". There were no " steamboats "
DECISIONS 97
at Black Tom, but there were "barges ". Again, the admissions in the reports
speak only of setting fires on " steamboats ", and we see no reason to believe
that any fires were set on any boats, whether steamboats or barges. Kassman
in his affidavit says that Kristoff said not only that a fire was set on a barge,
but also that one man set a fire among the cars. The affidavit is made about
10 years later than the reports, but the difference is not forgetfulness. It is
the conscious effort of Kassman to say what the immediate necessity seems to
him to call for. If the admissions do not fit, he is prepared to make them fit
and does his best.
Kassman's reports were in the hands of the Lehigh Valley Railroad Company
when the cases against the company, arising out of Black Tom, were tried.
So far as we can ascertain, the evidence was not used. We can see reasons
for this from the point of view of successful defense, and we are not inclined
to attach great weight to this point or to the fact that they urged spontaneous
combustion so persistently. The only weight we would give to the last point
arises from the impression of sincerity which the language used by the railroad's
counsel makes on us. It is somewhat singular that it makes this impression,
for we are all used to pleadings and openings and arguments, and in most
cases would not get any impression one way or the other from them. But of
course there is no estoppel here, and the opinions of counsel in other cases,
however sincere, do not establish facts for the cases before us.
Nor were these reports made the basis for any criminal action against
Kristoff. This would be of some importance if they had been in the possession
of the police, but we can understand that the railroad company or the present
claimants would not be particularly interested in punishing Kristoff but might
be hoping to supplement whatever evidence Kassman supplied so as to reach
whatever influences were behind him.
The language of the confessions is not in itself persuasive of their truth.
They sound as do the admissions alleged to have been made in Mexico, more
like a reproduction of gossip current in the circles of the man who used the
language — whether that man was really Kristoff or whether the language
comes from Kassman only and not from Kristoff— than they do like state-
ments of fact made by or quoted from a man who is telling what he himself
did. More important still, they do not correspond to the facts and circum-
stances of the fire. Nor do we like the fact that the language of the admissions
is always substantially exactly the same and is very brief, whether it is quoted
from Kristoff or (in one instance) from Grossman, who is alleged, after having
emphatically told Kristoff in Kassman's presence that he must never under any
circumstances say anything about Black Tom, to have told Kassman at a later
interview alone just what Kristoff told Kassman and in the same brief, crisp
language. We are more than suspicious, we disbelieve, in fact, when Kristorl
is alleged to have introduced Kassman to Grossman's favor by telling him that
Kassman is an anarchist. Grossman is not an anarchist. The evidence con-
vinces us that he is a respectable citizen. He has been a member of the Repu-
blican County Committee in his county for 15 years. Rigney tells us that
his lather-in-law lived in Grossman's house with him about 10 years and always
spoke in the highest terms of him. Grossman is a cautious man. And he is
easily scared. We attribute much of the confusion and contradiction in his
testimony partly to the fact that he was scared — not because of conscious
complicity with a criminal, but by the nature of the occasion — and partly
to the fact that he is deaf. We get no unfavorable impression from Grossman's
testimony, and we are particularly impressed by the fact that he refused to
testify until assured that some representative of the United States Government
would be present.
98 UNITED STATES/GERMANY
But to return to Kassman. The admission in each case is that Kristoff
worked with some German group. Kristoff never naturally used such an
expression as " German group ". This is Kassman's language ; he was employed,
as he says, to find Kristoff's connection with some German group, and this is
language which he puts in KristofTs mouth, though of course it may be a
substantially accurate transposition of something Kristoff said. Kassman
pressed Kristofffor names, and says that Kristoff said he would tell him later,
but Kristoff never did.
The omissions in the reports are very remarkable. In substance the reports
are composed of anarchists, lunches, and suppers, and brief categorical state-
ments about Kassman's desire to destroy, Kristoff's unwillingness to join
Kassman in sabotage because of police, and Kristoff's admissions about Black
Tom.
One singular omission is that Kristoff does not congregate with other German
agents. The urge to congregate is in all the other testimony the most marked
characteristic of all German agents. But we hear nothing of Kristoff's meeting
other German agents or even sympathizers. No name appears even of all
the various Germans mentioned in our other testimony. And the admissions
are brief and rare episodes in a long series of uneventful, common-place stuff.
We even doubt whether " anarchists " as used by Kassman really means
" anarchists " in any accurate sense.
Another doubt — the most important perhaps — arises from the absence
of conversations about Mrs. Rushnak, Mrs. Chapman, about Kristoff's supposed
travels in the west, about Grantnor, about Kristoff's alibi, etc. We can feel
sure that Kassman was not put on this job without being supplied with all
the information the people who employed him already had. His natural
approach towards getting information from Kristoff would not be this anar-
chistic talk and the ridiculously crude, unskillful talk — from the point of
view of a man supposed to be a detective — about munitions and about Black
Tom itself. He would naturally begin on Kristoff with talk about the west,
the cities where Kristoff told the police he had been, to see if Kristoff really
knew about the cities and said anything about the trip, whom he was with,
what he did. After Kristoff began talking about his arrest by the police,
Kassman would have a perfect opening for talking over the whole story, the
trip, Grantnor, whom Kristoff and Grantnor saw on the trip, Mrs. Rushnak,
Mrs. Chapman, the alibi, what he really did the night of the fire, whether he
was excited when he got home and why, and the " What I do ". It is incon-
ceivable that Kassman did not go into all these subjects with Kristoff in the
course of the six months he followed him up. Either Kassman was a fool, or
he had those talks and made reports about them which we have not got. If he
got so intimate with Kristoff as to get confessions about Black Tom, he would
have found no difficulty in getting Kristoff to talk over his whole story to the
police. Kristoff would have been rather proud that he got away from the
police, would have enjoyed his cleverness in producing a story from which
they could make nothing, would have talked freely about Rigney, King,
Charlock, and Green, who had examined him and tried to get him to confess.
We hear nothing about any of these things.
Kristoff's experience with detectives was not at an end, even when Kassman
was taken off his track. In 1921 he was arrested in Albany and while in jail
there another detective was placed with him in the guise of a prisoner and
attempted to gain his confidence and secure admissions. Nothing came of
this. At the same time he was examined with great thoroughness by counsel
for the Lehigh Valley and by others. Kristoff seems to have professed willing-
ness to help them in every way, probably with the idea of thereby securing his
DECISIONS 99
release from jail, but we get nothing whatever except that he was ready,
he could be taken to Philadelphia, to point out a house which he thought was
used as a rendezvous by German agents. The court granted an order for his
removal from jail under guard to visit Philadelphia, but we do not even learn
that they took him there. They did at least take him to New York where he
was confronted with Mrs. Rushnak and Mrs. Chapman, and a strenuous effort
was made by all concerned to get him to admit Black Tom. He denied all
connection with Black Tom. It also appears in close connection with this
story that Mrs. Rushnak was in 1918 under surveillance of a woman detective
in the guise of a lodger in her house. This was evidently done for the purpose
of securing evidence from Mrs. Rushnak that Kristoff came home late the
night of the fire. It seems singular that this should have been necessary, but
doubtless Mrs. Rushnak had in the interval between 1916 and 1918 denied
this story. The woman detective did report that Mrs. Rushnak finally admitted
to her that Kristoff came home late, but she insisted at the same time that
Kristoff not infrequently came home late, and that he was absolutely innocent,
and added that she had merely made it easier for him to secure his release from
the police in 1916 by denying that he came home late.
Apart from Kristoff's supposed statement that he worked in some unidentified
German group, we have no connection of Kristoff with Germans except his
possible connection with Hinsch. His group statement certainly is not enough
for us. We have to be convinced that Hinsch was Grantnor or Grantsor or
Graentnor in order to get a good start on the idea that Hinsch through Kristoff
was responsible for Black Tom. His Grantsor story must be connected up with
Hinsch. In his own evidence there is no such connection except his meeting
Grantnor later in New York when Grantnor told Kristoff he could find him
at the McAlpin Hotel. This is where German agents sometimes roomed, and
it is argued that this statement connected him with Hinsch. But it seems
hardly likely that Hinsch would have mentioned the McAlpin if he was trying
to get rid of Kristoff. He would have given him some fictitious address or
some address which had no relation to Germans.
The only evidence worth considering that Hinsch was Grantnor is the
evidence that Hinsch called himself Grantnor. This comes from Herrmann
and Hadler. It seems possible, but we regard the evidence of Herrmann as
wholly unreliable.
When Herrmann appeared before the American and German Agents at
Washington he told the Agents that he could not remember any Grantsor or
Gransor. This was on his arrival from Chile after he had decided to testify
in behalf of the claimants, but before his formal examination. He was then
asked to write out his own story which he did that night, and in this story he
speaks of Hinsch calling himself Grantnor, and corroborates it by relating
that as a joke Hinsch called him Rodriguez just after the Kingsland fire, and
that he retorted by calling Hinsch Grantnor. In his cross-examination about
his complete failure to remember Grantnor or Grantsor at first, it seems plainly
apparent that he had been reminded of Grantnor in conversation after his
failure to remember, and also that the question of Grantnor had been the
subject of discussion on his journey from Chile. Grantnor, as we have said, is
the missing link in this part of the story, and this failure of Herrmann to re-
member the name at all is a stumbling block to believing what he later says
on this point.
Herrmann also was very doubtful about the spelling of the name. He tries
twice to spell it and each time gives alternatives, Grantnor and Graentnor,
though no German could think that the name, if pronounced in English fashion,
could possibly be spelled Graentnor.
100 UNITED STATES/GERM ANY
Herrmann also says he had heard Hilken call Hinsch Grantnor. but Hilken.
one thing to his credit, does not even testify that Hinsch used the name Grantnor.
and Hilken knew Hinsch better than anyone else. Hilken even testifies that
he never heard of Grantnor.
Hadler's testimony as a whole is unconvincing. If he had told only about
Hinsch's claims in Mexico to credit for Black Tom and Kingsland we would
be more inclined to believe him. But his identification of Wozniak is nonsense
in itself, and particularly so as we think that Wozniak never was in Mexico.
And we take no stock in his story of the frequent repetition of the Rodriguez-
Grantnor joke. It would not have been a joke at all in Mexico for there seems
to be no doubt that Herrmann called himself Rodriguez there. But the most
convincing point about this evidence by Hadler is that this joke, if it ever
happened, was first made in the United States immediately after the Kingsland
fire. We do not believe that both Herrmann and Hinsch were so lacking in
humor that they continued to work this joke after they got to Mexico, and in
the presence of such a person as Hadler. It is the kind of joke that they would
keep for their own amusement, even if one can imagine that it continued to
amuse them. Hadler carried this joke too far.
One is rather inclined to regard Hinsch's story that he gave up sabotage
when he took over the Deulschland work as quite likely to be true. He may not
have done this at once, but it seems more than likely that he would not while
the Deutschland was at Baltimore have been active in sabotage. We do not
regard the question whether Hinsch was absent from Baltimore during the
two days before Black Tom as important in itself. He did not need to be absent,
if they had been planning Black Tom for some time. Its importance relates
only to Hinsch's credibility, and it does not have much importance from this
point of view. It has some bearing on the credibility of other witnesses
also. Our impression is that Hinsch was not absent from Baltimore at this
time.
The fact that Hinsch let Herrmann stay around Baltimore, and that Herr-
mann probably did some things or talked of some things in connection with
sabotage at this time, and the talk about the pencils which Herrmann seems
to have had with him at this time, tends against Hinsch's claim that he cut
loose from sabotage. We would guess that Herrmann was not really doing
much but talk and plan, and that Herrmann himself, particularly when the
Deutschland was there, was doing nothing but work about her. And it is of
course conceivable that we are wrong in disbelieving Marguerre's evidence
that Herrmann was to take no action against munition plants or American
property unless the United States entered the war. We do not believe that
Hinsch would have mixed up sabotage so closely with the Deutschland, either
by taking part in it himself or by letting Herrmann work on the Deutschland
if Herrmann was then active in sabotage.
In certain cases an accumulation of items, each in itself too doubtful to be
relied upon but all leading in the same direction, results in reasonable certainty.
The evidence of fact in this case has pointed in a number of different directions,
but even when some special part of the evidence has pointed in some one
direction it has failed to carry conviction. The Kristoff evidence with which we
have dealt comes the nearest to leading somewhere.
We cannot be sure that Kristoff did not set fire to Black Tom or take some
part in so doing. We cannot be sure that Graentsor, or Grantnor, or Graentnor
was not Hinsch, and that Hinsch did not employ KristofF and others who are
unknown. But it will sufficiently appear from the foregoing that, as we have
said, the evidence falls far short of enabling us to reach the point, not merely
DECISIONS 10 1
of holding Germany responsible for the fire, but of thinking that her agents
must have been the cause, even though the proof is lacking.
Done at Hamburg October 16, 1930.
Roland W. BOYDEN
Umpire
Chandler P. ANDERSON
American Commissioner
W. KlESSELBACH
German Commissioner
[Extract from the Minutes of the Meeting of the Commission held on January 9,
1931]
The American Commissioner instructed the Joint Secretaries to record in
the minutes of this meeting (the first held since October 20, 1930) that the
Commission had rendered its decision dismissing the claims of the United
States of America on behalf of the Lehigh Valley Railroad Company, Agency
of Canadian Car and Foundry Company, Limited, and Various Underwriters,
Docket Nos. 8103, 8117, et al., against Germany, which had been finally
submitted by the American and German Agents on September 30, 1930, after
oral arguments at The Hague, that the said decision, dated at Hamburg, Oc-
tober 16, 1930, and signed by the Umpire, the American Commissioner, and the
German Commissioner had been, by prearrangement of the National Commis-
sioners, simultaneously communicated on November 13, 1930, in duplicate
originals to the Government of the United States and the Government of
Germany, and had been made public by the two Governments, at Washington
and Berlin respectively, on November 14, 1930, and that a third signed copy
had been filed in the records of the Commission on November 15, 1930.
LEHIGH VALLEY RAILROAD COMPANY, AGENCY OF CANADIAN
CAR AND FOUNDRY COMPANY, LIMITED, AND VARIOUS
UNDERWRITERS (UNITED STATES) v. GERMANY
(Sabotage Cases, March 30. 1931, pp. 995-997.)
PROCEDURE: REHEARING AFTER FINAL JUDGMENT, NEW EVIDENCE, FINAL
DATE FOR FURTHER PETITIONS. —IRREGULAR RENDERING OF DECISION:
DELIBERATIONS, ROLE OF UMPIRE, COMMISSION'S PRACTICE.
Requests filed
January 12 and 22, 1931, for rehearing after final judgment of October 16,
1930. Held that final judgment not irregularly rendered because of Umpire's
participation in National Commissioners' deliberations and in opinion of
Commission: usual practice in important cases since Commission's foun-
dation. Reference made to decision of April 21, 1930, in Philadelphia-Girard
National Bank case, p. 69 supra, with regard to new evidence in sabotage
cases to be submitted in future supplementary petitions for rehearing. Final
date set for submission of any further matter.
EVIDENCE, PROCEDURE: AFFIRMATIVE PROOF, PRIMA FACIE CASE, PRE-
SUMPTIONS, WITNESSES, SUBPOENA, OATH, ORAL TESTIMONY. —JURISDICTION:
EXTENSION BY (MUNICIPAL) STATUTE.
Held that (1) Treaty of Berlin requires
8
102 UNITED STATES/GERMANY
affirmative proof (as distinguished from prima facie case or presumption from
refusal or destruction of documents) that damages were result of act of
Germany or agents, (2) Commission may not subpoena witnesses, administer
oaths, and take oral testimony: Agreement of August 10, 1922, does not
authorize Commission to do so, and Act of Congress of July 3, 1930, appli-
cable to international commissions, cannot extend Commission's jurisdiction.
Cross-reference: A.J.I.L.. Vol. 27 (1933), pp. 339-341.
Bibliography: Witenberg. Vol . Ill, pp. 10-11; Woolsey, A.J.I.L., Vol. 34
(1940), pp. 24-27; Annual Digest. 1931-32, pp. 421, 425-426, 427.
Decision on Petitions for Rehearing
Petitions for a rehearing have been filed by the American Agent in the
so-called Black Tom Case on January 12, 1931, and in the so-called Kingsland
Case on January 22, 1931. No new evidence is filed with these petitions.
Although the rules of this Commission, conforming to the practice of inter-
national commissions, make no provision for a rehearing in any case in which
a final decree has been entered, these petitions have been carefully considered
by the Commission.
The briefs previously filed in behalf of the United States and the detailed
argument of its Agent at The Hague in September, 1930, were marked by
ability and thoroughness to which was added the force of his sincere conviction.
It is therefore not surprising that the present petitions for rehearing bring out
no new argument. We have studied them carefully to see if we have misin-
terpreted or misunderstood anything or failed to consider or to give due weight
to any of the considerations now urged as a basis for rehearing. We are satisfied
that we had a clear understanding of the Agent's position with respect to every
point now presented and that every one of these facts or arguments was given
careful consideration by us.
The terms of the Treaty of Berlin determine the financial obligations of
Germany so far as this Commission is concerned. Both Governments and the
Commission from the outset have recognized that in order to hold Germany
liable for damages incurred during the period of neutrality this Treaty requires
affirmative proof that such damages were the result of an act of the Imperial
German Government or of its agents. The previous decisions of the Commission
invariably have been based on this requirement. In the instant cases our
conclusions were that the evidence did not convince us that the damages were
the result of such acts. The substance of the petitions is that our conclusions
were wrong. They may be, as we make no claim to infallibility, but they were
and are our conclusions and nothing in the present petitions impairs our
confidence in their correctness.
We think it futile to criticize the Agent's criticisms of our judgment, even of
our good faith. One of his criticisms, however, which involves a jurisdictional
question, calls for comment.
This question is raised by the American Agent's claim that the decision was
irregularly rendered because the Umpire participated in the deliberations of
the National Commissioners and in the opinion of the Commission. The
Umpire participated in the deliberations of the Commissioners and in the
opinion in accordance with the usual practice of the Commission in cases of
importance since its foundation in 1922, a practice never before questioned and
not in our judgment of doubtful validity even if it had not so long been accepted
by all concerned.
These petitions for rehearing are dismissed.
DECISIONS 103
A new jurisdictional question is raised in these petitions by the requests
that subpoenas be issued by the Commission for the purpose of taking the oral
testimony of certain witnesses. This suggestion is contrary to the unbroken
practice of the Commission. The Agreement of August 10, 1922, between
Germany and the United States, which established this Commission and is
the foundation of its jurisdiction, does not authorize it to issue subpoenas for
witnesses or to administer oaths and take the oral testimony of witnesses. The
requests that subpoenas be now issued by the Commission for the purpose of
taking oral testimony are based upon an Act of Congress approved July 3,
1930, having general application to international commissions, which the
American Agent contends applies to this Commission and authorizes it to take
this procedure. The Commission is of the opinion that the jurisdiction con-
ferred upon it by the two Governments in their Agreement of August 10, 1922,
cannot be extended by this later statute of the United States. Even if it had
authority, the Commission would not change its practice at this stage of these
cases, when the evidence has been formally closed, the arguments made, and
the decisions rendered.
Accordingly, the requests in these petitions that the Commission issue sub-
poenas for the oral examination of witnesses are also denied.
In these petitions the American Agent states that he is collecting new evidence
the submission of which will be the subject of supplementary petitions. Apart
from the objection above noted to the taking of oral testimony, the Commission
has pointed out in its decision denying the petition for rehearing filed by the
American Agent in the Philadelphia-Girard National Bank case a number
of objections to the submission of new evidence by either party as a basis for
reopening or reconsidering decisions rendered in cases finally submitted. Some
of these objections involve serious jurisdictional questions. The questions to
be presented in the proposed supplementary petitions, however, are not dealt
with by the Commission in this order, which deals only with the present
petitions for rehearing on the basis of the evidence filed at the time these cases
were submitted for decision.
Each of the two Governments has expressed a desire that the Commission
wind up its labors as soon as practicable. All but a very few of the cases having
been decided and there being only a comparatively small amount of work
remaining to be done, it is necessary to set a final date by which each Agent
should tender any further matter he may intend to ask the Commission to
consider. That date is fixed as May 1, 1931.
Done at Washington March 30. 1931.
ROLAND W. BOYDEN
Umpire
Chandler P. ANDERSON
American Commissioner
W. KlESSELBACH
German Commissioner
104 UNITED STATES/GERMANY
LEHIGH VALLEY RAILROAD COMPANY, AGENCY OF CANADIAN
CAR AND FOUNDRY COMPANY, LIMITED, AND VARIOUS
UNDERWRITERS (UNITED STATES) v. GERMANY
(Sabotage Cases, December 3, 1932, pp. 1004-1029; Certificate of Disagreement by
the two National Commissioners, November 28, 1932, pp. 999-1004; Separate Opinion
on the KingslandCase by the American Commissioner, December 2, 1932. pp. 1029-1036.)
PROCEDURE: REHEARING AFTER FINAL JUDGMENT, NEW EVIDENCE. —EVI-
DENCE: WITNESSES, AFFIDAVITS, CROSS-EXAMINATION; EXPERT OPINIONS
ON AUTHENTICITY OF LETTERS AND DOCUMENT, VALUE OF EXPERT OPINIONS
IN GENERAL; DIARY, CHECKBOOKS. —JURISDICTION: REHEARING.
Request
filed July 1, 1931, for rehearing after final judgment of October 16, 1930.
Analysis of new evidence (see supra). Held that expert evidence is often and
at best only an aid to judgment, but far from an infallible guide. Unneces-
sary, in view of negative result of analysis, to decide on Commission's
jurisdiction te reopen claim, despite opposition from national Commissioner,
once it has been formally passed upon and decided. (Decision subsequently
set aside: see decision of June 3, 1936, p. 222 infra.)
Cross-reference: A.J.I.L., Vol. 27 (1933), pp. 345-364.
Bibliography: Witenberg, Vol. Ill, pp. 12-16; Woolsey, A.J.I.L.. Vol. 33
(1939). p. 739, and Vol. 34 (1940), p. 29; Annual Digest, 1931-32, p. 425.
Certificate of Disagreement by the two National Commissioners
on Supplemental Petition foi Rehearing
A supplemental petition for a rehearing, based on newly-submitted evidence,
was filed on July 1, 1931, by the American Agent in the so-called Black Tom
and Kingsland cases, asking the Commission to reopen and reconsider its
decision of October 16, 1930, dismissing those claims.
This supplemental petition was preceded by petitions for a rehearing filed
respectively on January 12 and January 22, 1931, which were based on the
grounds that the Commission, in rendering its original decision, " committed
manifest errors in its findings of fact on the evidence submitted and in failing
to apply important established principles of law and the rules of the Commis-
sion ", and also made the point " that the decision was irregularly rendered
because the Umpire participated in the deliberations of the national Commis-
sioners and in the opinion of the Commission ".
On March 30, 1931, the Commission, in its decision on the questions raised
by those petitions, overruled the objections to the participation by the Umpire
in the deliberations and decision of the Commission, and dismissed, for reasons
stated, the petitions in so far as they were based on the evidence contained in
the record at the time the cases were submitted at the conclusion of the oral
argument at The Hague. The Commission reserved, however, for later decision
the question of reopening and reconsidering its original decision on new evidence
which the American Agent had already announced he intended to submit
by supplemental petition.
The question thus reserved is now presented by the pending supplemental
petition, on which the present proceedings come before the Commission. In
these circumstances the only questions now to be dealt with are those raised
by the submission of new evidence, and the Commission, accordingly, will
DECISIONS 105
not re-examine the findings of fact made in its original decision of October 16,
1930, unless the Commission decides that it has jurisdiction to reopen these
cases and the new evidence now submitted requires reversal or modification
of such findings of fact.
The Commission has already heard, at its session held in Boston on July
30—August 1, 1931, oral argument by both Agents on some of the issues
involved. No decision was rendered at that time because the German Agent
was authorized to submit some additional information in regard to his conten-
tion that certain documentary evidence presented by the American Agent was
not authentic. In consequence much additional evidence has been submitted
on both sides since the Boston meeting. For a considerable time during that
period the Commission was without an Umpire, but on April 8, 1932, when
the Commission was again fully organized, it held a meeting in Washington
and entered an order fixing definite time limits for the submission of any further
evidence by either Agent. This order was amended, in agreement with both
Agents, at a meeting held in Washington on November 1, 1932, and, as amen-
ded, required that the submission of evidence on both sides be finally closed
on November 15, 1932, and fixed November 21, 1932, and succeeding days
for oral argument on both sides, and the final submission of these cases at the
close of such argument.
In order to make the record complete, mention must be made of a motion
presented by the American Agent on February 5, 1932, for the production by
subpoena of the Commission of certain witnesses for oral examination. The
Commission had already dismissed, in its decision of March 30, 1931, a similar
motion by the American Agent, on the ground of lack of authority to subpoena
witnesses without the consent of both Governments. The new motion, renewing
this request, was opposed by the German Agent on behalf of his Government
and, accordingly, the matter was referred, at the suggestion of the Commission,
to the two Governments for direct action between themselves if they wished
to confer the proposed authority on the Commission. Such authority has not
been conferred by the two Governments, and accordingly, this new motion
has not been and cannot be considered by the Commission.
The foregoing brief review of the proceedings hitherto taken since the decision
of October 16, 1930, brings the history of these cases down to the recent session
which closed on November 25, 1932, when all the pending questions presented
by this supplemental petition and the accompanying evidence were finally
submitted.
A preliminary objection to the reconsideration by the Commission of its
original decision has been raised by the German Agent on the jurisdictional
ground that the Commission is without authority to admit the further evidence
now offered for consideration by the Agent of the United States, or to grant
a rehearing on the basis of such evidence, or any other evidence, after these
claims had been dismissed by the Commission in its decision of October 16,
1930.
The Commission has taken note of this objection, but did not feel called
upon to make a ruling on its validity at the outset. In all similar cases,
including the proceedings on the original petitions for rehearing in these cases
filed in January, 1931, the Commission has invariably taken the position that,
as stated in its decision of March 30, 1931, " although the rules of this Com-
mission, conforming to the practice of international commissions, make no
provision for a rehearing in any case in which a final decree has been entered,
these petitions have been carefully considered by the Commission ". The
Commission has, accordingly, followed in the present proceedings the precedent
thus established.
1 06 UNITED STATES/GERMANY
Coming now to the issues raised by the newly-submitted evidence, it must
be noted, before discussing this evidence, that, as stated in the Commission's
decision on the former petitions for rehearing.
" The terms of the Treaty of Berlin determine the financial obligations of
Germany so far as this Commission is concerned. Both Governments and the
Commission from the outset have recognized that in order to hold Germany
liable for damages incurred during the period of neutrality this Treaty requires
affirmative proof that such damages were the result of an act of the Imperial
German Government or of its agents. The previous decisions of the Commission
invariably have been based on this requirement. In the instant cases our
conclusions were that the evidence did not convince us that the damages were
the result of such acts."
It must also be noted that the Commission in its original decision of October
16, 1930, stated that " The Commission does not need direct proof but on the
evidence as submitted we could hold Germany responsible if, but only if, we
are reasonably convinced that the fires occurred in some way through the acts
of certain German agents." In that decision the Commission also stated that
in view of the background established in these cases, which showed authorized
sabotage activities in the United States by a group of German agents, " in-
ferences against Germany were rendered easier than they otherwise would be",
which means, in application to the present proceedings, that if the two men
who are now presented by the claimants as responsible for the Kingsland and
Black Tom fires respectively, namely, Theodore Wozniak and Michael Kris toff,
are shown to have been German agents, or employed by German agents,
at the time of those fires, the Commission might feel justified in inferring,
unless such inferences were prohibited by other evidence, that Germany was
responsible under the Treaty of Berlin for those fires and liable for the resulting
damages.
The new evidence now submitted by the American Agent is intended to
establish such agency on the part of Wozniak and Kristoff.
As to the Kingsland case, the Commission in its original decision found as a
fact that " despite Herrmann's confession the evidence in the Kingsland case
has convinced us that Wozniak did not set the Kingsland fire ", and the Com-
mission held as its final conclusion, from all the evidence, " that the fire was
not caused by any German agent " and, accordingly, that " Germany cannot
be held responsible for it ".
In reaching its conclusion the Commission found, among other facts, that
another employee of the Agency of Canadian Car and Foundry Company,
Limited, named Rodriguez, who also was alleged to be a German agent acting
in cooperation with Wozniak in starting the fire, and to whom it was alleged
that $500 was paid as compensation by Herrmann after the fire, " was not at
the Kingsland plant at all on the day of the fire ". The Commission also
found that the description of the starting of the fire, as presented in the evidence,
did not justify the belief that it was started by one of the incendiary pencils
alleged to have been furnished to Wozniak and Rodriguez for that purpose,
and, further, the Commission disbelieved that Wozniak was in Mexico after
the fire, where the evidence submitted by the claimants represented that he
had gone and consorted with admitted German agents.
As to the Black Tom case, the Commission was unable to find definitely,
from the evidence filed prior to its original decision, just how or by what
agency that fire started.
As a result of its examination of the record, the Commission found that
there was " a good deal of evidence which tends to implicate Kristoff". This
DECISIONS 107
evidence related to his conduct on the night of the fire, his false alibi, his
association and trips with a man whose name the Commission described as
" kaleidoscopic " but, for convenience, called Grantnor, as it appeared in the
record with many variations of that spelling, and it was attempted in the
claimants' evidence to identify this man with a man named Hinsch, an admitted
German agent. The record also contained some alleged admissions by Kristoff
reported by a private detective named Kassman, employed by the Lehigh
Valley Railroad Company.
The Commission examined had analyzed at some length all of the evidence
and reached the conclusion, stated in its decision, that " We cannot be sure
that Kristoff did not set fire to Black Tom or take some part in so doing. We
cannot be sure that Graentsor, or Grantnor, or Graentnor was not Hinsch,
and that Hinsch did not employ Kristoff and others who are unknown. But it
will sufficiently appear from the foregoing that, as we have said, the evidence
falls far short of enabling us to reach the point, not merely of holding Germany
responsible for the fire, but of thinking that her agents must have been the
cause, even though the proof is lacking."
The new evidence now submitted on behalf of the claimants is addressed to
all of these points in each of these cases, and is intended to show that the
Commission was wrong in its findings and conclusions.
The American Commissioner and the German Commissioner have been
unable to agree upon the decision of the questions presented in these cases as
aforesaid, and their respective opinions having been stated to the Umpire they
accordingly certify the above mentioned cases and all the questions arising
under the supplemental petition therein to the Umpire of the Commission for
decision, except that the German Commissioner takes the position that the
question of the jurisdiction of the Commission to re-examine any case after a
final decision has been rendered is not a proper question to be certified to the
Umpire on disagreement of the National Commissioners and reserves that
question from this certificate.
Done at Washington November 28. 1932.
Chandler P. ANDERSON
American Commissioner
W. KlESSELBACH
Geiman Commissioner
Decision of the Commission
rendered by the Umpire, Honoiable Owen J. Roberts
These cases are before the Umpire for decision on a certificate of the two
National Commissioners, certifying their disagreement.
The certificate of the Commissioners briefly describes the pleadings and the
purpose of the new evidence submitted. It is unnecessary to repeat what is
there set out. I proceed, therefore, without preliminary discussion to deal
with the cases in the situation in which I find them. I have had the aid of the
transcripts of the very full arguments made before the Commission at The Hague
and at Boston and of full and satisfactory briefs filed in connection with the
various arguments, especially the present one. I have examined large portions
of the evidence filed prior to the decision of October 1G, 1930, with the object
of comparing it with the new evidence in order to appraise the new evidence
and its effect in connection with the old.
108 UNITED STATES/GERM ANY
Kingsland
Much new evidence has been submitted for the claimants tending to exclude
the theory of industrial accident. It goes far to negative the belief that the
fire occurred as a result of sparking of machines, undue friction, or disarrange-
ment of electrical apparatus. The Commission is asked to draw from these
proofs the conclusion that Wozniak intentionally caused the conflagration. The
antithesis is between an accidental fire and an incendiary fire set by a German
agent. Nothing offered has changed or elaborated the account originally
given and steadfastly adhered to by Wozniak. While there is now much
contradiction of the alleged improper functioning of the machinery (not testified
to by Wozniak, but by others), there is some additional corroboration of
Wozniak's story. What was meant in the former opinion by " industrial
accident " was one arising from any cause, whether or not accurately ascer-
tainable. other than the purposeful act of an incendiary. While the new
evidence makes more difficult the inference that the fire was due to one of
the causes suggested by Germany, it does not render easier the conclusion that
it was intentionally kindled by Wozniak.
In the original record Herrmann detailed the instructions he claimed to
have given Wozniak. He says he told Wozniak to break the point of the
incendiary pencil and set it upright in a coat-pocket or elsewhere and that it
would burst into flame within approximately 30 minutes. It is nowsuggested,
as a deduction from expert testimony submitted, that if the pencil were laid on
its side in the shellcase and crushed a flame would immediately be generated.
But there is no evidence that Wozniak knew this or was told that the pencil
could be so used. The new evidence as to conditions in the plant and the
happenings just before the conflagration, when added to the old, does not
warrant a finding that the fire was due to the intentional act of Wozniak.
In the decision of the Commission of October 16, 1930, it was found that there
was no sufficient proof that Wozniak was a German agent or in the pay of
German agents. New evidence has been produced which is said to require a
reversal of this finding. It may best be considered in relation to the state of the
case as it stood prior to the Commission's decision.
Then it was claimed that Hinsch, a German agent, had introduced Wozniak
to Herrmann, another German agent, who had given Wozniak incendiary
pencils and instructed him in the use of them ; that Herrmann doubted Wozniak's
ability and requested that another man be added to the force of incendiaries,
whereupon Hinsch produced a man named Rodriguez, who worked at the
next bench to that of Wozniak; that after the fire Rodriguez got into touch
with Herrmann and was paid $500; that Wozniak disappeared and never
claimed any pay but was ultimately taken or went to Mexico, where during
the summer of 1917, under the name of Karowski or similar name, he consorted
with German agents and was known as a German agent.
This version of the transaction depended for its validity in the first place on
Herrmann's testimony, which was disbelieved by the Commission, and secondly
on that of some six witnesses who said they had either seen or heard of Wozniak
in Mexico, under the name Karowski, or Karowsky or Karnowski, and knew
him to be a German agent. The Commission disbelieved this testimony. In
April, 1929, Wozniak came forward and gave testimony in affidavit form; and
was examined and rigorously cross-examined in July, 1930, and gave what
the Commission thought a truthful account of the fire and his subsequent
conduct. His statements were carefully investigated by the Agents of both
countries, and not only by his testimony but by corroborative evidence obtained
by the Agents the following facts are indisputably established. After the fire
DECISIONS 109
he submitted to an examination by the officials of the Agency of Canadian
Car and Foundry Company, and also reported the nature and circumstances
of the accident to Russian officials: he held himself available for further question-
ing. From the time of the fire to July 23, 1917, he was in New York City,
using his own name, boarding where he had previously been known, and part
of the time a patient and a watchman in a hospital.
He says that about August 1 he went to Tupper Lake, N.Y., and worked
as a lumberman, returning to New York City sometime about October, 1917.
This the American Agent disputes. Contemporaneous records are lacking,
and testimony other than that of Wozniak is unsatisfactory as to this period.
It is certain, however, that sometime after January 1, 1916, and before Decem-
ber 31, 1921, Wozniak did work at Tupper Lake during a portion of a summer.
From contemporaneous records and his own testimony it is clear that this was
not in 1916. By the weight of the evidence his employment as lumberman was
not in the summer of 1918, 1919, 1920, or 1921. If he was not in Tupper Lake
in the summer of 1917 my judgment is that he was never there. Yet it is
conceded by the American Agent that it is possible he did do summer work
there at some time during the period of years mentioned.
For reasons which will sufficiently appear from its original opinion the
Commission definitely found that Wozniak was not in Mexico in the summer
of 1917. Some of the affidavits to that effect presented by the claimants were
wholly unsatisfactory in character, and others, while made by persons of the
utmost probity, were proved obviously wrong by contemporaneous records.
Wozniak was in New York, living with his friends the Perrys and working in
Schall's restaurant, early in November, 1917; and from that date forward
his whereabouts are accounted for, not alone by his testimony but by undisputed
proofs. There is no evidence, except that which the Commission disbelieved
on the former hearing, that Wozniak ever used any other than his own name
or that, as claimants assert, he purposely disappeared or that claimants could
not at any time prior to April, 1929, have located him.
With this background, I come to consider the new evidence. This falls
under three categories: (1) certain affidavits intended to prove that Wozniak
was in fact a German agent; (2) certain letters alleged to have been written
by him from St. Louis, Mo., and Mexico City in August and September, 1917,
and testimony as to the writing of three other letters by him from Mexico in the
summer of that year and as to his taking the name Karowski; (3) the so-called
Herrmann message, which will subsequently be described and discussed. I
shall consider these items in the order stated.
1. The affidavit of Capitula is to the effect that in July or August, 1929,
Wozniak endeavored to persuade the affiant that he knew Wozniak in Tupper
Lake in " 1917 and 1918 "; and that the affiant refused so to state and informed
Wozniak that the affiant had been in Tupper Lake in 1920 and 1921. The
effect of this deposition is purely negative. The evidence amounts to no more
than that the affiant could not say that he had seen Wozniak in Tupper Lake
at any time. The witness does, however, add that Wozniak told him he had
been in Mexico in " 1917 and 1918." We know nothing of the witness Capitula;
his affidavit is barely a page long, lacks any collateral support; it attributes to
Wozniak statements which he certainly would never have made as to the year
1918. The witness adds the somewhat surprising information that Wozniak
told him he had been " brought back " from Mexico. Is the inference to be
drawn that German agents brought him back?
The affidavit of one Nolan is produced, dated February 6, 1931, in which
he says that he knew Wozniak in 1916 and 1917 as a man " used by different
German Agents "; that the witness saw Wozniak at Meyer's Hotel, Hoboken,
110 UNITED STATES/GERMANY
in company with Captain Hinsch. It contains an account of an incredible
conversation said to have taken place between Hinsch and Wozniak overheard
by the affiant. This witness was presumably always available to the claimants,
and it is not clear why his testimony, if favorable, could not have been obtained
long before the case was originally submitted. I do not regard this evidence
seriously. The same may be said of the affidavit of one King, offered in support
of that of Nolan.
An additional affidavit by one Palmer was filed. He was in the employ of
the British Secret Service during the war and had, prior to the earlier hearing,
given evidence apparently quite irrelevant to any issue then or now in the case.
And, surprising to relate, he says not a word therein as to the matters to which
he now testifies. I must assume that he was thoroughly examined on the
former occasion. He now offers a most circumstantial account as to Wozniak
and various German agents' activities. He explains that these matters are not
disclosed by contemporaneous British Secret Service reports because the custom
was to condense them and exclude hearsay; yet the very reports to which he
refers do contain hearsay information and on much less important matters
than those of which, at this late day, he speaks solely from memory. No
explanation is offered for his failure to disclose such vitally relevant details on
his former appearance as a witness.
One Glucas now furnishes an affidavit in addition to the one he gave origin-
ally. He greatly elaborates what he previously said and adds new matter
which he says he previously withheld as he thought that the claimants had
adequate information on the subjects about which he was interrogated, and
so did not need his testimony. His explanations do not satisfy me of his candor.
These affidavits are all made with the purpose of attributing to Wozniak
the character and designation of a German agent. They are not persuasive,
not only for the reasons mentioned, but because I find that, save for the summer
of 1917, as to which I shall speak in a moment, Wozniak, though open to
surveillance and for a part of the time under actual surveillance, has not in a
single instance subsequent to the fire been found in the company of anyone
who might by the remotest stretch of the imagination be found to be a German
agent.
2. The new evidence indicates that in May, 1931, a Ukrainian named Baran
went to Mr. Peto, vice president of the Agency of Canadian Car and Foundry
Company, and exhibited to him three letters, addressed to Baran, written and
signed by Wozniak dated respectively St. Louis August 10, 1917, and Mexico
City August 28 and September 16, 1917. In connection with the production
and examination of these letters the claimants paid Baran $2,500, and procured
assent to a condition named by him that the American Agent should give
assurance that Wozniak would not be prosecuted for perjury. The American
Agent insisted upon an expert examination of the letters before he would accept
them as evidence. The claimants consequently had them examined and
satisfied themselves and the American Agent that they were in Wozniak's
handwriting. Expert opinion indicated also that they were old and had
probably been written when they bore date. The letters were submitted to
the Commission. If genuine they establish that Wozniak was consorting with
Germans in Mexico in the summer of 1917 and destroy his testimony to the
effect that he was then in Tupper Lake. If they are not manufactured evidence
the Commission was wrong in disbelieving the witnesses offered at the earlier
hearing and in finding that Wozniak did not go to Mexico.
In my opinion the letters are not authentic. I should arrive at this conclusion
without the aid of expert testimony. But my finding is enforced by what I deem
convincing expert opinions that they were prepared for the purpose of the case.
DECISIONS I 1 1
They purport to have been written at a time when war had been declared
between the United States and Germany, and two of them must have been
sent across the border, which was then under strict guard; one of them stated
that the Germans did not want Wozniak to write to anyone; two enjoin secrecy
on the addressee; one refers to " my Germans ", another to the " damned
Germans ", — strange expressions to be used by a German agent consorting
with his fellows and seeking to conceal his whereabouts after fleeing the scene
of his crime ! They are written in Ukrainian, but one of them contains the
name Karowsky written in Roman letters and suggests that Baran write to
Wozniak by that name, to the general delivery address in Mexico City. Most
noteworthy is the fact that in one Wozniak says that he will soon be back in
New York near to " King". This is the sort of admission that Wozniak, above
all men, in my judgment, would not naturally or normally have made. The
references to Karowski and the Germans and to " King " too well piece out
the claimants' theory of the case.
I am persuaded from photostats and photographs submitted that when
Baran first showed the letters to the claimants they were not in the condition
in which they now are. The various photostats prove that subsequent to such
exhibition Baran cut a piece out of one of them. After this fact was noticed,
the explanation was offered that he did this so that he could have the paper
analyzed in an effort to prove the age of the letters because he had heard some
discussion between the interested parties as to their authenticity. But Baran,
by supposition, had had the letters since 1917; he needed no confirmation of
their age. Moreover, photostats of the letters were attached to the affidavit of
Baran identifying them, and the photostat of that of August 28, 1917, fails to
show certain distinctive stains which are now quite apparent not only on the
letter but on all later photostats and photographs of it. The conclusion is
irresistible that either Baran or someone else tampered with this letter, in an
effort to give it the appearance of age, after it was first shown to claimants and
before it was delivered to them by Baran to be used as evidence. These stains
are relied upon by claimants' experts as evidence of the age of the letters.
Certain foldings of two of the letters (those of August 10, 1917, and September
16, 1917) are totally inconsistent with the claim that these were written on the
dates they bear and separately mailed from the places they bear date.
Baran, who produced the documents, is an intimate friend of Wozniak. The
record before the Commission at the previous hearing discloses that he was
repeatedly in touch with Wozniak. His identity was fully disclosed prior to
July 30, 1930, by Wozniak's testimony. From the cross-examination for the
claimants it is evident that they knew of this relationship at that time. It is
incredible that Baran was not interviewed between the summer of 1930 and
May, 1931, when he appeared and offered the letters. If he had such letters,
that fact could have been long before ascertained.
The expert evidence and my own inspection convince me that the letters
show all the characteristics of artificially aged documents and that the expla-
nation offered by claimants' experts of accidental staining is not credible.
The letter of August 28, 1917, was written upon a watermarked paper sold
by Kiperman, a merchant of Warsaw. As early as June, 1931, the claimants
had observed the watermark and had procured a transmitted-light photograph
which showed it with great clearness and definition of detail. During the sum-
mer and autumn of 1931 they made investigations in Poland, and in France
where a dandy-roll for the production of such a watermark had been manu-
factured, to ascertain the date of the manufacture of the paper. The investi-
gation was not exhaustive, and made at best but a prima facie case for a date
of the watermarked paper earlier than 1926. Kiperman's unsworn statement
1 1 2 UNITED STATES/GERMANY
went no farther than that he had for many years sold paper with a similar
watermark; it is quite indefinite as to when such paper was manufactured.
Much detailed evidence submitted by the German Agent demonstrates that
the watermarked paper in question was not manufactured prior to 1926. Some
confusion has been created, due to the fact that two manufacturers made
paper for Kiperman with dandy-rolls procured from different makers, but
non-expert inspection demonstrates to my satisfaction that the watermark in
question is that made by the Mirkow factory from a dandy-roll made in Paris.
The paper made by the use of that dandy-roll was delivered to Kiperman not
earlier than 1926. The expert testimony supports my own independent
conclusion on this point. The watermark, therefore, strongly corroborates the
other matters which make against the authenticity of the documents.
In June, 1932, there was filed an affidavit by one Golka, of Scranton, Pa.,
dated December 9, 1931, in which he states that he received a letter from Wozniak
in Mexico in 1917. At the same time two affidavits by one Panas and his
wife of about the same date were filed, in which they recount the receipt of
two letters from Wozniak postmarked in Mexico. Supporting affidavits state
that the names of these witnesses were obtained in Europe by Mr. McLain,
one of the attorneys for claimants, and that Mr. McCloy, another attorney
for claimants, secured the same names by independent investigation in this
country. But the record contains references to both of these persons. In the
cross-examination of Wozniak he was questioned and testified at length with
respect to them. It appears from his affidavit and oral testimony that he
worked under Golka in Scranton before going to New York in 1916, that during
the same period he lived in the house of Panas in Scranton and that Panas was
a witness to his marriage. It is somewhat difficult, therefore, to understand
the necessity for all this investigation to disclose these two persons, who perhaps
are as close to Wozniak and know him as well as Baran and who would be the
natural persons to whom he and Baran would turn for statements in support
of the Baran letters. Let it be here noted that, though unquestionably Wozniak
wrote the Baran letters, he has testified that he was not in Mexico in 1917, has
not vouched for the letters, and is not to be prosecuted for perjury. If the
affidavits of Golka and Panas had been submitted independently, not merely
as corroboration of the fraudulent Baran letters, I might, perhaps, give greater
credence to the evidence of Wozniak's friends. These affidavits contain
erroneous statements of fact ; and, moreover, both recite that Wozniak was
anxious to have his letters from Mexico destroyed. In one case he is said so
to have requested in the letter; in another case to have visited the addressee,
obtained the letters, and destroyed them in the presence of his friends. The
reason Golka says he gave was that he wished to conceal whence he was writing.
These are remarkable statements, when contrasted with the facts as to the
fraudulent letters produced by Baran, which contain no such request but in
fact give the name and address in Mexico to which letters may be sent to
Wozniak. If he were so anxious that his correspondence be destroyed, I can
not understand why he did not make a similar and effective request of his
friend Baran, if the Baran letters were genuine and the Golka and Panas
affidavits exhibit his true attitude.
Some of the witnesses who, prior to the decision of October 16, 1930, testified
to Wozniak's presence in Mexico in 1917 identified a photograph of him as that
of a man they knew as Karowski. Others stated they knew of the presence of
a German agent known as Kurowski, Karnowski, etc., without identifying
Wozniak as the one who bore that name. In the new evidence there is a
certificate by a police official in Poland to the effect that bordering on Wozniak's
old home in Rawa Russka there is a forest in which Wozniak once worked,
DECISIONS 113
called the " Karowski " forest; that in Poland it is common to take a name
additional to the surname, and to derive it from one's surroundings; that it
is therefore probable that Wozniak did this, in which case he might have called
himself Wozniak-Karowski or Karowski-Wozniak. This evidence is pressed
upon me as confirmatory of the testimony that Wozniak was in Mexico under
the alia
1: of Karowski. But it rises no higher than proof that such a thing is
neither improbable nor impossible.
On the other hand, testimony produced by Germany tends to prove that in
the tongue used in Rawa Russka the forest in question was, prior to Polish
domination at least, called " Kariw " (thus its derivative would be " Karifski "
or " Karivsky "); that an intimate friend never knew of Wozniak's living in
Kariw or working in the forest in question and never heard him use or anyone
else call him or his family Karowsky or any similar name. This state of the
proofs does not give me any real light upon the question of Wozniak's presence
in Mexico.
I am of opinion the matters above discussed are insufficient, when taken with
the proofs offered before the final hearing, to alter the finding that there is no
credible evidence that Wozniak was a German agent, was connected and con-
sorted with German agents, or that he was in Mexico in 1917.
3. If the so-called Herrmann message is authentic, that document alone
would compel a finding contrary to that I have just stated so far as concerns
Wozniak's being a German agent. Since, however, that message applies
equally to Kingsland and to Black Tom, I may postpone discussion of it until
after I have considered the other new evidence relating to Black Tom.
Blark Tom
With respect to this catastrophe the decision of October 16, 1930, held that
while not satisfied that Kristoff did not have a part in causing the fire and
explosions, neither was the Commission convinced that he did have such part
or that he was a German agent or an employee of German agents. The opinion
states that the Black Tom Terminal was a shining mark for the activities of
agents of destruction and that Hinsch might well have desired its destruction;
but the only matter from which the Commission thought it might infer a
connection between Kristoff and Hinsch was the former's story of a journey
made by him with a man named Graentnor (or some similar name) early in
1916 and the promise of a large payment from this person. The Commission
was unable from the record to identify Hinsch with Graentnor which it felt
it must do in order to hold that Kristoff acted for Germany in causing the
explosion.
The new evidence offered in the endeavor to clarify the situation and to
induce an affirmative finding falls into two classes: (1) the 1916 diary and
certain checkbooks of Hilken; (2) the Herrmann message.
1. It is said that the entries in the diary are consistent with Hinsch's having
been absent from Baltimore on a trip with Kristoff in the spring of 1916. In
the earlier arguments it was contended that, as Kristoff claimed to have made
a trip at the time in question with a man he called Graentsor and as Fesmire
testified that Hinsch had once told him about having made a trip west, the
Commission should conclude that Hinsch was Graentnor. Hinsch, on the
other hand, testified that he had never been west of Gettysburg and never
made such a trip as the one described and had never visited some of the cities
mentioned by Kristoff. In this state of the record the Commission refused to
draw the conclusion suggested. In the light of these facts, I find merely that
the entries in Hilken's diary are not inconsistent with Hinsch's having made the
1 14 UNITED STATES/GERMANY
trip but they add nothing affirmative to the evidence as contained in the record
before and are insufficient to induce the affirmative finding asked by the
claimants.
With respect to Hilken's checkbook it is urged that this now makes certain
what has heretofore been a matter of dispute, namely, that in August, 1916,
shortly after the Black Tom explosion, Hilken paid $2,000 to Hinsch ; that this fact
destroys Hinsch's testimony that no such payment was made and casts discredit
on the whole of his evidence. The check stub shows that on August 10, 1916,
Hilken drew $2,000 in cash; on the stub is noted " Capt H — Lewis, etc."
Herrmann used the alias Lewis. It is undoubted that about August 6 or 7
Hilken, Hinsch, and Herrmann went to New London to inspect the harbor
preparatory to making it a merchant-submarine base. I think that if Hilken
was in New York on August 10 he was on his return trip from New London.
The new harbor project undoubtedly required disbursements of money.
Hinsch states that the did not get S2,000 at this time and that the only expla-
nation he can give of the entry on the check stub is that part of the money may
have been used for the expenses of the trip to New London, but he concedes
that these would not require anything like 552,000. This testimony is said to
brand him as untruthful. I can not adopt this view. The use to which the
money was to be put still must be derived by the claimants from Hilken's testi-
mony, heretofore given, contradicted as it is by Hinsch. I am asked to conclude
that as Kristoffsaid that he was to go to the Hotel McAlpin and meet Graentnor
about August 10 to receive a payment of a large sum of money this entry
connects Hinsch and Kristoff's travelling companion Graentnor. But here
again we are taken into the realm of conjecture. Kristoff, moreover, said he
did not receive any money, and there is nothing else, unless the check stub be
evidence of the fact, to show that he did. I find that the diary entries and the
check stubs do not warrant the inferences I am asked to draw from them.
The Herrmann Message
2. On July 1, 1931, there was filed with the Commission a Blue Book maga-
zine of the January, 1917, issue, containing upon four printed pages lines of
writing running crosswise of the print. This, we are told, is a code message
forwarded by Fred Herrmann in Mexico to Paul Hilken in Baltimore in April
1917: names being referred to by numbers in the script, the numbers referring
to other pages of the magazine where the names were indicated by pin pricks
through printed letters in the text. The writing fluid is said to be lemon-juice
made visible by the application of heat. As decoded by Hilken the message
reads :
Have seen Eckhardt he is suspicious of me Can't convince him I come
from Maguerre and Nadolny Have told him all reference Hinsch and I
Deutschland, Jersey City Terminal, Kingsland, Savannah, and Tony's Lab.
he doubts me on account of my bum German Confirm to him thru your
channels all O.K. and my mission here I have no funds Eckhardt claims
he is short of money send ly [by] bearer U.S. 25000.— Have you heard from
Willie Have wired Hildegard but no answer Be careful of her and connections
Where are Hinsch and Carl Ahrendt Tell Hinsch to come here I expect
to go north but he can locate me thru Eckhardt I dont trust Carl Ahrendt,
Kristoff, Wolfgang and that Hoboken bunch If cornered they might get
us in Dutch with authorities See that Hinsch brings with him all who
might implicate us tell him Siegel is with me. Where is Carl D. he worries
me remember past experience Has Hinsch seen Wozniak Tell him to fix
that up. If you have any difficulties see Phil Wirth Nat Arts Club Tell
DECISIONS 1 15
Hinsch his plan O. K. Am in close touch with major and influential Mexicans
Can obtain old cruiser for 50000 West Coast What will you do now with
America in the war Are you coming here or going to South America Advise
you drop every thing and leave the States Regards to Hoppenberg Sei
nicht dum mach doch wieder bumm bumm bumm. Most important send
funds Bearer will relate experiencies and details Greetings.
A glance through this translation will indicate that, without reference to
any other evidence, it is conclusive proof to any reasonable man that (a)
Herrmann and Hilken knew the Kingsland fire and the Black Tom explosion
were the work of German agents and (b) that Hinsch, Hilken, and Herrmann,
undoubted agents, were privy thereto, and (in the light of the record before
the Commission) (e) that Kristoff and Wozniak were active participants in
these events. As the American Agent has well said, I may utterly disregard all
the new evidence produced and still, if I deem this message genuine, hold
Germany responsible in both of the cases.
The authenticity of the message is sharply challenged. A narrow and very
difficult issue of fact, upon which alone these cases now turn, is thus raised,
which challenges and has had my careful and painstaking study in an effort
to reach a right solution. As in the case of the Wozniak letters, the elements
which affect the problem of authenticity fall into three general classes: (1) the
testimony concerning the document, (2) the conditions known to exist when
the message is claimed to have been transmitted, and (3) expert testimony
with regard tho the probable date of the writing.
(1) The magazine was produced by Paul Hilken, who, in an affidavit of
May 8, 1931, states that he discovered it recently in his old home in Baltimore.
The document comes, therefore, from a source which the former opinion of
the Commission entirely discredited. Hilken, though an American citizen,
is a former German agent. His attitude at first was that of loyalty to Germany.
In December, 1928, he changed his position and testified at great length on
behalf of the claimants. He then produced, upon request, diaries for 1915
and 1917 and part of 1916 and other documents which were made a part of
his deposition. He then expressed his willingness to search for other contempo-
raneous documents and indicated that they would be found either in his
desk or at this former home in Baltimore. The record leaves no doubt that the
American Agent and his counsel for a period of two years prior to the production
of the magazine had urged Hilken to search out further data in substantiation
of his testimony. Notwithstanding this he did not do so, and the Commission
made its finding of October 16, 1930, branding him unworthy of belief. There-
after counsel to the American Agent renewed his request and apparently hoped
that Hilken might find further documents to reestablish him in the eyes of the
Commission. Nothing came of this until April 26, 1931, on or about which
date, we are told, Hilken brought the Blue Book to Mr. Peto, vice president
of the Agency of Canadian Car and Foundry Company, and not, be it noted,
to the American Agent or his counsel who had requested further data. Mr.
Peto advised the American Agent of the existence of the document. Not until
long after the German Agent had attacked the authenticity of the message was
further testimony of Hilken filed as to the time and manner of the discovery
of the magazine.
In an affidavit made November 15, 1932, Hilken states that on Christmas
Day, 1930, he made a search of the attic of his old home in Baltimore and
unearthed the magazine at the bottom of a wooden box in a closet under the
eaves, and at the same time discovered a large amount of correspondence
bearing on his wartime activities. Apparently none of this other matter was.
116 UNITED STATES/GERMANY
delivered to the claimants with the magazine, but was filed with a later affidavit
of Hilken dated June 29, 1931. Along with Hilken's affidavit of November 15,
1932, were filed affidavits bearing date November 12 and 15, by Mrs. Hilken,
Hilken's daughter, and Elizabeth Braun. Mrs. Hilken states " she knows "
that on Christmas Day, 1930, Hilken found the magazine, though did not tell
her of the message, but did inform her daughter as to it. She does not say
that she ever saw the document. The daughter simply underwrites her mother's
deposition; fails to state that she ever saw the document; and simply narrates
by proxy of her mother's affidavit what her father told her. Elizabeth Braun,
who is in no way identified to the Commission, — about whom we know
nothing except for her name and address, that she is an old friend of the Hilkens,
and that she entertained Hilken the Sunday following Christmas, 1930, —
says that Hilken told her of the finding of an important message and described
it ; she does not say that she saw it. All of these witnesses seem to have communi-
cated the contents of their affidavits to the claimants during early or late 1931,
but their testimony was not submitted to the Commission until November 15,1932.
Hilken, in his deposition of November 15, 1932, and not before, gives as his
reason for not promptly producing the message on its discovery, that he feared
publicity as he knew that certain articles were being prepared on the sabotage
cases to appear in the Liberty magazine ; also that he was being urged by von
Rintelen, then in this country, not to give any further evidence for the United
States. It is quite evident that Hilken had fully determined to aid the claimants
as early as December, 1928. I do not believe that his attitude in that respect
had undergone any change. The von Rintelen advice is in my judgment a
belated excuse. Equally unsatisfactory is the suggestion as to avoidance of
publicity. It is quite evident that Hilken could promptly have confidentially
exhibited or delivered the magazine to the American Agent or his counsel,
and that his confidence would have been respected.
As respects the production of the message, I find that it comes from a source
which the Commission has held unworthy of belief, and under circumstances
which at least cause me to hesitate to give full faith and credit to the account
of its discovery.
In addition to Hilken's several depositions, there is a substantial amount of
other testimony to be considered. Raoul Gerdts, a young man who associated
with Fred Herrmann in New York in 1916-1917 and who, while not a German
agent, was an employee of Herrmann and did various errands and services
for him, accompanied the latter from the United States to Mexico in February,
1917. Gerdts separated from Herrmann in 1917 and returned to his mother's
home in Colombia, South America. About January, 1929, the claimants
located him there and submitted a questionnaire or series of interrogatories to
him, which he answered in writing. Amongst other things, he was interrogated
as to whether he knew Hinsch and Hilken. In his answers he said that he
had met them in Baltimore in the spring of 1917 when he delivered the message
or order with which he had been dispatched by Herrmann who was then in
Mexico. His testimony convinces me that he knew neither of them prior to
the Baltimore meeting. He said that he carried two messages, one for Hop-
penberg (of the Eastern Forwarding Company in New York) and another to
be delivered to Hilken in case he should not find Hoppenberg ; that these were
written in lemon-juice in a book of poetry. When his testimony was given and
filed apparently the parties, and certainly the Commission, attached no im-
portance to the message, which seemed to be of a date insignificant in respect
of the issues in these cases.
In 1930, after Fred Herrmann had decided to give evidence in support of
the claims and to return from Chile for that purpose, he remarked during the
DECISIONS 1 1 7
course of his evidence that he had sent " a couple of letters " from Mexico
to Hilken in Baltimore. Nothing further transpired in this connection until
the production by Hilken of the Blue Book magazine on April 26, 1931. There-
upon Herrmann testified that he recognized it as " the message " which he
had sent by the hands of Gerdts to Hilken in April, 1917. We need only note
in passing the Commission's former finding that Herrmann is a liar not pre-
sumptive but proved.
A German named Siegel was interned in Russia at the outbreak of the war.
He escaped through Siberia and may have crossed the Pacific and been in the
United States for some time. He was then apparently unknown to Herrmann.
He made his way to Cuba, and when Herrmann and Gerdts, after leaving the
United States, stopped at Havana and thence took passage for Mexico they
made his acquaintance, and he accompanied them into Mexico and remained
with them. Siegel had not theretofore been a German agent but professed
his desire to do something for Germany and volunteered to cooperate with
Herrmann. Herrmann offered him employment in behalf of Germany. Siegel
was present when a secret message was written by Herrmann to be dispatched
by Gerdts. It seems that Herrmann prepared a draft of a message and had
Siegel read it to him while he wrote it in invisible fluid. After the war Siegel
returned to Europe and is now engaged in a mercantile business in Estonia.
It will be noted that the Herrmann message contains the phrase " Siegel
is with me ". In March, 1932, the claimants sent Herrmann, who was cooper-
ating with them, to Europe to obtain a statement from Siegel. Although an
American lawyer for the claimants, Mr. McLain, accompanied Herrmann to
Tallinn for this purpose, neither Mr. McLain's presence nor his identity was
disclosed to Siegel, and the negotiations were left entirely to Herrmann. There
is no question that Herrmann failed to make a full and frank disclosure of the
situation in which Siegel's testimony was desired. So much both he and
McLain admit. How much Herrmann concealed and what he actually told
Siegel is a matter of serious dispute between him and Siegel. That he purported
to refresh Siegel's memory as to details T think there is no doubt.
As a result of the interviews, Siegel prepared in his own hand a statement
in which he said that he had been shown a Blue Book magazine; that he recog-
nized the volume as similar to that in which the message of 1917 had been writ-
ten ; had been shown a photostat of the alleged secret message as developed ;
that he dictated the same to Herrmann and that Herrmann dispatched it by
the hands of Gerdts.
Siegel was subsequently examined on behalf of Germany and then gave a
sworn statement in which he says that he thought the paper which he had
written was merely to be used in negotiation by the German Foreign Office;
that he understood that Herrmann was still in the German service, was being
paid by the German Foreign Office, and that it would help Herrmann if he
made the statement as he did; that he relied largely upon Herrmann for details
and that as a matter of fact he does not carry the details in his memory at the
present time.
Finally, upon November 15, 1932, an affidavit of date October 28, 1932,
by one van Emmerik was filed. In this the witness states that Gerdts arrived
in New York City in April, 1917, as Gerdts says in his testimony, on the day
after the death of Hoppenberg ; that Gerdts inquired for Hoppenberg and on
learning that he was dead stated that he would now have to find Hilken; that
Gerdts was dressed in a raincoat and was carrying a magazine which he said
contained a message for Hoppenberg. The implication is that the magazine
was open and exposed to the elements. The witness says he, Gerdts, and
one Weber had a meal together in a restaurant in New York, where Gerdts
1 18 UNITED STATES/GERMANY
laid the magazine on the table and a waiter picked it up and tore the cover
(the front cover is now missing), and that Weber got greatly excited about the
incident and insisted on checking the magazine.
With respect to what happened in Baltimore the claimants' evidence is to
this effect: Gerdts who had arrived by devious ways in order to avoid surveil-
lance says he found that Hilken's home was then being inspected by special
investigators and was sent away for a time until that inspection should be
completed; he returned and met Hilken; Hilken went alone to the cellar and
developed the message. Hilken says that upon reading the message he made
a translation of it by the use of the code and took this to New London and
showed it to Hinsch, that Hinsch returned to Baltimore with him, and there
they discussed the situation with Gerdts. All agree that this conference between
these three took place. In the upshot, Gerdts was given about $1,000 and was
told that Hinsch would bring additional money when he went to Mexico,
and Gerdts was sent back to Herrmann. Hinsch did, in May, 1917, go to
Mexico carrying some $24,000.
The German evidence in contradiction to this testimony is that of Hinsch,
who says that a secret message was sent by Herrmann to Hilken, that he was
summoned to Baltimore by Hilken to consider the matter, that there he met
Gerdts, and that he and Hilken questioned Gerdts and learned from him
about the situation in Mexico and that it was determined that Gerdts should
be given a comparatively small sum and that Hinsch would take further funds
to Mexico later when he went. Hinsch says that the message was in a bound
book in stiff covers, was written in a secret ink which was then known to German
agents, was developed by bathing in a known solution, and was on but a single
page which was the fly-leaf from the front or back of the book and contained
no print. He says that the message was of but two or three sentences, — as
well as he can now remember, somewhat to the following effect: " The bearer
of this message is Raoul Gerdts who carries a personal message to you. You
can trust him in full." And then followed the request that Hilken give Gerdts a
considerable sum (the witness thinks it was twenty or twenty-five thousand
dollars) and also a statement that Gerdts would verbally report about every-
thing else.
(2) As to the circumstances and the internal evidence: It is to be borne in
mind that the conceded purpose of the message was to obtain funds. So far
as I am advised it had no other. It is further to be noted that at the time of
its dispatch the United States had entered the war ; most of the secret agents
of Germany had left the country and were known in many instances to have
fled to Mexico; the border was being watched for secret correspondence;
the situation was so tense that Hilken was under actual surveillance and his
home was being searched. Again, the missive was written in lemon-juice, a
medium well-known and for many years used for secret messages, was in a
code which could be discovered and the text read by any agent of the United
States or of the Allies in perhaps an hour after its capture, contained a sentence
in German which would have been indicative of its origin and destination.
The document comprises 254 words. Those that have to do with the request
for money amount to only 20. All the remainder are wholly irrelevant to the
purpose in hand. The names of 21 separate persons and places appear; all
but two admittedly names of alleged German agents, asserted by the claimants
in these cases to be such, or of places where acts of sabotage are said by the
claimants to have been committed by German agents.
The two persons on whom principal reliance is placed for the identification
and substantiation of the message are Herrmann and Hilken, who in the spring
of 1931 unquestionably were thoroughly familiar with all of the facts and data
DECISIONS 1 1 9
developed before the Commission. The record contains a cablegram from von
Eckhardt, German Minister to Mexico, to the German Foreign Office stating
that he distrusted Herrmann and requesting confirmation of Herrmann's
capacity and personality. This fact is referred to at the opening of the Herr-
mann message and is made the occasion, wholly unnecessarily, for the recital
of the substance of the argument made by Herrmann to convince von Eckhardt.
In this narration Marguerre and Nadolny, Hinsch and Herrmann are mentioned,
as are the Deutschland, the Jersey City Terminal (obviously Black Tom),
Kingsland, Savannah (where acts of sabotage against horses and mules are
shown by claimants' evidence to have been committed), and Tony's Lab.
(the name of Anton Dilger's laboratory for producing toxic germs, all as ex-
plained in other evidence in the record). It was surely unnecessary after having
said Eckhardt distrusted him to append a biography and history of German
agents and sabotage activities in the United States as detailed to von Eckhardt.
The message names Kristoff, but Herrmann has testified he did not know
any such person and did not recognize his photograph. It names Wozniak,
and tells Hilken to tell Hinsch to see Wozniak and " fix that up "; this comports
with Herrmann's previous testimony that Wozniak failed to show up and claim
his reward after the Kingsland fire. It refers to Hildegard. We find that long
before the message was produced there was evidence before the Commission
that Hildegard Jacobson had received a telegram from Herrmann in Mexico,
endeavored to reply and failed to get through to him. It goes on to inquire
what Hilken will do, now that America is in the war, inquires if he were coming
to Mexico or going to South America, advises him to leave the United States
and to get all German agents out of the United States. It mentions " Carl D."
and says that from past experience the writer does not trust him; this refers
to an incident long before exposed in the record, namely, that during 1916
Hilken became distrustful of Carl Dilger and sent him to Germany in 1916
carrying a secret written request to the German authorities to detain him there,
but that Dilger, supposing the message to contain military secrets, became
alarmed and threw the message into the sea, thus defeating Hilken's purpose.
There are other references equally significant to one familiar with the evidence
and the arguments based thereon, previously submitted to the Commission. But
enough has been said to show in how extraordinary a manner this document
dovetails with all the important and disputed points of claimants' case and
how pat all these references are, not to the request for funds but to the claim-
ants' points of proof, — this aside from the absurdity of sending this unneces-
sary information into an enemy country to a suspected spy then under
surveillance.
I come now to a new fact which is of importance. When the Blue Book
was filed with the Commission the last page of reading matter had been torn
out. Apparently Hilken took no note of this fact, nor did Herrmann. Ap-
parently the American Agent failed to note the condition. So far as we can
determine, this excision of the last page was not discovered until the summer
of 1932. When Herrmann and Hilken were originally examined respecting
what the magazine had contained, they definitely gave the impression that
there was but one message. Hilken, in the affidavit originally filed with the
Blue Book, definitely states that the code in which the message was written
was one which he knew and which had been prearranged between him and
Herrmann for their communications. After the discovery of the missing page,
Hilken testified that it contained an additional message which gave the key
to the code and that he accordingly destroyed it immediately; but, remarkable
to relate, he retained the main message, which he had made legible, in his files
and went so far, as above stated, as to make a fair copy of it which he carried
120 UNITED STATES/GERMANY
to New London to show Hinsch. Siegel does not mention any second message.
It is difficult from the testimony to draw any conclusion as to whether there
was an additional message and what it in fact contained if it ever existed.
Another matter of note is that the January, 1917, Blue Book, when filed
with the Commission, concededly bore certain marks in lead pencil opposite
some of the titles of the stories on the index pages. These apparently went
unnoticed by Hilken or Herrmann or the American Agent. Some time after
the submission of the magazine the German Agent observed them. He sub-
sequently bought a number of other issues of the Blue Book for other months
of the year 1917 to be used for comparison and for the use of his expert. These
he procured from Abraham's Book Store in New York. They contained
similar marks. In several of them were found bills which indicated that the
magazines had been delivered by a newsdealer in Brooklyn to a house at 756
Madison Street in Brooklyn. Further investigation developed that one Qualters
lived in that house and had in 1930 sold a large number of Blue Book, Red Book,
and Adventure magazines to Abraham's Book Store and had received a check
for $12 in payment therefor.
The evidence, in my judgment, is entirely conclusive that Qualters did make
such a sale, but it is not clear that he sold complete sets of all three magazines
covering the years from 1911 to 1929 as he states. Subsequently both Agents
purchased at Abraham's Book Store numerous magazines of the kinds mentioned.
Sixteen of all those purchased contained horizontal marks and cross-
marks on the index pages; some 53 of them contained only horizontal marks.
The German Agent seeks to prove by the Qualters' testimony that these marks
were made by Horace Qualters and John Qualters, his brother, when and as
they read the articles marked. He seeks also to account for the absence of
marks during a certain period by the fact that Horace was absent during the
war and was not reading the magazines currently. Qualters identifies the
horizontal marks in the January issue as so like his that he believes he made
them.
It appears that sometime prior to April 30, 1931, two persons purchased
January, 1917, Blue Books at Abraham's Book Store. One of them is now
identified as Mr. Traynor, who bought a copy on April 29, 1931, for the
claimants, in order to obtain a magazine to compare with the one produced by
Hilken. This copy contains no marks whatever on the index pages. The other
was bought by someone who cannot be identified, whose description is most
vague, the time of whose appearance at the store cannot be definitely fixed,
but who. according to the testimony, did not ask for the issue of any particular
month but merely for a Blue Book of 1917 and was handed a January number
only because the store had two copies of that issue and could better afford to
sell one of the copies for that month than to break the set by taking one of
another month. Meyers and Abraham, of the bookstore, who had to do with
the sales in question, do not identify Hilken or Herrmann as the purchaser
of the January, 1917, Blue Book. There is no specific evidence that Herrmann,
Hilken, or any agent employed by them or either of them purchased the
January, 1917, number of the magazine at the Abraham Book Store.
Expert evidence which is not effectively challenged is to the effect that the
marks as exhibited in the 1917 Blue Books and in that containing the message
were not made in the order and in the manner described by the two Qualters
brothers. The German Agent, however, insists that the markings found on
the table of contents of the magazine containing the Herrmann message are
so similar to the markings in the other magazines, some of which indubitably
and concededly come from the lot purchased by the bookstore from Horace
Qualters, that I may draw the conclusion that the January, 1917, magazine
DECISIONS 1 2 1
containing the message came from Quakers. He further animadverts upon
the tardy explanations of Hilken that German agents were in the habit of
using marks as keys to their codes, and of Herrmann that he believes he made
the marks in the table of contents in the magazine in connection with the
message to Hilken but cannot at this time determine their significance.
If I were to draw the conclusion the German Agent desires, this would end
the controversy with respect to the authenticity of the message. While the
evidence arouses suspicion, I can not find in it alone enough to reach a certain
conclusion. It does, however, add to the doubts which all the other facts
and circumstances recited have raised concerning the document.
(3) It remains to consider whether these doubts can be resolved by recourse
to the expert testimony. This consists of about one thousand pages. The
questions submitted to the experts are in my belief novel. They involve at the
foundation certain known qualities of ink and paper. But as one reads the
testimony on both sides one is impressed with the fact that the experts themselves
had to resort to experiments with lemon-juice writing on new and old paper
in order to reach their conclusions. Many of the opinions of the experts on the
one side are countered by diametrically opposite results stated by those on
the other. I agree with the arguments of both Agents that certain of the expe-
riments and tests which they criticize are not beyond fair criticism and fail
to carry conviction. I entertain no doubt that all the experts retained by both
litigants were inspired by a desire to do their honest best with a very difficult
problem. Both sets of experts evidently believe in the soundness of their
conclusions, for they challenge the Commission to make certain experiments
and examinations for itself, and it is hardly conceivable that they would do so
unless they felt that the results of such experimentation by laymen would
justify their confidence. My experience in this behalf has, however, been most
unsatisfactory and has only tended to confirm the feeling that on the expert
evidence alone my judgment would be left in balance as to the authenticity
of the document. Expert evidence is often an aid in determining questions
of the sort here presented ; but is it far from an infallible guide, as witness the
fact that several of the experts for the claimants convinced themselves of the
authenticity of the Wozniak letters. This comment does not by any means
apply to all of the experts who testify about the Herrmann message, and it is
not to be taken as indicating that I have the slightest doubt that all of the
expert's opinions are honestly entertained. It is mentioned merely as an
illustration of the fact above stated, that, at best, expert evidence can usually
be only an aid to judgment, and not always in and of itself so conclusive as
to carry conviction.
I need only add in summary that the most careful study and consideration
of the expert evidence with respect to the Blue Book message convinces me
that upon that evidence alone I should not be justified in affirming the authen-
ticity of the document. I am therefore compelled to revert to the other evidence.
As has been indicated, the testimony offered on both sides with respect to
the message, to say the least, raises grave doubts with regard to it. The
sources from which it comes, the circumstances of its production, the evidence
as to the time and circumstances in which it was written, and the silent but
persuasive intrinsic evidence which is drawn from its contents, make impossible
an affirmative conclusion in favor of the claimants and against Germany.
The claimants have the burden to establish, by a fair preponderance of evidence,
that this document was written and sent at the time claimed. With every
disposition to avoid technicality, to be liberal as to the interpretation and
effect of evidence, and to regard the great difficulties under which the claimants
have labored in the production of their proofs, I yet find myself unable to
122 UNITED STATES/GERMANY
overcome the natural doubts and misgivings which cluster about this document.
I am not, therefore, prepared to make a finding that this is the missive which
Herrmann dispatched to Hilken in 1917.
It results from what has been said that with respect to the Black Tom ex-
plosion the new proof, when taken in connection with the old, fails to support
any finding that Kristoff was a German agent or the employee of any German
agent or agents ; and fails also to justify a finding that Hinsch is the same person
as Graentnor.
As respects the Kingsland case, the evidence does not, in my judgment,
justify a finding that Wozniak was a German agent or employed by any
German agent; does not justify a finding that excludes accident and affirms
incendiarism. It leaves me still of the opinion that Wozniak was not in Mexico
in the summer of 1917. There is therefore no sufficient basis for a finding
against Germany.
It must be borne in mind that whatever may be the belief of any Member
of the Commission with respect to Germany's general attitude and the motives
or purposes of its agents, or with respect to the equities of the claimants, or
that Germany is disentitled to favorable consideration by reason of her general
policy as to American-made munitions and supplies for the Allies, this tribunal
sits as a court with the obligation to ignore any such considerations and, how-
ever liberally construing rules of evidence, is still bound to act only upon proof
which reasonably leads to the conclusions upon which liability is consequent.
A matter upon which the Commissioners disagree is that of the jurisdiction
of the Commission ever under any circumstances or for any reason to reopen
a claim made under the international agreement of August 10, 1922, which
created the Commission, once that claim has been formally passed upon and
decided. The German Commissioner's position is that while the two Com-
missioners by mutual agreement may reopen in such a situation they may not do
so where, as here, one of the Commissioners opposes the reopening. The
German Commissioner does so oppose in this case.
The conclusions I have expressed make it unnecessary to pass upon the
question just stated. Equally unnecessary is it, in view of the foregoing, to
discuss whether the evidence offered, or some of it, falls within the class of
evidence properly denominated after-discovered.
As it is my opinion that if the new evidence were formally placed on file
and considered in connection with the whole body of evidence submitted prior
to the Commission's opinion ol October 16, 1930, the findings then made and
the conclusions then reached would not be reversed or materially modified,
the question as to our jurisdiction need not be answered.
The supplemental petition for rehearing is dismissed.
Done at Washinghton December 3, 1932.
OwenJ.
ROBERTS
Umpire
Concurring:
W. KlESSELBACH
German Commissioner
Dec. 3, 1932.
DECISIONS 123
December 2, 1932
Separate Opinion on the Kingsland Case by the American Commissioner
As to the Kingsland Case, I agree with the finding of the Commission that
the three so-called Wozniak letters are manufactured evidence fabricated after
the dates when they purport to have been written, and have no value as evidence
for the purposes for which they were produced. Nevertheless, I draw from
the production of these letters certain conclusions which have an important
bearing on some of the other evidence in this case.
Wozniak's authorship of these letters, although not admitted by him so far
as the record discloses, can be taken as established for the purposes of this case.
They are admittedly in his handwriting and they came to the American Agent
through his closest friend, one Ivan Baran, who refused to surrender them
until he had received an assurance from the American Agent granting Wozniak
immunity from prosecution for incendiarism or perjury.
This whole transaction shows a degree of cleverness and subtlety on the
part of Wozniak which was not suspected by the Commission at the time of
its original decision. Considering that these letters were so skillfully fabricated
that they deceived several of the American Agent's most experienced and
trusted experts as to their date of production, judged by physical condition
and appearance, and also deceived the American Agent and his counsel as
to their trustworthiness, judged by their textual contents, and considering also
that the claimants paid 82,500 for them without Wozniak himself having
vouched for their authenticity, while Wozniak at the same time obtained an
assurance of immunity from prosecution on account of their bearing on the
Kingsland fire or perjury charges, it is evident that the Commission's earlier
estimate of Wozniak's mentality, as described in its original decision, must be
revised. The Commission then said of Wozniak, " He is in a way smart,
though naive, and thinks he is smarter than he really is." He has now demon-
strated that he is really smarter than the Commission thought he was, and
also that he is even less trustworthy and more formidable and mercenary as
a witness than the Commission then assumed him to be. It follows from this
conclusion that Wozniak's testimony before the Commission, at the time of the
original decision, was given more weight than was justified. In fact, Wozniak
has disclosed by his present performance that he is thoroughly untrustworthy
as a witness.
The Commission's original finding that Wozniak was not in Mexico at the
time he was alleged by other witnesses to have been there in association with
German agents rests wholly on Wozniak's own statements. So, also, his alibi
story that he was at Tupper Lake, New York, at the time he was reported by
other witnesses to have been in Mexico, cannot be accepted if his own statements
about it are not accepted. The Commission accepted his statements on these
points in reliance upon his assumed credibility. If, however, his credibility
is now destroyed by the newly submitted evidence, both of these points are
open for reexamination, and the examination should be unprejudiced by the
earlier findings of the Commission.
In the original decision, the question of whether or not Wozniak was in
Mexico was really a minor issue and immaterial for the decision of the case,
in view of the facts found by the Commission as to the cause of the Kingsland
fire. In the present proceedings, however, the question whether or not Wozniak
was in Mexico in 1917 is one of the essential issues in its bearing upon his status
124 UNITED STATES/GERMANY
as a German agent, the decision of which may determine the validity of the
claim.
In its earlier decision the Commission adopted the theory that the Kingsland
fire was the result of an accident, and was not purposely set by Wozniak, so
that whether or not he was a German agent was unimportant. In that decision
the Commission stated, " Despite Herrmann's confession, the evidence in the
Kingsland case has convinced us that Wozniak did not set the Kingsland fire ",
and expressed the opinion that the fire was caused by sparks from the machine
which held the shell Wozniak was cleaning, in other words, that the fire was
an industrial accident. The basis of this finding was Wozniak's own story
taken in connection with the evidence embodied in the so-called Johnson
report.
The new evidence submitted in the present proceeding shows that this
Johnson report, like the Wozniak letters, was fabricated and must now be
rejected. It was put into the record by the German Agent only shortly before
the Hague argument, too late to be investigated by the American Agent before
the Commission's decision, and both the German Agent and the Commission
unwittingly relied upon its authenticity. By a curious coincidence, that report,
like one of the Wozniak letters, was written on paper which, by its watermark,
was proved not to have been manufactured until after the date on which it
purported to have been written.
This report being spurious, and Wozniak himself having been discredited,
there is nothing in the record, as the case now stands, to support a finding that
the Kingsland fire was the result of an industrial accident. On the contrary,
voluminous affidavits and reports have now been submitted negativing the
possibility of an industrial accident. Accordingly, the question of whether
or not Wozniak was a German agent or employed by a German agent at the
time the fire started at his work bench becomes a decisive question in this
case. Its importance appears from the statement in the Commission's original
decision that, in view of the background established in the sabotage cases which
showed authorized sabotage activities in the United States by an organized
group of German agents, " inferences against Germany were rendered easier
than they otherwise would be ", which means, in application to the present case,
that if Wozniak is shown to have been a German agent at the time of the
Kingsland fire, the Commission would be justified in inferring that Germany
was responsible, under the Treaty of Berlin, for that fire unless such inference
was prohibited by other evidence. The Commission's theory in the earlier
decision that this fire was the result of an industrial accident precluded any
such inference because in that situation it was immaterial whether or not
Wozniak was a German agent, but, inasmuch as now the fire is no longer
regarded as an industrial accident, the inference above indicated can be drawn
if it be shown that Wozniak was a German agent. The national Commissioners
are in agreement on this point, as stated in their certificate of disagreement.
It is evident from the foregoing brief analysis of the situation that in examin-
ing the new evidence we may proceed on the basis that Wozniak's testimony
and the Johnson report are wholly discredited, and that the findings of the
Commission based on that evidence may be disregarded.
There is much new evidence now before the Commission which is intended
to show that Wozniak was a German agent at the time of the Kingsland fire,
not only by reason of new facts presented but also by giving a new meaning
and value to some of the old evidence on that point which was discredited in
the original decision.
Some of the new facts presented to establish Wozniak's presence in Mexico
in 1917 are embodied in the affidavits of Sylvester Golka (December 9, 1931)
DECISIONS 125
and Peter Panas and his wife (November 14, 1931). Exhibits 929, 930-1,
930-2.
Golka and Panas and his wife were old friends of Wozniak, and were on
intimate terms with him in 1917. They are highly reputable and trustworthy
people. They set forth in their affidavits, with some convincing detail, the
receipt by them of three letters in all, written by Wozniak to them from Mexico
in the Summer of 1917. The only ground on which it has been sought to
discredit their receipt of these letters is that in the letter to Golka he requested
that it be destroyed upon receipt, which was done, and that later he followed
up the letters to Panas and destroyed them himself. It is argued that it was
wholly inconsistent that he should be so anxious to have those letters destroyed
and at the same time should have made no such request in his letters written
contemporaneously to Baran, especially in view of the fact that the Golka and
Panas letters were clearly innocent in character, whereas the Baran letters
were distinctly incriminating, taken in connection with other facts in the
record. This argument obviously is based on a false premise, because having
admitted that the Baran letters are forgeries, they cannot be accepted as a
basis for discrediting this other evidence. Naturally they did not contain a
request that they be destroyed because that would have been inconsistent with
the purpose for which they were forged, which was to be produced in this case
to prove that Wozniak was in Mexico in 1917. There is nothing in the record
which throws any discredit upon these Golka and Panas affidavits, and there
is no reason why they should not be believed. They stand, therefore, as
credible evidence that Wozniak was in Mexico in 1917, and his desire to have
his letters destroyed shows that he wished to conceal his presence in Mexico
at the time they were written. It will be noted that by these spurious letters
fabricated by Wozniak, he in effect represents himself to have been in Mexico
in 1917, and makes himself out a perjurer when he swore to the contrary in
his previous testimony.
An item in the new evidence, which gives new meaning and value to some
of the old evidence, is the report of the police official in Poland. Exhibit
No. 936. This report is to the effect that in the neighborhood of Wozniak's
old home in Rawa Russka there was a forest in which Wozniak once worked,
known as the " Karow " forest, and that it was customary in Poland to add
to the family name a second name either as a prefix or suffix, descriptive of the
person's occupation or place of residence. He says, accordingly, that Wozniak,
as a workman in this forest, would have been known as Karowsky-Wozniak,
or Wozniak-Karowsky perhaps the added name might have been Karifsky
instead of Karowsky. This, however, is an unimportant detail. The old
evidence, to which this new evidence gives new value, is found in the affidavits
of several witnesses who identified Wozniak as a man known as Karowsky,
or Karnowsky, or a phonetically similar name, in the Summer of 1917, as an
associate of admitted German agents in Mexico. In its original decision the
Commission mistrusted this attempted identification largely because there was
at that time nothing in the record to show that Wozniak had ever used such
a name as Karowsky. In view of this new evidence, however, the name
sounding like " Karowsky " no longer appears out of a clear sky and without
any connection with Wozniak. Consequently, the earlier affidavits, identifying
Wozniak as the man known by such a name, who was the associate of German
agents in Mexico, are entitled to be regarded as seriously important evidence.
Furthermore, the explanation about Wozniak's earlier occupation as a
lumberman in the Karow forest has the further value, in connection with his
Tupper Lake story, of showing that even if he had never been to Tupper Lake,
he knew enough about the life and work in a lumber camp to enable him to
126 UNITED STATES/GERM ANY
invent the rather meager details which he gives in his affidavit about his life
there. The information in his affidavit about the wages and terms of employ-
ment, and the distance of the camp from the railroad station, and the name of
the camp, could have been obtained without going to the camp at all. Most
of it was obtainable from the Lumber Company's employment agency in
New York, and would be contained in the usual employment application form
supplied to applicants. With this information, supplemented by his early
experiences in lumber camps, he was clever enough, as a fabricator, to make an
affidavit sufficiently accurate in detail to persuade the American Agent that,
as he conceded in oral argument, it was certainly possible that Wozniak had
been at Tupper Lake at some time before his trip there as a witness in 1929.
Wozniak's status as a German agent is further supported by new evidence
in the affidavits of the witnesses Capitula (Exh. No. 902), Nolan (Exh. No. 890),
King (Exh. No. 891), Palmer (Exh. No. 896 (a) ). and Clucas (Exh. Nos.
822 and 895). This testimony leaves much to be desired, but, if Wozniak's
own testimony in conflict with it be disregarded for the reasons above stated,
it stands undisputed, and, taken together with the above mentioned Golka and
Panas affidavits and the earlier affidavits identifying Wozniak as the German
agent known as Karowsky in Mexico in 1917, a prima facie case, at least, has
been made establishing that Wozniak actually was a German agent at the
time of the Kingsland fire.
With Wozniak's status as a German agent established, it is not necessary to
prove that he purposely or actually started the fire, because, for the reasons
already stated, the Commission, in these circumstances, is justified in drawing
the inference that Wozniak was responsible for it, even though proof is lacking
as to exactly how it was done.
It may be noted on this point, however, that the Commission is not bound
to accept either Wozniak's statement of how it was started or Herrmann's
explanation of what his instructions to Wozniak were about the use of incendi-
ary pencils, because in the present view of the value of the testimony of these
witnesses, the Commission is at liberty to disregard everything they have said
on this subject, and, so far as the record shows, the real truth as to how this
fire was started has never been disclosed.
We do know, however, from thoroughly dependable testimony, that, as
found in our original decision, the Imperial German Government had author-
ized the destruction of ammunition plants in the United States during the period
of our neutrality, and that an organization of German sabotage agents had
been established for that purpose and had been supplied with funds and imple-
ments to be used in sabotage activities. We also know, as a settled fact in
this case, that the Kingsland fire started at Wozniak's work bench, and we
now find that a prima facie case has been made against Wozniak as a German
agent himself at that time. The purpose, the opportunity, the means, and the
agent were all there.
In view of these considerations and conclusions, the Commission is justified
in holding that on the record, as it stands, the German Government must be
held responsible, under the terms of the Treaty of Berlin, for the damages
resulting to the claimants by reason of the Kingsland fire.
Chandler P. ANDERSON
Note: The so-called Herrmann secret message, embodied in the Blue Book
Magazine for January, 1917 (Exhibit No. 904), if accepted as authentic,
would conclusively prove the liability of Germany in both the Kingsland and
the Black Tom cases. Inasmuch, however, as the authenticity of that message
is questioned, no reference has been made to it in reaching the conclusions
DECISIONS 127
stated in the foregoing opinion, which demonstrates that Germany should be
held liable in the Kingsland case independently of that evidence, and even
if its authenticity should not be accepted.
As appears from the Certificate of Disagreement by the National Commis-
sioners referring both of these cases to the Umpire for decision, the American
Commissioner disagreed in the Black Tom case as well as in the Kingsland case.
C. P. A.
KATHARINE M. DRIER (UNITED STATES)
v. GERMANY
(July 29, 1935, pp. 1075-1080; Certificate of Disagreement by the National Com-
missioners, June 18, 1935, pp. 1037-1074.)
WAR : PROPERTY IN ENEMY COUNTRY, COMPULSORY SEQUESTRATION, UNAUTHO-
RIZED SALE. —DAMAGE, DAMAGES: FAIR VALUE, MANIFEST ERROR IN
REACHING AMOUNT OF DAMAGES. — PROCEDURE: CONFIRMATION BY COM-
MISSION OF AGREEMENT BETWEEN AGENTS; FINALITY OF AWARD: VALUE
OF RESERVATION BY CLAIMANT, OF NEGOTIATIONS AFTER AWARD; ADDITIONAL
AWARDS; REHEARING AFTER FINAL JUDGMENT, INJUSTICE, ERROR IN FACT;
TIMELINESS OF PETITION : ADEQUATE REASONS FOR DELAY. — EVIDENCE :
DISCRETIONARY APPRAISAL OF UNCHALLENGED EXPERT EVIDENCE. Com-
pulsory sequestration of country estate in Germany belonging to claimant,
an American national. Sale of estate by claimant's attorney, allegedly
unauthorised, in November 1919. Consummation of sale on May 10, 1920,
after consent of compulsory administrator. Claim presented to Commission
for difference between sale price and fair value as of 1919. Award entered
on January 14, 1925, for amount jointly recommended by Agents in agreed
statement filed with Commission. Award not final: under reservation
agreed upon between claimant and Agents, she applied for additional
award when recovery denied in Germany against attorney and purchaser.
Additional award on April 5, 1929, for amount deemed insufficient by
claimant, but accepted beforehand on account of her destitute condition,
with reservation, however, of all possible remedies before Commission or
through diplomatic channels for further compensation. Execution of both
awards under War Claims Settlement Act of 1928. Request for third award
filed on November 18, 1932, on ground that (1) claimant deprived of rights
under Treaty of Berlin, (2) awards conflicted with Commission's previous
rulings, and (3) contained manifest error in determination of measure of
damage. Negotiations, between date of request and date of German answer
thereto, between parties to arrive at compromise for supplementary amount.
Held that petition timely, if well founded in fact and law (adequate reasons
for delay), but should be dismissed since Commission without power to
redress (a) alleged injustice, or (b) errors of fact, particularly when involving
opinion as to value (no obligation to award full amount shown by expert
evidence, even if unchallenged, no abuse of discretion in appraising evidence,
no manifest error in reaching amount of award), and (c) not bound by
second reservation (statement by claimant that he accepts award under
protest and will apply further to Commission is without legal force) or
negotiations for compromise (not on record, extrajudicial).
128 UNITED STATES/GERMANY
Certificate of Disagreement by the National Commissioners
The American Commissioner and the German Commissioner have been
unable to agree as to the action to be taken on the question presented by the
Petition filed by the American Agent on behalf of the claimant for an award
for additional damages in this case, their respective opinions being as follows:
Opinion of Mr. Anderson, the American Commissioner
This claim is for damages alleged to have been suffered by the claimant
through the unauthorized disposition of certain property in Germany belonging
to her by action of the German authorities in a manner which, she claims,
rendered the German Government liable for resulting damages under the
Treaty of Berlin.
The basis of the claim is that the claimant was deprived of her property by
action of the German authorities without just compensation, and should be
paid the full value of such property less certain amounts already paid on
account under previous awards by this Commission.
On January 14, 1925, this Commission made its first award on account
of this claim for the amount of $48,000, with interest until the date of payment,
which was August 1, 1928, when $68,782.70 was paid on account of principal
and interest.
This award admittedly was not final, and in accepting it the claimant
reserved " the right to pursue her claims against Mittag & Rost, and in the
event of failure to recover from them, to apply again to the Commission for
an additional award " (Paragraph II of the Memorandum of the German
Agent filed March 20, 1928, in reply to the American Agent's Motion for an
Additional Award). In that Memorandum the German Agent made no
objection to the " admission of the Motion by the Commission " (Id., Para-
graph I), and stated that " the facts as set forth in the Motion will not be
contested" (Id., Paragraph III). He added, "The German Agent has no
knowledge or information sufficient to form a belief as to the actual value of
the estate, the equipment of the castle, etc. at the time of the sale " (Id.,
Paragraph IV).
The American Commissioner understands that the position of the German
Agent, as set forth in Paragraphs III and IV of his Memorandum, above
quoted, is that all the facts alleged in the Petition are admitted except the alle-
gations as to the actual value of the estate and its equipment.
Inasmuch as the question now presented to the Commission for its decision
involves to some extent the value of the aforesaid estate and its equipment,
it is necessary to examine the allegations of the American Agent's Motion
(Petition filed March 19, 1929), which are referred to in the extracts quoted
from the German Agent's Memorandum in response to that Petition.
This Petition is in full as follows:
" In the above matter the Mixed Claims Commission, United States and Ger-
many, on January 14, 1925 rendered an award for $48,000.— plus interest in favor
of the claimant.
" This award was based upon an agreed statement the basis of which was an
understanding reached between the two Agencies in Berlin on September 4, 1924.
Mr. Alexander Otis was at that time in charge of the claim.
" When this settlement was arrived at it was the understanding of the claimant
that it was not to be final but that she reserved the right first to pursue her claims
against certain German nationals who by their acts had caused her great injury
and in the event that she would fail in these efforts to take the matter up once more
before the Mixed Claims Commission and ask for an additional award. That this
DECISIONS 129
was the condition precedent to her acceptance of the compromise will not be
disputed. Compare also Exhibit H attached hereto.
" The claimant in pursuance of this understanding has brought suit against the
above mentioned German nationals, but has not been successful because the Ger-
man domestic law did not provide for a remedy. She is forced therefor now to apply
to the Commission and to rely on the protection assured to her by the Treaty of
Berlin.
" The facts in the case are as follows:
" The claimant, Mrs. Katharine von Rosenberg-Drier was the sole owner of the
estate of Bonnewitz in the neighborhood of Dresden, Germany, which she had
inherited from her first husband Baron von Rosenberg, who died in 1913. A des-
cription of this estate is contained in Exhibit A attached hereto. After the United
States had entered the war this estate was placed under compulsory administration
and on May 10, 1918, one Dr. Spiess, attorney at law in Dresden-Pirna, was
appointed administrator. Mrs. Drier was at that time absent from Germany having
left in 1917 together with her second husband, U.S. Consul Drier. She returned
to Dresden after the armistice in the first part of 1919. Upon this occasion she
called at the Ministry in Dresden and conferred with the Counsellor of Ministry
Dr. Hast who was in charge of sequestered enemy property. At this conference
the question of disposing of the estate by sale was discussed and Mrs. Drier who
had in former times received various offers — among others one from the brother
of the King of Saxony — and had invariably refused considering them, told Dr. Hast
that she was absolutely opposed to any sale of the property. The same statement
was by claimant to the administrator Dr. Spiess.
" In June 1919 the claimant went to Stockholm, Sweden, because, as an enemy
national, she was not permitted to remain longer in Germany. Before she left
she gave power of attorney to one Mr. Rost, who had been a friend of the Rosen-
berg family for years. This power was upon the request of Rost made out in general
terms; the claimant made it quite clear however that Rost was merely to take
care of the estate and under no circumstances to dispose of it. While the claimant
was in Stockholm Mr. Rost wrote her that certain debts (mostly for taxes and
upkeep) had to be paid, that the income from the estate would not be sufficient
to cover them and that he thought it necessary therefore to sell the estate. The
claimant upon receiving Rost's letter wrote to him in August 1919, that he was
not to sell the estate because she would soon be able to settle those debts without
such a sale. In September 1919 the claimant left Sweden for the United States
and on December 1919 she returned to Stockholm arriving at that place on the
24th of said month. During her absence Mr. Rost had on November 21, 1919
concluded a contract of sale with one Mittag. The price agreed upon was 570.000,—
Paper marks for the estate and its entire inventory including the furniture, house-
hold goods and works of art belonging thereto. Of this amount M 169,845.—
were to be paid in cash, the rest to be secured by a mortgage. Since the estate was
still under compulsory administration at the time Mr. Rost requested the adminis-
trator, to give his consent to the sale. The administrator, although fully aware
that Mrs. Drier was absolutely opposed to such a transaction reported the matter
to the Ministry, stating in this report that he had no objections to the sale if
Mr. Rost declared that certain things enumerated in a special list would be
returned to Mrs. Drier, if Mrs. Drier would agree to paying a certain sum for
administration expenses incurred by him and if Mrs. Drier, through Mr. Rost,
would waive all claims against the State of Saxony which might possibly arise from
the sequestration of the property.
" The Ministry, after at first refusing to give its consent to the sale, agreed to
it in the beginning of January 1920.
" The claimant learned of the contract of December 26th immediately after
her return to Stockholm and protested at once in two telegrams to Mr. Rost of
December 26th and 27th. In spite of these protests Mr. Rost executed the sale
on January 5, 1920 by causing its entry in the ground books of the competent
court at Pirna and by delivering the estate to Mittag. It turned out however that
the entry was legally not affective because Rost in applying for it had made a
certain reservation which is not admissible in transactions of that kind under
130 UNITED STATES/GERMANY
German law. The court therefore advised him that the execution of the sale must
be repeated in order to become valid. In the meantime the claimant had arrived
in Dresden and had withdrawn Rost's power of attorney which was returned to
her on January 24, 1920. This being done the claimant who had been informed
that the sale had not been validly executed returned to Stockholm toward the end
of February where she learned that Rost, although no more in possession of the
power of attorney, intended to repeat the execution of the sale. Thereupon she
wired again in the first days of May forbidding him strictly to carry out his intention.
Rost answered by telegram of May 6, 1920 that decent people were not used to
acting on withdrawn powers of attorney. In spite of this he repeated the execution
of the sale finally on May 10, 1920 and Mittag was registered as owner of the estate
on the same day.
" In March 1922 the claimant brought suit before the competent court in Dresden
against Mittag asking for the retransfer of the estate to her. The suit was dismissed
on June 19, 1924 upon the ground that Mittag had been without knowledge of
Rost's lack of authority and was, accordingly, entitled to the protection of law as
' purchaser in good faith '. The claimant then brought suit against Rost in December
1924 asking for an order to compel him to restore the estate to her. This suit was
likewise dismissed on May 8, 1925 upon the ground that the claimant had not
been able to prove that she expressly forbade Rost to sell the estate before he
concluded the contract of sale on November 21, 1919.
" This decision being final the condition prerequisite for applying once more
to the Commission has now arisen.
" The present claim is based on Article 297 e of the Treaty of Versailles as
incorporated into the Treaty of Berlin. Under this provision the claimant, as an
American national, is entitled to compensation in respect of damage or injury
inflicted upon her property by the application of exceptional war-measures or
measures of transfer. According to Par. 3 of the Annex to Article 298 measures
of that kind comprise measures of all kinds, legislative, administrative, judicial or
others, that have been taken with regard to enemy property, and which have had
the effect from removing from the proprietor the power of disposition over their
property, such as measures of supervision, of compulsory administration and of
sequestration, or measures which have had as an object the seizure of, the use of,
or the interference with enemy assets, for whatsoever motive, under whatsoever
form or in whatsoever place. Acts in the execution of these measures include all
detentions, instructions, orders or decrees of Government departments or courts
applying these measures on enemy property.
" It is claimant's contention that under these provisions the Government of
Germany is obligated to compensate her for the damage caused to her by the
unauthorized sale of her estate.
" In 1918 her estate was subjected to compulsory administration which in itself
was undoubtedly an exceptional war-measure. The administrator who was appoin-
ted under the German war-legislation was, by virtue of that very legislation,
obligated^ to protect the interests of the claimant. He knew that she was opposed
to and had actually forbidden the sale of her estate. In spite of this he applied,
upon Rost's request, to the Ministry for the consent to have the sale executed.
The Ministry which was likewise informed of claimant's attitude, granted this
consent and, in fact, made the contract of sale effective by removing the adminis-
tration, fulfilling thereby one of the conditions prerequisite to the validity of the
contract. If the administrator, as was clearly his duty under the circumstances,
had opposed the sale in conformity with the claimant's wishes, Rost would not
have been able to carry out his intention and the same would have been true if
the Ministry instead of removing its ' protection ' at the critical moment had preven-
ted the administrator and through him Mr. Rost from acting against the expiess
orders of the proprietor. There can be no doubt that the sale of the estate became
only possible ' by the acts of persons connected with the administration ' of the pro-
perty, namely, Mr. Spiess, the administrator, and Dr. Hast, the Government's
Official in charge of sequestration-matters. For the acts and in legal contemplation,
for the omissions of these persons, when they had been obligated to act, Germany
is responsible.
DECISIONS 131
" The damage suffered by claimant consists in the difference between the reason-
able value of the estate at the time of the sale and the sale's price.
" The estate was sold to Mittag for the absurd sum of $570.000,— Paper-Marks,
which at that time equalled approximately SI 1,400.00. He paid in cash the amount
of 169.845,— Paper-Marks or 13400.00 which was all the claimant received at
that time in consideration of her estate. The rest of 400.000,— Paper-Marks was
secured by mortgages. These mortgages have since been attached by Mittag who
reimbursed himself in this for the court and lawyers' expenses incurred by him in
connection with the claimant's lawsuit against him. Therefore, while the claimant
appears to have received the equivalent of approximately $12,000.00, as a matter
of fact all but $3400.00, duly credited below, has been taken away from her as a
result of the general scheme and its consequences.
" The actual value of the estate at the time of the sale is shown by the Exhibits
B to G attached hereto.
" It appears from these Exhibits that the value of the estate without the forest
and without the equipment of the castle was in 1919
" Goldmarks: 385 000,—
" It appears furthermore that the value of the forest standing on the estate at
that time was at least:
" Goldmarks: 1 000 000,—
" It appears finally that the value of the equipment of claimant's castle at that
time was at least
" Goldmarks: 2 800 000,—
This brings the total value of the estate as sold to Mittag in 1919 to Goldmarks
4 185 000,— or approximately one Million Dollars.
" There are to be deducted herefrom the sums received by the claimant from
Mittag, namely 3400 Dollars and the award rendered to claimant in partial com-
pensation of her claim, namely 48 000 Dollars.
" Claim will therefor be made for an additional award in the amount of 948 600
Dollars."
On account of this Petition, and the evidence submitted therewith, the
National Commissioners on April 5, 1929, made an additional award to the
claimant for 35250,000, with interest thereon at five per cent from May 10, 1918,
to the date of payment.
The claimant was dissatisfied with the amount of this award, and on Novem-
ber 18, 1932, the American Agent, on her behalf, filed another Petition for a
further award. The German Agent, on July 2, 1934, filed a reply requesting
that, for the reasons stated therein, this Petition be dismissed. The German
Agent, although all the evidence filed in support of the claim had been turned
over to him informally by the attorney for claimant on June 1, 1927 (see Annex
B, p. 41, of the Memorandum Brief of American Agent filed January 9, 1933),
indicated in this reply that he did not desire to file any evidence at that stage
of these proceedings. The reason alleged for this position was that " in the
present stage of the procedure the Commission is only concerned with the
preliminary question of whether or not the case shall be reopened and a retrial
be granted. The examination of this question has to be related to the record as
it stood when the award of April 5, 1925 [1929], was rendered."
On August 15, 1934, the American Agent filed a reply to the German Agent's
Reply, and also a Memorandum Brief in support of the Petition, to which
reference is made for the purpose of calling it to the attention of the Umpire,
and stating the concurrence of the American Commissioner in the contentions
therein made,
At the same time, August 15, 1934, the American Agent, on the understand-
ing that the German Agent did not desire to file any additional evidence,
submitted " this claim for final adjudication " by the Commission. So, also,
132 UNITED STATES/GERMANY
the German Agent, on September 28, 1934, filed a Memorandum, stating that
he "joins the American Agent in submitting the Petition for further award
for decision by this Honorable Commission ". The German Agent added,
however, that this submission was made on the same understanding as already
stated in his Reply that " in the present stage of the proceedings the Commis-
sion is only concerned with the question of whether or not the case shall be
reopened and that no trial on the merits will ensue without previous opportunity
for him to file evidence ".
It appears from the foregoing review of the proceedings down to this point
that the only question now submitted for the decision of the Commission is
whether or not the Commission should exercise its discretionary right to
reconsider its previous award.
Before proceedings to an examination of the situation presented by this
Petition, it will be convenient to note three points which have an important
bearing on the questions to be considered.
In the first place, the German Agent did not present any evidence in oppo-
sition to the two preceding Petitions, although, as above set out, he was fully
advised as to all of claimant's evidence on valuation of the property involved
as early as June 1, 1927, and he has not presented any in support of his objec-
tions to the question raised by the present Petition. Indeed, he has frankly
stated, as above quoted, that " the examination of this question has to be
related to the record as it stood when the award of April 5, 1925 [1929], was
rendered." It is true that in his Reply he alleges:
" Investigations recently carried out in Germany in connection with a plan
eventually to settle this case by an agreement, have disclosed that the material
filed by Claimant in 1929 and on the basis of which the Commission granted an
additional award of $250,000, is not above suspicion. The investigations, further-
more, convinced the German Government that the two awards totaling S298,000
greatly exceed the damages actually sustained by Claimant."
Apart from the inconsistency of referring to this alleged evidence after
expressly stating that he did not desire to submit any new evidence at this time,
this reference to some vague evidence outside of the record should be disre-
garded by the Commission.
In the second place, it must be noted that, although the German Agent did
not expressly admit the facts presented in the second Petition by the American
Agent as to the value of the property taken, he did not deny those facts, and
has made no effort to refute them, merely contenting himself with the allegation
that he had no knowledge or information sufficient to form a belief as to their
correctness.
In the third place, the second award of the Commission was not based on
an agreed statement signed by the Agents as to the value of the property taken.
The only agreement by the Agents before the Commission when the second
award was made was furnished by the admissions of the German Agent as to
the undisputed status of the evidence offered by the American Agent in support
of that Petition.
Turning now to the present Petition, the pertinent parts of it are as follows:
" The second award, it is respectfully submitted, did not, however, purport to
be, nor was it in fact, in any way related to the amount of the loss proven by the
evidence to have been suffered by the claimant. The amount was arrived at in
the following manner: The petition of your claimant, dated March 19, 1919 [1929]
(Docket No. 11485), showed that she was entitled upon particularized and com-
petent evidence submitted therewith to recover nine hundred and forty-eight
thousand six hundred dollars (8948,600.), together with interest from the 10th
day of May, 1918. Reference is made to the petition for further award, copy of
DECISIONS 133
which is hereto annexed and made a part hereof, and to the evidence accom-
panying said petition. Said petition was duly countersigned and filed with the
Commission on the 19th day of March, 1929, by the American Agent. The claimant
thereafter had a conference with the American Commissioner at the offices of
the Mixed Claims Commission, United States and Germany in the City of
Washington. During this conference the American Commissioner stated that
the German Commissioner would consent to a further award on behalf of claim-
ant in the amount of two hundred thousand dollars (3200,000). The claimant
stated her inability to accept the same. At a later conference the American Com-
missioner stated that he had procured the consent of the German Commissioner
to increase the further award to two hundred and fifty thousand dollars ($250,000.),
and to allow interest thereon from the 10th day of May, 1918. At this time the
claimant was in destitute circumstances. Upon inquiry as to what would be the
result if she declined the award she was informed that the claim would then probably
be certified to the Umpire and that considerable delay might ensue before final
decision in the matter would be entered. The claimant thereupon stated that if
the amount of two hundred and fifty thousand dollars (S25O,OOO.) was the maximum
which she would receive, without such prolonged delay, she had no choice in view
of her stark necessities to do other than let it go through. It was, however, then
and there stated, and later restated to the German Agent, that the claimant was
dissatisfied with the proposed award and she expressly said she was reserving the
right to bring before the Commission or other appropriate tribunal or governmental
agency the wrong she had suffered in not being awarded the full measure of com-
pensation as provided for in the Treaty of Berlin, namely, the value of her property
taken and not returned to her through the action of the officials of the Government
of Germany. (See Administrative Decision No. Ill, Opinions and Decisions of
Commission, p. 62.)» No evidence was at any time presented to the Commission
by the German Agent which called in question the proof of loss submitted by the
claimant and the two awards in the total amount of two hundred and ninety-eight
thousand dollars (5298,000.) had no relation whatever to the amount of her loss
and were not in accordance with the evidence and proof before the Commission.
She further stated at the time personally and through her attorney that her
acquiescence in and acceptance of the awards was due only to her necessitous
circumstances and that she intended to insist further on her right to recover the
full compensation provided her by the Treaty of Berlin.
" Upon these grounds therefore the claimant prays that this Honorable Com-
mission will increase the awards to an amount commensurate to the undisputed
proof of loss; first, that a grave injustice has been done to the claimant and she
has been deprived of rights accorded her by the Treaty of Berlin ; second, that
the awards made are contrary to the rulings of this Honorable Commission as set
out in Administrative Decision No. Ill, in that they do not afford her the full
measure of compensation therein provided for; third, the awards as made are
juridically wrong in that this Honorable Commission was without authority to
reduce the awards made by it to an amount less than the sum shown by the undis-
puted proof and records of the Commission to be amount of the loss suffered in this
instance.
" In conclusion, the claimant respectfully refers to the prior decisions of this
Honorable Commission to show that her petition for a further award is grantable
squarely within the language of the Commission in the claim of the United States
of America, on behalf of Philadelphia National Bank v. Direction der Diskonto
Gesellschaft, Germany, dated April 21, 1930 (Docket No. 7531), to the effect that
the Commission will take under consideration, the question of reopening or
changing the award, ' where it appears that manifestly the Commission committed
an error on its findings of fact on the evidence produced by the agents at the time
the claim was submitted for decision'." (Filed November 18, 1932.)
There was filed along with this Petition affidavit of claimant of November 10,
1932, explaining the circumstances under which she made the preliminary
Note by the Secretariat, Vol. VII, p. 64.
10
134 UNITED STATES/GERMANY
estimate of $500,000 contained in her affidavit of March 9, 1923, as the value
of her property involved.
On December 7, 1932, there was filed affidavit of claimant executed on
December 2, 1932, stating that the second award was never accepted by her
in full settlement of her claim, and that at the time it was made she expressly
reserved her right, and so notified the German Agent, to make demand for
an additional award, and that the delay in presenting the new petition was
because she had been arrested in Germany in a civil process "in a fictitious
suit " after the second award was made. She stated further," As soon as released
from prison on this civil process, she was forced to flee from Germany surrep-
titiously, to escape arrest under a criminal charge that in procuring an award
from the Commission she had defrauded the German Government. The State
Department of the United States of America was promptly informed thereof,
and since the fall of 1930, the matter of the injustice done to this petitioner in
the second award and the violations of her person and liberty by her civil
arrests and criminal prosecution have been before that Department and the
Government of Germany has been informed thereof for more than a year."
In addition to these affidavits, three annexes, A. B, and C, were filed with
a printed brief on her behalf, under date of January 12, 1933. These annexes
do not seem to be of present importance in relation to the questions now under
consideration, except that Annex B shows that the claimant's attorney trans-
mitted to the German Agent on June 1, 1927, all the valuation evidence which
was later filed on March 19, 1929, in support of the Petition.
The Reply of the German Agent to this Petition was filed July 2, 1934.
The German Agent contends, briefly:
(1) That the Petition presents no facts or reasons furnishing a justification
for reopening the second award because, in effect, there can be " no ground
for the contention that it (the Commission) misinterpreted the evidence, or
that in any other respect its decision involved an error prejudicial to claimant ".
He contends further that, in view of the evidence and the circumstances of the
case, the Commission had the right to go below the figures set forth in the evi-
dence as to the damages incurred, and acted in accordance with its best judg-
ment in fixing a lower amount than the valuation shown in the evidence.
(2) That the evidence as to value was not undisputed but was challenged
by the German Agent's Reply, with the effect of leaving it to the Commission
to decide its probative value.
(3) That the claimant, having acquiesced in and accepted the award, was
thereby barred from charging the Commission with error or misinterpretation,
notwithstanding her express reservation as to pursuing her rights in further
proceedings.
The remaining contentions presented in the Reply of the German Agent
are argumentative conclusions, based on the points above noted.
On August 15, 1934, the American Agent, as above stated, filed a Reply
to the German Agent's Reply of July 2, 1934, together with a Memorandum
Brief in support of the Petition.
In the opinion of the American Commissioner, this Reply and Brief of the
American Agent ably and satisfactorily dispose of the objections raised by the
German Agent, and as these documents form part of the record which will
come before the Umpire with this Certificate of Disagreement, the American
Commissioner simply repeats his previously expressed concurrence with the
contentions of the American Agent without detailed comment.
The American Commissioner desires, however, to call attention to some
misapprehensions as to his position in making the second award, which appear
in the discussion of the effect of that award.
DECISIONS 135
It seems to have been assumed by the German Agent that the American
Commissioner agreed to that award on the theory that it was a compromise
acceptable to the claimant, and, consequently, a final disposition of the claim.
On the contrary, the claimant definitely stated, and the American Commissioner
clearly understood, that, as she alleges in her Petition and supporting affidavit,
she was dissatisfied with the amount awarded and proposed to pursue her
rights, as she understood them, for further relief.
The situation will be clarified by considering the implications arising from
the suggestion to the claimant of an alternative course, which was that if she
preferred, the question of the amount of damages to be awarded would be
referred to the Umpire for decision. The suggestion of that course necessarily
implied a disagreement on that point between the two National Commissioners.
Only questions on which they disagreed came within the jurisdiction of the
Umpire. It is clear, therefore, that the American Commissioner thought that
the award should be for a larger amount than the German Commissioner
would agree to. Inasmuch, however, as the two Agents had not signed any
agreed statement of facts, iecommending the amount which the German Com-
missioner was willing to agree to, the possibility had to be considered that
there might be considerable delay before the Umpire rendered his decision,
and that eventually he might not make a larger award than the National
Commissioners were prepared to make at once. Accordingly, it seemed to
the American Commissioner that the best interests of the claimant would be
safeguarded by agreeing with the German Commissioner upon the largest
amount he would consent to, thus giving the claimant immediate relief and
leaving her free to petition for a reconsideration of the award, if she desired,
in order to secure a further award for additional damages on the merits if the
Commission should be willing to reconsider the case, and this is the course
which the claimant has now taken in filing the present Petition.
It is true that at the time the second award was made the Commission had
not yet definitely decided that it had the right to reconsider an award once
made, but the American Commissioner and the American Agent had always
considered that the Commission had this right and would exercise it in its
discretion, and that the Commission could not prevent a claimant from
petitioning that this right be exercised.
It has now been definitely settled by the Umpire's decision of December 15,
1933, that the Commission not only has the right, but is under an obligation,
on proper cause shown, to reconsider an award. In view of that decision, the
only question raised in these proceedings is whether the claimant has shown
cause within the limitations of that decision for a reopening and examination
of the claim on its merits. That point is fully discussed in the American
Agent's Brief, and need not be reexamined here.
Apart from the question of whether the claimant in this case agreed to
accept the second award as final, which she denies and as to which the German
Agent has not offered any evidence in refutation of that denial, this case is no
different from the cases in which awards by consent were entered at the last
meeting of the Commission, in which awards had previously been made by
the Commission, and the consent awards were for amounts in addition to the
amounts originally awarded, and all were made on petitions for rehearings.
Action similar to that taken in the cases above cited is all that the claimant
is now asking, and these consent awards furnish precedents showing that the
mere entry of an award, although accepted by the claimant, does not preclude
the claimant from petitioning for an additional award.
The omission in this Opinion of any discussion of the negotiations between
the representatives of the two Governments for a compromise settlement of
136 UNITED STATES/GERMANY
this claim by an additional award of S 160,000 does not mean that the American
Commissioner overlooks the importance of those negotiations as bearing upon
the questions under consideration. The American Agent has fully discussed
in his Reply and Brief the bearing of those negotiations upon the situation,
and as the American Commissioner concurs in the views of the American
Agent, it is not necessary to extend this already voluminous Opinion by review-
ing them here.
In conclusion, the American Commissioner is of the opinion that the Com-
mission should grant the claimant's Petition to the extent of reconsidering
the second award, with leave to the German Agent to submit any new evidence
as to the damages to be awarded, after a reexamination of the case on the merits.
The time for the submission of new evidence should, however, be limited, and
the American Commissioner suggests that a period of one month, after a decision
granting reconsideration, be fixed for that purpose, with leave to the American
Agent to apply to the Commission for an opportunity to file evidence in rebuttal
within a limited period to be fixed by the Commission.
Chandler P. ANDERSON
American Commissioner
Dated March 29, 1935.
Opinion of Dr. Huecking, the German Commissioner
Although I very much should like to confine myself strictly to the two
reasons which induce me to vote against the admission of this petition I am
afraid such attitude might be misconstrued to mean that I accept the status
causae et controversiae given by the American Commissioner. This I do not.
I think that it contains many things that are not and leaves out some things
that are essential, and that it interprets some acts of the procedure in this
case differently from what I think was their real significance.
For that reason I will set out under I) the features of the case which I hold
to be the essential ones; under II) some remarks about " admissions " which
the American Commissioner finds in this case, whereas I do not; under III)
the juridical reasons which in my opinion lead to a dismissal of this petition.
(1) Claimant, an American national through her second marriage, had
been the owner of a landed estate in Saxony.
She lost this ownership through the fact that an attorney of hers (Rost)
transferred it to one Mittag. (She says that in acting so the attorney misused
his powers, a contention not upheld by the domestic courts.)
The transfer of the ownership took place on May 10, 1920, that is to say:
after the war (armistice: November 11, 1918; coming into force of the Versailles
treaty in Europe: January 10, 1920; as to America vide p. 625 [p. 1]
x cons.
Ed. of Dec. and op.).
In order to make the German government responsible for these events and
to bring them under the Versailles Treaty, Claimant relies on the fact that
during the war (May 10, 1918) compulsory administration of the estate had
been ordered. This compulsory administration lasted until January 26th 1920,
so that it was no longer in existence when the transfer of the property was
carried out; but Claimant adds that her attorney had made the contract of
1 Note by the Secretariat, Vol . VII, p 21
DECISIONS 137
sale on November 21st 1919 (during the armistice) and that at the time the
compulsory administrator and the Ministry had assented to this contract.
Claimant thinks, they ought not to have done so, because half a year or so
earlier she had informed the Ministry and the administrator that it was not
her intention to sell the estate. (The exact date of this conversation is not
stated by the Claimant, but it was before she gave her attorney the powers
on the strength of which he made the contract.)
In the Claimant's eyes the attitude of the Ministry and the administrator,
as described above, amounts to an exceptional war measure, which had the
effect of removing from the proprietor the power of disposition over his property
(art. 297, e Versailles Treaty) and to this attitude she traces back the loss of
her property.
(2) While and after unsuccessfully suing her attorney and the purchaser
before the domestic courts Claimant approached this Commission. She alleges
that the price at which her attorney sold the property (570,000 Mark, equalling
about 812,000 at the then prevailing rate of exchange) did not correspond to
the actual value of the property. In a statement sworn to March 9, 1923 she
says that her damage is 8500,000 and today she declares it to be one million
dollars.
She obtained two awards from this Commission and is now seeking a third.
a) First award:
In the fall of 1924 the claim had become the object of negotiations for an
amicable settlement in Berlin between the counsel of the two agencies, attorney
for Claimant and Claimant personally being present at some of the conferences.
As a result of these negotiations an agreed statement, signed on September 4,
1924, granted a compensation of 848,000 to the Claimant.
An award for 848,000 with interest from January 5, 1920, was thereupon
handed down by the Commission on January 14, 1925. On August 1, 1928,
capital and interest (totalling $68,782.70) were paid in full.
b) Second award:
Four years later (March 19, 1929) a " Motion for an additional award "
was filed on behalf of the Claimant.
She alleged that the award of January 14, 1925, covered only a small part
of the total damages, leaving a claim for about 8940,000. In support of her
statement that the value of the estate was in 1920 a million dollars Claimant
filed a number of exhibits (copy of which her attorney had handed to the Ger-
man agent on June 1, 1927, together with a query what further evidence, if
any, might be necessary).
The motion further asserted that when the settlement of September 19, 1924,
was arrived at. Claimant reserved the right to take the matter up once more
before the Commission in the event that her claims before the German courts
should be rejected.
The German Agent answered the Motion by a short Memorandum, the
wording of which shall be discussed later. Claimant and her attorney had
several talks with the American Commissioner.
Thereupon, under date of April 5, 1929, the commission handed down
an award in the amount of 8250,000 with interest at 5% from May 10, 1918,
on which Claimant received payments in accordance with the provisions of
the War Claims Settlements Act 1928.
c) Three and a half years later (November 18, 1932) the present " petition
for further award " was filed in which Claimant prays the Commission to
increase the award to a sum corresponding " to the undisputed proof of loss"
1 38 UNITED STATES/GERMANY
(i.e. $ 1,000,000 less the two awards totalling $298,000). She alleges that
the awards made were juridically wrong since the Commission had no authority
to depart from the figures shown as value of her property by undisputed proof.
She further says that she did not accept the award as a full compensation,
and that in the pertinent discussions she had protested accordingly and reserved
the right to bring her claim once more before the Commission or some other
court.
II
In every stage of this law suit (first award, second award, present proceedings)
the American Commissioner finds a German " admission " where I see none.
As he draws practical consequences from his view I am compelled to discuss it.
a) First award (applies to the later proceedings similarly) :
The American Commissioner is under the impression that the German side
in this procedure admitted and admits liability under art. 297, e Versailles
Treaty. The answer would be : The fact that a compromise was made, involves
by no means an admission of liability, very often it is just the uncertainty as
to the principal issue which leads to a compromise. This is true quite generally;
but moreover in the present case I am borne out by the Claimant herself, who
states (relying on an affidavit of Mr. Otis, p. 14 printed Memorandum Brief
January 6, 1933)
" At the time the agreement was made the liability of the German government
had been warmly disputed by the representatives of the German Agent and while
Mr. Otis regarded the liability as duly established, he was uncertain of what the
result would be in a contest before the Commission in which this liability would
be at issue. If there had been no question of liability and this liability were admitted
by the German Agent before the question of damage was considered, Mr. Otis
would have felt that the amount recommended for award in favor of Mrs. Drier
was wholly insufficient * * * "
The consequence is: Even if according to the American Commissioner's
view this case should be reopened and the second award should be set aside,
we cannot come to his present conclusion, viz- to fix a time limit for the presen-
tation of evidence regarding the value; the right conclusion only could be:
to decide the law suit first " in quali ", (with respect to the principle involved).
b) Second award:
The German Agent had answered the Claimant's Motion for a second award
verbally in the following form :
" I. The German Agent will not object to the admission of the Motion by the
Commission.
II. It will not be disputed that Claimant in accepting the compromise, which
formed the basis of the award of January 14, 1925, reserved the right to pursue
her claim against Mittag and Rost and, in the event of failure to recover from
them, to apply again to the Commission for an additional award.
III. The facts as set forth in the Motion will not be contested.
IV. The German Agent has no knowledge or information sufficient to form a
belief as to the actual value of the estate, the equipment of the castle, etc. at the
time of sale."
The question is: Does paragraph IV mean an admission?
The American Commissioner apparently holds it does. For when he states
" he did not expressly admit " the idea is necessarily conveyed to the reader
that the tacitly admitted, which idea is still reinforced when the American
DECISIONS 139
Commissioner speaks of" the admissions of the German Agent as to the undis-
puted status of the evidence " and when he says that the American Agent
" disposed " of the German Agent's point, that the evidence as to the value
was not undisputed.
My interpretation is :
When the German Agent in paragraph IV expressed himself this way:
" he had not sufficient information or knowledge to form a belief as to the actual
value of the estate " the first thing to be borne in mind should be that it is a
German lawyer who is speaking here. He is trained on the basis of the German
Civil Code [Code of Civil Procedure], the article 138 of which rules that each
party has to answer in detail the allegations of the other side, but which con-
tinues :
" If facts are alleged against a party which are neither own acts of that party
himself nor witnessed by him personally, he is allowed to answer that he does
not know them."
And such a declaration given in a case where it is admissible (as in the
instant case it would be) means juridically that the allegations are contested
(as may be gathered from any German lawbook, there is unanimity about that).
It stands to reason that utterances of a professional lawyer must be read
and construed in the light of his training and profession.
But quite apart from this, general reasons would lead to the same result.
Considering what is meant by " undisputed evidence " in the sense here
relevant and why it should not be ignored by the Court, the essential element
is the tacit assent. It is the assent that will not easily be disregarded by the Judge.
Now, I have explained: in the instant case there is even contradiction; but to put
it at the highest the German Agent's declaration amounts to no more than a
statement that he refrains from forming an opinion; on no account can it be
construed to mean assent. And should still some doubt persist, the last vestige
of it would be removed by contrasting the above quoted paragraph IV with
the preceding paragraph III of the same Memorandum. Paragraph III says:
" The facts as set forth in the Motion are not contested."
and then follows immediately paragraph IV, which says that as far as the value
of the estate etc. is concerned, the German Agent — for want of sufficient know-
ledge and information — can not form a belief. The distinction leaps to the eyes ;
it is clearly an intentional one and justifies the argumentum e contrario : just
because the words " not contested " could and should not apply to the alleged
value of the estate, a fresh paragraph was framed using a different term. What-
ever the meaning of that term might be, one meaning cannot be attributed to it:
the meaning " not contested " or its synonym chosen by the Claimant " not
dispu ted ". (The same argument applies, when paragraph 11 and paragraph IV
are contrasted: in paragraph II " not disputed " as a technical term in its
technical meaning, in paragraph IV " no knowledge etc.")
The best way to define the meaning of the paragraph will probably be to
put it as a question of responsibility : The Agent speaks to the Commission;
and he makes it quite clear that he will not shoulder the responsibility for the
value to be assessed, especially for the figure given by the Claimant; and
(though refraining from submitting further material) he leaves that respon-
sibility with the Commission, thus obliging them to form a judgment of their
own with respect to the probative value of the evidence submitted.
c) Present proceedings :
In the present proceedings the German Agent makes it his first plea that
he holds a judgment which has acquired force of res judicata. His point is
140 UNITED STATES/GERMANY
that such a judgment answers fully any evidence and relieves him from any
necessity or even advisability to put in counter-evidence (until he should be
overruled on this preliminary point).
I will not discuss here whether that attitude is well founded; but at least
it is perfectly logical and logically it renders impossible any attempt to deduce
from his omission any consequences unfavorable to him. But the American
Commissioner draws such consequences. It is true that he does not exactly
say which, but to him the omission has " an important bearing on the questions
to be considered " and as he couples this point with his discussion of the " ad-
missions " made before the second award, it seems here again he sees some
sort of admission which I, according to what I have said, must deny. It is
here the place to discuss the American Commissioner's request, that from the
German Agent's Reply part should be stricken out. The facts as I see them are :
The German Agent evidently feared, that a certain tendency on the American
side to construe anything that was said or done or not said and not done by
the German Agent as an admission might lead to his attitude in the present
stage of the proceedings again being misconstrued. He expected to hear (and
he is borne out by the subsequent development) " you do not submit any
evidence — so you admit having none". He answered in advance: ) have
evidence but I will not submit it because I have a good preliminary plea. Need-
less to say that such reference to unproduced evidence (it is this that the Ameri-
can Commissioner protests against) is not expected by the Agent himself to
have any probative value with the Commission but merely serves the absolutely
legitimate purpose to protect him who prefers it against misinterpretation.
Ill
I now advert to the juridical principles which I suggest should govern this
case.
I think that two such principles stand in the way of the Claimant's petition:
The principle of res judicata and the principle that what is granted as a whole
cannot be accepted otherwise than as a whole. I shall deal with these two
points separately.
A. Claimant is fully aware of the juridical nature of the judgment rendered
in April 1929. She says herself that the judgment was not a partial judgment
and was meant and understood by everyone concerned to dispose definitely
of the case. In other words: all are agreed that to the positive effect of the
judgment (award of a certain sum) a negative effect corresponds: denial of
the surplus asked for. The claim as now preferred was dismissed in 1929 and
that dismissal has acquired force of res judicata.
Thus the question arises: On what grounds is a reopening asked for? If I
understand the American Commissioner aright, he sees two such grounds:
A manifest error, committed by the Commission and reservation to claim for
more, made by the Claimant, when she obtained the second award.
a) Manifest Error:
The contention seems to be that the amount awarded was unrelated to the
evidence although that evidence was undisputed.
But the estimate based on the evidence was not undisputed: and the relation
between the amount awarded and the claim and the Claimant's evidence is
simply established by the award itself, the award by its nature being the
Commission's answer to the Claimants' demand, partly granting partly denying
it. What is really meant by the argument from the American side seems to be :
The Commission had no power to deviate from the Claimant's estimate taken
together with the German Agent's remarks in par. IV of his memorandum.
DECISIONS 141
One may rightly wonder, first, why, if such was the situation, the American
Commissioner foreshadowed the possibility that the Umpire, if the case went
before him, " eventually might not make a larger award than the National
Commissioners were prepared to make ". (P. 18 [p. 1047, this print] * of the
American Commissioner's opinion.)
Is not that possibility alone which the American Commissioner upholds
even today the clearest denial of any " manifest error " in making the award?
As a matter of fact, there was no error at all and even less a manifest error.
Was the Commission ignorant of the contents of the record? What else but
the contents of the record did the Claimant's attorney in at least two confer-
ences impress on the American Commissioner's mind and the American
Commissioner in at least two conferences on the German Commissioner's mind,
before the award was made? The Commission decided they had power to
make an estimate of their own as to a certain value. Whether — in our opinion
today — they were right or wrong in deciding so does not matter, for they were
called upon to decide that question, not we. And when I say " it does not
matter whether they were right or wrong " I hope I shall not hear " So you
admit that they were wrong ". To avoid any such misunderstanding I expressly
state that moreover in my view they were perfectly right. Any judge quite
legitimately may deduce from any evidence submitted to him that the evidence
itself conveys the idea that the estimates contained in it are exaggerated. I do
not want in the least, to deal with the merits in this case; but to show that
without any manifest error the Commission might very well gather an impression
of exaggeration from the evidence submitted I may mention that one of the
experts appearing in the evidence (1) speaks of " affection value " never
accepted by this Commission as a basis of claims; another (2) reaches his final
figures by stating the prices of wood for a series of years and then selecting for
his subsequent multiplication not an average but the highest figure appearing
in the series; a housekeeper (3) testifies to the value of paintings and expresses
herself this way: " The invaluable — according to my mind — paintings that
had been bought at the highest prices from noted artists "; her husband, a
farmer, speaks (4) of hypothetical returns of hundred thousand yearly in this
form " There were also great water supplies on the estates that might be exploi-
ted and which raised the value of the estate by hundred thousand yearly ..."
another expert (5) arrives at an estimate of a very considerable sum with
respect to a long list of objects of art without any substantiation and without
even stating that he ever saw the objects of which he speaks.
(1) Mr. Spaltholz, Exhibit B, 2, of the Motion for an additional award 19th
March 1929 " especially an adequate relative affection value ".
(2) Mr. Heger, Exhibit E to the same Motion, " the price . . . culminates in
the year 1921. Taking the prices of this year as the bases * * * ".
(3) Mrs. Langhammer, letter d. d. Biensdorf 17/12/1926 Exhibit to the same
Motion.
(4) Mr. Ernst Langhammer, letter d. d. Biensdorf 17/12/1926 Exhibit to the
same Motion.
(5) Mr. Leonhard Messow, Exhibit F to the same Motion.
As I said before I do not infer in any way from this that the value as estimated
by the Claimant is excessive, but I do infer that it not implies any manifest
error or error at all, if the Commission on the strength of this evidence arrived
at a figure different from the Claimant's.
Note by the Secretariat, this volume, p. 135.
142 UNITED STATES/GERMANY
b) Reservation by the Claimant:
The contention seems to be that the Claimant was dissatisfied with the
award, reserved her right to ask for more and that the American Commissioner
clearly understood her this do to.
This in the American Commissioner's Opinion is sufficient to reopen the
case now.
To appreciate what this means I suggest that for one moment this situation
be looked upon from the German Commissioner's point of view:
The German Commissioner held the claim to be excessive as far as it went
beyond $250,000 and voted for its dismissal. The American Commissioner
agreed. The award was framed accordingly and handed down; there is res
judicata. Now the German Commissioner learns that at the time in a talk
with the party the American Commissioner clearly understood her to reserve
the right to ask for more. This fact and this fact alone is said to be sufficient
to set aside a judgment having acquired the force of chose jugée. And the
German Commissioner is invited to accept this as the law of this Commission
and as the natural fate of judgments to which he was a party.
The reasons for which a " reservation " as alleged by the Claimant would
be wholly irrelevant seem quite obvious to me. First, as the Claimant puts
if herself " this Commission is not a board of mediation " but a Tribunal.
As a party you can make no pacts with it.
Second: if you could, you would have to make them with the Commission
not with one member of it. The American member is not " the Commission ".
And here again I should like to add, that if I declare the " reservation "
to be irrelevant, this does not mean any commitment of mine as to the facts
as alleged by the Claimant.
Only subsidiarily I want to raise a second point which in my opinion stands
in the way of the Claimants' petition.
From her own point of view she was not entitled to accept the award and the
sums paid to her and now to sue for more without even offering to repay the
amounts received if, on a reopening of the case it should be found that her
claim was not worth even the $48,000 and $250,000 granted to her. She says
she had (on the strength of what the American Commissioner told her) a
choice between either taking her chance and going to the Umpire (which meant
a certain lapse of time and uncertainty) or she might accept $250,000 and have
it at once. Now if she made her choice, she would be bound by it now. How
can she take the advantage and repudiate the disadvantage when it was clear
and plain that she was to receive the advantage (partial grant at once), because
and if she was ready to put up with the disadvantage (reduction of the claim)?
Nor would even in this connection her " reservation " be of any avail to her.
In this connection it would be met by the German Agent's point who speaks
of a proteslatio facto contraria. When a person does certain acts that carry
necessary consequences, he cannot escape liability for these consequences by
mere verbal protestations that are in contradiction with the acts: When I
enter a Parlor Car and ride in it from Washington to Baltimore, I have to pay
the Parlor Car fee and should I put up the defence :
" Before the train started, I told the legal representative of the Company, who
happened to be sitting beside me, that I declined to pay the fee and would not
have any contract with them; thus there is no contract, although I admit having
done the ride ",
the Judge would answer me " your acts take precedence of your words ".
(The Roman version would be: "facta loquuntur ".)
DECISIONS 143
Claimant admits having received S250,000 on the strength of a judgment
which, she admits that too, was not meant to be a partial judgment. Thus
she did an act, which necessarily de lege entailed the consequence of barring
further claims and entailed these consequences equally on the strength of what
she says she had been told by the American Commissioner. What use is it that
she says, she protested against the consequences but accepted the money,
when it was clear that anyway accepting the award was incompatible with
reservations? How could she have her cake and eat it? In the record she
explains her attitude by a plea of duress, saying that her acquiescence, if any,
was due to destitution and starvation. As the American Commissioner does
not discuss this point, I may dispense with it too.
The same consideration practically applies to a last additional point viz.
the question whether the Claimant may rely on that in connection with the
efforts to terminate this Commission's work a tentative but abortive agreement
was made to settle this claim by compromise. The fact of course neither does
bar the German Agent from insisting on his plea of res judicata nor from his
plea that any additional award would be unjustifiable. The American Com-
missioner, who in this respect merely refers to the record, evidently himself
does not think that there is a compromise in this case otherwise he would not
vote in his conclusion for a time limit to take evidence but would have to vote
for an award granting Claimant the amount of that compromise and dismissing
the amount exceeding that. Here again I find traces of the error which pervades
so many allegations in this matter viz- the belief that in a procedure you may
one-sidedly profit from any happenings or situation without allowing yourself
to be bound in whatsoever way to reciprocity.
Washington, D.C., May 16th, 1935.
Dr. Victor L. F. H.
HUECKING
German Commissioner
Supplemental Opinion of Mr. Anderson, the American Commissioner
An examination of the Opinion of the German Commissioner in the Drier
case discloses a number of points which call for critical comment.
In part I of the German Commissioner's Opinion, subdivision (1), the
claimant is described as " an American national through her second marriage ".
This statement does not fairly present her American nationality status. As
appears from the record, she is a native born American national. She lost her
American citizenship through her marriage in May, 1899, to her first husband,
a German national, Baron Georg von Rosenberg. Upon his death she regained
her American nationality status through her marriage to her second husband,
John C. L. Drier, a native born American national and then a member of the
United States Consular service stationed at Dresden, and she has since main-
tained that status.
In the same subdivision of the German Commissioner's Opinion he makes
the point that the transfer of the ownership of the claimant's property took
place on May 10, 1920, which was after the War, the importance of which
in his Opinion he emphasizes by italicizing the words " after the war ". He,
accordingly, contends that as the German legislation imposing compulsory
administration upon the estate had been repealed on January 10, 1920, her
property was not subject to it when this transfer was made.
In taking this position, the German Commissioner seems to have overlooked
the fact that so far as concerns the relations between Germany and the United
States a technical state of war existed until July 2, 1921, and it must be remem-
144 UNITED STATES/GERMANY
bered that the Commission has specifically held that although the effect of
the ratification of the Treaty of Versailles was to repeal exceptional War
legislation as of January 10, 1920, nevertheless, American claimants are entitled
to recover when it can be shown that, as in this instance, exceptional War
legislation was applied to American property after January 10, 1920.
Rule 13 of the Rules of the Commission adopted under the Order of May 7,
1925, relating to debts, bank deposits, bonds, etc., reads in part as follows:
" 13. Although all exceptional war measures of Germany then in force were
repealed by law on January 11, 1920, a claimant nevertheless will be entitled
to establish by evidence that his property, rights and interests were subject to
measures in the nature of exceptional war measures in German territory, as defined
in paragraph 11 hereof, * * * after January 11, 1920, and in the event that
he establishes such fact Germany will be responsible for any damage that the
evidence shows he sustained by the application of such measures."
The facts in the record show that shortly before the entry of the United States
into the War the claimant and her husband left Germany, and that in May,
1918, her property involved in this claim was placed under compulsory seques-
tration pursuant to German war legislation, thus removing from claimant all
control thereover.
In November, 1919, while the property was still under compulsory adminis-
tration, the unauthorized contract was entered into covering its sale to one
Mittag. An attempt was made on January 5, 1920, to secure the approval
of the Court for this sale.
Promptly on learning of this proposed sale, claimant notified Rost, who
held a power of attorney from her, of her refuasl to be a party to such a dispo-
sition and of her desire to retain title to the property for her own occupancy.
She, accordingly, did all that she could to prohibit the sale.
These facts are established by the letter dated October 23, 1922, from
Dr. Spiess, the compulsory administrator appointed by the German authorities,
addressed to claimant. Dr. Spiess says:
" I did everything it was possible for me to do to preserve your ownership-rights
in the properties. I myself had no power to prevent the sale, as, so long as com-
pulsory administration was in force, the right of consent was vested in the Ministry
of Commerce & Trade and in that office solely, moreover the transfer had only
been arranged for provided compulsory administration were withdrawn." (Copy
of letter filed in Docket No. 4712.)
Dr. Spiess enclosed with this letter a copy of his letter of January 10, 1920,
to the Ministry of the Interior, Division of Commerce and Trade, in relation
to this proposed sale, and said :
" Under these circumstances I suggest that for the time being no decision be
arrived at relative to withdrawal of compulsory administration.
" I have just been informed that transfer of the property has already been arran-
ged for on the 5th instant, assuming compulsory administration will be withdrawn
and that Mrs. Drier complies with the conditions laid down by me and mentioned
in my report of December 1st 1919." (Copy of letter filed on Docket No. 4712.)
Following claimant's futile efforts to prevent the sale of her property the
matter was brought to the attention of the proper Saxon court, which court
finally approved the sale to Mittag under the authority granted by the excep-
tional war legislation. This sale was not finally consummated until on or about
May 10, 1920, and possession theoref turned over to Mittag.
This action of the Court, while taken subsequent to the theoretical repeal
of exceptional war measures on January 10, 1920, the date of the ratification of
the Treaty of Versailles by the Allied Powers, was merely consummating action
DECISIONS 145
with respect to claimant's property that had been initiated under such legislation
and prior to January 10, 1920. If the Court had followed the suggestion of the
compulsory administrator in his letter of January 10, 1920 (see infra), to the
Ministry of the Interior, and compulsory administration had not been with-
drawn, the sale could not have been effected.
It is not entirely clear what the German Commissioner means by the state-
ment appearing in part I, subdivision (I) of his Opinion to the effect that
claimant thinks they ought not to have sold her property
" because half a year or so earlier she had informed the Ministry and the admi-
nistrator that it was not her intention to sell the estate. (The exact date of this
conversation is not stated by the Claimant, but it was before she gave her attorney
the powers on the strength of which he made the contract.) "
The only evidence to be found in the record on this point is the following
excerpt from the letter dated October 23, 1922, from Dr. Spiess to claimant,
in which he says:
" To make this matter clear I now beg to inform you of the following: On
January 8, 1920 I received from you from Stockholm the following telegram of
January 7th:
" 'Don't give assent for sale until I arrive within a few days subject to condi-
tions of travel. Sale of my effects at warehouse absolutely illegal, I hold you
responsible for same '
" I hereby heard for the first time that you objected to the sale of the properties
and the furniture, and made enquiries in regard to the matter of notary Dr. Borner.
" The latter informed me, that Captain Rost holding your General Power of
Attorney had already transferred the properties to Mittag on January 5, (that
is to say before you dispatched your telegram) subject to the proviso of the state
compulsory administration being withdrawn forthwith, as soon as the conditions
of the Ministry of Commerce & Trade had been complied with." (Copy of letter
filed in Docket No. 4712.)
With this letter to claimant Dr. Spiess enclosed a copy of his letter of January
10, 1920, to the Ministry of the Interior, Division of Commerce and Trade.
In this letter Dr. Spiess tells the Ministry:
" I have communicated the contents of my application of December 1st 1919
addressed to the Ministry and the contents of the Ministry's communication of
December 12 1919 to Mrs. Drier's representative. In reply thereto I, on the 8th
instant, received a telegram from Mrs. Drier from Stockholm, reading as follows:
[then follows telegram as above quoted].
" Under these circumstances I suggest that for the time being no decision be
arrived at relative to withdrawal of compulsory administration.
" I have just been informed that transfer of the property has already been
arranged for on the 5th instant, assuming compulsory administration will be
withdrawn and that Mrs. Drier complies with the conditions laid down by me
and mentioned in my report of December 1st. 1919." (Copy filed in Docket No.
4712.)
There was also filed in Docket No. 4712 a copy of affirmation dated Octo-
ber 23, 1922, of Max Gottlebe, Judge of the Court of Pirna, where the property
was located and presumably the Court which had jurisdiction thereover.
This affirmation contains the following information with respect to the efforts
made by claimant to prevent the sale of her property :
" The real estate belonging to Mrs. Drier in Bonnewitz [the property that is
the subject of this claim], Eschdorf and Wiinschendorf having in 1918 been placed
under government compulsory administration, I accompanied Mrs. Drier to the
ministry of the interior at Dresden when she went there to discuss the matter of
this compulsory administration.
146 UNITED STATES/GERMANY
" In the Ministry of the Interior Mrs. Drier spoke to an official of the same,
Dr. Hast. She was afraid that her above mentioned property might be sold, and
told Dr. Hast, that she did not wish it to be sold, but would like to retain possession
of this property.
" Thereupon Dr. Hast declared, that it was not the intention of the Ministry
to sell the property."
Whether the interview referred to in this affirmation of Judge Gottlebe
occurred early in 1920 on the occasion of claimant's return to Germany fol-
lowing the Armistice or at some earlier or later date, it is clear that it did occur
sometime prior to May 10, 1920, when the sale of the property was finally
consummated under the exceptional war legislation with the approval of the
Saxon Court. Based on this interview claimant was certainly entitled to rely
on a statement of an official of the Ministry of the Interior that the Ministry did not
intend to sell the property. While claimant on or about January 25, 1919, gave
Captain Rost a power of attorney for the purpose of looking after her business
affairs in Germany she definitely forbade him in August, 1919, months before
the contract of sale was negotiated, from making any sale of the estate, and
clearly indicated her desire to keep the estate, where she intended to live
during the winter of 1919-1920 (see page 5 of Brief filed January 9, 1933).
The sequence of events as outlined in the German Commissioner's Opinion
would be more correctly stated as follows :
In March, 1922, claimant brought proceedings before the Dresden Court
against Mittag, asking for a cancellation of the sale and the return of the property
to her. This suit was dismissed by the Court in June, 1924, " upon the ground
that Mittag had been without knowledge of Rost's lack of authority and was
accordingly entitled to protection of the law as purchaser in good faith."
In the meantime claimant, on November 29, 1922, executed her application for
claim against the German Government to be espoused by the United States
pursuant to the Treaty of Berlin. This claim was duly espoused and transmitted
to the Agency for listing as a claim against Germany. Conferences with regard
to the claim were then had in Germany in the summer of 1924 between the two
Agencies and the representative of claimant, resulting in an Agreed Statement
for an award with a reservation that claimant, if unsuccessful in the litigation
in Germany seeking to recover possession of the property, was to again come
before the Commission and obtain a further award. Suit was then filed by
claimant in the Dresden courts against Rost in December, 1924, which suit
was dismissed by the Court on May 8, 1925, " upon the ground that claimant
had not been able to prove that she expressly forbade Rost " to make the sale
before November 21, 1919 (page 12 of Brief filed January 9, 1933).
In part II of the German Commissioner's Opinion he states that the " Ameri-
can Commissioner is under the impression that the German side in this procedure
admitted and admits liability under article 297 e " of the Treaty of Versailles.
In reply to this he points out that no admission of liability can be found on the
part of Germany in the entry of the first award in this case because that was a
compromise mutually agreed upon. The American Commissioner is not
disposed to dispute this argument as applied to the first award, but, on the other
hand, it cannot be applied to the second award because that was in no way
whatsoever based on a compromise agreement between the two Agents. It
distinctly constituted a specific finding by the Commission that Germany was
financially liable for the damages suffered under an application of Article 297
(e) of the Treaty. Moreover, it will be recalled that in the German Agent's
Answer to the claimant's motion for the second award it was distinctly stated :
" (1) The German Agent will not object to the admission of the Motion by the
Commission."
DECISIONS 147
In discussing the question of admissions on the part of Germany, the German
Commissioner states that " the American Commissioner finds a German
' admission ' where I see none ". In discussing this question, the German
Commissioner, in part II of his opinion, quotes from Article 138 of the " German
Civil Code ". This reference is unquestionably erroneous as the quotation is
clearly a translation of paragraph 3 of Article 138 of the German Code of Civil
Procedure as distinguished from the German Civil Code.
So far as at present ascertained no translation in English of the German
Code of Civil Procedure has ever appeared. However, the Translating Bureau
of the Department of State has made a translation of Section 138 of the Code
of Civil Procedure together with the comments thereon by Adolf Baumbach,
published in Berlin in 1931. The translation of the entire Article 138 reads
as follows:
" Section 138. I. Each party must make a statement concerning the facts alleged
by the opposing party.
" II. Facts which are not expressly disputed are to be considered as admitted,
unless the intention of disputing them is evidenced from the other statements of
the party.
" III. A statement without knowledge of the facts is admissible only in regard
to facts that were neither the party's own acts nor the object of his or her own
observation."
It will be noted that while there is no material variance between this trans-
lation of Paragraph III and the translation thereof in the Opinion of the German
Commissioner, the Department's translation would seem more clearly to
convey the American conception of the provisions of the paragraph.
The following commentary is made by Baumbach on the provisions of
Paragraphs II and III of Article 138 as translated:
" (2) Undisputed facts II: the effect of failure to object (the affirmative accep-
tance of objection) takes place only when the objection is neither express nor is
the result of decisive acts. Simple objection is sufficient only when more detailed
statements are not to be expected from the party; the necessity of a substantiated
objection, i.e. submitting a positive statement in opposition (for example also
Stein J I 2 with other justification) follows regularly from the obligation to expedite
(principle, supra 2, Sec. 128); this applies in particular to argument against ' the
whole allegation ', or all items of an account RGJW 11, 184.— It does not matter
whether the party states that the allegations ' cannot be disputed ', or that ' he does
not wish to dispute them ' ; the meaning is the same in both cases in view of the
carelessness of everyday speech. There is no avowal in this case (to the contrary
Stein J, Sec. 288 II 2 in a highly artificial interpretation). A fictitious avowal
within the meaning of Section 138 II occurs only when the exercise of the judge's
duty of questioning has not led to any debate. In that case, however, there is an
avowal within the meaning of Section 290. The conclusion of the last oral hearing
is, however, authoritative for this purpose. Up to that time, therefore, debate is
permissible, even in the second instance; the conclusion is reached, moreover,
only after a bilateral hearing, RGJW 01, 749, and not if the official rule applies.
Another question is, whether the statements of a party do not contain a real (not
merely a fictitious) avowal, within the meaning of Sec. 290.
" (3) Statement without knowledge of the facts. Ill: must be distinguished from
refusal to make a declaration, which is justified, where legal time limits are not
observed (for example, Sees. 132, 262; debate not allowed in that case, see number
2 before Sec. 128). Permissible only where the matter does not relate to (a) a
party's own acts, or (b) first-hand observations of the party or his legal representative.
Effect: (a) where permissible: like debate, unless the whole case leads to a different
conclusion; (b) where not permissible; a fictitious avowal, as in the case of Sec.
138 II." (German Code Civil Procedure by Adolf Baumbach, Berlin, 1931,
pp. 351, 352.)
148 UNITED STATES/GERMANY
It would seem to the American Commissioner, who, however, does not
claim expert knowledge of German civil procedure, that the Answer of the
German Agent to the Petition for Additional Award filed in the Drier claim
March 20, 1929, follows Paragraph II of Article 138 rather than Paragraph III
thereof, particularly as these paragraphs are construed by the German legal
authority Baumbach.
Paragraph III of Article 138 only applies, as said by Baumbach, where the
subject matter thereof " does not relate to (a) a party's own acts, or (b) first-
hand observations of the party or his legal representative ".
In our case the acts referred to were acts carried out pursuant to the excep-
tional war legislation of Germany, against which Government the claim was
brought, and were accordingly defendant's own acts and were based on first-
hand observations of the defendant (Germany) or its legal representatives
(the court officials authorizing the acts).
Accordingly, it seems to the American Commissioner that the effect of the
statements in the fourth paragraph of the German Agent's Memorandum
filed March 20, 1929, that he
" has no knowledge or information sufficient to form a belief as to the actual value
of the estate, the equipment of the castle etc. at the time of the sale "
is clearly to leave the claimant's evidence as to this valuation entirely undis-
puted, as we contend. This is particularly so in view of the fact that all of her
evidence had been submitted to the German Agent over twenty months prior
to the filing of his Memorandum. Such a period of time was assuredly ample
for the German Agent to have satisfied himself both as to the probity and
sufficiency of such evidence, particularly as all of the evidence came from parties
at all times within the jurisdiction of Germany.
The German Commissioner is in error in assuming that the claimant contends
that the effect of Paragraph IV of the Memorandum of the German Agent
filed March 20, 1929, was to " be construed to mean assent " by him to the
valuation as indicated by the evidence we filed.
Claimant's contention on this point, on the other hand, is very clearly and
concisely set out in the American Commissioner's Opinion.
Here we have a very good example of the application of Paragraph II of
Section 138 of the German Code of Civil Procedure as interpreted in Lhe com-
mentary by Baumbach, who says that under this paragraph " simple objection
is sufficient only when more detailed statements are not to be expected from
the party; the necessity of a substantiated objection, i. e. submitting a positive
statement in opposition * * * follows regularly from the obligation to
expedite ".
This is particularly true where the German Agent, representing his Govern-
ment in a claim arising out of governmental acts, is fully advised for over twenty
months as to claimant's evidence of the damages suffered as the direct result
of these governmental acts and does not see fit to place any evidence whatsoever
in the record in opposition to the claimant's evidence, particularly where all
of the claimant's evidence comes from parties at all times under the immediate
jurisdiction of his own Government.
In part III of the German Commissioner's Opinion he lists some of the
evidence presented as to the contention and valuation of the claimant's property,
but he omits to make any reference to the important statement bearing date
December 22, 1926, of Carl Adolfo von Carlowitz, Chamberlain to the King
of Saxony. This witness, who had been familiar with the property involved
all of his life and has always taken a special interest therein as it originally
DECISIONS 149
" belonged to one of my ancestors ", expresses the opinion, after looking
through the various documents, that:
" the immovable and movable property mentioned in the beforesaid documents
must have had a value of from five to six million gold marks in the year 1919."
(Ex. G. filed March 19, 1929, being one of the documents turned over to the
German Agent June 1, 1927.)
This Opinion, coming from a neighbor who held the rank of Chamberlain
to the King of Saxony, is assuredly entitled to material weight, particularly
as there has never been made any suggestion, either directly or indirectly, as
to his incompetency.
In part III of the German Commissioner's Opinion, subdivision (b), he
discusses the subject of the claimant's reservation of her right to ask for more
than was granted by the second award. The position there taken by the German
Commissioner seems to the American Commissioner to be fully met and
disposed of by the following statement found at page 11 of the American Reply
in this proceeding, filed August 15, 1934:
" As to the contention of the German Agent that an award does not require
the consent of the claimant, we may fully agree, but from such a premise it surely
cannot be argued that a definite assertion of the refusal of an award in full settle-
ment (as here shown) can as a matter of law or fact be considered acquiescence.
And such broader grounds defeat the contention of the German Agent that even
acquiescence of a claimant, if it existed, as is not here the case, could endow the
Commission with power to make awards contrary to or unsupported by any
evidence or law, which is the inevitable conclusion and irrefutable fact in the
instant case."
In the same subdivision of his Opinion the German Commissioner puts
forward an illustration in which he assumes that the claimant's position corres-
ponds to that of a passenger in a Pullman car, who refuses to pay for his ticket
after he has made use of it. The American Commissioner does not consider
that this Pullman car illustration presents a parallel case to the case under
consideration. Theoretical illustrations are worthless unless the assumed facts
are on all fours with the facts in the case under consideration, and even then
they simply amount to a re-statement of the original problem in a form which
leaves the question exactly where it was before.
In the instant claim claimant was lawfully pursuing a right given by a treaty
between two sovereign governments, one of the highest rights that may be
conferred on a mere individual. As the Commission said in its decision of
December 15, 1933, where it was construing the remedy provided by the two
Governments, where the Commission misinterprets the evidence and hands
down an award not justified by the record, then it is the duty of the Commission
to modify its award in accordance with the proper interpretation of the evidence.
Claimant assuredly cannot be criticized for pursuing her remedy solemnly
given her by the two Governments to a final conclusion. It is by no means
an apt comparison to compare such a claimant following this legitimate course
to a thief or a robber who by force pure and simple takes certain action to the
detriment of the lawful owner of property.
In discussing the attempt to settle this claim by a compromise agreement
for an additional sum of $160,000, with interest, the German Commissioner
refers to this agreement as " tentative but abortive ", which he seems to think
completely disposes of it. Nevertheless his discussion amounts in effect to a
plea of confession and avoidance, as it would be termed in our domestic practice.
In so far as claimant was concerned, the ratification by the Foreign Office
of. the tentative agreement reached between the two Agents was conclusive.
11
1 50 UNITED STATES/GERMANY
The only condition attached to a final consummation of the agreement was
that it was dependent on the final consummation of a number of other agree-
ments negotiated at about the same time in order that the work of the Commis-
sion might be brought to a close.
The understanding on which these negotiations in February, 1933, were
conditioned is fully set out in the American Commissioner's cable of Febru-
ary 23, 1933, to the German Commissioner sent following a conference with the
German Agent and the Counsel for the American Agent. This cable reads:
" Your government has notified my government that it desires to dispose of
all claims now pending before Commission as soon as possible Stop Accordingly
the German Agent suggests to American Agent that they agree upon following
arrangements for disposing of remaining claims
" He will ask his government for authority to sign agreed statements with the
American Agent recommending awards in certain of the claims on understanding
that American Agent will be satisfied with the decisions of Commission in remaining
pending claims Stop Agreed statements to be signed in claims [then follows a list
of claims, including the Drier claim]
"It is further understood that when this arrangement has been carried out
the Commission will enter an order reciting that all pending claims have been
thus disposed of and also authorizing the American Commissioner to enter any
further orders on joint motion of both Agents and reciting further that Germany
continues to pay its share of joint expense so far as necessary until June thirty
in order to permit proper disposition of Commissions and Agencys files and joint
property and preparation of reports by American Commissioner and Agent to
their government Stop
" This proposed arrangement satisfactory to me and in furtherance of it I am
prepared to accept your view that claims of [then follows a descriptive list of four
claims] should be dismissed on present state of record unless American Agent
submits further information before March first changing situation.
" American Agent has advised German Agent that he understands that this
procedure does not affect one way or other question of filing before the final
termination of Commission petitions for rehearing in claims heretofore decided
if situation warrants.
" German Agent on other hand takes the position that the final disposition of
all claims before Commission will preclude the filing of any further claims or
petitions for rehearing without the consent of both Governments."
It will be noted that this cable was sent prior to the negotiations resulting
in the tentative settlement of the Drier claim.
The fact remains that all of the agreements mentioned in the cable and
negotiated at that time with the sole exception of the Drier agreement were
finally consummated in accordance with the exchange of notes between the
two Governments on May 7, 1934.
1 No adequate reason has ever been given,
except the possibility of producing new evidence discrediting the evidence of
record, as to why the Drier agreement should not have been consummated
at the same time. The note of the German Ambassador of May 7, 1934,
recites that his Government was not willing to consummate the Drier agreement
because recent investigations tended to cast suspicion on some of claimant's
evidence. This position, however, is in no sense new, as the same suggestions
had been made to the Counsel for the American Agent by the German Agent
at their first preliminary conference in February, 1933, some days prior to the
conference that resulted in the tentative agreement approved by the Foreign
Office.
1 For notes , see Appendix. (Note by the Secretariat, this volume Appendix IV
(B), p. 491.)
DECISIONS 151
There would have been much more justification for the stand now taken by
the German Agent with respect to ihe Drier claim had none of the tentative
agreements of February, 1933, been finally consummated.
Washington, D.C., June 7, 1935.
Chandler P. ANDERSON
American Commissioner
Supplemental Opinion of Dr. Huecking, the German Commissioner
My main object is to prevent the discussion from slipping away from its
real subject and not to allow a great mass of details to drown the only question
of juridical interest, viz, the question: Can this case be reopened in the face
of two final judgments already rendered? Thus, if on the following pages I
only deal with some individual points made in the American Commissioner's
Supplemental Opinion leaving others unanswered this ought not to be construed
as meaning that there is an agreement as to the topics not mentioned. I found
only two points of minor importance regarding which I wish to amend or
clarify my Original Opinion.
First: I am quite agreeable that when the Claimant's status as a citizen is
discussed, it may be particularly mentioned that she is American-born; was
later a German in consequence of her first, and is now again an American in
consequence of her second marriage.
Second: When I quoted in my Original Opinion Paragraph 138 of "The
German Civil Code " it was indeed a slip of the pen and what was meant was:
" the German Code of Civil Procedure ".
As to the rest, I abide by my Original Opinion confining myself to the
following observations :
Germany's liability under art. 297, e of the Versailles Treaty
I carefully avoided to do what I am said to have done " to contend that as
the German legislation imposing compulsory administration upon (Claimant's)
estate had been repealed on January 10th, 1920 her property was not subject
to it when this transfer was made "'.
Because juridically we are only concerned with the question: Must the case
be reopened? I have not defined my attitude regarding the question whether
art. 297, e, Versailles Treaty would be applicable in this case.
What I did, is thoroughly different: I called attention to the fact that this
question is still open; and I was compelled to do so because the American Com-
missioner in his Opinion evidently considered the question to be a settled one.
Thus I stressed certain facts and dates which, in my view, had been left in the
background; quite properly, if the question really had been a settled one; but
wrongly, if the question was open.
When in this connection I emphasized that the transfer of Claimant's property
had taken place " after the war " it was the actual warfare, the cessation of
hostilities and war acts, including war legislation what was meant by me
(I hoped to avoid a misunderstanding by expressly adding " in Europe, etc.").
There is no contradiction, when the American Commissioner points to the fact
that technically and juridically the state of war lasted much longer, a fact
dealt with in Rule 13 of this Commission. I only want to complete this statement
in the present case by mentioning that on May 10th, 1920, when Claimant lost
her property which on this day was transferred by her attorney to another
person, the (actual) war had ceased, war legislation had been repealed and the
152 UNITED STATES/GERMANY
compulsory administration of Claimant's estate had been removed since
January 26th, 1920.
Now again I refrain from discussing the juridical consequences; the American
Commissioner enters this field by stating there was merely consummating action
with respect to Claimant's property that had been initiated under war legislation.
I should not be supposed to agree to this, if I do not discuss it.
From what I have said it will be clear that I may leave this point without
dealing with the considerable volume of details mentioned by the American
Commissioner's Supplemental Opinion; only for regularity's sake I beg to
point out a doubt arising as to a certain date when a letter of Dr. Spiess' is
quoted on p. 3 [p. 1060, this print]
1 as bearing the (same date —") date of
October 23rd, 1922; the date being according to p. 5 [p. 1062, this print]
2
the 10th of January 1920. Similarly I may mention that the date which I
started from in my Original Opinion as being the date of Claimant's warning
to Dr. Hast and Dr. Spiess not to sell the property, was gathered by me from the
American Commissioner's Original Opinion p. 4 [p. 1039, this print]
3 (verbis
" she returned ... to ... Dr. Spiess ".) Should the date be a different one,
of course it may be rectified.
II
Was it admitted that Germany is liable under art. 297, e, Versailles
Treaty?
In my Opinion I stated that the " German side " by which expression I
meant Germany as a party to these proceedings had up to now not admitted
liability.
It is no answer to this statement, when the American Commissioner replies
that this Commission held Germany liable.
With respect to the latter point be it stated additionally:
The American Commissioner admits that the first award does not represent
a finding against Germany. He thinks the second does. But it is just that
second one which the Claimant tries to reverse in these proceedings. Could
she really be allowed to reverse it and to rely on it at the same time?
Ill
Art. 138 German Code of Civil Procedure
I have never suggested that art. 138 of the German Code should or could
be directly or indirectly applied to the case. So I need not answer any of the
arguments that go in that direction.
What I have suggested is: Art. 138 should be taken in consideration when
certain technical terms are used by a German Jurist; for he is trained on the
basis of the German Code.
In this connection I said:
First: The words (in English) used by the German Agent in this case are the
exact equivalent of the words and conceptions (in German) in paragraph 3
of art. 138. This seems to be admitted or, if it is not, I simply refer to the text.
Second: Now, when according to art. 138 a party avails himself of the per-
mission to answer " I know not ", this means (not that he admits but on the
contrary) that he disputes the pertinent allegation.
1 Mote by the Secretariat, this volume, p . 144
2 Note by the Secretariat, this volume, p . 145
3 Mote by the Secretariat, this volume, p . 129
DECISIONS 153
I said any German lawbook would show this. The American Commissioner
quotes one, and indeed it bears me out. The answer is to be found in the four
words p. 11 [p. 1065, this print]
1 " where permissible like debate ", the only
words of relevancy in the whole quotation. Their meaning is: " if a party is
permitted to say: I know not, and does so, the effect is the same as when he
disputes it ". (The exceptionally poor translation uses the word " to debate "
in the place of " to dispute " but when the very same German word " bestrei-
ten " appears some lines earlier in this very same quotation the translator
renders it quite correctly by " to dispute "!)
IV
Valuation by Carl von Carlowitz
It is said I omitted a valuation of Carl von Carlowitz, when I mentioned
some other valuations submitted by Claimant in these proceedings. The
answer is simple:
I was not and I am not concerned in this Reopening-pleadings with the
probative value of any evidence. What I tried to show was:
Although there are no particularized findings of the Commission in its
second award, this is no proof at all that the Commission did not form an
Opinion on the evidence and further: it was quite possible that after examina-
tion the evidence was found so poor that a sensible reduction of the amount
asked for was deemed indispensable.
I illustrated this by instances and thus was not bound to be exhaustive.
But I am quite ready to extend the argument to the valuation Carlowitz. I do
not say it is worthless; but I say it is quite imaginable that the Commission
may have thought it worthless; it would be neither illogical nor arbitrary to
say for instance, that a sweeping statement without the slightest attempt to
particularize it by any palpable data, dealing in one single sentence with
" five to six million gold marks " coming from a neighbour whose impartiality
just for this very quality is not a matter of course, the testimony being given
without any juridical guarantee (oath or the like) cannot suffice to accept the
figures contained therein at their face value.
Abortive attempt to compromise
That I rightly style the attempt made in 1933 to settle this claim an abortive
one is evidenced (inter alia) by the very cablegram on which the American
Commissioner's Supplemental Opinion relies.
At the then time hope prevailed that it would be possible to determine this
Commission's work in the first half of 1933. See the cablegram (verbis " it
is further understood ... to their government "). The same cablegram, last
paragraph, makes it clear that the German Agent's assent (and only his attitude
matters here, because his unconditional assent must be shown), was dependent
on a preclusion of further petitions for rehearing, a condition which, as we
all know, did not materialize. The following official utterances go the same
way:
In their Memorandum of the 18th of March 1933, the United States Govern-
ment confirm, speaking inter alia of the settlement here under discussion,
that " the German Government still desire that the giving of finality to these
1 Note by the Secretariat, this volume, p . 147
154 UNITED STATES/GERMANY
settlements shall await the making of a joint statement by the two Governments
that the work of the Commission is thereby brought to a close; The Government
of the United States regrets that the German Government has seen fit to attach
a condition to the tentative settlements a. s. o." And even the note of May 7,
1934, quoted by the Claimant admits: " no condition was stated except that the
work of the Commission be promptly closed ", and calls the settlement a
tentative one;
In other words: The German Government has a financial interest to see
this Commission functa officio and was ready to make concessions for that.
From which follows that this tentative settlement, which never became final,
cannot mean anything in the present law suit.
I fail to see how the fact that other tentative settlements were confirmed
afterwards in spite of the fact that the condition on which they were based
had lapsed, can confer any right on the Claimant, that the failing condition
should not be pleaded against her.
Washington, D.C., June 15, 1935.
Dr. Victor L. F. H.
HUECKING
German Commissioner
For the reasons stated in the foregoing Opinions, the National Commis-
sioners have disagreed on the questions at issue, and, accordingly, certify them
to the Umpire for decision.
Done at Washington, D.C., this 18 day of June, 1935 .
Chandler P. ANDERSON
American Commissioner
Dr. Victor L. F. H. HUECKING
German Commissioner
Decision of the Commission
This case comes before the Umpire for decision upon a certificate of dis-
agreement by the National Commissioners, to which they have appended
their respective opinions and supplemental opinions. I attach hereto the
certificate and the opinions mentioned.
The question for decision arises upon a petition for a further award by
Katharine M. Drier and a reply on behalf of Germany. The petition for further
award was filed November 18, 1932, and the answer July 2, 1934. Upon
these pleadings issue is made as to the power of the Commission to reopen the
case and rehear the merits on the amount of damages properly to be awarded
to the plaintiff. For an understanding of the present status of the case it will be
necessary to summarize the history of the proceeding.
The claimant is an American National who inherited through a prior
marriage to a German National an estate situate near Dresden known as
" Bonnewitz ". This estate consisted of a castle, its furnishings, a park, garden,
farm, and certain appurtenances. The claimant and her husband left Germany
shortly before the entry of the United States into the War, and her property
was placed under compulsory sequestration by the German Government.
In November, 1919, while the property was still under compulsory administra-
tion, an attorney in fact entered into a contract, which the plaintiff says was
unauthorized, selling " Bonnewitz " to one Mittag. An attempt was made
January 5, 1920. to secure the approval of the Court for this sale. Upon
learning the facts the claimant protested, taking the position that she had
DECISIONS 155
always forbidden her attorney to sell the property. In spite of alleged notice
not to do so, the compulsory administrator gave his consent to the sale, and
it was consummated, as a result of that consent, on May 10, 1920. The claim
is that it was sold for a ridiculously, inadequate consideration, and that Ger-
many is answerable for the difference between the sum so received and the fair
value of the estate as of the year 1919.
As a result of negotiations had in 1924 between the claimant, her counsel,
and representatives of the American and German Agents, an agreed statement
was filed before the Commission, Docket Number 4712, List Number 11,290,
in which the Agents stated that the amount demanded by the claimant was
$500,000.00, that she had received about $12.000.00 in cash and a mortgage
worth about $8,000.00 from the sale of the property, that as a result of assess-
ments of value and evidence taken orally by representatives of the American
and German Agents and the attorneys for the claimant, and by conferences
between said representatives and the claimant herself, the actual damages in
excess of the amount received by the claimant were ascertained to be $48,000.00.
The Agents jointly recommended an award in that amount, with interest at
5% from January 5, 1920. An award was accordingly entered January 14,
1925. The amount paid August 1, 1928, including interest, was S68.782.70.
Confessedly, this award was not final. All parties to the negotiation under-
stood and agreed that the claimant reserved the right to pursue her claim
against her alleged defaulting attorney and the purchaser, and, in the event
of failure to recover from them, to apply again to the Commission for an addit-
ional award. She did bring suit in Germany and was denied recovery. She
thereupon, on March 19, 1929, filed a claim for an additional award in the
amount of $948,600.00. In her affidavit she set forth the facts above sum-
marized, and then detailed her alleged damage (the difference between the
reasonable value of the estate at the time of sale and the sale price) referring
for support to certain exhibits attached to her affidavit, setting values upon
the estate without the forest and equipment, the forest separately and the
equipment separately totalling approximately $1,000,000.00, from which she
admitted should be deducted the amount received from the purchaser Mittag
$3400.00, and the partial award above mentioned of S48.000.00. In reply to
the motion for an additional award, the German Agent filed a memorandum
in words following:
I
The German Agent will not object to the admission of the motion by the
Commission.
II
It will not be disputed that claimant in accepting the compromise, which
formed the basis of the award of January 14, 1925, reserved the right to pursue
her claims against Mittag and Rost and, in the event of failure to recover from
them, to apply again to the Commission for an additional award.
Ill
The facts as set forth in the motion will not be contested.
IV
The German Agent has no knowledge or information sufficient to form a
belief as to the actual value of the estate, the equipment of the castle, et ceteia,
at the time of the sale.
156 UNITED STATES/GERM ANY
Thereupon the matter came before the National Commissioners for adjudi-
cation. It would appear that the German Commissioner was of opinion that
the additional award to the claimant should not exceed $200,000.00, but that
the American Commissioner favored a higher award. It appears further that
the American Commissioner, in conference with the claimant and her attorney,
explained the difference of view of the two Commissioners and stated the amount
the German Commissioner was willing to award. The claimant asserted the
sum to be wholly inadequate, and, apparently ,as a result of her protestation,
American Commissioner conferred further with his colleague. As a result he
advised the claimant and her attorney, in a further interview, that the German
Commissioner would be willing to sign an award of $250,000.00, with interest.
The claimant, it appears, again protested that such an award would be inade-
quate and inquired of the American Commissioner what she could do in the
premises. She was told that if the Commissioners disagreed, as would be
probable, the matter would have to be referred to the Umpire, who might
award more or less than $250,000.00, with interest, that the procedure might
involve considerable delay. The claimant, in her present petition, hereafter
to be more fully outlined, says that she stated the sum was inadequate but
that on account of her destitute condition she would be compelled to accept
it as a tentative award, but she reserved the right to pursue any remedy she
might have before the Commission or through diplomatic channels for further
compensation to reimburse her for her actual loss. In her present petition she
avers, and the averment is not contradicted, that she made these statements to
the American Commissioner in the presence of the German Agent. As a
result of this conference the American Commissioner evidently agreed to an
award of the amount in question and on April 5, 1929, the two National
Commissioners signed an award for $250,000.00, with interest at 5% from
May 10, 1918 to date of payment. Pursuant to that award a payment was
made to the claimant in accordance with the War Claims Settlement Act of
1928.
On November 18, 1932, the claimant filed the present petition for a further
award. The petition, if well founded in fact and law, seems to be timely. Ade-
quate reasons for delay are stated, namely, the detention of the petitioner in
Germany under proceedings against her there, and negotiations for a settlement
of her claim for further allowance in this matter, and for her alleged illegal
detention in Germany, which were pending during part of the period inter-
vening between her second and third petitions.
In her petition the claimant recites that the first award was conditional,
which is admitted. She further recites that the second award did not " purport
to be, nor was it in fact in any way related to the amount of the loss proven by
the evidence to have been suffered by the claimant ". The petition then recites
the facts, to which reference has been above made, leading up to the execution
of the award.
The grounds urged by the American Agent in support of the petition are :
1. That a grave injustice has been done and the claimant deprived of rights
accorded her by the treaty of Berlin.
2. That the awards are contrary to the rulings of the Commission because
they do not afford her the full measure of compensation recognized as due her.
3. That the awards are juridically wrong, because the Commission had
no power to reduce them to an amount less than the sum shown by the undis-
puted proof to be the amount of loss suffered.
The first two reasons may be summarily dismissed. No power resides in
the Commission to redress an alleged injustice inherent in its awards. There
DECISIONS 157
is nothing to show that the Commission did not intend to accord the petitioner
the rights guaranteed to her by the treaty of Berlin. It was under that treaty
that she proceeded and on the face of things it was under the provisions of that
treaty that the award was made. The only reason which may now be consid-
ered is the third, which asserts manifest juridical error in the award.
It is to be noted that the present contention has to do solely with the measure
of damage. That there should be an award in some amount the National
Commissioners were evidently in agreement. The position which the Ameri-
can Agent now takes in briefs submitted is:
(a) That the Commission was bound to accept the estimates of value presented
by the claimant at their face value, and
(b) That the failure of the German Agent to present answering evidence
was, in effect, an admission of the validity of that offered by her.
In addition, it is now urged that the reservation under which the claimant
accepted the second award and the effort to arrive at a settlement of her
claim for an additional amount, Germany once having signified its willingness
to pay $160,000.00 in settlement of this and other claims based upon her
alleged wrongful detention, amounts to an estoppel to contest the present
petition to reopen. It is said, without denial, that from sometime in the year
1927 the German Agent was in possession of the documents, which appear as
exhibits to the petition for an additional award filed March 19, 1929, that
inquiry was made of him by the American Agent what, if anything, further
he deemed necessary to establish the amount of the claim, and to this inquiry
he never replied. Stress is also placed upon the fact that in his answer to the
petition the German Agent merely stated lack of knowledge or information
sufficient to form a belief as to value.
In the light of these facts it is urged the National Commissioners were bound
to award the full amount shown by the so-called expert evidence as to value.
The error committed by the Commissioners, if error there was, was not an
error as to a matter of law but of fact. In such cases as this the damages are
at large. It is the burden of the plaintiff to convince the minds of the triers
of fact of the amount of damage incurred. Judgment and discretion must be
exercised in appraising the quality of evidence as to damage or loss. The
Commission has no function to sit as a tribunal to grant new trials for errors
of fact, particularly where those errors involve opinion as to value. There
is no allegation that the National Commissioners were guilty of abuse, that
they refused to consider the evidence, or that they did not in fact consider it.
On the contrary, it would appear that both of them considered it and reached
opposing conclusions as to the amount of damage shown by it. Of this the peti-
tioner was apparently advised, and she apparently determined to accept the
largest amount upon which the Commissioners could agree. She was informed
of her right to have the Umpire pass upon a dispute as to the amount of the
award and she elected not to have recourse to this remedy. It is inadmissible
to say that in the absence of responding evidence this or any other tribunal is
bound to award the full amount stated as the opinion of witnesses of the value
of property lost or damaged. The fact that the German Agent had the claim-
ant's evidence before him and elected not to put in answering evidence is of
no legal significance in connection with the question of manifest error on the
part of the Commission. The opinions of the Commissioners give much
attention to the form of Paragraph IV of the German Agent's answer to the
second petition. It seems entirely clear that this Paragraph does not amount
to an admission of the validity of the claim of damage, nor agree that the apprai-
sals attached to the petition are to be taken at their face value.
158 UNITED STATES/GERMANY
From what has been said, it is evident that the award is regular upon its
face, and that there does not appear upon the record any matter from which
it can fairly be concluded that the Commissioners either abused their discretion
in appraising the evidence or were guilty of manifest error in reaching the
amount of their award.
It remains to deal with the claimant's reservation in accepting the award
and with the effort to reach a settlement. Neither of these seems to me to be
of legal significance. It must be obvious that a claimant cannot bargain with
the Commission with respect to its judgment. Unless there be error in the
proceedings sufficient to warrant a rehearing, a statement by a claimant that
he accepts an award under protest and will apply further to the Commission
is without legal force. The infirmity in the American Agent's position with
respect to the purposed compromise with the claimant is that the record con-
tains nothing with respect to it, and that, in any event, an effort to compromise
with a claimant whose case is in judgment is necessarily extra judicial and
cannot, in the nature of things, affect the validity of the antecedent judicial
prcceeding.
For these reasons I am of opinion and decide that the proceedings may not
be reopened and that the decision of the Commission as made must stand.
Done at Washington this 29th day of July, 1935.
Owen J.
ROBERTS
Umpire
KATHARINE M. DRIER (UNITED STATES)
v. GERMANY
(January 29, 1936, pp. 1082-1083; Certificate of Disagreement by the two National
Commissioners, December 4, 1935, p. 1081.)
PROCEDURE: REHEARING AFTER FINAL JUDGMENT, ORAL COMPROMISE BETWEEN
DIPLOMATIC REPRESENTATIVES, EQUITY. — JURISDICTION. Request for
rehearing after final judgment on ground that negotiations for compromise
between diplomatic representatives of two governments (see headnote
preceding previous decision, p. 127 supra) led to oral agreement. Held that
request should be dismissed: (1) Commission without authority to enforce
agreements other than between Agents, (2) no basis in equity: claimant
failed to place alleged agreement in'record before German answer to original
petition of November 18, 1932 (see same headnote, p. 127 supra).
Certificate of Disagreement by the Two National Commissioners
The American Commissioner and the German Commisioner have been
unable to agree upon the action to be taken by the Commission on the petition
filed by the American Agent on November 22, 1935, on behalf of the claimant.
Katherine M. Drier, requesting that the decision of the Commission rendered
by the Umpire on July 29, 1935, dismissing her petition for a rehearing be
reopened and that the aforesaid petition for a further award be adjudicated
on the grounds now urged.
The American Commissioner endorses and supports this pending petition
on the grounds therein set forth, and as presented in the printed brief filed
therewith by the American Agent.
DECISIONS 159
The German Commissioner, on the other hand, opposes the granting of
said petition on the grounds set forth in the reply thereto filed by the German
Agent on December 2, 1935, wherein he requests that the petition be dismissed
for the reasons therein set out.
Moreover, both Commissioners are agreed that inasmuch as this petition
concerns a decision of the Umpire following the certification to him of this
case for decision on an earlier petition, it seems a matter of orderly procedure
that the Umpire should render the decision of the Commission on the present
petition.
Accordingly, the National Commissioners hereby certify to the Umpire
for decision the questions raised by the pending petition and the reply thereto
in this case.
Chandler P. ANDERSON
American Commissioner
Dr. Victor L. F. H. HUECKING
German Commissioner
Washington, D.C., December 4, 1935.
Opinion of the Commission upon the Petition for Rehearing Filed by the Claimant
November 22, 1935
The claimant has filed a further petition for rehearing in the above numbers. "
The respondent has filed a reply submitting the matter to the Commission and
praying that the petition be dismissed. The national commissioners have
certified their disagreement to me under date of December 4, 1935. The cer-
tificate is attached hereto.
By the supplemental pleading the claimant details certain negotiations
which occurred between the filing of the petition for rehearing of November
18, 1932 and the filing of Germany's answer thereto on July 2, 1934. It is made
to appear that, in an effort to end the labors of the Commission in the spring
of 1933 negotiations were had between the parties looking to the entry, by
agreement, of orders for additional award in certain cases theretofore deter-
mined and others then pending. The showing is that the two governments, by
their authorized agents, orally agreed that this claim, amongst others, should
be submitted to the Commission for a further award of 3$16O,OOO but that the
German Agent refrained from signing, and refused to sign, an agreed statement
of facts for submission to the Commission in the premises.
The averment of the present petition is that the claimant, in consideration
of the oral agreement between the governments, abandoned certain claims
she was then prosecuting through diplomatic channels and changed her position
for the worse. It is claimed that the agreement constituted an accord and
satisfaction. In the opinion rendered upon the prior petition of November 18.
1932, reference was made to these negotiations in connection with claimant's
arguments and they were referred to as abortive. It was also there stated that
the record contained nothing concerning them or any agreement of compromise
and that, in any event, a claim based upon an attempted compromise with
the holder of a judgment was ineffectual to impeach the proceedings leading
up to the judgment.
The position of the claimant in the present application is not clear. The
relief asked is that the cause be reopened for a further hearing. In this respect
this petition does not differ from its predecessor. If, however, the prayer
a Note by the Secretariat, Original report: Docket Nos. 4712 and 11485, List
Nos. 11290 and 19733.
160 UNITED STATES/GERMANY
should be granted the function of the Commission would be to reconsider
upon the original record, or upon that record as it might now be supplemented,
the question of the measure of damages to which the claimant is entitled. But
if there has been an accord and satisfaction, as asserted in the petition, this
could not be done. Upon the theory of accord and satisfaction the petitioner
would be entitled to a judgment for $160,000 but the Commission is, as I
understand it, without the authority of a court to enforce agreements made
between the diplomatic representatives of the two governments. Thus, if a
new cause of action is asserted, based upon an agreement between the diplomatic
representatives of the two governments, I think the Commission is entirely
without authority to enter a decree based thereon. It can act only upon the
agreements of the national agents accredited to represent the respective nations
before it. On the other hand, if the matters now alleged are put forward
as an additional basis in equity for the reopening of the former order of the
Commission I find myself at a loss to know why, between March 1933 and July
1934 they were not placed in the record, for, during that entire period, it was
open to the petitioner to supplement her pleading and to permit Germany to
answer on the pleading so supplemented instead of answering only the original
petition alleging other grounds foi relief.
In either view, therefore, I think the Commission cannot consider the
petition now under review and that it must be dismissed.
Done at Washington, D.C., January 29, 1936.
Owen J.
ROBERTS
Umpire
LEHIGH VALLEY RAILROAD COMPANY, AGENCY OF CANADIAN
CAR AND FOUNDRY COMPANY, LIMITED, AND VARIOUS UNDER-
WRITERS (UNITED STATES) v. GERMANY
(Sabotage Cases, December 15, 1933, pp. 1115-1128; Certificate of Disagreement,
October 31, 1933, pp. 1084-1106; Additional Opinion of German Commissioner,
s.d., pp. 1106-1108; Supplemental Opinion by the American Commissioner,
November 27, 1933. pp. 1108-1115.)
PROCEDURE: REHEARING AFTER FINAL JUDGMENT, FRAUD, COLLUSION, SUP-
PRESSION OF EVIDENCE; ROLE OF UMPIRE: CERTIFICATE OF DISAGREEMENT,
SIGNIFICANCE OF RULES OF PROCEDURE.
Request filed May 4, 1933, for
rehearing after final judgment of October 16, 1930, on the ground that
Commission was misled by fraud and collusion on the part of witnesses and
suppression of evidence on the part of some of them. Held that no certificate
of disagreement required for decision by Umpire of question as to which
national Commissioners disagree: Rules prescribe certificate only for Com-
mission's convenience and for guidance of Agents, the Umpire's duty to
decide arising automatically, under Agreement of August 10, 1922, upon
his being apprised of disagreement (rules cannot contravene basic Agree-
ment).
JURISDICTION : COMMISSION'S POWER TO DECIDE ON OWN —, NATURE OF ITS
FUNCTION. — PROCEDURE: FINAL AND BINDING CHARACTER OF DECISIONS.
Held that Commission has power to pass upon extent of own jurisdiction
by interpretation of Agreement: Commission would otherwise be advisory
DECISIONS 1 61
body, and its decisions not final and binding, as Agreement states they
shall be.
JURISDICTION: ATTRIBUTES, FUNCTIONS, OF COMMISSION, REHEARING. —INTER-
PRETATION OF TREATIES: TERMS, RELATED PROVISIONS, COMMISSION'S PRAC-
TICE, MUNICIPAL LAW. — PROCEDURE: MEANING OF TERMS " DECISION "
AND "FINAL"; REHEARING: CONFLICT WITH RECORD, MATERIAL ERROR
OF LAW, AGREEMENT BETWEEN AGENTS, AFTER-DISCOVERED EVIDENCE,
FRAUD.
Held (1) that Commission has all attributes and functions of a
continuing tribunal until close of work, and as such tries and adjudicates
large number of separate and individual cases : word " amount " (singular) in
preamble of Agreement of August 10, 1922, does not make Commission a
tribunal to try a single action divided into counts (related provisions, Commission's
practice, Settlement of War Claims Act of 1928); but that Commission is
not therefore precluded from reopening case after decision: Agreement,
not denning term " decision " used in art. VI (providing that decisions of
Commission are final and binding), leaves it to Commission to determine
when decision, whether executed or not, is " final "; and (2) that Commission
(a) must grant request for reopening and correct decision when decision
does not comport with record or involves material error of law: see Com-
mission's practice, no need for agreement between Agents (powers otherwise
absent could only be conferred upon Commission by formal agreement of
two governments amending Agreement) ; and (b) may not reopen for
presentation of " after-discovered " evidence: justification under municipal
law (power of Court to close proofs and compel final submission of case)
does not prevail before Commission (no closing without consent or over
objection), while failure earlier to enact now existing legislation permitting
American Government to summon witnesses etc. (Act of June 7, 1933)
provides no excuse; but (c), still sitting as a Court, as every other tribunal
has inherent power to reopen and to revise decisions induced by fraud.
Cross-reference: A.J.I.L., Vol. 34 (1940), pp. 154-164.
Bibliography: Witenberg, Vol. Ill, pp. 17-24; Woolsey, A.J.I.L., Vol. 33
(1939), p. 739, and Vol. 34 (1940), pp. 29-34; Annual Digest, 1935-37,
pp. 480-487.
Certificate of Disagreement1
The American Agent, pursuant to instructions from the Government of the
United States, has requested the Commission to render a decision on the
question of its jurisdiction to reconsider its decisions in the so-called sabotage
claims, which question the Government and the Agent of the United States
consider is one to be decided by the Commission itself.
The question is raised by the pending petition presented to the Commission
by the Government of the United States, through the American Agent, on
May 4, 1933, on behalf of the claimants in the so-called sabotage cases, Docket
Nos. 8103, 8117, et al.
In support of this petition the American Agent has presented, and is con-
tinuing to present, the testimony of a number of witnesses, taken under the
authority of and in accordance with an Act of Congress approved June 7,
1933, and certain other evidence, and may desire to present some additional
1 See Appendix for Minutes of the meeting of Commission of October 31, 1933
(pp. 1597-1612), outlining the action taken with respect to the Certificate of
Disagreement dated October 31, 1933, signed only by the American Commissioner.
(Note by the Secretariat, this volume, Appendix IV (A), p. 483.)
162 UNITED STATES/GERMANY
evidence not yet available, if the Commission's right to reconsider these cases
is upheld by the decision of the Umpire.
The national Commissioners are in disagreement on the questions thus
raised, and have rendered their respective opinions setting forth the grounds
of their disagreement.
The opinion of the American Commissioner is that, under the terms of the
Agreement of August 10, 1922, between the two Governments, establishing
the Commission, the Commission inherently has the juridical right to determine
for itself its jurisdiction to entertain petitions for rehearing. The American
Commissioner is further of the opinion that the Commission has in general
the right in its discretion to reconsider a decision rendered by it, and that in the
sabotage cases, inasmuch as the last decision of the Commission in those cases
was made by the Umpire on a Certificate of Disagreement by the national
Commissioners, the Umpire can continue to act for the Commission in dealing
with this jurisdictional question as well as with all other questions arising under
the pending petition in those cases.
The German Commissioner disagrees with the American Commissioner
on all of the points above mentioned, and holds that the Commission has no
jurisdictional right to reconsider a decision once made, unless both Govern-
ments consent.
The written opinions of the National Commissioners, which have been
submitted by them to the Umpire, showing the points and grounds of dis-
agreement between them, are as follows:
Opinion of the American Commissioner on the Question of Revision of Decisions
The Agreement of August 10, 1922, between the United States and Germany
under which this Commission was established, recites in its preamble that the
two Governments " being desirous of determining the amount to be paid by
Germany in satisfaction of Germany's financial obligations under the Treaty
concluded by the two Governments on August 25, 1921, [Treaty of Berlin]
* * * have resolved to submit the questions for decision to a mixed
commission ", etc. The Agreement further provides, in Article I, that the
commission shall pass upon specified categories of claims. The commission
is to consist, as provided in Article II, of two national commissioners, one
appointed by each Government, and an umpire selected by both Governments,
but eventually, by request of the German Government, appointed by the
President of the United States. The umpire was authorized " to decide upon
any cases concerning which the commissioners may disagree, or upon any
points of difference that may arise in the course of their proceedings ".
The Agreement also provides, in Article VI, that " The commission shall
receive and consider all written statements or documents which may be presen-
ted to it by or on behalf of the respective Governments ", and that " The deci-
sions of the commission and those of the umpire (in case there may be any)
shall be accepted as final and binding upon the two Governments ".
There are no other provisions in the Agreement which have any bearing on
the question under consideration. No specific provision is made in the Agree-
ment for reconsidering or correcting any decisions rendered by the Commission.
Whatever authority the Commission may have to reconsider and revise its
decisions must be derived from the provisions above mentioned, taken in
connection with the general powers discussed herein elsewhere, which were
conferred on this Commission by the Agreement.
During the course of the proceedings of the Commission many occasions
have arisen for taking action on correcting awards and reconsidering decisions.
DECISIONS 163
Although no specific decision in any case where the point was at issue has been
made by the Commission on the question of its authority to take such action
as a matter of principle, the Commission, in practice, has adopted a course of
procedure which demonstrates that in its opinion it had discretionary power to
reconsider and revise its decisions to fulfill the purposes for which it was organ-
ized and to serve the ends of justice. It has always assumed, and acted on that
assumption, that it was fully empowered to correct any clerical or pro forma
errors in its decisions or awards, and this has been done as a matter of routine
procedure. It has also assumed, and acted on that assumption, that on any
application for reopening and revising a decision on the merits the Commission
should receive and consider any evidence offered in support of such application,
reserving for decision, after the examination of such evidence, the question of
whether or not the Commission, in its discretion, should grant the application
based thereon. The procedure adopted by the Commission, in dealing with
such applications, has been, to recite, in the first place, the receipt of the appli-
cation and the additional evidence offered in support of it, and then to state,
in substantially the following form, that —
Although the rules of this Commission, conforming to the practice of inter-
national commissions, make no provision for a rehearing in any case in which
a final decree has been made, nevertheless, the application and evidence sub-
mitted in support thereof have been carefully considered by the Commission.
It so happens that hitherto in all the cases, in which rehearing petitions
have been filed, except those in which the two Agents agreed to a reopening,
as hereinafter mentioned, the Commission has found that the grounds upon
which they rested did not warrant reopening the case, or amending the terms
of the decision, and the application in all such cases has been dismissed on
that ground.
The first case in which this question was presented was decided by the
Umpire on August 31, 1926. In that decision the procedure above stated was
adopted, and has thereafter invariably been followed both by the Umpire
and by the national Commissioners in dealing with similar cases.
It seems clear that if the Commission had been of the opinion that under no
circumstances was it at liberty or empowered to reopen and reconsider a decision
already made it would not have entertained, even tentatively, a petition for
reconsideration, but would have dismissed it as a matter of course without
examining or considering the grounds upon which it was made.
No question or objection to this mode of procedure was ever raised by either
Agent until the question of reconsidering the Commission's decision in the
so-called sabotage cases arose in January, 1931. The German Agent, in oppo-
sition to the American Agent's petition for a rehearing in those cases on newly-
discovered evidence, objected on the jurisdictional ground that the Commission
was without authority to admit the further evidence then offered, or to grant a
rehearing on the basis of such evidence or any other evidence, after the claims
had been dismissed by the Commission.
The German Agent based his objection primarily on the ground that under
the Agreement establishing the Commission it had no inherent jurisdictional
powers which would justify a revision of a decison once made, and that,
apart from any question of inherent powers, the Commission's jurisdiction on
this point was restricted by the above-quoted provision of Article VI that
" The decisions of the commission and those of the umpire (in case there may
be any) shall be accepted as final and binding upon the two Governments ".
He also asserted, in support of his contention, that in all cases in which any
revisions or corrections of decisions had been made this action had been taken
164 UNITED STATES/GERMANY
with the consent of both Agents, acting for their respective Governments, and,
therefore, did not contravene his contention.
The American Agent, on the other hand, contended that, considering the
purpose for which the Commission was established and the character of the
duties imposed upon it, all authority necessary or appropriate to carry out its
work must be regarded as having been conferred upon it. On this basis, he
insisted that, inasmuch as the fundamental purpose of its creation was, as
recited in the preamble to the Agreement, to determine " the amount to be
paid by Germany in satisfaction of Germany's financial obligations " under
the Treaty of Berlin, the individual and separate claims were each a part of
Germany's entire financial obligation to be determined by the Commission,
and until the total obligation was established no award or decision as to the
component items could be regarded as final, but meanwhile was always
subject to revision. *
The American Agent also contended that the Commission had inherent
power to organize its work and procedure in any appropriate way which
seemed to it advisable for the purpose of aiding in efficiently and expeditiously
performing its duties, and that unless the Commission had rendered decisions
as rapidly as they could agree on them it would have been utterly impossible
to make any headway in dealing with the gigantic task of disposing of 20,000
claims. Nevertheless, in adopting this plan of procedure, the Commission
necessarily had to hold in reserve the right to reconsider and revise any decision
which, as the Commission proceeded through the mass of claims, seemed to
be inconsistent with information later acquired or with more mature views
later adopted in other cases. He, therefore, concluded that no decision was
unalterably final until the work of the Commission was finally completed.
It so happened that before this issue arose the Commission had undertaken
to lay down a series of rules for the guidance of the Agents on its attitude in
regard to accepting new evidence as a basis for reconsidering decisions. These
rules were set out in the Commission's decision dismissing a petition for
rehearing in the case of the Philadelphia-Girard National Bank claim (Com-
mission's Decisions, page 939).
a
Only two of these rules have any bearing on the present question, and they
were:
" Where it appears that manifestly the Commission committed an error in its
findings of fact on the evidence produced by the Agents at the time the claim was
submitted for decision, or in applying the principles of law and the rules of the
Commission as established and applied in its previous decisions, the Commission
will take under consideration the question of reopening or changing the award.
" On the other hand where a rehearing is demanded merely on the ground
that by reason of newly submitted evidence the underlying facts were different
I The decision of the Commission as announced by the Umpire with the concur-
rence of both national Commissioners in The Lusitania Cases said (printed Decisions
and Opinions, page 30) :
" The United States is in effect making one demand against Germany on some
12,500 counts. That demand is for compensation and reparation for certain losses
sustained by the United States and its nationals. While in determining the amount
which Germany is to pay each claim must be considered separately, no one of
them can be disposed of as an isolated claim or suit but must be considered in
relation to all others presented in this one demand. In all of the claims the parties
are the same. They must all be determined and disposed of under the same Treaty
and by the same tribunal. * * * "
(Note by the Secretariat, Vol. VII, p. 42.)
II Note by the Secretariat, this volume, p . 69
DECISIONS 165
from those appearing in the record as submitted at the time of the decision, the
Commission will not grant a reopening or a reconsideration of the award."
This decision, in which these rules were announced, was dated April 21,
1930, and at that time the Commission thought it had practically finished its
work, and this set of rules was intended to serve as an aid to the Agents in
bringing the work of the Commission to a conclusion by discouraging petitions
for rehearings, rather than as an administrative decision dealing with a juris-
dictional question. This question had not, at that time, been presented and
argued by the Agents, nor had the Commission had occasion to pass upon it in
any submitted claim. This situation accounts for the rather incidental way
in which these rules were announced. As the decision itself shows, the rules
stated therein did not control or influence the conclusions reached by the
Commission in dismissing the petition in that case. Accordingly, they did not
have the authority of a decision by the Commission on an issue argued and
submitted by the Agents, and did not establish a precedent which the Com-
missioners would have felt called upon to follow in latter cases if they had
applied it in the decision of an earlier case.
At this point it will be convenient to examine the principle on which these
rules rested and some of the implications arising from them.
Basically they assume an authority on the part of the Commission to deter-
mine, in its discretion, whether or not it will reconsider a decision, which
implies jurisdictional power in the Commission to do so. if in its judgment that
should be done. That consideration would seem to establish that in the opinion
of the Commission, at least, it had jurisdictional power to reconsider its earlier
decisions.
In further support of that view, it will be noted that the rule against recon-
sideration deals only with cases where the " rehearing is demanded merely on
the ground " that the newly-submitted evidence changes the underlying
facts on which the decision was made. Nothing is said by the Commission
about what its attitude would be if the new evidence disclosed misrepresentation
or fraud as to the facts, or the suppression of material evidence. No case
presenting such considerations was under consideration by the Commission at
that time, and it did not have such a situation in mind in announcing that rule,
which applied more particularly to the consequences arising from delay or
neglect on the part of the claimants in presenting their claim, rather than to
the more serious question which would arise under the other circumstances
above suggested. By announcing that rule the Commission certainly did not
intend to preclude itself from taking different action if a different set of cir-
cumstances demanded different treatment in the interest of justice and equity,
or if the Commission had been imposed upon.
The implication of those rules was not that the Commission was without
authority to reconsider, but that there were certain circumstances in which
it might exercise its authority, and other cases in which it would not be disposed
to exercise that authority, which clearly indicated that, in its opinion, the exer-
ciseof that authority rested in the discretion of the Commission.
It may also be noted, in passing, that those rules did not apply to the so-called
" late claims " submitted to the Commission by the Agreement of December
31, 1928, between the two Governments. This is shown by the statement
introducing those rules in the decision, that they had " general application to
petitions and requests for rehearings as to the claims originally listed ". This
exclusion of" late claims " from the application of those rules calls attention to
a significant difference between the jurisdiction of the Commission under the
earlier Agreement and under the later Agreement.
12
166 UNITED STATES/GERMANY
Under the later Agreement the Governments expressly stipulated that
" late claims " must be presented to the Commission " with the supporting
evidence within six calendar months from the first day of February, 1929 ".
The Commission ruled that this provision precluded it from receiving any
supporting evidence for any purpose after the period thus fixed.
Under the earlier Agreement of August 10, 1922, which applied to the
sabotage claims, no time limit was set for the presentation of evidence or the
final submission of claims to the Commission for decision. It merely provided,
in Article VI, that " The commission shall receive and consider all written
statements or documents which may be presented ", etc. In applying this
provision, the Commission ruled that it was not at liberty to fix a time limit
within which a claim must be submitted, and could not refuse to receive new
documents or written statements offered by either side even after a claim
had been formally submitted for decision. Under the authority of this
provision, such new evidence was actually received by the Commission on
application by the German Agent after the first oral argument and submission
of" the sabotage cases at the session in Washington in April, 1929. It must
be observed, however, that this ruling did not deal with the question of the
introduction of new evidence after the Commission had actually rendered a
decision, which question, as herein elsewhere stated, was always reserved for
special consideration.
The chief significance of this difference in the two Agreements is that it
shows that when the Government desired to place a limitation on the juris-
diction of the Commission they put it in the Agreement.
At the time those rules were announced there was no case pending to which
they applied, and neither Agent discussed them with the Commission.
Later on, after the rehearing petitions in the sabotage cases came up in
January, 1931, both Agents argued about those rules at some length, seeking
to interpret them in support of their respective contentions. The Commission,
desiring to determine this question on a basis of principle, rather than on an
interpretation of those rules so casually announced, addressed a letter to the
Agents, under date of March 30, 1931, indicating that, whatever purpose those
rules were intended to serve at the time they were announced, they were
" not irrevocable " and should be disregarded in discussing the question of
revision then under consideration.
1 They added, " it is desirable that argu-
ment addressed to the question should be devoted not to the interpretation
of that language but to the principle itself".
Subsequently, at the session held by the Commission in Boston in July-
August, 1931, to consider the reopening petition in the sabotage cases, the
Commission permitted the submission, provisionally, of a quantity of new
evidence, and heard extensive oral argument of both sides on the question of
the merits of the claims as well as on the question of jurisdiction to reopen.
No decision on this question was announced by the Commission at that time,
and since that hearing the Commission has not only received, but has expressly
invited the submission of, new evidence in the sabotage claims, produced at
considerable expense by both sides, and at a session in Washington in Novem-
ber, 1932, heard oral argument on the issues presented, involving not only the
jurisdictional question of its right to reconsider the original decision but also
the merits of the claims as affected by the new evidence.
1 On this point attention is called to the fact that the Rules as originally adopted
on November 15, 1922, contained at the end of Rule VIII the provision that
" The decisions in writing ( 1 ) of the two Commissioners, where they are in agreemen t,
otherwise (2) of the Umpire, shall be final ", but this Rule was revised on February
14, 1924, and this provision was stricken out.
DECISIONS 167
Throughout the proceedings of the Commission, while the question of
reconsidering its decision in the sabotage cases was pending, the Commission
carefully refrained from any formal announcement of its opinion on the juris-
dictional question. The German Agent's position was noted in the record,
and the proceedings of the Commission were explicitly stated to be without
prejudice on this question, which was specifically reserved for decision
at the close of the proceedings.
The foregoing is a full and impartial exposition of the attitude and record
of the Commission on the question of its jurisdictional power to reconsider a
decision, as the record stood, down to the time of the argument and the sub-
mission of that question to the Commission at its session in Washington in
November, 1932.
In the argument at that Washington session both Agents again discussed
this jurisdictional question, and the Umpire, in the course of the argument
(transcript, page 787 [printed, transcript, page 244]), clarified that issue in the
following dialogue with the German Agent:
"
THE UMPIRE. What I understood and what we all understood the German
Agent to suggest was that he presents to this Commission the proposition that its
construction of the treaty should be that it has no power now to rehear this case.
I did not understand him to take the position that the Commission could not
consider the question of its own jurisdiction. If he desires to clear that question,
he may do so.
"
THE GERMAN AGENT. The understanding of the Commission is entirely correct.
"
THE UMPIRE. In other words, that is a justiciable question here.
" THE GERMAN AGENT. Yes."
The American Agent agreed with the German Agent on this point. Ac-
cordingly, the Commission had an authoritative statement from the official
representatives of both Governments that the question of the power of the
Commission to receive new evidence and reconsider a decision already rendered
was a justiciable question, the decision of which was within the jurisdiction
of the Commission.
It will be recalled that the Agreement establishing this Commission was
made between the Executive branches of the two Governments, and did not
have the status of a treaty. It could, therefore, be interpreted or amended by
similar agreements between the Executive branch of the Governments, and it
was thac branch of their respective Governments for which the two Agents
were the spokesmen in stating their understanding of the jurisdiction of the
Commission to determine its own jurisdiction on this point.
The German Commissioner apparently disagreed with his Government
on this point, as appears from his reservation of it from submission to the
Umpire in the national Commissioners' certificate of disagreement. He there
stated that " the German Commissioner takes the position that the question
of the jurisdiction of the Commission to re-examine any case after a final
decision has been rendered is not a proper question to be certified to the Umpire
on disagreement of the National Commissioners and reserves that question
from this certificate ".
Just what the German Commissioner meant by this reservation is not clear,
and is subject to explanation, but, in the opinion of the American Commissioner,
neither of the national Commissioners has the authority to overrule or disregard
an agreement made by the two Governments as to the jurisdiction of the
Commission, and the two Governments certainly have agreed in this point,
as evidenced by the above-quoted statement of the German Agent in oral
argument, concurred in by the American Agent.
168 UNITED STATES/GERMANY
There is one more point to be noted in support of the position that the
Commission has the right to reconsider a decision as a matter of jurisdictional
authority. This point arises from the fact that there is no provision in the
Agreement of August 10, 1922, which limits or prohibits that right. The
Commission was established by that Agreement without limitation or condition
as to its authority to carry out the duties assigned to it, except the conditions
which were embodied in the provisions quoted at the outset of this discussion.
In none of those provisions will be found any condition or even a suggestion
that the method and procedure, or the basis of judgment, to be adopted by
the Commission in performing its duties did not rest wholly in its own discretion.
It is true that the German Agent contends, as above indicated, that the stipula-
tion in the Agreement as to the finality of the Commission's decisions precludes
the reconsideration by the Commission of any decision rendered by it. In the
opinion of the American Commissioner this stipulation is addressed to the two
Governments, rather than to the Commission, and applies only to decisions
which the Commission itself, after the exercise of its judicial and discretionary
powers, regards as no longer subject to revision, or by reason of its final termi-
nation is no longer in a position to deal with. '
On the other hand, the rules adopted by the Commission pertain to remedies,
rather than rights, and were addressed by the Commission to the Agents and
claimants as an expression of its attitude on matters wholly within its juris-
dictional powers.
2
As showing the wide discretionary powers conferred upon the Commission,
it will be noted that the members of the Commission were not required to take
an oath of office, as usually is exacted in international arbitrations, that they
would render their decisions in accordance with the principles of international
law, or justice, or equity. It is true that treaty interpretation, rather than
international law, ruled the greater part of the decisions of the Commission
on the claims submitted, but the fact remains that the Commissioners were
entrusted with the interpretation of the Treaty without any limitations whatso-
ever, and treaty interpretation involves many important questions of inter-
national law. The two Governments recognized that the Commission must
necessarily be a law unto itself in this unexplored area, and relied wholly
on the sound judgment and sense of justice of the Commissioners in establishing
what might be called the " law of the Commission ".
In this respect the Commission is unique among international claims com-
missions, and, for that reason, must be regarded as standing in a class by itself.
Arguments as to its powers drawn from the proceedings of other claims com-
missions differently conditioned and organized are of no value here, and those
advanced by the Agent of Germany based on precedents found in the procedure
of other commissions, accordingly, do not require consideration.
1 See footnote 5.
a As said in Administrative Decision No. V (printed Decisions and Opinions,
pages 186-187):
" * * * The American nationals who acquired rights under this Treaty
are without a remedy to enforce them save through the United States. As a part of
the means of supplying that remedy this Commission was by Agreement created
as the forum for determining the amount of Germany's obligations under the
Treaty. That Agreement neither added to nor subtracted from the rights or the
obligations fixed by the Treaty but clothed this Commission with jurisdiction over
all claims based on such rights and obligations. The Treaty does not attempt to
deal with rules of procedure or of practice or with the forum for determining or
the remedy to be pursued in enforcing the rights and obligations arising therunder.
* * * " (Note by the Secretariat, Vol. VII, p. 149.)
DECISIONS 169
The American Commissioner finds, accordingly, that the Commission has,
and was intended by the two Governments to have, extraordinary and extensive
powers far beyond those specifically mentioned in the Agreement establishing it.
These extraordinary powers are inherent in the entity thus established, and
comprise any and all authority necessary and appropriate for carrying out its
duties, and the Commission may determine in its own discretion the extent of
these powers and how they shall be exercised, subject always to whatever
limitation or control the two Governments may impose by joint agreement
between themselves.
As yet, the two Governments have not agreed to any limitation of the Com-
mission's power to reconsider decisions, but, on the contrary, have, through
their official representatives before the Commission, affirmed that this question
is a "justiciable question " within the jurisdiction of the Commission to deter-
mine for itself. In other words, it rests in the discretion of the Commission to
decide whether or not any decision should be reconsidered on new evidence
or argument submitted on a petition for rehearing, or on its own motion if
it finds that it has been imposed upon.
The American Government has already expressed its opinion on this point
through Secretary of State Stimson, who stated, in a letter to the Secretary of
the Treasury dated February 16, 1933, " In my opinion, it is solely within the
competency of the Commission to decide as to the reopening of cases which
have been heard and adjudicated by it."
In conclusion, the American Commissioner is of the opinion that the rules
announced in the Philadelphia-Girard National Bank case decision do not
apply to the question under consideration, and also that, as already stated
by the Commission, they, like any other rules adopted by the Commission,
were subject to revision and were not irrevocable. Furthermore, it should be
made clear that the Commission will consider new evidence in support of a
rehearing petition showing misrepresentation or fraud as to the facts or the
suppression of material evidence, or that the Commission has otherwise been
imposed upon, or that new evidence not previously available has been discov-
ered which would justify a different decision.
In such cases the Commission has the power, and will exercise it in its
discretion, to reconsider a previous decision. This right to reconsider should
be applied only to a limited and special class of cases. It may be noted, however,
that the Commission, by its previous careful and well-considered action in
dealing with matters entrusted to its discretion in these proceedings, has
abundantly demonstrated that it will not abuse its discretionary powers in
dealing with reopening petitions. It will be recalled that it has not as yet
granted any such petition. It may also be noted that the American Agent has
effectively cooperated with the Commission in its efforts to complete the work
of the Commission as promptly as possible, by refusing, on his own responsibility,
to present several hundred applications for rehearings which he considered
were not well-founded.
The Commission cannot announce in advange any general rule as to how
this right will be exercised because that would depend in each case on whether
or not the facts presented satisfied the Commission that in its discretion the
right should be exercised.
This procedure is consistent with the course hitherto followed by the Com-
mission in dealing with rehearing petitions. Any other course would amount
to criticism and repudiation of its previous action. Unless the Commission
had the right to reconsider a decision, it was absolutely without justification
for hearing two extensive and very expensive re-arguments in the sabotage
cases, which have prolonged the life of the Commission for upwards of two
170 UNITED STATES/GERM AN Y
years, at considerable expense to both Governments and, incidentally, great
additional expense to the American claimants in procuring the new evidence
submitted. In the opinion of the American Commissioner the Commission
would not, and should not, have adopted that course unless the Commission
believed it is authorized to revise its decision in these cases if the new evidence
and arguments presented justified that action.
Chandler P. ANDERSON
American Commissioner
Washington, June 21, 1933.
Opinion of the German Commissioner on the Question of Reopening
The question whether this Commission has the power to reopen a case has
fully and thoroughly been dealt with by the two Agents in some of their briefs
in the so-called sabotage cases and in the oral argument held in Boston July 30,
August 1, 1931.
After carefully having examined the arguments proffered from both sides
I wish to state my opinion as follows:
In dealing with the issue now before the Commission it must be kept in
mind, that this Commission is an International Commission, an International
Court. Therefore as to its rules undoubtedly no principles specifically American
apply.
Even if from reasons unknown to me every court in the United States —
Federal as well as State Court — would be considered as having the " inherent
power " to reopen a case, such power would have no bearing whatever on the
question whether an international Court would have the same right. There is
no doubt that in Europe at least no continental Court of the leading nations
and certainly no Court in Germany has such power except when and where it
is transferred to it by a special legislative act or provision. But even as to the
power said to be " inherent " in the courts of the United States, the convincing
force of the argument offered by the American Agent is strangely weakened by
an instance so much relied upon by himself: the instance has been taken from
the law of California and the Report by the Law Enforcement Commission.
The reason that in the wellknown Mooney and Billing case the Californian
Court declined a petition for reopening and that said Commission took
exception to this result, was not because the Commission thought the Court had
violated the law by denying its right to reopen, but because it thought the
legislation of the State California should have provided for a law transferring such
power to the court.
Hardly a better illustration of the nature of the American Agent's error can
be found: the right to reopen is not a power inherent in the court, but a power
inherent in the sovereignty of a State to establish such right and to authorise
a court to do so under the conditions and modalities the sovereign thinks fit.
Without such authorization no court neither in the United States nor anywheie else
has a right to reopen.
And no international court can claim such right but by the authority from
those powers which called it into life.
Here again the American Agent erred when from the fact that some of the
Mixed Tribunals created by the Treaty of Versailles have provisions dealing
with a possibility to reopen he concluded that such power must have been
inherent in those courts, and he committed a further error when he reached
the conclusion that therefore such power was also vested in this Commission.
The German Agent has already pointed out, that those tribunals had
especially transferred to them the power to make their own rules by the Treaty of
DECISIONS 1 7 1
Versailles and that under the authority of the power thus transferred the court
by unanimous decision adopted such rules which thereupon were approved by the
Powers concerned and published in the official Journals destined to promulgate
the legislative acts of said Powers.
Moreover the instances as cited by the American Agent show that the courts
considered it necessary to make a special provision in order to establish the
right of reopening and that f.i. the Anglo-German Tribunal, making such
provision in the year 1925, was far from making it retroactive, thus clearly
showing that it did not consider such right to reopen as an inherent right
applicable therefore to all cases brought before it, but as a right which could
only be brought into effect by a specific provision (under the authority of
the provisions of the Treaty of Versailles) and which therefore could be applied
only to cases not yet decided by the tribunal and therefore not being " res
judicatae ". Moreover a more thorough examination of the nature of the
alleged " inherent power " of a court and especially of this Commission will
show that the question so generally formulated and so broadly dealt with by
the American Agent comprises a rather considerable number of " sub-ques-
tions " — which it will be necessary to examine separately.
I. The theory of an " inherent power " of a court to reopen a case is not
borne out by the instances offered by the American Agent even as far as
American domestic courts are concerned. As already pointed out, courts are
created. Created by an act of legislation, deriving their authority from the
sovereign power of a nation, represented in a written or unwritten constitution.
Thus it is a derivative power exclusively depending on the volition and intention
of its sovereign.
To show that a court has a certain power means therefore the obligation
to show that such power was transferred to it (thus f.i. power and scope of its
jurisdiction etc.). Such transfer could be made either by the act creating the
courts, transferring thereby a specific right to a court as such or by a special
act of legislation.
In either case it needs a specific provision. Therefore it would need a clear
and unambiguous proof that a right, as f.i. a right to reopen, had been trans-
ferred to it. But this is exactly the opposite to what the American Agent
considers to be an " inherent " power of a court.
Obviously the legislative policy as to the scope of the powers to be transferred
to a court will vary in several nations and actually differ very much. No
reason whatever therefore exists to conclude from the fact that one state
provides by its legislation for a reopening measure, that therefore other nations
did the same.
Moreover even if two nations should have made similar provisions in that
regard for their domestic courts that would never justify the conclusion that
therefore an international court created by those two nations must necessarily
have the same power. Here again it needs a specific creative act, to wit the
clear and unambiguous volition and intention of the two sovereign Powers
concerned to vest in an international court created by them such power.
No argument is necessary to state that in the Agreement of August 1922 no
provision exists authorising the Commission to reopen a case. Yet the Agree-
ment of August 1922 is the only charter of this Commission as to its rights to
proceed.
The right to reopen is therefore not transferred upon this Commission.
(This does not mean that the Commission or the two national Commissioners
might not unanimously agree to correct a decision, as I will discuss under
No. 7.)
172 UNITED STATES/GERMANY
2. But even if the authority to reopen would have been transferred to the
Commission it still would be within the volition of the Commission whether
it would be willing to use such authority or not.
In that case the Commission had to say so, which means that it had to make
the right to reopen a specific part of its rules.
But no such provision has been made.
Instead the Commission has already and unambiguously expressed its will
to the contrary.
It has done so in its decision on the Petition to Reconsider an Award in the
case United States of America on behalf of Philadelphia-Girard National
Bank, Claimant v. Germany and Direktion der Diskonto-Gesellschaft, Implea-
ded. Docket No. 7531, List No. 2729.
The Decision reads as follows:
" In this case a final award was entered by the Commission on April 3, 1929.
A Petition for the Reconsideration of this award, signed by the claimant and
presented through its attorneys to the American Agent, has been submitted to
the Commission together with certain additional evidence and a printed Memo-
randum in support thereof, dated August 7, 1929, and prepared by the private
counsel for the claimant.
" Although the rules of this Commission, conforming to the practice of international
Commissions, make no provision for a rehearing in any case in which a final decree
has been made, this Petition and the supporting Memorandum and evidence
have been carefully considered by the Commission.
" Before taking up the questions raised by this Petition, the Commission desires
to announce certain principles having general application to petitions and re-
quests for rehearings as to the claims originally listed, by which the Commission
will be guided in dealing with this and other similar applications.
" Where it appears that manifestly the Commission committed an error in its
findings of fact on the evidence produced by the Agents at the time the claim was
submitted for decision, or in applying the principles of law and the rules of the Com-
mission as established and applied in its previous decisions, the Commission will
take under consideration the question of reopening or changing the award.
" On the other hand, where a rehearing is demanded merely on the ground that
by reason of newly submitted evidence the underlying facts were different from
those appearing in the record as submitted at the time of the decision, the Com-
mission will not grant a reopening or a reconsideration of the award.
" The reconsideration of a claim after a final decision has been rendered would
mean that the whole case would have to be dealt with anew. The new evidence
submitted would have to be brought to the attention of the opposing party, which
would have to be given a reasonable time to investigate and file additional or
rebuttal evidence on its side, and also an amended answer or a reply, if that was
found to be necessary, and then the whole case would have to be reexamined and
decided again. All of these consequences would result from the failure or neglect
of the moving party to produce the additional evidence before the claim was
originally submitted for the decision of the Commission.
" Moreover, if the production of new evidence by a party would give the right
to have the whole case reopened, such right would necessarily attach not only
to every claimant whose claim had been submitted and decided, but also to the
respondent in each case as well.
" If such a right were granted and exercised at this advanced stage of the pro-
ceedings of the Commission, it would affect awards which have already been
paid, and, apart from the confusion resulting from such procedure, it would be
clearly contrary to the express wording and manifest purpose of the Agreement
of August 10, 1922, between the United States and Germany. According to that
Agreement the decisions of the Commission are accepted as final and binding upon
both Governments, and, inasmuch as the governments are primarily the parties in
interest, the private claimant, on whose behalf the Government of the United
States has finally submitted a claim for decision, cannot be given the right to alter
DECISIONS 173
or nullify this situation by producing new evidence changing the status of the
claim as submitted and decided.
" It is also pertinent to consider that most of the applications which have been
made for rehearing have arisen in cases in which the Commission has pointed
out wherein the claimant has failed to furnish evidence sufficient to establish the
liability of Germany under the Treaty of Berlin, as interpreted by this Com-
mission, and to grant a rehearing in those cases would mean a great injustice to
the great majority of the claimants whose claims were dismissed by the Commission
without indicating wherein the evidence submitted was insufficient, and, who,
therefore, have been unable to discover new points of attack. It may also be noted
that in no case, as yet, has the Commission granted an application to reopen a claim in which
a final decision has been rendered.
" The Commission will not consider questions of law, which have been settled
in its earlier decisions, as to the jurisdiction of the Commission and the liability
of Germany, under the Treaty of Berlin and the Agreements of August 10, 1922,
and December 31, 1928, between the United States and Germany, as interpreted
by this Commission.
" The law of the Commission, as established in its earlier decisions, will con-
trol the decisions of the Commission in all later cases." (All italics mine.)
This decision plainly shows that the Commission had never the intention to
apply a rule of reopening to its procedure.
3. Moreover it shows that the whole question of reopening is res judicata;
it has already been passed upon by the Commission and is " final and binding ".
4. But even assuming for a moment and for argument's sake that the Com-
mission had the power to reopen and were now willing to use it, yet it never
would be authorized to make such rule retroactive.
If there exist principles of a legal nature common to all or the larger part of
civilized nations, they are that a law or a rule must be clearly expressed to
make it applicable and that no law whatsoever shall be retroactive except
when especially made so by the act creating said law.
Now, here again it needs no argument, that this Commission has no power
transferred upon it to make rules retroactive.
Therefore even if this Commission had the power to provide for a reopening
it could not reopen a case but after having made a special rule providing for
such right and moreover it could not make such rule retroactive.
5. Thus the Commission would have no power to reopen, let alone a power
to retroactively provide for a reopening even if the Agreement of August 10,
1922 would be silent as to the legal effect of the Commission's decisions.
But the Agreement is far from such silence. Instead it expressly states in
a formal and solemn way that " the decisions of the Commission shall be
accepted as final and binding upon the two Governments " (italics mine).
If language can be clear and unambiguous, this language is.
Moreover we know that from the very beginning both Governments were
anxious to expedite the Commission's work as much as possible. At the same
time therefore, when they made the Agreement of August 10, 1922, they further
agreed to limit the time for filing claims with the Commission to a rather short
period thus clearly indicating what their conception of the Commission's task
was.
6. As I tried to show, under the principles controlling the procedure of this
Commission even an unanimous decision be it of the two Commissioners alone
or be it of the two and the Umpire cannot establish a right to reopen.
But assuming for argument's sake that the Commission by an unanimous
vote would have the authority to provide for a rule to reopen a case, such
authority would not meet the question, whether such rule could be established
174 UNITED STATES/GERMANY
by majority vote or — what comes to the same — by the Umpire alone if the
two national Commissioners disagree.
Theoretically the only possibility would be that under Article II of the
Agreement the Umpire were called upon to decide the issue.
But this would not only mean that the Umpire had to pass upon the principal
question of the " inherent power " of the Commission as well as of its retro-
active effect. Beyond that it would mean that assuming that on those two
questions his findings would be in favor of the American Agent he had to pass
on all cases reopened, whenever the national Commissioners disagree.
Thus by the simple means of producing " new evidence " a case already
decided by the national Commissioners could be brought before the
Umpire.
Now under the Agreement wherever the two national Commissioners agreed
upon a decision the Umpire has no jurisdiction, and actually in innumerable
and important cases the Commissioners have agreed on awards without the
cooperation of the Umpire though in many cases from sound and good reasons
he has been sitting with the Commissioners — if for no other reason, yet for the
purpose of expediting the work and of avoiding in cases where the Commission
ordered an oral argument, an unnecessary duplication of the argument should
the national Commissioners disagree.
Now under the American Agent's theory the right to reopen a case — or
even to reopen a decision denying a reopening — is inherent in any case and
numerous are the instances where he has attempted to exert this " right ".
Consequently even in those cases in the decision of which the Umpire has
not participated, the question whether a petition for reopening should be allowed
would have to be decided by him wherever the two national Commissioners
should disagree on that question.
That would mean that the Umpire had to examine and consider the " new
evidence " adduced or the argument made in support of a petition for reopening
even in such cases wholly unknown to him (and those are by far the majority)
in the adjudication of which he did not participate and in which he might
differ from the findings of the two national Commissioners be it with regard to
the legal or to the factual basis as presented at the time of the decision though
such basis is also binding upon him under the provisions of the Agreement.
From a logical point of view there is no reason why the Umpire if he has a
right to consider a case on the ground of facts newly submitted should not have
the same right on the ground of a legal argument newly presented.
Thus he could change the Commission's rules.
And he could even do so in cases where the Umpire acting at the time of the
decision had concurred in such decision.
Since in consequence of death the Umpire has changed several times during
the work of the Commission and since the present Umpire has not taken office
but after almost all cases had been decided, this would mean that a new man,
wholly unfamiliar with the motifs and considerations which guided the former
Umpire in joining the Commission's decisions would have to answer the question
whether the so asserted " new evidence " be of such kind that if produced at
a time prior to the decision it would have influenced and modified it.
To point out these consequences is to prove the utter impossibility.
Moreover such procedure would mean that in cases passed upon by both
Commissioners — and therefore "final and binding " upon the two Governments
— the case could be brought anew to a trial by the simple means of a petition
of reopening, if such petition could be brought to the cognizance of the Umpire
in case of a disagreement of the Commissioners and if then the Umpire should
allow such petition.
DECISIONS 175
Thus the question of the right to reopen a case already decided by the con-
currence of the two Commissioners involves also the " subquestion " whether
in case of dissens of the two Commissioners on the reopening question the
Umpire by his sole authority can have the power to pass on the merits of such
case and eventually to reopen it.
That this cannot be the meaning of the Agreement seems to me undeniable.
7. It is hardly necessary to explain here that the Commission's practice to
alter a decision wherever it found that an error in its findings of fact on the
evidence produced at the time the claim was submitted or in applying the principles
of law and the rules of the Commission had influenced the decision, has nothing
whatever to do with the question of reopening on the ground of new evidence.
In pursuance of this practice the Commissioners have acted unanimously.
Moreover they left the basis of their decision to wit the facts as produced and
the law and rules applicable thereto unchanged and merely were willing to
correct their conclusions derived therefrom.
I more than doubt whether the Agents be it by mutual consent be it on their
separate volition had ever a right to ask for such alteration. But certainly it
was practical and sound that the Commission adopted this procedure. And it is
significant that actually the Commission never changed a decision except with
the consent not only of both Commissioners but also of both Agents.
8. This leads to the question also ignored in the argument by the American
Agent whether under the assumption that the Commission as such could
reopen a case because of new evidence, such power would be vested in it even
if not only one of the Commissioners but also one of the Agents would oppose
such measure.
That such ex parte measure would not only be outside of the provisions of
the Agreement but also outside of any law be it national be it international,
is so manifest that no further reasoning is necessary to refute it.
In my mind all these reasons stand so obviously against not only the right
of the Commission to reopen a case but also against the right of the Umpire
to reopen on his sole authority a case already decided by the two Commissioners
that according to my opinion the petition of the American Agent must be
denied.
Hamburg, 6 Mai, 1933. W. KIESSELBACH
The undersigned, accordingly, certifies to the Umpire of the Commission
for decision the questions of difference between the national Commissioners
arising out of the pending petition in the sabotage cases, and as shown by this
certificate of disagreement and by the respective opinions, above set forth,
with reference to that petition.
Done at Washington, October 21, 1933. Chandler P.
ANDERSON
American Commissioner
Washington, D.C., November 22, 1933
The Honorable Owen J. Roberts,
Justice,
Supreme Court of the United States,
Umpire, German American Mixed Claims Commission,
Washington, D.C.
Sir:
In accordance with your statement at the close of the meeting of the Com-
mission October 31, 1933, which was recorded in the minutes as follows:
176 UNITED STATES/GERMANY
" it is understood that it is the position of the German Agent that he is not authorized
to take any part in this proceeding, and the Umpire further stated that the Umpire
will be entirely willing to receive any observations or representations the German
Agent may wish to make in the pending matter and he is willing to receive such as
in the nature of a special appearance as not conceding anything and without pre-
judice to the position of the German Agent's Government before the Commission,'*
I have the honor to submit to you herewith certain observations of Dr. Wilhelm
Kiesselbach. the German Commissioner, which were sent me by cable
through the intermediary of the German Foreign Office.
Believe me,
Yours very sincerely,
Dr. Joh. G. LOHMANN
German Agent
[Additional Opinion of German Commissioner.]
I wish to add to my opinion of May 6, 1933 the following:
From the very beginning my view has been that a distinction must be made
between a court on which the power to reopen has been conferred and a court
which has no such power.
In the first alternative the court would in its discretion have authority to
reopen a case even if one of the parties concerned objects.
In the second alternative the court has no right whatever to reopen if one
of the parties objects.
The agreement of August 10th, 1922, does not confer such authority upon
the Commission. On the contrary, from the clear and unambiguous wording
of Art. 6, paragraph 3 it appears that the decisions (not the decision) of the
commission shall be final and binding upon the two Governments. If never-
theless a petition for reopening is filed the Commission is bound to pass upon
it, but to deny it, if and as far as one Government opposes it.
Already in July 1928 I have stated this opinion of mine in a memorandum
a
to the other members of the Commission in connection with a petition for
rehearing. So far my memorandum reads as follows:
'' Under our charting an award is binding upon both Governments. Only when
the Commissioners disagree the Umpire comes into action. But here both Commis-
sioners have agreed upon the award and the Umpire, though having joined the
Commissioners' decision, has not acquired jurisdiction. It is therefore to the Com-
missioners, and to the Commissioners only, to pass upon the motion of a second
rehearing. Whether they can grant such motion by mutual consent is — under the
provision of the August Agreement — a very close question. But it seems clear to me
that not one of them can do so against the protest of the other. And it seems further
to be clear that in case of such a dissense the lack of the right ofa single Commissioner
to grant a rehearing cannot be supplemented by transferring this question to the
jurisdiction of the Umpire's."
I have no doubt that this is also the view of my Government as clearly stated
in the letter of the Embassy of October 11th and as I know for certain, this
was also in the mind of the German Agent when answering the Umpire's
question in the last Washington argument. And the same view was taken
by me with regard to the Umpire's decision of December 3, 1932, which did
not imply a decision on the question of reopening.
From the foregoing it clearly appears that at least from my viewpoint the
rules of the Commission do not imply the Commission's authority to reconsider
a No such memorandum in the records of Commission, see pp. 1111 et seq. (Note
by the Secretariat, this volume, pp. 179 et seq.)
DECISIONS 177
a case. On the contrary I never left any doubt that I thought a reopening
impossible against an objection from one side. It was for this reason that I
relied on the principal statement of the Commission's decision denying a
petition for reopening as recited by the American Commissioner in his opinion
Page 7 [p. 1090, this print],
1 saying that the rules of this Commission con-
forming to the practice of International Commissions make no provision for
a rehearing. A statement which seemed to me the more clear and unambi-
guous as it referred to the practice of international Commissions that is to the
side of the principle of the question.
If nevertheless the Commission dealt with the merits of the case that was
done, as I understood it, in order to soothe the feelings of the parties concerned.
This is what I have to add to my opinion dealing with the question of the
power of this Commission to reopen a case. It is unnecessary to say that my
argument is still stronger if we have to deal, as is the case here, with the question
of reopening a case dismissed not by one but by two decisions rendered on it.
KlESSELBACH
Supplemental Opinion by the American Commissioner
In the proceedings now pending before the Umpire on the question of the
jurisdiction of the Commission to reconsider its decisions in the so-called sabo-
tage cases, each of the national Commissioners has filed his opinion in support
of their respective contentions as to the questions in disagreement, and the
German Commissioner has now filed with the Umpire, on November 22, 1933,
an additional opinion in reply to the original opinion filed by the American
Commissioner.
In reply to this additional opinion, the present memorandum by the Ameri-
can Commissioner is now filed with the Umpire as a supplemental opinion.
The German Commissioner states at the outset of his additional opinion
that it is an addition to his opinion of May 6, 1933, already filed with the Um-
pire. At the time the German Commissioner's original opinion was filed, he
stated in his letter of May 5, 1933, to the American Commissioner (see minutes
of meeting of October 31, 1933
1 that he was under instructions from his
Government " to bring now the question whether or not our Commission has
the right to reopen, to a final decision ". He, therefore, inclosed a copy of his
opinion, but reserved the right to amend and supplement it if the American
Commissioner should prepare an opinion in disagreement, and he suggested,
" in order to expedite the matter ", that such opinion should be sent to him
by the American Commissioner with a Certificate of Disagreement, to be signed
and returned by the German Commissioner together with his final opinion.
This proposed procedure has since been carried out, and now that the
German Commissioner's opinion is in final form, as supplemented by the recent
addition thereto, and the American Commissioner does hereby file his supple-
mental opinion in reply, in accordance with the reservation noted by him,
the questions at issue between the two national Commissioners are now finally
before the Umpire with authority to render the decision of the Commission
thereon.
Inasmuch as the German Commissioner's additional opinion now under
consideration is, as above noted, merely an addition to his original opinion,
its purpose must be understood to be the same as that of the original opinion,
which, as above stated, was to bring "to a final decision the fundamental
a Mote by the Secretariat, this volume, pp. 164-165.
1 See Appendix. (Note by the Secretariat, this volume, Appendix IV (A), p. 483.)
178 UNITED STATES/GERMANY
question of whether or not our Commission has the right to reopen a final
decision ".
Nevertheless, some confusion results from the position now taken by the
German Commissioner in his additional opinion, to the effect that the Com-
mission has not the right either through the national Commissioners, or, in
case of their disagreement, through the Umpire, to determine its own juris-
diction on the questions presented, thus, apparently, abandoning his original
position. In short, he wants the judgment of the German Government sub-
stituted for the judgment of the Commission on the question of its jurisdictional
authority, and on this point the two Governments are in disagreement.
The German Commissioner frankly admits, although denying any authority
to reopen, that " If, nevertheless, a petition for reopening is filed, the Commis-
sion is bound to pass upon it, but to deny it, if and so far as one Government
opposes it ".
The only explanation which he gives of the uniform practice of the Com-
mission in considering the merits of a case presented on a petition to reopen
is that this was done " in order to soothe the feelings of the parties con-
cerned".
This idea of soothing the feelings of the parties does not appeal to the American
Commissioner as a sufficient or even admissible basis for giving serious conside-
ration to a reopening petition if in any event the Commission was bound to
reject it. It is rather grotesque to suppose that if the Commission considered
from the outset that it was without jurisdiction to reopen the sabotage decision,
the feelings of the claimants would be soothed by being permitted and even
encouraged to spend upwards of two years and many thousands of dollars in
presenting evidence and arguments in support of their petition. Furthermore,
the American Commissioner considers that this suggestion is a very serious
reflection on the good faith and good sense of the Commission, and he rejects
it as utterly without foundation so far as he is concerned.
Whatever may be the view of the German Government on this point, the
American Commissioner has no hesitation in saying that so far as his Govern-
ment is concerned he is confident that an expenditure of time and money
" to soothe the feelings " of the claimants by a futile gesture would be charac-
terized as an unwarranted and inexcusable extension of the scope of its functions
and duties.
At the meeting of the Commission in Washington last November this very
point was raised by the American Agent in his oral argument. He then said
(Printed Record, Oral Arguments, page 243) :
" There is a question which arises at the very threshold of these proceedings, and
that is the jurisdictional question.
" The German Agent opened his remarks by reading a statement; I am not
certain whether it is intended as an argument or a protest on the part of Germany
to this Commission considering the jurisdictional question. I thoroughly understand
his position, that he does not want to be considered as having waived the jurisdictional
question by discussing the evidence. But as I listened to the reading of that document
it occurred to me that perhaps there was more than that intended by that document.
" I am not sure what the attitude of Germany may be in reference to the juris-
dictional question. I am not certain whether it is the attitude of Germany that it
will not submit to this Commission jurisdictional questions for its consideration and
determination. If that be the attitude of Germany, I think we should know it at the
very beginning. I think we should have known it a year and a half ago. If that be
the attitude of Germany, then all that has occurred during the past year and a half
has been useless. If Germany takes the position that this Commission has no right
to consider and determine the jurisdictional question, then this whole proceeding
for the past year and a half has been little less than a farce.
DECISIONS 179
" If on the consideration and determination by the Commission of the evidence
which has been submitted for a reconsideration of the decision of the Commission
on October 16, 1930, the Commission should upon such determination decide that
Germany is liable for both of these destructions, then, if Germany were to take the
attitude that the decision of the Commission would not be binding on Germany,
it means that Germany is simply submitting its evidence and considering these cases
at the present time, but reserving to the end the position which the German Agent
announced as the position of Germany, that this Commission has no jurisdiction
or power to consider the question as to the right to reopen the case. I can hardly
conceive that that is possible, and yet that may be what was intended by reading
that protest at the very beginning of the argument."
Then follows the dialogue between the Umpire and the German Agent,
quoted in the American Commissioner's original opinion, containing the
explicit admission by the German Agent that the question of the Commission's
jurisdiction is a justiciable question to be submitted to the Commission for
decision.
The German Commissioner asserts that long before the question of reopening
the sabotage decision arose he was on record as denying the authority of the
Commission to reconsider a decision. The original decision in those cases
was rendered in October, 1930, but he says, "Already in July, 1928, I have
stated this opinion of mine in a memorandum to the other members of the
Commission in connection with a petition for rehearing."
It may be noted in passing, although it is not regarded as of importance in
the present discussion, that so far as the records of the American Commissioner,
or of the then Umpire disclose, no copy of or reference to the memorandum
mentioned can be found. The records show that the German Commissioner
was in Hamburg at the date of that memorandum, so it could have been
communicated to the other members of the Commission only by mail or cable,
but the records of the American Commissioner show that only three letters
passed between him and the German Commissioner during the Summer of
1928, and they were all of a distinctly personal nature. Moreover, it has not
been possible to identify the case to which the memorandum referred. The
only case which seems to resemble it is the Frank case, Docket No. 8130, in
which an interlocutory award was made on March 13, 1928, and an order
denying a motion to reopen was entered June 14, 1928, and a final award was
entered January 31, 1929. But the Umpire did not participate in entering
either the order or the award in that case, so that the question of the participa-
tion by the Umpire discussed in the 1928 Memorandum was not presented
in that case. In response to a cabled inquiry, a cable has just been received
from the German Commissioner, dated November 25, 1933, in which he says:
" Cannot remember name of case not does my copy show it but memorandum
deals with estate case in which we had oral argument and rendered decision with
reasons on question of obligation to distribute. Bonynge was very insistent therefore
I thought it important and wrote memorandum for you and Parker. (Signed)
Kiesselbach."
In any event, it is clear from the recorded decisions of the Commission that
no decision in accordance with the views expressed by the German Commissio-
ner in the Memorandum of July, 1928, was ever rendered by the Commission.
At that time no case was pending presenting for decision the questions therein
discussed. The sabotage re-argument petitions were not filed until January,
1931, and it has been stated over and over, with the concurrence of all concer-
ned, that the Commission has never rendered a decision on the jurisdictional
question mentioned, which has always been reserved for decision at the close
of the reopening proceedings in the sabotage cases.
180 UNITED STATES/GERMANY
This memorandum of July, 1928, therefore, has not the importance of an
expression of opinion by the Commission, although it is fully conceded to
have all the importance to which an expression of opinion by the German
Commissioner is entitled. That memorandum is to be considered, therefore,
solely from that point of view.
As quoted in the German Commissioner's additional opinion, the memo-
randum under consideration reads as follows :
" Under our charting an award is binding upon both Governments. Only when
the Commissioners disagree the Umpire comes into action. But here both the Commis-
sioners have agreed upon the award, and the Umpire, though having joined the
Commissioners' decision, has not acquired jurisdiction. It is therefore to the Com-
missioners, and to the Commissioners only, to pass upon the motion of a second
rehearing. Whether they can grant such motion by mutual consent is — under the
provision of the August Agreement — a very close question. But it seems clear to
me that not one of them can do so against the protest of the other. And it seems
further to be clear that in case of such a dissent the lack of the right of a single
Commissioner to grant a rehearing cannot be supplemented by transferring this
question to the jurisdiction of the Umpire."
The conclusion of the German Commissioner in this memorandum is three-
fold. First, he is not sure that the two national Commissioners by mutual
consent can change an award. Nevertheless, the German Commissioner has
joined with the American Commissioner in many cases in revising awards by
mutual consent. Second, he says. " it seems clear to me that not one " of the
Commissioners can grant such a motion against the protest of the other. With
this conclusion the American Commissioner agrees. Finally, he says, " it
seems further to be clear that in case of such a dissent the lack of the right of
a single Commissioner to grant a rehearing cannot be supplemented by trans-
ferring this question to the jurisdiction of the Umpire ". With this conclusion
the American Commissioner disagrees.
It seems to the American Commissioner that the German Commissioner's
final conclusion destroys itself by going too far. It goes to the extent of nulli-
fying the provision of the Agreement of August 10, 1922 (Article II), that the
Umpire is authorized " to decide upon any cases concerning which the Com-
missioners may disagree, or upon any points of difference that may arise in the course
of their proceedings ". The question discussed by the German Commissioner
clearly involves a " point of difference " arising between the two national
Commissioners in the course of their proceedings, and to deny the right of the
Umpire to decide upon it is to deny a right expressly conferred upon him by the
Agreement establishing the Commission.
The German Commissioner says in his additional opinion that he has no
doubt that the view expressed in his above quoted memorandum of July, 1928,
•" is also the view of my Government as clearly stated in the letter of the Em-
bassy of October 11, and as I know for certain, this was also in the mind of
the German Agent when answering the Umpire's question in the last Washing-
ton argument ".
It must be noted that the view expressed in the 1928 memorandum dealt
solely with the question of the authority of the national Commissioners to
reopen by mutual consent a previous decision, or, failing that, the jurisdiction
of the Umpire to act upon the questions presented by their disagreement.
This was a distinctly different question from that raised by the German Em-
bassy's letter of October 11th, which challenged the right of the Commission
as a whole " to pass upon a difference of opinion which may exist between the
two Governments in this connection ".
DECISIONS 181
So, also, in saying that he knew for certain that the view expressed by him
in his 1928 memorandum was also in the mind of the German Agent when
answering the Umpire's question on the oral argument, he has not clearly
distinguished in his own mind the question of the jurisdiction of the Commission
on which the national Commissioners are in disagreement, and the question
of disagreement between the two Governments as to the Commission's juris-
diction as a whole. The former issue was all that he was discussing in his
1928 memorandum, but the latter issue was distinctly presented in the question
put to the German Agent by the Umpire on the last oral argument.
The Umpire then pointed out to the German Agent that the Commission
understood that his position was that the Treaty (Agreement of August 10,
1922) should be construed as conferring no power upon the Commission to
review the sabotage cases, but not that the Commission could not consider
that question and determine its own jurisdiction under the Agreement. The
German Agent replied that " The understanding of the Commission is entirely
correct." The Umpire then added. " In other words that is a justiciable
question? ", to which the German Agent answered, " Yes."
Therefore, even if the views expressed by the German Commissioner in his
1928 memorandum were in the mind of the German Agent when answering
the Umpire's question, those views would not have affected his answer.
The American Commissioner also calls attention to the statement in the
German Commissioner's additional opinion that " the Umpire's decision of
December 3, 1932, did not imply a decision on the question of reopening ".
The American Commissioner considers that the views expressed by the Umpire
in that decision, as for instance, the conclusiveness of the Blue Book magazine
message as decisive in favor of the claimants if authentic, distinctly imply that
he was prepared to decide the petition in favor of the claimants if the facts
satisfied him that he was justified in exercising a jurisdictional and discretionary
authority to reopen the decision in those cases on the merits.
The other points raised by the German Commissioner's additional opinion
have already been covered by the original opinion of the American Commissio-
ner, and do not seem to call for any additional comment now.
It may be noted, however, that the German Commissioner contends that
the recital by the Commission in its orders of dismissal that the rules of the
Commission " conforming to the practice of international commissions make
no provision for a rehearing" is an admission of lack of jurisdiction. This
contention is met by the American Commissioner's statement in the original
opinion that " the Commission cannot announce in advance any general rule
as to how this right will be exercised because that would depend in each case
on whether or not the facts presented satisfied the Commission that in its
discretion the right should be exercised ".
In conclusion the American Commissioner considers that the original
position taken by the German Government, through its Agent, in the oral
argument, and by the German Commissioner in his letter of May 5th to the
American Commissioner, that this jurisdictional question is one to be decided
by the Commission, is the correct position. The new position now taken by
the German Government that this jurisdictional question cannot be adjudicated
by the Commission is not admissible. As stated by the American Commissioner
at the last meeting of the Commission (minutes of meeting of October 31,
1933), " The American Commissioner regards this attitude of the German
Government as an attempt to limit, without the consent of the Government
of the United States, the jurisdiction conferred upon the Commission by the
two Governments in their Agreement of August 10, 1922, in order to determine
independently of the Commission, and upon political or other considerations,
13
182 UNITED STATES/GERMANY
questions submitted by virtue of that Agreement to the Commission for
decision on purely legal grounds."
Done at Washington, this 27th day of November, 1933.
Chandler P. ANDERSON
American Commissioner
Decision of the Commission
The national Commissioners are in disagreement upon certain questions
arising in these cases. These questions will best be understood by a brief
statement concerning the history of the proceedings.
The memorials were filed by the American Agent in the Black Tom case
on March 16, 1927, and in the Kingsland case on March 26, 1927. The
answers of Germany were filed on December 14, 1927, and January 17, 1928,
respectively. Both Governments assembled evidence before and after the filing
of the memorials. With considerable further evidence presented after the
premature argument of April 3-12, 1929, the cases of the respective Govern-
ments again appeared to be completed so that submission and oral argument
could be had in April, 1930. It then developed that some evidence had
recently been elicited on behalf of the United States which made it certain that
both Governments would wish to file additional evidence, so the hearing was
by agreement adjourned to September 18, 1930, and both Governments sub-
mitted their cases at The Hague September 18-30, 1930, on the record as then
made. The Commission reached its decision dismissing both cases on Octo-
ber 16 and communicated it to the two Governments on November 13, 1930.
On January 12 and 22, 1931, the American Agent filed petitions for rehearing
and reconsideration, which assigned as reasons for the requested action that
the Commission had misapprehended the facts and committed errors of law.
These petitions were considered and dismissed by the Commission in an opinion
of March 30, 1931. On the same date the Commission addressed a letter to
the two Agents in which it said:
" In the decision handed down today in the Sabotage Cases the Commission has
decided the matter of rehearings in these cases so far as the rehearing petitions
therein are based on allegations of obvious error. This decision is related to the
record as it stood when the cases were decided, and the decision reserves the question
of the proposed admission of new evidence, which is a separate question.
" The Commission asks me to advise you that it desires the two Agents, without
waiting for the presentation of any additional new evidence, to submit briefs
discussing, first, the jurisdictional considerations and legal principles which should
govern the Commission's decision as to the admission of new evidence in these cases,
and, second, what kind of new evidence, if any, should be admitted.
" The Commission in this connection points out that the two Agents have already
presented some argument on the question of new evidence and each Agent has
based his argument in part on the decision of the Commission in the Philadelphia-
Girard National Bank case. To avoid further discussion as to the proper inter-
pretation of the language used by the Commission in that case we think it best to
advise you that the National Commissioners are agreed that it was the intention of
the Commission in that decision to rule against the introduction of further evidence
of any kind after the evidence had once been closed and a decision promulgated.
This ruling is not irrevocable, but it is desirable that argument addressed to the
question should be devoted not to the interpretation of that language but to the
principle itself. The Commission has not seen the new evidence offered by the
American Agent in the Sabotage Cases, but the descriptions of this evidence in his
motions filed March 5 and 11, 1931, give the impression that the evidence offered
is not new and is not of the character which courts admit after a decision is once
made in cases where, after a decision, they admit any new evidence.
DECISIONS 183
" The Commission accordingly requests that the Agents file their briefs on the
points above mentioned within two weeks, with leave to each Agent to file a reply
brief within one week after the receipt of the other Agent's brief."
Pursuant to this letter briefs on the question of the Commission's power to
reopen and rehear were filed April 27, 1931. Reply briefs were not filed, for
reasons not necessary to state here. On July 1, 1931, the American Agent
presented a supplementary petition for rehearing covering both cases, on the
ground of newly-discovered evidence, and in it set forth that he had procured
much additional evidence, some of which had been filed and the balance of
which was being filed with the petition. The German Agent offered no evi-
dence (he tendered none from the time of The Hague argument until January 9,
1932). A hearing was had at Boston July 30-August 1, 1931. The Commission
did not pass upon its power to reopen and rehear the cases at that time, but
reserved that question until it should have opportunity to examine the new
evidence filed. The Commission then stated that perhaps it would need the
assistance of an impartial expert to be retained by it to assist it in appraising
certain of the documentary evidence filed by the American Agent. This
matter was under advisement for some time, and on October 14, 1931, the
Umpire, with the concurrence of the Commissioners, forwarded a joint letter
to the two Agents stating as follows:
" It has proved impossible to carry out the American Agent's suggestion that
Mr. Osborn be employed by the Commission. Mr. Osborn himself is unwilling; the
American Agent now objects; the German Agent's consent is subject to restrictions,
and the Commission could not accept restrictions. The Commission hasnowdecided
not to make further search for a satisfactory expert. In view of Mr. Osborn's standing
in his profession, we would welcome the presentation of his testimony if the German
Agent himself desires to offer it. The Commission still reserves its decision as to its
right to admit new evidence in these cases."
Pursuant to this letter the German Agent on January 9, 1932, filed an
affidavit by A. S. Osborn with certain annexes and over a period from January
9 to August 15-29, 1932, filed additional annexes to Osborn's affidavit.
The present Umpire was appointed to fill the vacancy, caused by
Mr. Boyden's death, on March 24, 1932, and on April 8, 1932. a session of the
Commission was held in order to bring the matter to a head and end the existing
confusion. Pursuant to the agreement of the two national Agents an order
was entered to the effect that the American Agent should conclude the filing
of his evidence in support of his supplementary petition on or before June 1,
1932, and the German Agent file any evidence he cared to present in reply
on or before August 15, that briefs should be exchanged and filed on or before
September 15. and that the matter should be argued beginning November 1,
1932. The American Agent reserved no right to file reply evidence to that
presented by the German Agent but he did assemble reply evidence, and, in
order to give him additional time for its presentation, he was allowed until
November 15 and the hearing was adjourned to November 21. Permission
was also given to both Agents to file briefs not later than the close of the argu-
ment. It will be observed that during the entire period from March 30, 1931,
to November 21. 1932, what had occurred was subject to the decision of the
question of the Commission's jurisdiction to reopen the cases.
By mutual consent the hearing of November 21-25, 1932, was without
prejudice to Germany's objection to the Commission's jurisdiction, all agreeing
that if the new evidence filed would not change the result reached in the decision
of October 16, 1930, the jurisdictional question need not be answered. The
national Commissioners disagreed as to the effect of the new evidence, and the
question of its effect therefore came to the Umpire for decision. He rendered
184 UNITED STATES/GERMANY
the decision of the Commission of December 3, 1932, holding the new evidence
not sufficient to change the original findings and dismissing the petitions
for rehearing.
The matter had gotten into such shape that the method of procedure adopted
seemed the only practicable one. It was at best an unsatisfactory method,
and — without meaning any criticism of anyone — I am convinced, as the
matter is now viewed in retrospect, it would have been fairer to both the parties
definitely to pass in the first instance upon the question of the Commission's
power to entertain the supplementary petition for rehearing, as requested on
May 27, 1931, by the American Agent. The reception or rejection of the new
evidence would have been a consequence of the decision of that question.
As will be seen from the decision of December 3, 1932, Germany insisted upon
its objection to the jurisdiction of the Commission to rehear, and the United
States asserted that the Commission had such jurisdiction. The German
Commissioner reserved the question in the certificate of disagreement upon
which the Umpire's functioning was grounded.
On May 4, 1933, a single petition was filed by the American Agent (signed
by four firms of private counsel for claimants and countersigned by the Ameri-
can Agent) for a rehearing of both cases, which averred (1) "That certain
important witnesses for Germany, in affidavits filed in evidence by Germany,
furnished fraudulent, incomplete, collusive and false evidence which misled
the Commission and unfairly prejudiced the cases of the claimants ", (2)
" That there are certain witnesses within the territorial jurisdiction of the United
States", some of whom are specifically named in the petition, "who have
knowledge of facts and can give evidence adequate to convince the Commission
of the liability of Germany for the destruction of the Black Tom Terminal
and the Kingsland plant, but whose testimony cannot be obtained without
authority to issue subpoenas and to subject such witnesses to penalties for
failure to testify fully and truthfully ", (3) that evidence can be produced " to
show that the Commission has been misled by the German evidence ", (4)
" That there has also come to light evidence of collusion between certain
German and American witnesses of a most serious nature to defeat these claims."
This petition was filed with the proper officers of the Commission, but no
action has been taken upon it.
In May, 1933, the Umpire was apprised of the disagreement of the American
and German Commissioners with respect to the power of the Commission to
entertain the application. The German Commissioner by letter of May 5,
1933, addressed to the Umpire, enclosing a copy of his letter to the American
Commissioner of even date and a copy of his opinion on the question of reope-
ning, brought the situation to the attention of the Umpire. The German Com-
missioner's letter is as follows :
" Hamburg, May 5th, 1933
" My dear Mr. Justice,
" I beg to hand you herewith a copy of a letter I wrote to Mr. Anderson and
also a copy of an opinion I wrote on the question whether or not our Commission
has the right to reopen a case.
" Though from a strictly formal point of view you, as our Umpire, are not
interested in the question but after it has been certified to you by the two National
Commissioners, I feel it is my duty to keep you informed on what is going on,
since I am afraid that Mr. Anderson and I might not agree on the issue.
" I remain, my dear Mr. Justice,
very sincerely yours,
" Mr. Justice Owen J. Roberts, (Signed) W.
KIESSELBACH
United States Supreme Court,
Washington D. C."
DECISIONS 185
His letter to the American Commissioner appears in the minutes of the
Commission's meeting of October 31, 1933,
: and his opinion enclosed
therewith and the American Commissioner's opinion are embodied in the
American Commissioner's certificate of disagreement handed to the Umpire
at that meeting. An additional opinion of the German Commissioner was filed
on November 22 and a supplemental opinion of the American Commissioner
on November 27.
The foregoing statement will serve to disclose the nature of the points upon
which the Commissioners are in disagreement. A preliminary question of
procedure arises which must also be decided. It may be stated as follows:
May the Umpire, in the absence of a joint certificate submitting that question
to the Umpire, decide a question as to which the two national Commissioners
are in disagreement? If this preliminary question be answered in the affirma-
tive, then two others of substance remain for decision, as follows:
Has the Commission the power to pass upon the extent of its own jurisdiction?
If it has, then does this jurisdiction extend to the reopening of a case, once
decided, by reason of after-discovered evidence, or disclosure that testimony
offered was fraudulent, or a showing of collusion between witnesses for the two
Governments, and that, in consequence, the Commission was misled by the
record as made at the time of its decision?
Orderly procedure would have required that these issues be decided by the
Umpire before the filing of the tendered evidence, since the right to tender
such evidence is involved in the decision. The American Agent has, as I am
advised, filed a very large quantity of evidence, which, in view of the questions
of power now mooted, I have thought it improper to examine or to treat as
forming part of the record in the cases.
Addressing myself to the preliminary question of procedure, 1 conclude that
the disagreement of the national Commissioners is before me in such manner
as to make it my duty, under the Agreement of August 10, 1922, between the
two Governments, to take cognizance of the disagreement and decide the
questions involved. The Agreement provides, in Article II, " The two Gov-
ernments shall by agreement select an umpire to decide upon any cases con-
cerning which the commissioners may disagree, or upon any points of difference
that may arise in the course of their proceedings." The duty of the Umpire
under the plain terms of the document arises automatically upon a disagreement
between the Commissioners and his being apprised thereof. Under the Agree-
ment no formal act is required to bring into operation the authority thus vested
in the Umpire. Rule VIII (a), entered February 14, 1924 (amending that
rule as originally enacted on November 15, 1922), reads: " The two National
Commissioners will certify in writing to the Umpire for decision (1) any case
or cases concerning which the Commissioners may disagree, or (2) any point
or points of difference that may arise in the course of their proceedings, accom-
panied or supplemented by any statement in writing which either of them may
desire to make of his opinion with respect to the decision of the case or cases or
point or points of difference certified." But rules adopted by the Commission
as a matter of its own convenience and for the guidance of the national Agents
can not contravene the explicit terms of the instrument which created the Com-
mission. This brings me to the questions of substance.
May the Commission pass upon its own jurisdiction?
The Agreement of the two Governments created the Commission to deal
with three classes of claims specified in Article I arising by reason of obligations
undertaken by Germany under the Treaty of Berlin of August 25, 1921.
1 See Appendix. (Mote by the Secretariat, this volume, Appendix IV (A), p. 483.)
186 UNITED STATES/GERMANY
While at the date of the execution of the Agreement. August 10, 1922. it was
known that such claims would be numerous and amount in the total to a huge
sum. the nature and the validity of the separate claims which might be sub-
mitted were unknown. It was for the purpose of passing upon these claims,
both as to validity and amount, that the Commission was created. At the
very threshold the tribunal might encounter in each case the question whether
the claim presented fell within the categories of those to be adjudicated or
was outside the scope of the Treaty and the Agreement. In this aspect the
Commission was bound to determine its own jurisdiction, and for that purpose
to interpret and apply the terms of the Agreement which created it.
A decision that it had jurisdiction of a claim was by the very terms of the
Agreement to be accepted by both Governments as final and binding upon them
(Article VI). The Agreement submits the questions for decision as between
the two Governments to the Commission. What those questions are must be
determined within the four corners of the instrument. It is not within the com-
petency of either Government to retract the authority which it conferred upon
the Commission. If that body may not from the terms of the Agreement
ascertain what power was conferred, it would be wholly incompetent to act
except in an advisory capacity, and none of its decisions could in the nature
of the case be accepted as final and binding by the Governments, as the Agree-
ment states they shall be. How the Commission shall proceed with its task,
the form of pleading to be adopted, the manner of hearing (subject to what
is hereafter stated in respect of Article VI). the form and entry of its decisions, its
control over a case after a decision is rendered, are all left to its determination
and regulation.
The Agreement is to be read in the light of its language and its purpose;
and where it is silent, the powers and duties of the Commission are to be deter-
mined according to the nature of the function entrusted to it. I have no doubt
that the Commission is competent to determine its own jurisdiction by the
interpretation of the Agreement creating it. Any other view would lead to
the most absurd results — results which obviously the two Governments did
not intend.
This brings me to the second question of substance.
Has the Commission the power to reopen a case upon the showing made
by the pending petition?
The answer to this question must also be found in the terms of the Agreement
creating the Commission. On the one hand it is pointed out that the preamble
refers to the desire of the parties that the " amount to be paid by Germany in
satisfaction of Germany's financial obligations * * * " be determined.
The fact that " amount " is singular rather than plural and while various
claims of American citizens and the Government are involved, in the ultimate
Germany is to pay a total ascertained by the addition of all the claims allowed,
is said to make the Commission the arbiter of a single suit or action consisting
of thousands of counts, each count representing the claim of an American
national or of the Government of the United States. It is insisted that the Com-
mission is limited by a few covenants, rules, or directions to be found in the
Agreement, that it may proceed practically as it sees fit to accomplish the task
committed to it. that its only concern is justice and equity as between the
Nations signatory to the Agreement, and that if in justice and equity it should
rehear a case nothing in the Agreement or in the constitution of the Commission
stands in the way. The argument is that in effect the tribunal sits without
terms or sessions as a continuing tribunal, trying a single case, and its doors
are never closed to the litigants before it until it shall have completed this
task and formally disbanded.
DECISIONS 187
On the other hand it is contended that each of the claims presented con-
stitutes a case within the meaning of the Agreement; that each is initiated by
a petition or memorial to which an answer is filed, thus making up an issue
for trial; that it was intended, when the Commission reached a decision in
any such case, the decision should be final and binding upon the parties;
that the Commission is without power, once it has rendered its decision in a
case, to reopen or rehear it for any reason.
I think these positions are both extreme and that neither represents the true
construction of the Agreement or an accurate definition of the Commission's
powers.
I am not persuaded that the use of the word " amount " in the preamble
makes the Commission a tribunal to try a single action divided into counts.
There is much to indicate that, while the total of the awards is to be taken to
make up the amount due by Germany, the claims presented are to be treated
as individual cases. Thus in Article II, where reference is made to the selection
of the Umpire, his function is amongst other things specified as " to decide
upon any cases concerning which the commissioners may disagree, * * * ".
And cases are in this sentence distinguished from questions. Article IV provides
that " The commissioners shall keep an accurate record of the questions and
cases submitted * * * ". The uniform practice of the Commission indi-
cates this understanding of its function, for each claim has been treated as
initiating a separate case and has eventuated in a separate decision (a decision
of it as a separate case: even though as a convenience the Commission in one
document frequently dismissed a number of claims and less frequently rendered
awards in a number of cases, each received the same treatment as if the decision
thereof had been expressed in a record devoted to it alone). On the part of the
United States this method of dealing with the claims has been recognized in
the Settlement of War Claims Act of 1928 where provision is made for the
certification to the Treasury of the awards of the Commission as they are made
upon individual claims.
My view is that the Commission is a tribunal sitting continuously with all
the attributes and functions of a continuing tribunal until its work shall have
been closed; and that as such tribunal it is engaged in the trial and adjudication
of a large number of separate and individual cases.
The German Government would have me draw from these premises the
ultimate conclusion that the Commission is without power to reopen any case
in which it has made a decision, and in support of this view refers to the last
paragraph of Article VI, which provides " The decisions of the commission
and those of the umpire (in case there may be any) shall be accepted as final and
binding upon the two Governments." This paragraph, in my judgment,
furnishes no aid to the German argument. It is a covenant as between the
two Nations binding each of them with respect to any decisions which may be
made. But it is to be observed that neither this paragraph nor any other
provision of the Agreement purports to define what is or what shall be considered
a " decision of the commission ". It is left to the Commission to determine
when its decision upon any claim is final. It has no concern with the action
taken in consequence of its awards. It is a matter for the two sovereigns to
carry out their agreement that they shall accept the decisions as final
and binding. If a decision should be revised by the Commission as a
result of a rehearing and a new decision reached in a particular case, the
Commission would have no concern with the adjustment of the settlement
consequent upon its action. A court may often render a judgment which, by
reason of what has occured, it is not possible to execute in accordance with its
terms, but the mere fact that the judgment may be incapable of execution
188 UNITED STATES/GERMANY
in part or in whole in no way alters the jurisdiction of the tribunal or indeed its
duty to render such judgment as to justice and right may appertain.
With this preliminary general statement as to the jurisdiction of the Com-
mission, I address myself to a determination of its power to reopen a case in
which it has rendered a decision.
1. I think it clear that where the Commission has misinterpreted the evidence,
or made a mistake in calculation, or where its decision does not follow its fact
findings, or where in any other respect the decision does not comport with the
record as made, or where the decision involves a material error of law, the
Commission not only has power, but is under the duty, upon a proper showing,
to reopen and correct a decision to accord with the facts and the applicable legal
rules. My understanding is that the Commission has repeatedly done so
where there was palpable error in its decisions. It is said on behalf of Germany
that this has never been done except where the two Agents agreed that such
course under the circumstances was proper. And the argument is drawn from
this fact that the Commission is without power to take such action of its own
motion or in the face of opposition by either Agent. I can not follow this
argument.
If the Commission's decisions once made are final and the body wholly
without power to reopen them, then a case once decided can only be reopened
by a formal agreement of the two Governments amending the Agreement under
which the Commission sits, for no additional power can be conferred upon the
tribunal except by the parties who called it into being and gave whatever
jurisdiction it originally possessed. If, therefore, a case may be reopened by
consent, the same action may be taken without consent. The first petition
for reopening and rehearing filed in these cases by the American Agent was
based in grounds such as are above described. I have no doubt that the Com-
mission had power to consider that petition and to deal with the case in the
light of the matters it brought forward.
2. I come now to the question of jurisdiction to reopen for the presentation
of what is usually known in judicial procedure as after-discovered evidence.
I am of opinion that the Commission has no such power.
In cases where a retrial is granted or a reopening and rehearing indulged
for the submission of so-called after-discovered evidence, this is usually by a
court. It is to the interest of the public that litigation be terminated, and
municipal tribunals have the power to set a case for trial and to compel the
parties to proceed. While they will not compel a litigant to proceed without
hearing his reasons for delay, neither party has a right to hold the case open
until he feels that he has exhausted all possible means of obtaining evidence.
If such right existed, courts would be unable to function. By analogy, if this
Commission had the power to make an order to close the proofs in any case
and compel the parties to proceed, either party who was not then ready,
because it had not exhausted its sources of information and evidence, might
well have an equity to ask a reopening that it might be permitted to offer
evidence theretofore unavailable.
But the situation here is quite otherwise. Article VI, second paragraph,
provides " The commission shall receive and consider all written statements
or documents which may be presented to it by or on behalf of the respective
Governments in support of or in answer to any claim." All must admit the
parties intended the Commission should not sit indefinitely but should expedi-
tiously complete its work. The Agreement provides that all claims to be
considered must be brought to the Commission's attention within six months
of its first session. But, on the other hand, no time limit whatever was set in
DECISIONS 189
the original Agreement for the closing of proofs. In contradistinction, such a
mandatory provision for closing proofs was embodied in the supplementary
Agreement of December 31, 1928, as to claims embraced within the scope of
that instrument.
The Commission has from its inception been sensible of its lack of power to
compel the closing of the record and the final submission of any case. While
it has urged the Agents to complete their records and to submit and argue
their cases upon such completion and has sought the cooperation of the Agents
to bring the cases to final submission, it has never, as I am advised, entered
an order for the final closing of the record in any case without consent or over
objection. I do not think it has power so do to. The clause quoted from
Article VI compels the reception of any written statement or document pre-
sented by either party. As I read this provision, so long as either party is of
opinion that written statements or documents are or may be available in
support of its contention it may of right demand that the Commission await
the filing thereof before final submission of the cause. The American Agent
was under no obligation to close his record and submit his case at The Hague
if he knew, or had reason to expect, that further evidence was obtainable.
It is suggested in the petition for reopening that the United States was
unable to obtain the evidence from certain witnesses without the power to
compel their testimony. This fact was as obvious in the autumn of 1930 as it
is today. The German Government availed itself of its ordinance of June 28,
1923, which permitted the summoning of witnesses, placing them under oath,
examining them before a court, and rendering them liable to penalty for
false-swearing. No reason is apparent why a similar statute could not at
any time have been adopted in the United States. The best evidence that it
could is that when the American Agent and the Department of State requested
the passage of such a law it was promptly enacted and has been availed of in
obtaining evidence now proffered (Act of June 7, 1933). The lack of an
instrument which would have been ready to hand if requested can not excuse
the failure to obtain the testimony thereby obtainable.
The Agreement does not contemplate that when the two Agents signify
their readiness to submit a case and do submit it upon the record as then made
to their satisfaction, obtain a hearing and decision thereon, the Commission
shall have power to permit either Agent to add evidence to the record and to
reconsider the case upon a new record thus made.
3. The petition now under consideration presents, in the main, a situation
different from either of those above discussed. Its allegations are that certain
witnesses proffered by Germany furnished the Commission fraudulent, incom-
plete, collusive, and false evidence which misled the Commission and unfairly
prejudiced the claimants' cases; that certain witnesses, including some who
previously testified, who are now within the United States, have knowledge
and can give evidence which will convince the Commission that its decision
was erroneous; that evidence has come to light showing collusion between
certain German and American witnesses to defeat the claims. These are
serious allegations, and I express no opinion of the adequacy of the evidence
tendered by the American Agent to sustain them. I have refrained from
examining the evidence because I thought it the proper course at this stage
to decide the question of power on the assumption that the allegations of the
petition may be supported by proof, postponing for the consideration of the
Commission the probative value of the evidence tendered.
The petition, in short, avers the Commission has been misled by fraud and
collusion on the part of witnesses and suppression of evidence on the part of
some of them. The Commission is not functus officio. It still sits as a court.
190 UNITED STATES/GERMANY
To it in that capacity are brought charges that it has been defrauded and
misled by perjury, collusion, and suppression. No tribunal worthy its name
or of any respect may allow its decision to stand if such allegations are well-
founded. Every tribunal has inherent power to reopen and to revise a decision
induced by fraud. If it may correct its own errors and mistakes, a fortiori it
may, while it still has jurisdiction of a cause, correct errors into which it has
been led by fraud and collusion.
I am of opinion, therefore, that the Commission has power to reopen these
cases, and should do so, in order that it may consider the further evidence
tendered by the American Agent and, dependent upon its findings from that
evidence and any that may be offered in reply on behalf of Germany, either
confirm the decisions heretofore made or alter them as justice and right may
demand.
Done at Washington December 15, 1933.
Owen J.
ROBERTS
Umpire
LEHIGH VALLEY RAILROAD COMPANY, AGENCY OF CANADIAN
CAR AND FOUNDRY COMPANY, LIMITED, AND VARIOUS UNDER-
WRITERS (UNITED STATES) v. GERMANY
(Sabotage Cases, November 9, 1934, pp. 1155-1158; Certificate of Disagreement,
September 29. 1934. pp. 1128-1155.)
PROCEDURE: MOTION TO ORDER BILL OF PARTICULARS CONCERNING FILED
EVIDENCE. — EVIDENCE: FILING, RELEVANCY. MOMENT FOR DISCUSSION.
Motion of German Agent filed June 13. 1934, for ruling that American
Agent, who filed evidence in support of request for rehearing (see headnote
preceding previous decision, p. 160 supra), by brief, bill of particulars, or
otherwise substantiate charges of a general nature contained in request.
Motion overruled: (I) filed evidence in itself defines and limits allegations,
(2) inappriopriate, not helpful, and unfair to demand discussion of evidence
by American Agent prior to German Agent's filing of evidence, (3) under
Agreement of August 10. 1922, Commission must receive any writing either
sovereign party may tender and may not, as court in civil law procedure,
rule out evidence for irrelevancy, (4) decision of December 15, 1933 (see
p. 160 supra), defining character of evidence which Commission will receive,
enables German Agent to determine whether or not to offer evidence in
rebuttal.
Cross-reference: Witenberg. Vol. Ill, pp. 25-27 (French text).
Bibliography: Witenberg. Vol. Ill, pp. 25-27.
Certificate of Disagreement
A Motion by the German Agent filed June 13, 1934, has now been submitted
to the Commission asking for an order that the American Agent file a brief,
a bill of particulars, or some other written statement substantiating the con-
tentions advanced in his petition for a rehearing, wherein specific allegations
be listed and specific evidence filed by him in support of his petition for reopening
the Sabotage Cases be cited.
DECISIONS 1 9 I
The Motion under consideration relates to the charges made by the American
Agent in his petition for a rehearing in the Sabotage cases filed by him on
May, 4, 1933. This petition averred (i) "'That certain important witnesses for
Germany, in affidavits filed in evidence by Germany, furnished fraudulent,
incomplete, collusive and false evidence which misled the Commission and
unfairly prejudiced the cases of the claimants ", (2) " That there are certain
witnesses within the territorial jurisdiction of the United States ", some of
whom are specifically named in the petition, " who have knowledge of facts
and can give evidence adequate to convince the Commission of the liability
of Germany for the destruction of the Black Tom Terminal and the Kingsland
plant, but whose testimony cannot be obtained without authority to issue
subpoenas and to subject such witnesses to penalties for failure to testify fully
and truthfully ", (3) That evidence can be produced " to show that the Com-
mission has been misled by the German evidence ", (4) " That there has also
come to light evidence of collusion between certain German and American
witnesses of a most serious nature to defeat these claims."
On June 13, 1934, the German Agent filed an Answer to the American
Agent's petition of May 4, 1933. This Answer denied " that witnesses for
Germany in affidavits filed by Germany furnished fraudulent, incomplete,
collusive and false evidence which misled the Commission and unfairly pre-
judiced the cases of the claimants ".
This Answer also alleged that " the German Agent is at a loss to make a
more detailed rebuttal since the allegations of the petition as quoted above
are vague and general, and do not cite which specific witnesses are to be charged
with fraud, collusion, etc., and which parts of their testimony are false and
mislead the Commission. For the same reasons the German Agent is not in
a position to determine at this time whether or not he will file evidence in re-
buttal of the testimony, reports and other material presented by the American
Agent in support of the petition." This Answer further indicates that the reason
for filing the motion for a bill of particulars is to set out more fully these criticisms
of the petition.
Evidence in support of the American Agent's petition was filed during the
period September 15. 1933, to February 15. 1934. on which last mentioned
date the American Agent gave notice that he had filed all the supporting
evidence that he desired to present in that proceeding, pending the filing by
the German Agent of rebuttal evidence, if any.
This petition presented a jurisdictional question as to the right of the Com-
mission to reconsider its original decision dismissing these cases, which the two
Governments desired to have decided before examining the evidence offered
either with respect to its admissibility or its bearing on the merits of the
claims.
The National Commissioners disagreed on this jurisdictional question and
the decision was, accordingly, rendered by the Umpire.
The Umpire held in his decision, rendered on December 15, 1933:
"I.I think it clear that where the Commission has misinterpreted the evidence,
or made a mistake in calculation, or where its decision does not follow its fact
findings, or where in any other respect the decision does not comport with the
record as made, or where the decision involves a material error of law, the Com-
mission not only has power, but is under the duty, upon a proper showing, to
reopen and correct a decision to accord with the facts and the applicable legal
rules. My understanding is that the Commission has repeatedly done so where there
was palpable error in its decisions. It is said on behalf of Germany that this has
never been done except where the two Agents agreed that such course under the
circumstances was proper. And the argument is drawn fiom this fact that the
192 UNITED STATES/GERMAN Y
Commission is without power to take such action of its own motion or in the face
of opposition by either Agent. I cannot follow this argument.
*******
" * * * The first petition for reopening and rehearing filed in these cases by
the American Agent was based on grounds such as are above described. I have no
doubt that the Commission had power to consider that petition and to deal with
the case in the light of the matters it brought forward."
The decision then continues:
" 2. I come now to the question of jurisdiction to reopen for the presentation
of what is usually known in judicial procedure as after-discovered evidence. I am
of opinion that the Commission has no such power.
*******
" It is suggested in the petition for reopening that the United States was unable
to obtain the evidence from certain witnesses without the power to compel their
testimony. This fact was as obvious in the autumn of 1930 as it is today. The German
Government availed itself of its ordinance of June 28, 1923, which permitted the
summoning of witnesses, placing them under oath, examining them before a court,
and rendering them liable to penalty for falseswearing. No reason is apparent why
a similar statute could not at any time have been adopted in the United States.
The best evidence that it could is that when the American Agent and the Depart-
ment of State requested the passage of such a law it was promptly enacted and has
been availed of in obtaining evidence now proffered (Act of June 7. 1933). The
lack of an instrument which would have been ready to hand if requested can not
excuse the failure to obtain the testimony thereby obtainable.
" The Agreement does not contemplate that when the two Agents signify their
readiness to submit a case and do submit it upon the record as then made to their
satisfaction, obtain a hearing and decision thereon, the Commission shall have
power to permit either Agent to add evidence to the record and to reconsider the
case upon a new record thus made."
In conclusion the decision holds :
" 3. The petition now under consideration presents, in the main, a situation
different from either of those above discussed. Its allegations are that certain wit-
nesses proffered by Germany furnished the Commission fraudulent, incomplete,
collusive, and false evidence which misled the Commission and unfairly prejudiced
the claimants' cases; that certain witnesses, including some who previously testified,
who are now within the United States, have knowledge and can give evidence
which will convince the Commission that its decision was erroneous ; that evidence
has come to light showing collusion between certain German and American wit-
nesses to defeat the claims. These are serious allegations, and I express no opinion
of the adequacy of the evidence tendered by the American Agent to sustain them.
I have refrained from examining the evidence because I thought it the proper
course at this stage to decide the question of power on the assumption that the
allegations of the petition may be supported by proof, postponing for the considera-
tion of the Commission the probative value of the evidence tendered.
" The petition, in short, avers the Commission has been misled by fraud and
collusion on the part of witnesses and suppression of evidence on the part of some
of them. The Commission is not functus officio. It still sits as a court. To it in that
capacity are brought charges that it has been defrauded and misled by perjury,
collusion, and suppression. No tribunal worthy its name or of any respect may
allow its decision to stand if such allegations are well-founded. Every tribunal has
inherent power to reopen and to revise a decision induced by fraud. If it may
correct its own errors and mistakes, a fortiori it may, while it still has jurisdiction
of a cause, correct errors into which it has been led by fraud and collusion.
" I am of opinion, therefore, that the Commission has power to reopen these
cases, and should do so, in order that it may consider the further evidence tendered by
DECISIONS 193
the American Agent and. dependent upon its findings from that evidence and any that
may be offered in reply on behalf of Germany, either confirm the decisions here-
tofore made or alter them as justice and right may demand."
Turning back now to the question presented by the German Agent's Motion,
hereinabove mentioned, filed June 13th, for " a bill of particulars ", etc., this
motion has now been submitted for the decision of the Commission, accompa-
nied by a " Reply of the American Agent ", etc., filed June 23, 1934, and
also by a " Memorandum filed by the German Agent on July 26, 1934, relative
to the Reply of the American Agent ", and a '' Reply to the German Agent's
Memorandum " filed by the American Agent on August 6, 1934. The national
Commissioners are in disagreement as to the action to be taken by the Commis-
sion on this Motion, their respective opinions being as follows:
Opinion of the American Commissioner
It appears from the foregoing statement of the present status of the pending
proceedings that the only question now presented for decision by the Com-
mission is the action to be taken on the German Agents' Motion for a bill of
particulars, and that the Commission is not called upon to take any action on
the pending petition for rehearing, which has not yet been submitted for its
decision. Neither is the Commission called upon at this time to determine
what evidence submitted by the American Agent is to be considered. The
American Agent has not been heard upon that question. It is not presented
at this time. It can only be presented and considered when the petition and
supporting evidence is submitted to the Commission for action.
In discussing the issues presented by this Motion, the German Agent relies
on the Umpire's decision of December 15, 1933, as having the effect of elimi-
nating from consideration all evidence offered by the American Agent which
comes within the application of two of the three classes of evidence dealt with
by the Umpire. He couples his Motion with his Answer to the petition, and
in the Answer he takes the position that " under the decision of the Umpire
of December 15, 1933, which rules that no after-discovered evidence and
consequently no allegations based on such evidence can be the basis for a
re-hearing ", he will refrain from a discussion of allegations based on such
evidence because it has become immaterial.
In taking this position as to the effect of the Umpire's decision the German
Agent is entirely within his rights but in the opinion of the American Commis-
sioner he has completely misinterpreted the meaning of the Umpire's decision.
The Umpire has held that newly discovered evidence is not admissable merely
for the purpose of changing the record on which the original decision was made.
But in the same decision the Umpire has also held that new evidence challenging
the truth and good faith of evidence upon which the Commission relied in
making its original decision was not only admissible but must be considered
on a petition for a rehearing. The Umpire made his position on that point
clear when he said in his decision of December 3, 1932, with reference to the
Blue Book Magazine message:
" If the so-called Herrmann message is authentic, that document alone would
compel a contrary finding to that I have just stated so far as concerns Wozniak's
being a German agent." (Decs, and Ops. of Com., p. 1013.)
a
Note by the Secretariat, this volume, p. 113.
194 UNITED STATES/GERMANY
Again, the Umpire said in that decision, with reference to the Herrmann
message, that:
"As the American Agent has well said, I may utterly disregard all the new
evidence produced and still, if I deem this [Herrmann] message genuine hold
Germany responsible in both of these cases." (Id., p. 1016.)
b
Reading the Umpire's decision of December 15, 1933, in the light of these
statements in his decision of December 3, 1932, it is evident that he regarded as
admissible any new evidence which proved fraud, perjury, collusion, or sup-
pression of facts in the original record.
While the Commission by the Umpire in its decision of December 15, 1933,
held that this Commission did not have the power to reopen a decision merely
on after-discovered evidence, this does not mean that the Commission cannot
and will not receive and consider after-discovered evidence for the purpose of
determining whether any evidence upon which the Commission relied in its
decision of October 16, 1930, was of a false and perjurous character, or whether
any such evidence established the fact that the Commission in the decision of
October 16, 1930, was in fact misled to the detriment of claimants on whose
behalf the United States is presenting these claims by the character of the evi-
dence filed at that time by the German Agent. This is particularly true where
the so-called after-discovered evidence conclusively shows the falsity and
misrepresentation inherent in certain of the essential defense evidence filed
prior to The Hague decision.
The German Agent also takes the position in his Answer that " that part of
the petition which deals with the American Agent's endeavors to compel
testimony under oath has become immaterial since the Act of June 7, 1933,
was passed and the German Agent, therefore, refrains from commenting
thereon ".
The only comment on this point that the American Commissioner feels
called upon to make at this time is to point out that during all the period under
consideration there was a law of the Congress of the United States (Act of
July 3, 1930. 46 Stat. 1005) in force which authorized the compulsory exami-
nation of witnesses in the United States by this Commission, and notwith-
standing repeated requests by the American Agent to have the Commission
take action under this law such action by the Commission was prevented by
the obstructive attitude of the German Government. As was pointed out in the
Certificate of Disagreement of the two National Commissioners of Novembei 28,
1932 (Decs, and Ops. of Com., p. 1000), c these requests of the American Agent
were supplemented by the suggestion of the Commission itself to the two
Governments that they confer the requisite authority on the Commission to
take advantage of the right granted by the Act of July 3, 1930.
The German Agent concludes, therefore, that in view of the limitations
imposed by the Umpire's decision upon the evidence to be considered, the
contention to be dealt with concerns only " that part of the petition of May 4,
1933, in which the American Agent alleges that 'witnesses for Germany, in
affidavits filed by Germany, furnished fraudulent, incomplete, collusive and
false evidence which misled the Commission and unfairly prejudiced the cases
of the claimants ' ".
It is the evidence filed in support of this allegation to which the German
Agent addresses this Motion for a bill of particulars.
He says: "This allegation is very vague and unsubstantial, no specific
statement or part of a statement being identified that, in the opinion of the
b Note by the Secretariat, this volume, p . 115
c Note by the Secretariat, this volume, p . 105
DECISIONS 195
American Agent, is to be held untrue and misled the Commission; nor is
there any indication as to which German witnesses are to be charged with
fraud, perjury, collusion, etc."
It will be noted that under the German Agent's interpretation of the effect
of the Umpire's decision, the scope of the discussion is reduced to a consideration
of the new evidence bearing upon the question of whether any evidence on
which the Commission relied in rendering its original decision was false, fraudu-
lent, incomplete or collusive, thereby misleading the Commission and unfairly
prejudicing the cases of the claimants.
The German Agent asserts in his Motion that " This material contains a
tremendous number of assertions, many of them being in conflict with each
other, or with statements made in testimony previously submitted by the
American Agent. For this reason and inasmuch as it is anything but self-
explanatory, it leads to unclear, inconsistent, or contradictory conclusions;
in some instances it is not possible at all for the German Agent to arrive with
certainty at a conclusion which might be drawn from particular pieces of
material."
The American Agent in reply points out that issues to be considered are
issues of fact and have already been sharply defined.
He says further: " Both sides know what they are and the task of the German
Agent, in so far as the new evidence is concerned, is merely to examine it,
determine in what respect, taken in connection with prior evidence in the case,
it discredits positions taken and proof offered by the defence at The Hague
submission. This is ordinarily a task which counsel in any litigation are
expected to perform for themselves."
The American Agent adds: " The real question is whether they [the defense]
should be supplied by the American Agent with a brief analysing the signifi-
cance of the new evidence in advance of introducing their own rebuttal
evidence."
The German Agent says at page 4 of his Motion: " Sometimes the result of
the examination by the German Agent [of the evidence supporting the petition
for rehearing] would show that an affidavit of a German witness is in accordance
with one part of the new evidence, whereas it is contradicted by another part
of it. In such case he would have to consider steps on his part with regard
to both alternatives to the question of counter-evidence."
The American Agent's comment on this statement is that " This dilemma,
the answer to which the German Agent says involves a tremendous under-
taking on his part, is brought about by the prior positions taken by his witnesses.
This is a situation for which the American Agent is in no sense responsible,
and which offers no basis for the relief asked for by the German Agent." He
says further that he does not feel called upon to explain or elect what part of
the testimony of the German witnesses he intends to rely on. On the contrary
he says, " The American Agent intends to rely upon the entire body of evidence
submitted in support of the petition for a rehearing."
In view of the foregoing considerations, and taking into consideration also
the very specific information which the American Agent has set out in his
petition giving the names of four witnesses whose evidence is challenged and
six listed categories of alleged facts, the truth of which he seeks to establish by
the new evidence, the American Commissioner is of the opinion that the task
of the German Agent is much less difficult and complex than he represents it
to be.
Furthermore, the German Agent has already had several months since the
new evidence was filed in which to study all of it, and twice as much time to
study the greater part of it, and was personally present at the examination of
196 UNITED STATES/GERMANY
one of the most important witnesses. He evidently has already given it a very
careful examination, as appears from some of the allegations in his Motion
papers.
However, even accepting the German Agent's own estimation of his diffi-
culties, it does not appear to the American Commissioner that he is entitled
to call upon the American Agent to assist him in formulating his defence.
Such procedure would be most unfair to the American Agent, and, in the
opinion of the American Commissioner, would result in protracting rather
than expediting the progress of this litigation. The method of procedure
sought by the German Agent would require the American Agent to submit a
brief on an incomplete record, leaving the German Agent free to file rebuttal
evidence later which would not merely call for a new brief by the American
Agent, but at the same time would protract and delay the decision of these
cases.
The objections to the proposed plan demonstrate why it has never been
adopted as a recognized rule of procedure.
These points have been fully argued by the American Agent in his reply and
Memorandum in opposition to the Motion, and the American Commissioner
fully concurs in the views therein set forth.
Furthermore, the only question which the German Agent is called upon to
decide now is whether or not he desires to submit any evidence in rebuttal and
that is a question which he must decide for himself without calling upon either
the American Agent or the Commission to help him in making his decision.
As already pointed out, the petition itself is not yet before the Commission
for action.
For these reasons, as well as for the additional reasons advanced by the
American Agent in opposition to this Motion, the American Commissioner
concurs in the conclusions set forth in the American Agent's Reply, which are
briefly : ( 1 ) the demand for a bill of particulars is inappropriate in the present
situation; (2) the rules of the Commission do not require the American Agent
to file a brief on the new evidence before the record is complete; (3) to require
the American Agent to file a brief dealing with an incomplete record would
delay rather than expedite the orderly progress of this case, and the briefs of
both Agents should be filed simultaneously before the petition itself is submitted
for decision and should deal both with the admissibility of the new evidence
and its value on the merits of the issues involved. The American Commissioner,
accordingly, holds that the Motion should be denied.
Chandler P. ANDERSON
American Commissioner
August 23, 1934.
Opinion of the German Commissioner
I. The Umpire's Decision of December 15th, 1934 [1933], has defined the
thema probandum of the discussion.
The thema probandum at present is not the old one discussed at the Hague
and Washington on September 18th, 1930 and November 21, 1932: "Did
German Agents cause the destruction of Black Tom and Kingsland? " but
the thema probandum is now: " Did witnesses as defined by the December
Decision commit fraud etc., as defined by the Decision and was the Commission
misled by such fraud? "
A new thema probandum means a fresh case. (When I say " a fresh case ",
it is not meant to exclude the possibility of framing the fresh case partly by
DECISIONS 197
reference to certain pieces of the old file; how far such procedure may be
permissible shall be dealt with later.)
//. The Umpire's Decision contains a twofold ruling which governs the fresh
case: a positive and negative one. The Decision rules positively what alle-
gations the fresh case must contain and negatively what allegations it is not
allowed to contain.
The American Commissioner has ventilated both sides and he has begun
with the negative one. I shall do the same. He has handled the subject in
an abstract way: he does not dwell on any specific evidence, asking whether
it is admissible or not, but he explains generally what consequences ought to
be drawn from the Umpire's ruling and what its right interpretation is. Only
in one place the American Commissioner mentions a particular piece of evidence
(the Herrmann message). Again I shall follow his example, speaking generally
about the same things and mentioning regarding the different pieces of evidence
only the Herrmann message, in order to answer what has been said about it.
///. The Umpire's ruling sets up three categories: palpable error, new
evidence, fraud. The first category is no longer of interest here. The second
category is barred to the Claimants: it is not permissible for them to introduce
allegations which would fall under this category. They are restricted to the
third category; they are allowed to rely on fraud, suppression, collusion.
To avoid any misunderstanding in this connection, one point should be
stressed at the very outset: When the Umpire speaks of fraud, suppression,
collusion, he does not mean anything which was already at the Hague or at
Washington brought before the Commission and fully and fairly argued before
it. Fraud, already discussed, does not open the door to a reconsideration of any
case. No party may claim more than a fair and exhaustive hearing ; this granted
it does not matter whether the subject-matter thus exhaustively and fairly
dealt with, was an allegation of fraud or any other allegation. All reasons
possibly adduced to justify a reconsideration on account of fraud (including
the reasoning in the Umpire's Decision) does not apply to and does not cover
the case of an allegation of fraud, previously made and previously dealt with
under all the guarantees of the Law. (Of course, if a further fraud is alleged,
different from the one already discussed, but preventing the trial of the old
fraud-allegation from being a full and fair one, this new allegation, not yet
discussed, may, if the other conditions are there, possibly lead to a reopening.)
I think, I could express the view expounded here in terms of Anglo-Saxon
Jurisprudence and support it from it. But purposively I have chosen general
terms.
IV. If fraud still undiscussed is alleged, the next restriction flows from the
Umpire's Decision when he states, he admits such fraud, as misled the Com-
mission. Thus the Umpire asks for causality between fraud and decision.
(I think it is merely a slip of the pen, when the American Commissioner on
p. 9 [p. 1133, this print]
d says "or whether", where the appropriate words
would be "supposing that".) This means: The claimants may rely only
on fraud, which led to statements, that are necessary elements of the Decision.
If this question is to be answered in the negative, then the allegation of fraud
is inadmissible. Particular attention must be paid to cases in which statements
are supported not only by evidence allegedly tainted with fraud, but by other
evidence too; in such cases an examination becomes necessary whether the
evidence not tainted with fraud would be sufficient by itself to support the
Note by the Secretariat, this volume, p. 194.
14
198 UNITED STATES/GERMANY
corresponding statement. If yes, again the allegation of fraud would be of
no avail.
V. Hitherto undiscussed fraud, leading to statements which are necessary
elements of the Decision and are not supported by sufficient other evidence
may be alleged under the Umpire's ruling. The question arises: which evidence
is admissible to prove it? The American Commissioner discusses whether new
evidence may be adduced in this connection. He says that while it is true that
the Umpire bars new evidence (second category), this principle would not
apply, if the new evidence is bearing on fraud (third category). The American
Commissioner disapproves of the German Agent's view to the contrary, as he
states it. I agree with the American Commissioner. From a formal standpoint
one may say that such evidence comes within the second category as well as
within the third. But I have no doubt that a sound interpretation of the Um-
pire's ruling must place it in the third category. If the German Agent holds
a different view, then I disagree with him.
VI. Whereas consequently no further doubts may prevail about the admissi-
bility of new evidence, I want to emphasize that I entirely disagree with the
American Agent about the extent of admissibility of the previous evidence.
If I understand his Briefs aright, he has decided not to sift in any way the old
evidence notwithstanding the restricted thema probandum. In spite of the
fact that the Umpire has rejected a whole category of allegations and has
limited the American case to a much narrower thema probandum, the Ameri-
can Agent has not eliminated one shred of his evidence, although mostly
collected before the Umpire's ruling. And evidently he does not want to do so
at any time in the future.
Indicative of the American Agent's view-point is perhaps his Brief, dated
August 4th, 1934, where in a sweeping way he says (here and in other places)
" we have to determine from a review of the whole record, whether, * * * the
award requires a reversal "; (italics mine).
His argument simply and sweepingly seems to be that he may use any
previous evidence to corroborate the new one, without taking the trouble of any
discrimination.
That is just the thing which is barred by the Umpire's ruling. We have not
to go on inflating the record indefinitely, but we have to confine ourselves to
the fresh case, as I expressed it in the beginning of this Opinion. And evidence
to be tendered has to relate to the fresh case and not to the old one.
I do not deny on principle that within certain limits previous evidence may
be combined with admissible new evidence to corroborate it; but I deny
absolutely that this means an authorization for the American Agent to go on
with his case just as he did before the oral argument, just as if there were no
judgments with force of res judicata and no December Decision of the Umpire
in existence.
The practical conclusion to which I come is : Old evidence to be relied upon
by the American Agent (and with new evidence, of course, it is the same),
is only admissible in so far as it has a real bearing on the present thema pro-
bandum. And the American Agent must show that it has. And the only
way to show this is to sift it and to indicate what evidence belongs to the indivi-
dual allegations that constitute the fresh case. These individual allegations
are dealt with in the second part of my Opinion. There I shall refer back to
the present argument in so far as evidence is concerned.
VII. Having said all I want to say about the negative bearing of the Umpire's
ruling, I could stop here, but for the fact that the American Commissioner
mentions the " Herrmann message " and infers from the Umpire's pertinent
DECISIONS 199
remarks in the Washington-Decision that the Umpire shares his opinion as to
a certain interpretation of the Umpire's (later) December-Decision.
I have to reply:
In the Washington-Decision the Umpire states that the Herrmann message,
if genuine, would prove both the Black Tom and the Kingsland case. He states
this and nothing more. He makes no statement, neither directly nor by infer-
ence — about the admissibility of the Herrmann message, be it on account
of fraud or on any other account. And logically he could not make any statement
about the admissibility; for perusal of the records shows that throughout the
Washington Debates by general agreement the question of the admissibility
of the fresh American allegations was held in abeyance and was only assumed
for arguments' sake. This alone would dispose of any conclusions based on the
Herrmann message. But aside from this the argument drawn from the message
is not sound for a second reason. In the Washington Debates the Herrmann
message was not considered in the light of its proving any fraud of German
witnesses, but simply in the light of its proving the American case. Strongest
doubts must prevail whether it then was not simply after-discussed evidence
brought against the Hague-Decision and should have been rejected on that
ground. But a decision of that point may be dispensed with. For instead of
being rejected, it was fully and fairly discussed, which furnishes an independent
reason, to consider it as being no longer of importance.
VIII. I now advert to the second part of this Opinion. Having examined
negatively, what the fresh case, called for by the Umpire's ruling, must not
contain, it now becomes necessary to state positively, what it must contain.
I think it must specify three things :
" A. Which are the Witnesses whose testimony is assailed as coming within the
scope of the Umpire's ruling of December 15, 1933?
" B. Which are the assertions or actions of the Witnesses mentioned under A,
that are assailed as being fraudulent, suppressive, collusive in the sense of the
Umpire's said ruling?
" C. How is it shown that the Commission was misled by the allegations men-
tioned sub B, viz. that the Hague and the Washington Judgments rest on these
allegations, those latter having been accepted and believed by the Commission? "
I think, this is a true paraphrase of the contents of the Umpire's ruling and
it is quite clear that the claimants having obtained a ruling, which in a general
and abstract form admits part of their case, are now under a duty to submit
the individual and concrete allegations such as constitute a juridical case
correctly framed. And before such a juridical case correctly framed, at this
new stage of the procedure is laid before him, the German Agent is neither
obligated nor even able to answer fully and exhaustively, in particular to
define his attitude as to rebuttal evidence.
IX. The Claimants have not expressly and explicitly answered the questions
as outlined above. They refer the German Agent (and the Commission) to
their " petition for rehearing " (anterior in date to the Umpire's ruling) and
to the evidence itself they have filed (mostly likewise anterior in date to the
Umpire's ruling).
Their allegation is that in the case as it was fought before the Umpire's
December Decision all issues were so sharply defined and the matter so
thoroughly discussed that now the German Agent (and the Commission) cannot
be in doubt which parts of the record and of the evidence are still upheld by
the Claimants and considered as relevant by them, in particular if coupled
with the contents of their " petition for rehearing ".
200 UNITED STATES/GERMANY
I do not deny that, generally speaking, in many instances a fresh case in the
sense in which I use this term throughout this Opinion, may be framed by
reference. But I hold that in any case two conditions must be strictly complied
with:
(a) The allegations and evidence referred to must be easily discernible
from the rest;
(b) They must be clear and unambiguous in themselves.
The Question arises: Have these conditions been met in the present circum-
stances? I think, the answer must be: No.
(a) From the very outset it would be surprising if the allegations and
evidence pertinent to the fresh case, as outlined in the Umpire's December
Decision, were clearly discernible from the rest in the present situation. We
are faced with a law suit of quite unusual dimensions; an enormous record
was collected, lengthy hearings were held; two judgments were rendered;
the Umpire's December Decision placed the whole matter on a different
ground, ruling out anything which did not come within the scope of a new
framed and clear-cut theme. But, as I already pointed out in a different
connection, the American Agent has been going on with the case exactly as
he did before; the Umpire has eliminated in his Decision a well-defined part
of the case, the American Agent has eliminated nothing of his evidence, just
as if the Umpire's ruling as to the elimination were meaningless and negligible.
What he refers to, is a petition which wholly, and evidence which mostly, are
previous to the Umpire's ruling and which, of course, made not and could
not make the discrimination which the Umpire stated to be vital. How
could it be expected that such discrimination could be made subsequently with
any degree of certainty by the German Agent and by the Commission the
American Agent remaining inactive?
I think, some instances may illustrate, whether it is possible or not to state
whether evidence submitted by the American Agent really comes within the
scope of the Umpire's Decision.
(1) The American Agent has filed as Exhibit 977 Annex R. an affidavit
of Mr. Arnold setting forth that the check for $2,500.00 handed over to Baran
for the Wozniak letters was collected on June 27, 1931. No German witness
or expert has, so far as I can see, ever questioned this payment or made a
statement on this point. Where is the connection with the case as it stands
today?
(2) In Exhibit 977 Annex L, one James W. Kusiw testified that in June
1931 Baran requested him to examine a piece of paper cut from one of the
Wozniak letters in order to ascertain its age. The result was that from the
nature of the paper no inferences could be drawn.
Kusiw confirms allegations which the American Agent had advanced in
Washington (Page 254, Printed Oral Argument) which had never been
questioned by the German Agent and which were accepted as common
ground in the Umpire's Decision (Page 1010). <••
(3) Mr. Paul Koenig has given a statement of several hundred pages (Ex-
hibit 985). The main aim of his examination evidently had been to establish
his connection with Bums and Scott, two watchmen employed on the Black
Tom Terminal in 1916. No statement of German witnesses concerning this
point has ever been before the Commission so that it cannot be seen what
meaning shall be attributed to it in a proceeding restricted to the issue of fraud,
collusion, etc., of German witnesses. And further: Koenig emphatically
denies having ever known the two watchman and sets forth that persons with
c Note by the Secretariat, this volume, p . 111
DECISIONS 201
similar names appearing on his lists were not identical with them. Does the
American Agent rely on that? (He states he relies on the " whole record ".)
Does he agree with it? If yes. why does he bring evidence on things that are
common ground? If no. why does he submit evidence by which he refutes
himself?
(4) The Koenig statement and in a similar way the Kristoff reports filed by
the American Agent as Exhibit 983 Annex A, (binder containing detective
reports covering shadowing of Kristoffand his acquaintances in 1917 and later
years), give raise to an additional remark: Both of them are of considerable
length embracing together about 1000 pages. It is natural that statements
which might be construed to have a bearing on the issue of fraud, etc. (if any)
would only appear in comparatively small parts of this evidence and be scat-
tered all over it. It is natural that the Commission, to which it was presented,
must be put into a position to deal with it. I, therefore, think that the Com-
mission has a right to be provided with an explanation of the meaning of such
evidence so as to know under what aspect it has to be read. Such comment
has to be given as soon as the evidence is filed and certainly cannot be made
dependent upon a preceding action on the part of the German Agent.
(5) American Exhibit 988, Annexes C, D, and E, contains an affidavit
made by one Thomas Tholsfsen stating the following facts:
In the night of the Black Tom disaster he received a telephone call by one
Hans Johannsen, master of the barge "Johnson 17 " urging him to send a
tug in order to remove the said barge out of the danger-zone. As further
annexes the American Agent submits a death-certificate concerning Johannsen
and a document telling us where he is buried.
What German witnesses did say anything relied on at the Hague or at
Washington, which had the slightest connection with that telephone call or
with Johannsen's burial ground? In what respect did German witnesses
commit fraud, collusion, suppression, as far as these points are concerned?
(b) As a further condition to be complied with before a party may be allowed
to state its case by mere reference to certain allegations and evidence I mentioned
above that the allegations and evidence referred to must be clear and unam-
biguous and not contradictory in themselves. The first practical consequence
seems to be that the Claimants must state their own version of their case. I
notice that the claimants and the American Commissioner admit that witnesses
which the Claimants wish to bring within the scope of the Umpire's Decision
(whether rightly or wrongly, I do not want to examine now) made different
statements with respect to the same events, statements that undoubtedly are
wholly incompatible with each other. Partly such inconsistent statements are
made by the same person, contradicting himself flatly; partly they are made by
several persons without there being any indication from the Claimants which
is the witness they believe in this situation.
Again I quote some instances as an illustration.
1) Relations between Wozniak and Herrmann
In his subpoena examination, 1933, Wozniak stated that he did not remember
having seen Herrmann in 1916 or 1917, thus adhering practically to his
previous testimony that he did not know Herrmann. In the affidavit executed
before the Department of Justice on January 12, 1934, he modified this statement
in so far as he admits the possibility that a boy whom he met with Captain
Hinsch several times in 1916 may have been identical with Herrmann.
None of these statements is compatible with the basic allegations advanced
by the American Agent in the previous stage of the proceedings that Wozniak
202 UNITED STATES/GERMANY
was introduced to Herrmann by Captain Hinsch in New York, that thereupon
Herrmann met Wozniak several times in New York and provided him with
incendiary pencils with instructions for their use as well as with money, a
theory prominently based on Herrmann's sworn statement given in 1930.
What is the American theory at present?
2) Wozniak in Mexico
The American Agent's fundamental theory that Wozniak had been employed
as a German Agent had been prominently based on the assertion that he had
stayed in Mexico in the summer of 1917, consorting there with admitted German
agents.
In his subpoena examination Wozniak has first refused to answer the
question as to his whereabouts during that period, pleading that he might
make himself liable to penalty for perjury by reason of his previous testimony
for Germany. When the examination went on he gave up this attitude,
alleging that he did not remember whether he had been in Mexico and that
his failure to make a positive statement on this point had nothing to do with the
question whether he might become subject to criminal prosecution. In his
affidavit executed on January 12, 1934, he again changed his attitude and
stated clearly and unambiguously that he never was in Mexico, but had been
working at Tupper Lake during the respective period.
Has his testimony been submitted to show that he lies or that he tells the
truth? And if he lies or if he tells the truth, when did he do it, considering the
variety of his statements?
3) Origin of the Kingsland Fire
In the subpoena examination Wozniak testified that the fire was of incendiary
origin and had been brought about by the ignition of a phosphorous rag handed
over to him by a German agent (" Mike ") and which he had used unconscious-
ly and unaware of what was going on. This story is in absolute conflict
with the fundamental theory pleaded by claimants hitherto that Wozniak
started the fire, acting deliberately and consciously as a German Agent under
instructions from Captain Hinsch and Herrmann by using an incendiary pencil;
and it is a further conflict that two witnesses whose testimony is contained in
the new evidence (Thome and Baran) still make statements in support of the
theory that Wozniak started the fire by an incendiary pencil.
Same questions as to (b) :
4) Wozniak-letters
Considerable part of the new evidence consists of testimony given by Wozniak
and Baran, both confirming the genuineness of these documents.
Again, my question: will the American Agent, by producing this testimony
prove that it is true or that it is false? Or, if his only end is to elucidate things
in a general way and for general reasons, must not he tell us so? For if he
relies constantly " on the whole record " up to now he tells us exactly the
contrary. And more particularly in such a case: must not he tell at once the
German Agent, because the German Agent's decisions as to rebuttal evidence
are thoroughly different in the one case and in the other?
I summarize:
Does it mean " assisting the German Agent in his defense " when in cases
like the quoted ones the American Agent is invited to be unambiguous? Is
he entitled (as the American Commissioner thinks he is) to blame the witnesses
DECISIONS 203
in question for the contradiction and its consequences and to plead that the
German Agent must face the necessity to evidence at the same time two things
that exclude each other or else make up his mind, which of the statements he
wants to assail and which not? I cannot share this view. Must not any Claimant
state his case first and give a full and clear version of the facts on which he
relies, tendering evidence subsequently and only when he is contradicted?
If that evidence is self-contradictory is not he obligated to choose which version
he will adopt, risking otherwise to be looked upon as having made no state-
ment at all? And I think the same holds good, if his task has become the
showing up of hostile witnesses as fraudulent. No claimant can cope with that
task without defining his attitude regarding the truth of their statements which
implies in the case of contradictory statements and self-contracting [sic]
witnesses a clear indication of his own stand.
X. The result to which I come is this :
The fresh case which is necessitated by the Umpire's new thema probandum
cannot be established by mere reference to a previous petition and to evidence,
as the American Agent tries to do.
Directions should be issued to the American Agent inviting him to file a
Brief dealing with the three vital questions, outlined above, which for con-
venience's sake, I repeat:
"A. Which are the Witnesses whose testimony is assailed as coming within the
scope of the Umpire's ruling of December 15, 1933?
" B. Which are the assertions or actions of the Witnesses mentioned under A,
that are assailed as being fraudulent, suppressive, collusive in the sense of the
Umpire's said ruling?
" C. How is it shown that the Commission was misled by the allegations men-
tioned sub B, viz. that the Hague and the Washington Judgments rest on these
allegations, those latter having been accepted and believed by the Commission? "
And from the statements in the first part of my Opinion, appearing under
VI, it follows that I suggest a. further ruling:
" D. What is the individual and specific evidence, new or old, adduced to
support the individual and specific allegations submitted according to A and B?
XI. Practically this suggestion of mine means that I grant the German
Agent's Motion in a special form. The three vital questions set up by me
verbally in his writs and the " bill of particulars " for which he asks, in its
essence is not much different from the " fresh case ", as I use the term throughout
this Opinion.
At the same time my suggestion means that I deny the American Agent's
plea that the German Agent should be directed to define his attitude as to
future rebuttal evidence first: the gist of my Opinion is that the German Agent
is unable to answer the case now brought against him, before the case is really
and not only in words restricted to the new thema probandum, before the
individual and particularized allegations that support this case are set out
clearly and before these allegations are free from self-contradiction and ambi-
guity, and before the pertinent evidence is singled out.
XII. From my last statement it will be gathered that and why I disagree
with the individual grounds relied on by the American Commissioner in his
support of the American Agent's plea: he says the Rules of the Commission
do not oblige the American Agent to file a Brief now, I think the Umpire's
December Decision does; he says the German Agent had ample time to define
his attitude; I think, he was unable to do it, a reason against which mere time
is of no avail, and the argument may be that the American Agent had ample time
204 UNITED STATES/GERMANY
to frame his case correctly. The American Commissioner fears that the case
may be protracted by granting the German Agent's Motion, I see the only
means to speed it up in forcing the discussion back to the real thema probandum
and in cutting out and eliminating what is not strictly pertinent to that theme.
The American Commissioner would not like the Claimants to file a Brief
on an incompleted record; to my mind it is not a matter of incompleted record,
but of an overcompleted record and an insufficiently stated case.
XIII. The American Commissioner concludes his Opinion with several
suggestions which reach beyond a mere decision on the German Agent's
Motion. I have no objection to this in so far as procedure is concerned; my
idea is that in any case of a deadlock between the Agents this Commission
should deal autonomously and exhaustively with the case and take all steps
which in the Commission's opinion are appropriate. But on the merits of the
said suggestions, I differ from the American Commissioner. Whether, for
instance, the two Agents should be directed, to file a future Brief simultaneously
should not be decided now, but only after the next American Brief, which
forms the subject-matter of this Opinion, is known.
This may be of minor importance; but of great importance is a further
suggestion which I find expressly stated in the American Agent's Brief of
August 4th, 1934, but which evidently is approved of and endorsed by the Ameri-
can Commissioner. He proposes that when the Commission comes to discuss
the petition for rehearing itself, the admissibility of the new evidence and the
merits of the issues involved should be dealt with simultaneously.
I have no doubt that the admissibility should be discussed first and separately.
This is not the first time that the Commission is faced with that question.
When the American side would not acquiesce in the Hague Judgment and
sought for a reopening, the German side opposed this in the first line on a plea
of inadmissibility. The substantiation then was different from now and is
superseded now by the Umpire's December Decision. But the juridical point
is exactly the same there and here. The Commission then did what is suggested
now by the American Agent : Admissibility and merits were treated simultane-
ously at the same hearing. And as a result I find in the Umpire's December
Decision the remark: " It would have been fairer to both the parties definitely
to pass in the first instance upon the question of the Commission's power to
entertain the supplementary petition for rehearing. "
And I think the strongest reasons militate for that conclusion.
In the Umpire's December Decision I find on p. 68 (Report of American
Commissioner, December 30, 1933; U. S. Government Printing Office, 1934)
[p. 1120, this print] f a statement which reads:
" Orderly procedure would have required that these issues (fraud, collusion,
suppression) be decided by the Umpire before the filing of the tendered evidence
sinci the right to tender such evidence is involved in this Decision."
Thus the Umpire says: His ruling determines the right to tender evidence and
he draws the inference that in " orderly procedure " first and above all the
Claimants have to show their right to tender evidence and the scope of that
right. (By the way I notice that this disposes of the American Commissioner's
point that it would not be fair to grant the German Agent an opportunity to
make up his mind as to rebuttal evidence in a later stage of the proceedings.
The American Agent has first to show that he is entitled to bring evidence
and to what extent. This distinguishes him from the German Agent who
holds two judgments with force of res judicata and quite naturally is not on
r Note by the Secretarial, this volume, p . 185
DECISIONS 205
the same level as his adversary.) But the main point is that to the Umpire's
mind, in a Reopening case the discussion of the right to tender evidence and
the filing of the evidence itself mean different stages of the procedure and that
the first stage has to be considered first.
Only subsidiarily I should like to add: Practical reasons would lead to the
same result. To plead a case of such volume as the instant one on its merits
means an enormous burden; of course, it must be borne if that is indispensable.
But it is not indispensable as long as a limitation of the pleadings to the much
less entangled question of admissibility offers a chance to do without it.
Dr. Victor L. F. H.
HUECKING
German Commissioner
September 13, 1934.
Supplemental Memorandum by the American Commissioner
To facilitate the discussion and permit a full presentation of the points of
difference between the two national Commissioners, they have exchanged
copies of their respective Opinions before presenting their Certificate of Dis-
agreement to the Umpire.
The American Commissioner finds on reading the German Commissioner's
opinion that he and the German Commissioner have dealt with the German
Agent's Motion on a fundamentally different basis. The American Commis-
sioner has limited his discussion to the single question raised by the German
Agent's Motion, namely, whether or not the American Agent should be
required at this stage of the proceedings to file "a brief, bill of particulars or
some other written statement substantiating the contentions advanced in his
[the American Agent's] petition for a rehearing." This is the only question
presented by the pending Motion of the German Agent.
The German Commissioner, on the other hand, has assumed that the pending
Motion involves the question of the admissibility of the new evidence offered,
and, accordingly, has undertaken to examine in considerable detail the charac-
ter of the new evidence with reference to its admissibility under the Umpire's
decision of December 15, 1933.
It seems to the American Commissioner that the question of the admissibility
of the new evidence is quite outside of the scope of the present proceeding.
That question is one which must be dealt with by the Commission when the
record is complete and the cases are finally submitted.
The German Commissioner does not refer to the request of the German
Agent for a bill of particulars but is of the opinion that the American Agent
should be invited to file a brief dealing with certain questions which he states
and which he deems vital.
The Umpire in his opinion of December, 1933, stated, after calling attention
to the difference between the procedure before this Commission and the pro-
ceedings before a Court, as follows:
"Article VI, second paragraph (referring to the agreement between the two
governments) provides :
'The Commission shall receive and consider all written statements or docu-
ments which may be presented to it by or on behalf of the respective governments
in support of or in answer to any claim.' * * *
" The Commission has, from its inception, been sensible of its lack of power to
compel the closing of the record and the final submission of any case. * • *
The clause quoted from Article VI compels the reception of any written statement
or document presented by either party."
206 UNITED STATES/GERMANY
Thus under the agreement between the two Governments, the Commission
is obligated, as the Umpire has held, at the proper time (that is, in this case
when the petition for rehearing and all evidence offered by the respective
governments has been filed) to pass upon the admissibility and weight to be
given to all the evidence offered by either government but it cannot do so
until the claim, or in this instance, the petition of the American Agent, and the
answer of the German Agent, together with the supporting evidence offered
by the respective governments, has been filed. It is powerless, as the Umpire
has held, to compel the closing of the case and must wait to consider and pass
upon the evidence until the case is finally presented to the Commission.
The decision of the Umpire of December 15, 1933, was rendered upon a
certificate of disagreement between the National Commissioners regarding
the power of the Commission to reopen these cases upon the pending petition.
Prior to that decision, as stated by the German Commissioner, a large part
of the evidence had been tendered by the United States to sustain the allegations
of the petition. The Umpire refrained from examining the evidence at that
time and from expressing any opinion on its adequacy, " postponing ", as
stated by the Umpire, " for the consideration of the Commission the probative
value of the evidence tendered ".
The Commission has not at this time considered or passed upon the probative
value of the evidence tendered and consequently there has been no opportunity
for the National Commissioners to agree or disagree thereon, and no disagree-
ment thereon has been certified to the Umpire.
In accordance with the concluding statement of the Umpire in his opinion
the Commission should reopen these cases and " consider the evidence tendered
by the American Agent and, dependent upon its finding from that evidence
and any that may be offered in reply on behalf of Germany, either confirm the decisions
heretofore made or alter them as justice and right may demand " (italics mine).
When that has been done if there should be a disagreement between the
National Commissioners upon the probative value or the adequacy of the
evidence tendered, such disagreement would then be certified to the Umpire.
It may be noted in this connection that the procedure before the Commission
differs from court proceedings in that the only opportunity afforded, under the
agreement, to either government to object to the admissibility of evidence is
when the case is finally submitted to the Commission.
Also the American Agent must be given a hearing on that question before
decision. The record at the present time is admittedly incomplete, pending
the submission of rebuttal evidence, if any, by the German Agent, as noted
in the opinion of the Umpire of December 15, 1933, and any further evidence
in reply called for by the rebuttal evidence.
Moreover, the Commission has not yet been called upon to examine the new
evidence already submitted. The pending Motion of the German Agent does
not involve an examination of this evidence by the Commission and this Motion
can and should be decided without an examination of the admissibility or
probative value of evidence which is incomplete and not a final record of the
claimant's case.
The American Commissioner, accordingly, refrains from discussing now the
questions raised by the German Commissioner as to the admissibility of any
of the new evidence which he considers is entirely outside of the issues raised
in the present proceedings. He regards the discussion of that question as
premature and inadmissible at this time, although one to be dealt with by the
Commission at a later stage of the proceedings.
Furthermore, the American Commissioner sees in the German Commissioner's
opinion convincing evidence that if the German Agent adopts the views
DECISIONS 207
expressed in the German Commissioner's Opinion he will have little difficulty
in deciding now whether or not he wishes to offer any evidence in rebuttal,
and, if so, on what points.
The situation, as I see it, briefly stated, is:
(a) If the German Agent is of the opinion that no admissible evidence has
been offered on behalf of the United States to sustain the charges of fraud,
collusion, perjury or suppression of evidence, then he is at liberty to rest his
case. The Commission will then fix, by rule, the time and order in which
briefs may be filed.
(b) If, on the other hand, the German Agent is of the opinion that there is
evidence supporting the charges, or some of them, he is at liberty to file such
evidence as he deems proper and should do so, as noted by the Umpire in the
concluding paragraph of his opinion of December 15, 1933, in order that this
proceeding may be progressed to a final determination.
The American Commissioner, accordingly, has nothing further to add to
his original opinion.
Chandler P. ANDERSON
American Commissioner
September 25, 1934.
Supplemental Memorandum by the German Commissioner
I. When I assume — as I do indeed — that the pending Motion involves
the question of admissibility, I think, I am borne out by the American Com-
missioner himself, whose Opinion, first part, is devoted to that question, and
very properly, too. The pending Motion asks for a bill of particulars. I grant
it (see XI, p. 27 [p. 1147, this print] R of my Opinion, which is perhaps not
fully appreciated by the American Commissioner when he says, I do not refer
to the request of the German Agent for a bill of particulars). And in granting
it, I have, of course, to define what particulars that bill ought to contain. I
define this by formulating (in consonance with the German Agent's Motion)
four questions, which this bill should answer. I think it is a misunderstanding,
when the American Commissioner says, that I suggest the American Agent
should file " a " brief " dealing with certain questions ". I suggest that he
should file the bill of particulars asked for; and I suggest that it should deal with
the questions as put by the German Agent.
But the framing of these questions means an implicit decision on the admissibility.
In my opinion, nothing is pertinent to the present case but these questions and
no evidence is admissible but which lies within their scope. This I have tried
to show in my Opinion. I do not think it indispensable that the Umpire should
give a ruling on admissibility beyond the implicit ruling, which I would find
in an order acceding to my suggestion that the bill of particulars should be
framed in the way indicated by the proposed questions.
//. I could stop here, but for some views I find expressed in the American
Commissioner's Supplemental Memorandum. The American Commissioner
holds that this Commission would he forbidden to make a decision on admissibility
now.
(a) The first ground alleged for this seems to be, " we are only concerned
with the German Agent's Motion ". I have already said that in my opinion
this Motion involves the issue of admissibility. But I feel obliged to contradict
the argument on principle, too. If there is a deadlock — as in the instant
g Note by the Secretariat, this volume, p . 203
208 UNITED STATES/GERMANY
case — the Commission's task is to overcome it by appropriate directions, but they
are not bound to remain within the scope of an individual brief or motion.
(b) Nor is the question of admissibility in any way privileged, so that it by
necessity could be treated only in a final hearing.
First of all : When the question of admissibility appears as a preliminary or
previous question to any direction to be given or any individual point to be
decided, it goes without saying that this Commission will pass upon it. That
applies to the present situation.
But even if that question is to be decided as such, I cannot concur with the
American Commissioner's statement that it must be reserved to the final
hearing. He thinks he may infer this from the fact that this Commission is
bound to accept any evidence and cannot compel the close of the procedure.
The conclusion is erroneous. This rule does in no way prevent that in one
case you have separate stages ; it then applies to both stages separately the second
stage becoming superfluous if its application in the first stage and the decision
in the first stage leads to a final solution. The instant reopening case is just a
case in point.
And there is a second argument: We have a special ruling in this case in the
form of the December Decision. Supposing the American Agent had a right
to file any evidence, he had it up to The Hague and perhaps to the Washington-
Decision. Since then, we have the December-Decision, just dealing with this
question and limiting his right. He has lost his former right as far as it extended
to evidence which the Umpire has expressly declared to be inadmissible. I
again refer to the Umpire's words (p. 68) [p. 1120, this print],
h " the right to
tender evidence is involved " in his decision and for this reason orderly procedure
would even have required that such decision should be rendered " before the
filing of the tendered evidence " (italics mine).
///. The American Commissioner protests that no examination should take
place noiv of the probative value of the evidence submitted. I agree with him
and throughout my Opinion have strictly adhered to that principle. I only
want to stress the point that an examination of the question: "does that
evidence without a bill of particulars enable the opposing party to see what
allegations it is meant to support or is it self-contradictory without such bill and
is the thema probandum ambiguous without such bill? " is a different thing.
And this examination cannot be dispensed with, for the decision on the German
Agent's Motion hinges on these very points.
Dr. Victor L. F. H.
HUECKING
German Commissioner
September 29, 1934.
The National Commissioners, having disagreed as aforesaid, hereby certify
to the Umpire for decision the questions raised by the pending Motion of the
German Agent.
Done at Washington September 29. 1934.
Chandler P. ANDERSON
American Commissioner
Dr. Victor L. F. H. HUECKING
German Commissioner
Note by the Secretariat, this volume, p. 185.
DECISIONS 209
Opinion of the Umpire upon Certificate of Disagreement by the National Commissioners
Under date October 4, 1934, the National Commissioners transmitted to
me as Umpire a certificate of disagreement respecting the action to be taken
by the Commission on the motion of the German Agent now pending in the
above cases and requested that I render a decision thereon.
I file herewith the certificate of disagreement and the separate opinions and
supplemental opinions of the Commissioners, which have been prepared with
the greatest care and have aided me in reaching my conclusion.
The status is as follows: May 4, 1933. the American Agent filed a petition
for rehearing. He began, September 15, 1933, to file evidence in support of it.
A jurisdictional question having arisen on which the National Commissioners
were in disagreement, the Umpire rendered the decision of the Commission
December 15, 1933, to the effect that the allegations of fraud and collusion
contained in the petition, if supported by satisfactory proof, would be sufficient
to warrant a rehearing of the cases. February 15. 1934, the American Agent
completed the filing of evidence deemed by him to substantiate the charges
made in the petition. June 13,, 1934, the German Agent filed an answer
denying the allegations of the petition, and the same day presented a motion
for a ruling that the American Agent " should file a brief, bill of particulars
or some other written statement substantiating the contentions advanced in
his petition for a rehearing ". The National Commissioners disagree as to the
action proper to be taken on this motion. The German Commissioner would
grant it; the American Commissioner would deny it.
1. The issue which will come before the Commission is made up by the
allegations of the petition and the categorical denials of the answer. It is
true that charges contained in the petition are general in their nature. If the
German Agent had desired that before the American Agent began to file his
proofs in support of these allegations they should be elaborated and made more
specific, he might then have filed a motion to that effect and might well have
contended that, in order to draft his answer to the charges, he needed additional
information. In view of the trial practice of the Commission, I am not clear
what action would have been taken upon such a motion. My understanding
is that strictness of pleading has not been required in the cases presented to
the Commission, but be that as it may, no motion for a bill of particulars or
for an elaboration of the charges contained in the petition was made. Mean-
time, the American Agent filed evidence which he deemed tended to support
the charges. The filing of all of the evidence which the American Agent desired
to file was, as above stated, completed February 15, 1934. This was prior to
the filing of the answer of the German Agent. That evidence, in and of itself,
must necessarily define and limit the allegations of fraud and collusion embodied
in the American Agent's petition.
The proper office of a bill of particulars is to enable a respondent to ascertain
exactly what it is he is required to meet by his evidence. What has been done
in the present case, namely, the submission by the moving party of all the
proofs in support of his petition before the responding party is required to
offer any proof, certainly renders unnecessary any particularization in the matter
of formulation of the charges on which the petitioner relies.
2. If the German Agent's motion be considered a demand that the American
Agent file a brief analyzing and discussing the evidence on which he relies prior
to the German Agent's filing any evidence he may desire to offer, it seems
obvious that the request ought not be granted. The office of briefs in matters
coming before the Commission has always been, and necessarily must be, to
aid the Commission in reaching a proper conclusion upon the whole body of the
210 UNITED STATES/GERMANY
proof offered by both sides. It would not only be inappropriate but probably
not be helpful to demand that one side file a brief discussing the evidence
before it is known what the evidence of the other side may be. Moreover,
it would be, it seems to me, unfair to require the American Agent to make his
argument in advance of presentation of proofs in opposition.
3. In support of his motion, the German Agent asserts that the evidence
offered by the American Agent is of large volume; that it deals to a great
extent with matters which the German Agent thinks have been rendered
irrelevant by the Commission's decision of December 15, 1933; that the German
Agent is unnecessarily handicapped and confused by the admixture of that
which may be relevant and that which may not; and that therefore the Ameri-
can Agent ought to be required now to specify on which of the evidence here-
tofore filed he intends to rely. No doubt such a specification on the part of the
American Agent would not only be helpful to his adversary but in the end
would be an aid to the Commission in deciding upon the motion. The question
is, however, whether the Commission can or ought to impose such a requirement
upon the moving party. The agreement under which the Commission is
organized is silent as to the method of procedure which should be followed in
a matter of this sort. The parties to the controversy are sovereigns. The
agreement requires the Commission to receive any writing either party may
tender. The practice of the Commission has not been in accordance with
civil law procedure in ordinary municipal tribunals. If it had been, the issues
would have been nicely defined in formal pleadings, and the evidence as
offered would have been tested as to its relevancy by the issues made up on the
pleadings. Evidence as tendered would then have been admitted or ruled out
of the cause, and when the time arrived for decision the Commission would
have had before it only that body of evidence which had been formally admit-
ted and would of course ignore that which had been by its rulings excluded
from the record. The Commission has always been of the view that the terms
of the agreement under which it sat prevented preliminary rulings upon the
relevancy of evidence. The result has been that whatever was offered on
behalf of either sovereign was accepted and filed, and when the time arrived
for a decision the relevancy of each item of evidence had to be determined as
part of the process of arriving at a conclusion. This method of procedure neces-
sarily puts a somewhat heavier burden upon the Agents and upon the members
of the Commission than if a strict method of pleading and ruling upon evidence
under the pleadings had been adopted. I do not think that the Commission
either can or ought now to alter the method which has been pursued throughout
its work from the beginning.
4. The German Agent urges, and the German Commissioner holds, that
the present proceeding differs so far in its character from the ordinary trial of
a claim presented for compensation under the terms of the international
agreement that a different rule should here apply. The suggestion is that,
in view of the Commission's decision of December 15, 1933, the Commission
shall, by some sort of order, define the character of evidence which it will
receive and consider in support of the motion. It seems to me that the decision
of December 15, 1933, has already done this insofar as it is necessary so to do.
If items of evidence presented by the American Agent are irrelevant to the
issue upon which the granting of a rehearing depends, as outlined in the
Commission's decision of December 15, 1933, then obviously such evidence
requires no rebuttal on the part of Germany. If evidence presented by the
American Agent clearly falls within the category outlined in the Commission's
decision, the German Agent is free to meet it by counter proof. If an item of
DECISIONS 2 11
evidence be of doubtful relevancy, the German Agent will have to determine
whether as a matter of policy he will rebut it or take his chance that it will
be ruled irrelevant by the Commission when it comes to formulate its final
conclusion upon the motion. In these respects the German Agent stands in
no different position from that which he has occupied with respect to proofs
offered in support of sundry claims for reparation. The practice has been,
as I understand it, for the American Agent to file a claim petition and, in
support of that petition, to tender such evidence as he thought relevant, and
for the German Agent, in response, to tender such evidence as he thought im-
portant, disregarding evidence offered by the American Agent which he thought
of no probative value in the premises. That, it seems to me, is quite analogous
to the present situation.
CONCLUSION
From what has been above said, I conclude and decide that the motion of
the German Agent should be overruled.
OwenJ.
ROBERTS
Umpire
[Handed down, November 9, 1934.]
LEHIGH VALLEY RAILROAD COMPANY, AGENCY OF CANADIAN
CAR AND FOUNDRY COMPANY, LIMITED, AND VARIOUS UNDER-
WRITERS (UNITED STATES) v. GERMANY
(Sabotage Cases, July 29, 1935, pp. 1173-1175; Certificate of Disagreement by the
National Commissioners, pp. 1159-1173.)
PROCEDURE: MOTION TO JOIN PRELIMINARY QUESTION (REOPENING) TO MERITS;
REHEARING: OLD AND NEW EVIDENCE.
Motion of American Agent filed
May 2, 1935, for order that Commission does not desire submission of claims
until able to decide both on rehearing and merits. Motion overruled:
in the absence of agreement to that effect between parties, preliminary
question (whether Commission was misled by fraud and case should be
reopened) will be determined separatelyjif determined in favour of claimants,
conclusions reached in Commission's decision of October 16, 1930 (see p. 84
supra), will be re-examined in light of old and new evidence.
Cross-reference: Witenberg, Vol. Ill, pp. 28-30 (French text).
Bibliography: Witenberg. Vol. Ill, pp. 28-30; Woolsey, A.J.I.L., Vol. 35
(1941), pp. 282-283.
Certificate of Disagreement by the National Commissioners
The American Commissioner and the German Commissioner have been
unable to agree as to the action to be taken on the questions presented by the
Motion filed by the American Agent on May 2, 1935, with reference to the
procedure to be followed by the Commission at its next hearing on the sabotage
cases :
Opinion of Mr. Anderson, the American Commissioner
This Motion calls upon the Commission to determine whether the next
hearing shall be merely of a preliminary nature for the consideration of the
212 UNITED STA.TES/GERMANY
admissibility of the new evidence offered by the American Agent and its
sufficiency to justify a reopening of the case, or, on the other hand, whether
the Commission should at the same hearing consider the claims on the merits
to determine whether the new evidence as admitted, taken together with the
other evidence in the record, furnishes justification on grounds of justice and
equity for the Commission to alter or confirm its previous decisions.
In the opinion of the American Commissioner the questions presented by
this Motion simply require the interpretation and enforcement of the Com-
mission's last decisions as rendered by the Umpire on December 15. 1933.
and November 9, 1934.
In this Motion the American Agent calls attention to a letter addressed by
the German Agent under date of April 16, 1935, to the Commission, in which
he states that he has reserved " the right to submit additional evidence " if
the Commission should decide to reopen these cases. It is this reservation
which the American Agent desires to have specifically dealt with by the Com-
mission in deciding the present Motion, because the American Agent contends
that the effect of this reservation, if allowed, would be " to accomplish by
indirection what the German Agent endeavored to accomplish directly by
his Motion of June 13, 1934, which was denied by the Commission in the Opinion
of the Umpire on November 9, 1934; namely, to further postpone the final
action by the Commission in these cases by requiring the American Agent to
argue the claims on an incomplete record in order that the German Agent
may have the advantage of having the American Agent point out the particular
evidence that it is necessary to meet."
It will be recalled that in the German Agent's Motion, which was overruled
by the Umpire's decision of November 9th, he requested the Commission " to
require the American Agent to either file a brief, a bill of particulars, or some
other written statement, before the German Agent would be required to file
any evidence in opposition to the pending petition for rehearing ".
In denying that Motion the Umpire held that it would be " unfair to require
the American Agent to make his argument in advance of presentation of proofs
in opposition ".
Exactly the same situation is again presented by the German Agent's present
reservation of the right to submit additional evidence if the Commission should
decide to reopen these cases.
It appears to the American Commissioner, from an examination of the
previous proceedings and rulings of the Commission, that it has already definitely
decided that at its next hearing it will expect these cases to be submitted for
final decision, and in order to finally dispose of them the Commission must
have before it all the evidence that either Government may desire to file, so
that the Commission may pass not merely upon the preliminary question of
the admissibility of such evidence, but also upon its probative value as to the
merits of the claims. As the American Agent says, in the statement in support
of his Motion, " It is obvious that consideration of the additional evidence
submitted in support of the charges (of fraud, etc.) in the pending Motion for
rehearing will require a review of the whole case. The new evidence can only
be weighed and its effect gauged in connection with what has gone before."
That being true, and the American Commissioner agrees with the views of
the American Agent on this point, it would be a waste of time and a duplication
and a delay of the work of the Commission to go over the same ground twice.
In brief, the position of the American Agent is that in accordance with the
decisions of the Umpire of December 15, 1933, and November 9, 1934, the
sabotage cases ought to be submitted to the Commission for final decision at
one hearing. The Commission should then decide, first, whether the evidence
DECISIONS 213
submitted by the United States sustains the allegations of the Petition, and,
second, at the same hearing determine, from such evidence and any that
Germany may offer, whether justice and right demand a confirmation or
alteration of its previous decisions in Jthese claims. This procedure would
greatly expedite the final disposition of this litigation.
The question of the jurisdictional right to re-open the cases has already
been passed upon affirmatively by the Umpire in his previous decisions, and.
in order to have the two remaining questions, namely, fraud and revision,
promptly disposed of by the Commission, all of the evidence on each side which
either Government wishes to submit must be available to the Commission at
its next hearing.
It is understood that the German Commissioner disagrees with the American
Commissioner on the procedure above proposed. He apparently is of the
opinion that there should be two hearings, (1) to pass upon the sufficiency of
the evidence to sustain the allegations, and (2) if sustained, a further hearing
to determine the character of the order to be entered upon the Petition, and
that before the second hearing is held the German Agent should be permitted
to file additional evidence. If this course were followed, the American Agent
would also have the right to file further evidence, new briefs would be necessary,
and the litigation conceivably would be prolonged for a considerable period.
The American Commissioner does not think that the German Commissioner's
proposal conforms to the meaning of the decision of December 15, 1933, or
that it is in accord with the expressed wish of both Governments to bring this
litigation to as early a conclusion as is consistent with its proper determination.
There is one point which the two National Commissioners agree upon, and
that is that when the German Agent has filed his evidence in opposition to the
new evidence filed by the American Agent, the latter shall have an opportunity
to file rebuttal evidence, and the German Agent shall then be at liberty within
a reasonable time to file any evidence which he desires to present in opposition
to the American Agent's rebuttal evidence, but that when in the course of the
procedure to be adopted by the Commission as a consequence of this Motion,
these proceedings are brought to the point of a final submission to the Com-
mission for disposition on the merits, the German Agent will not then be at
liberty to reserve the right to submit any additional evidence, but must then
decide for himself what, if any, additional evidence he desires to submit on the
question of the merits, and either submit it to the Commission or notify the
Commission that no further evidence will be submitted.
The German Agent, in opposing this Motion, calls attention to a letter written
by the American Agent on February 15, 1934, notifying the Commission that
in filing his new evidence he " reserves the right to file further and additional
evidence " in these cases upon their reopening under the decision of the Umpire
of December 15, 1933.
The German Agent contends, therefore, that inasmuch as the reservation
in his letter of April 8, 1935, is merely a duplication of the American Agent's
letter of February 15, 1934, he is justified in making his reservation.
On this point it is to be noted that the American Agent's reservation was made
before the Commission made its decision of November 9, 1934, which the
American Agent considers was in effect a denial of the right of either Agent
to make such a reservation, and, accordingly, the American Agent has aban-
doned his reservation and contends that the German Agent cannot maintain
his reservation which was made after that decision was rendered.
In conclusion, if the American Agent has not correctly interpreted the
decisions of the Umpire, the Commission nevertheless should at this time
advise the Agents that it does not desire to take submission of the pending
15
214 UNITED STATES/GERMANY
Petiton until both Governments have filed all the evidence they desire to have
considered, and it is desirable that the Agents should now be advised that there
is to be one hearing, at which all questions involved in the Petition are to be
considered and determined in order that the Commission may enter a final
order either confirming or modifying its previous decisions, thus finally disposing
of the pending Petition. The American Commissioner considers further that
the Commission should request the two Agents to agree on definite time limits
within which the filing of their evidence and briefs must be completed and the
cases finally submitted.
It is, of course, understood that the decision on the pending petition can only
determine finally the question of Germany's liability in these claims, as the
determination of the amount of damages, if any, has by agreement of all parties
been postponed until the question of liability has been finally decided.
Washington, D.C., May 31, 1935.
Chandler P. ANDERSON
American Commissioner
Opinion of Dr. Huecking, the German Commissioner
I note from the American Commissioner's Opinion :
He does not uphold the American Agent's view, that the Sabotage Cases
have already been reopened. He is aware of the fact that two different stages
are before us and that this Commission is called upon to decide first: " Was
the judgment in these cases obtained by fraud? ", second: " Ought the judgment
to be altered on its merits? ". What he suggests is, that these two questions
should not be pleaded separately, but at the same time ; that the German Agent
should be compelled to plead the merits, before there is any decision against him
affirming fraud and reopening the cases.
The issue involves two practical consequences :
(a) It determines the subject matter of the Commission's next hearing
(b) At this time the American Agent wants the German Agent to define
his attitude with regard to future evidence regarding the merits:
The fact that it is no longer contended that the case has already been reopened
immediately carries with it the consequence that the whole question appears
in an entirely different light. As long as it was said that the case was already
reopened doubts could exist in which stage of the proceeding we actually were.
A possibility existed to speak of the merits and to submit Motions dealing with
the evidence regarding merits and similar points.
The very moment it is clearly seen and recognized on both sides that there
are two separate stages in this cause (the preliminary stage of fraud and —
perhaps — an ulterior stage dealing with the merits) the first impression must
be that the American conclusions as now preferred are most unusual ones.
I doubt that it will be possible to show among the thousands of cases dealing
with reopening and retrial that are reported in the Law books or Commentaries
one single instance in which such an extraordinary way of dealing with a case
was adopted. To mix up two stages in the same proceeding although they
have (as I will show later) a completely different subject matter, a different
legal view from which they ought to be looked at and a different evidence,
would mean so uncommon a practice, I may even say so unheard of a practice
in international matters, that only the strongest reasons and the most exceptional
considerations would justify it. That logically the preliminary procedure must
come first and the main procedure must come afterwards — if at all — seems
to be admitted ; why should that logical and natural sequence be disregarded?
The question imposes itself: Is this case really different from any other case?
DECISIONS 2 1 5
Are the arguments adduced of such particular weight as to justify a conclusion
that the German side should be compelled to acquiesce in a way of handling
the matter never adopted before and going against the natural and logical
sequence of things as well as against any precedent?
I utterly fail to see anything that distinguishes this case from any other case
and that may justify such unwarranted request and I may now say at once that
I vote for the adoption of the ordinary course followed by courts in cases of
this kind.
This said, I will discuss the points which have been made in detail.
To support his views, the American Commissioner relies — without separa-
ting them on principle — on juridical reasons and on reasons of expediency.
I will deal with both, but I want to make it quite clear from the outset, that
they do not stand on the same footing. If a party pleads res judicata — and
that is what the German Agent does — he cannot be overruled on reasons of
expediency. The latter have no weight at all as long as the juridical plea has
not been refuted by juridical reasons. Sub " I ", I propose to deal with the
juridical aspect of the matter, sub "' II " with the expediency.
1
Juridical aspect
(A) Although the American Commissioner cites with apparent approval
the position of the American Agent that the question of reopening must come
first and the examination of the merits second, he rejects the application of this
principle to the pleadings. When he suggests one hearing he does not define
it as one hearing having two consecutive parts, one part restricted to the subject
matter of fraud, ensuing deliberation of the Court, then (if that deliberation
has a result favorable to the Claimant) pleadings dealing with the merits.
Under the circumstances " one hearing " would mean a hearing on the merits
similar to that held before the judgment was rendered only extended by one
point, the point of fraud which only for the Court would be a preliminary point
in their deliberations.
Thus what is envisaged by the American Commissioner is a full retrial on
the merits to be ordered now. And further it is suggested that this retrial
should be ordered now without any examination of the evidence, allegedly
supporting fraud.
The question, then, boils down to this: Is any Court entitled to order a
retrial on the merits, without having examined evidence? and this admittedly
with the consequence that (again without such examination) by now such
ruling affects the rights of the party holding final judgment with respect to
future evidence in a retrial on the merits?
As I said before: It would be impossible to show among the thousands of
retrial cases which are reported one Court which upholds such a view; one
writer who defends it.
But the necessary data in this respect are readily available. I intentionally
refrain from quoting American cases or American writers. In order to illus-
trate the general point we are dealing with by a judgment of general significance
I draw attention to the decision of the House of Lords Jonesko versus Beard
(Law Reports, Appeal Cases, 1933, p. 300). The Court (The Lord Chancellor,
Lord Buckmaster, Viscount Dunedin, Lord Warrington of Clyffe, Lord Blanes-
burgh, Lord Tomlin) quotes with assent Lord Justice James who had stated
in Flower versus Lloyd :
You cannot go to your adversary and say " You obtained the judgment by fraud
and I will have a rehearing of the whole case ", until that fraud is established.
216 UNITED STATES/GERMA.NY
Thus the House of Lords holds that you have no right to have fraud and
merits established at the same time but that you myst establish fraud before, and
before you have a rehearing.
Should a unanimous decision of the House of Lords be deemed insufficient
I may refer to the jurists:
In Danniels' Chancery Practice (8th Edition, Volume 2, Year 1914, Page 1333)
we read
" the fraud used in obtaining the judgment is the principal point in issue and
necessary to be established by proof before the propriety of the judgment can be
investigated."
Again the " before " which like the " until " in the quotation from the
House of Lords, though it be one word only, is a full answer to the Opinion
of the American Commissioner.
And if further support of the juridical views quoted be desired, be it mentioned
that in annotation (o) loco citato Danniels refers to ten cases pro with no case
contra.
I may be permitted an additional remark.
In all juridical systems that know an order for retrial and at the same time
allow appeals, an order of this kind may be separately appealed from (see for
instance the three successive appeals from such order in Brown versus Dean.
Law Reports, Appeal Cases, 1910, p. 373-376, brought before the Divisional
Court, then before the Court of Appeals and finally before the House of Lords).
The general principle underlying this practice is exactly the idea that no one
holding a final judgment may be compelled to answer on the merits before the
order for the retrial itself is final; (still less before it is even in existence!) the
essence of the final judgment being, as it has been expressed " to close the mouth
on the one side and the ear on the other ".
(B) The American Commissioner tries to base his Opinion juridically on the
decisions given by the present Umpire of this Commission under date of Decem-
ber 15, 1933, and November 9, 1934.
They do not serve him as a precedent in which may be found general prin-
ciples of law which may be relied upon but he goes farther. He thinks that
these two decisions directly and immediately contain the determination of the
present issue so that they are in the present case the only source of law and in
the American Commissioner's mind the whole question now to be discussed
is merely a question of the interpretation of those two earlier decisions of the
Umpire.
To deal with the latter point first: It stands to reason that the question now
in issue (viz. : Shall the retrial on the merits take place simultaneously with the
discussion of fraud) was not decided by the December and November decisions
of the Umpire because when these decisions were rendered no disagreement of
both Commissioners as to such simultaneousness had been certified to the
Umpire (By the way: The American Commissioner fails to explain why if
the issue was decided by the Umpire it was decided twice in two different deci-
sions.). But I am quite agreeable that the two decisons of the Umpire be
utilized as a guide to general principles applicable in this case. If I do so I
fail to find in either decision anything that may support the American Com-
missioner's view but I find general principles which bear out my own standpoint.
In his Decision dated December 15, 1933 (the same decision in which the
Umpire stresses that a decision in a reopening " involves the right to tender
evidence ") he says expressis verbis: " it would have been fairer to both the
parties definitely to pass in the first instance upon the question of the Commis-
sion's power to entertain the supplementary petition for rehearing ". What
DECISIONS 2 I 7
else does this mean than the very matter now at issue, viz. that the preliminary
question should not be tried at the same time as the main question but it should be
dealt with (just as its name implies) preliminarily to that question?
Adverting to the decision dated November 9, 1934, I cannot find one syllable
in it which deals with the merits. It deals with a Motion submitted by the
German Agent and this Motion was (quite in conformity with the German
Agent's general viewpoint) confined to fraud. It asked for a bill of particulars
as to fraud and spoke of the evidence to be submitted on both sides as to fraud.
And fully in harmony with these facts the Umpire mentions " that the issue
which will come before the Commission is made up by the allegations of the
Petition and the categorical denials of the answer ". Here we find it clearly
delineated what the theme of the next hearing ought to be; and by inference
we may state that it will not be the merits of the case. The same idea appears
in the next part of the November decision: The German Agent is informed that
he must examine the relevancy of the American evidence as to fraud (cf. the
words: " the issue upon which the granting of a rehearing depends "). What
about the merits then? Will it be seriously contended that the decision con-
tains a similar direction as to German evidence regarding the merits? The
answer, of course, must be No. But then this answer " No " disposes of the
American Commissioner's contention, for if the decision — as he says —
really orders that the hearing on fraud and the retrial on the merits should be
held simultaneously then necessarily the decision of the Umpire would have
given such directions.
(C) The American Agent admits that he held the same Opinion as I hold
now and pleaded accordingly, when the Sabotage Cases were argued at
Boston. No sufficient explanation is given why he changed his mind, for the
present explanation " that he was overruled at Boston " is factually wrong.
He could not have been overruled for the simple reason th'at the German Agent
was not contradicting him at the time (Page 42, two first paragraphs). Further
the printed record shows (Page 41, and cf. the remarks p. 132 beginning with
"' One thing ") that the Commission through its Umpire made no ruling at all
but merely expressed hopes and made courteous suggestions. Last but not
least even if Boston had overruled the American Agent, Boston itself would not
have been overruled by the present Umpire. I have already quoted from his
December decision the passage in which he says " it would have been fairer
to both the parties definitely to pass at the first instance upon the question of
the Commission's power to entertain the supplementary petition for rehearing ".
(And be it noted additionally that some lines earlier he states that the Boston
arrangement was an arrangement made " by mutual consent ".)
Furthermore, I think the German Agent is entitled, as he does, strongly to
emphasize the fact that even in the present proceedings the American Agent
has made a reservation as to future evidence which is thoroughly incompatible
with the simultaneous hearing on both fraud and merits. The facts cannot
be denied that the American Agent made the very same reservation to which
he objects when it was repeated by the German Agent. The American Com-
missioner says that the American Agent abandoned that reservation as super-
seded by the November 1934 decision. Apart from the fact that the American
Commissioner here admits (what he denies elsewhere) that the reservation
would not be superseded by the December 1933 decision (for the reservation
is posterior to the December 1933 decision) the American Commissioner is
mistaken about the facts: The last utterance of the American Agent which I
have before me is his statement of May 20, 1935. Here he clearly persists in
his reservation justifying if by reasons (which do not explain at all its incompati-
bility with the simultaneous hearing but) which show conclusively that he does
218 UNITED STATES/GERMANY
not abandon it. It goes without saying that it is a strong argument in favor of
the German Agent's view when his adversary makes and upholds a reservation
which is justifiable only when the German Agent's view is adopted, quite
apart from the unusual fact that the American Agent opposes a reservation
made by himself in his own favor when the identical reservation is made by
the German Agent.
(D) I should not want to leave this point of the juridical aspect without
stressing its particular importance with respect to the hearing which is before
us. I feel it is my duty to insist on this because I find in the American Commis-
sioner's Opinion certain considerations which I cannot leave uncontradicted.
The American Commissioner says that it is obvious to him that the question
of fraud requires a review of the whole case and that if the question of fraud
should be separated from the merits it would be a waste of time and a dupli-
cation and it would mean going over the same ground twice.
There can be no question of going over the same ground.
First, the subject matter is totally different. The question " Was there
fraud prevailing at the previous hearing? " is entirely different from the
question: " How did the fire in Kingsland or Black Tom originate? "
Second, the Judge's general starting point is a fundamentally different one
in both cases.
If the question of reopening has to be passed upon, the judge has to take his
stand in the shoes of the former judge, who gave the final decision; his mind
has to go back to the situation prevailing at the time the decision was rendered;
his basis are the views held by the former judge and the former judge's appre-
ciation of the evidence. The question put to the judge now sitting is: " Would
the evidence as to fraud have influenced his predecessor? "
If the question of the merits has to be passed upon the views of the previous
judge and the situation as it was at the time the judgment was rendered, are
irrelevant. To the judge now sitting the present time and the present time only
offers the basis, from which to answer the query: " What are your findings from
the evidence now before you ? "
Third, the evidence would be totally different.
If the decision of the Umpire of December 15, 1933 is loyally adhered to
only a limited volume of evidence has to be considered as far as the question
of fraud is concerned. I cannot admit for a moment that in order to discus-,
the subject matter of fraud it is necessary to plead the whole record.
II
Expediency
(A) Because I deny the American Agent's Motion on juridical grounds it is
only for completeness' sake if I add some remarks about expediency (see above).
(B) When the American Commissioner contends that in order to avoid delay
and other practical disadvantages expediency would recommend that the
hearing as to fraud and the hearing as to merits should be held simultaneously
I think he is misled by the fact that of two alternatives he sees and appreciates
only one. He argues throughout as if it were a matter of course that the Com-
mission will grant a rehearing on the merits. That is by no means a matter of
course. It is quite possible that the Commission's decision goes the other way.
In this case any hearing on the merits is superfluous.
The question, then, is:
What might we possibly win with respect to time and to effort of all concerned
by adopting the American Commissioner's suggestion; and what might we
possibly lose?
DECISIONS 219
(1) We might possibly win the time that would lie between the hearing on
fraud and the hearing on the merits. That we might spare a whole hearing,
must be taken cum grano salis: It gives fallacious impression, if continually
the words " one hearing " are stressed. Even if the American Commissioner's
view were adopted there will be two hearings. Should the next hearing extend
simultaneously to fraud and revision and should the Claimants obtain a reopen-
ing, still the amount of damages would be open.
(2) On the other hand, the list of what we might lose, is by far longer:
(a) We risk, what we otherwise would save, the time needed to collect
evidence on the merits, the time needed to bring rebuttal evidence, the time
needed to bring surrebuttal evidence.
(b) We risk, what we otherwise would save, the time to prepare briefs on
such evidence; and the time to answer them and the time to answer such
answer.
(c) We risk, what we otherwise would save, extension of the briefs (and the
respective reply-briefs) concerning fraud to perhaps very voluminous briefs
concerning merits covering the bulk of an enormous record instead of a reason-
able part of it;
(d) We risk, what we otherwise would save, a very considerable extension
of the preparation of both Judges and Agents, such preparation no longer
being limited to a relatively restricted subject-matter but forcibly covering an
extremely vast area.
(e) We risk, what we otherwise would save, days of discussion, afterwards
turning out to be futile.
It is clear from all this, that what may be possibly gained is out of all propor-
tion with what would be wasted in the way of time and exertions and it may
be said, that granting the American Agent's Motion would much more probably
mean delay, and very considerable delay, than denying it.
The American Commissioner concludes his argument by pointing to the
general understanding, that the question of damages should not be pleaded
at the hearing, only liability. Does not that understanding rest on the same
ground as the one on which I place myself, and does it not testify as to the very
practice of the Commission in these cases? Was not that understanding arrived
at because everybody felt, that as long as there is a fair chance of a very extensive
discussion and preparation becoming superfluous in consequence of a decision
regarding a preliminary point, that preliminary point should not be treated
together with the point dependent on it but previously and separately?
Conclusion
Rejecting the American Agent's Motion I suggest a ruling of this Commission :
That the next hearing of the Commission and its preparation should be
limited to the question of fraud.
Additional remark
In the American Commissioner's Opinion I find certain observations regard-
ing points about which he states we agree and about time limits to be agreed
upon between the Agents. I do not think that it is necessary to embody these
questions in the present Opinion and I shall define my attitude as to these
220 UNITED STATES/GERMANY
oints not here but in a separate let
) the American Commissioner.
Washington, D.C.. June 7th, 1935.
point letter
l which it is my intention to address
to e American Commissioner.
Dr. Victor L. F. H. HUECKIN G
German Commissioner
1 Letter referre d to , date June 8 1935 reads:
" My dear Mr. Anderson:
" In your Opinion dated May 31st, 1935 you state on page 5, 6 [p. 1161, this
print] (Mote by the Secretariat — this volume, p. 213):
" 'There is one point which the two National Commissioners agree upon, and
that is that when the German Agent has filed his evidence in opposition to the
new evidence filed by the American Agent, the latter shall have an opportunity
to file rebuttal evidence, and the German Agent shall then be at liberty within
a reasonable time to file any evidence which he desires to present in opposition
to the American Agent's rebuttal evidence, but that when in the course of the
procedure to be adopted by the Commission as a consequence of this Motion,
these proceedings are brought to the point o f a final submission to the Commission
for disposition on the merits, the German Agent will not then be at liberty to
reserve the right to submit any additional evidence, but must then decide for
himself what, if any, additional evidence he desires to submit on the question of
the merits, and either submit it to the Commission or notify the Commission
that no further evidence will be submitted '.
" I think that indeed our views coincide regarding this matter, but as I am not
absolutely certain whether I understand the passage aright, I state the point in
my own terms:
" (1) The American Agent is at liberty, to file rebuttal evidence, meeting the
evidence which the German Agent has submitted on the 28th of February 1935
and on the 16th of April 1935.
" (2) The German Agent is then at liberty to file surrebuttal evidence, meeting
such rebuttal evidence as mentioned sub (1).
" (3) Both Agents should try to agree on definite time limits within which to
file the evidence mentioned sub (1) and (2). Same suggestion regarding briefs.
" (4) Should the Umpire rule, that at the next hearing the question of fraud
and the question of the merits should be dealt with simultaneously, the German
Agent would be obliged to define after that decision his attitude as to further
evidence regarding the merits.
" (5) It seems that there is no unanimity about the question, regarding whether
and to what extent further evidence on the merits may be submitted. Should no
agreement be reached on such a question it must be decided; and it may be neces-
sary to decide it before (5) is complied with.
" (6) With the proviso mentioned sub (5) the German Agent in the contingency
mentioned sub (4) cannot maintain his present reservations to evidence on the
merits. Nor could he make such a reservation at the hearing on the merits itself.
" It may be advisable to call this letter of mine not yet a confirmation of your
views but merely a suggestion of mine ; thus perhaps you will be good enough to
consider its contents in this light and if you think you may fall in with it to send me a
letter of confirmation.
" Sincerely yours,
" Dr. Victor L. F. H. HUECKING.
" The American Commissioner concurs with the German Commissioner in the
foregoing statement as to points of agreement between them.
" Chandler P. ANDERSON
" American Commissioner "
DECISIONS 221
For the reasons stated in the foregoing Opinions, the National Commissioners
have disagreed on the questions at issue, and, accordingly, certify them to the
Umpire for decision.
Done at Washington, D.C., this 7th day of June, 1935.
Chandler P. ANDERSON
American Commissioner
Dr. Victor L. F. H. HUECKING
German Commissioner
Decision of the Commission
The American Agent has filed a motion that an order be entered " to the
effect that the Commission does not desire to take submission of these claims,
until all evidence that either Government desires to have considered in support
of or in opposition to the pending petition Jor rehearing has been filed in order that the
Commission may, when it takes submission, enter an order finally disposing
of these claims on their merits, and that the order further advise the Agents
of the two Governments accordingly ".
The German Agent opposes the making of such an order. The Commission-
ers have certified their disagreement as to the section to be taken.
The proceedings leading up to the filing on May 4, 1933, of a petition by
the American Agent for a rehearing of these cases are sufficiently outlined in
the decision of December 15, 1933. The present motion has to do solely with
the procedure appropriate under that petition for rehearing. After the Amer-
ican Agent had petitioned for a rehearing, the German Agent challenged the
power of the Commission to act upon it. This question of power had been
raised in earlier stages of the case, but as shown by the decision of December 15,
1933, had been reserved. The contention of the German Agent required the
Commission squarely to meet that question. This it did in its decision of
December 15, 1933. The conclusion was that no power was vested in the
Commission to reopen a case merely for after discovered evidence; but that,
where, as in the present instance, the assertion is made that fraud has been
perpetrated upon the Commission, power exists to examine the facts and to
act in accordance with the findings consequent upon such examination.
Nothing more was decided on December 15, 1933. At the time of that decision
the German Agent had not answered the petition nor offered evidence. The
American Agent had offered evidence intended to support the allegations of
the petition. What was said at the close of the opinion was based upon the
assumption that the claimants could effectively support the allegations of their
petition. Thereafter the German Agent filed an answer denying those alle-
gations.
By the petition and answer an issue was framed. The issue may be stated
thus: " Was the Commission misled by fraud practiced upon it? " If that issue
be decided in favor of the claimants, the Commission should reopen the case
upon the merits and reexamine the conclusions reached in the light of the whole
record, including the proofs offered to impeach evidence forming part of the
record when its decision on the merits was rendered. Obviously the case is not
reopened by the presentation of a petition praying for such action. Especially
is this true where the allegations of the petition are categorically denied. This
the American Agent concedes. The decision of November 4, 1934 [announced
November 9, 1934], so recognizes. It is there said : " The issue which will come
before the Commission is made up by the allegations of the petition and the
categorial denials of the answer."
222 UNITED STATES/GERMANY
The first step is the determination whether the claimant's assertions as to
fraud, et cetera, are made out. To ascertain this the evidence in support of
those assertions must be examined. Necessarily, such examination will
include a reference to evidence in the record prior to the Commission's decision
on the merits. Such reference will be necessary for comparison between the
old evidence and the new. and to show the bearing and meaning of the proofs
tendered upon the issue of fraud and collusion. On this preliminary matter,
namely, whether the case shall be opened and a rehearing had upon the merits,
it will not be necessary to argue the cases on the merits. If the claimants
prevail upon that preliminary question, the former decisions will be laid aside
and the merits reexamined in the light of all the evidence, including that
tendered on the issue of fraud and collusion. If they fail, reconsideration of
the Commission's decisions on the merits of the claims will be unnecessary
and indeed improper. The relevancy and weight of evidence upon the com-
paratively narrow issue made by the petition and answer will be one thing;
the relevancy and weight of evidence upon the merits, if a rehearing be granted,
will be quite a different thing.
It is, of course, conceivable that the Commission should hear argument on
both the propriety of reopening the case and the merits at one and the same
time. Much may be said pro and con such a procedure. Nevertheless, I
suppose that if the parties were in agreement that this course should be followed,
the Commission would acquiesce. There is no such agreement. Germany
insists that the preliminary question be determined separately. I am of opinion
this is her'right. She now has a judgment. Before that judgment may be set
aside and a new hearing held upon the merits, it is incumbent upon the claim-
ants to sustain the affirmative of the issues made by their petition. The next
hearing, therefore, will be upon the question of reopening vel non, and not upon
the merits.
It is earnestly urged that the Agents agree at once to limit the time for
rebuttal by the United States of the proofs offered by Germany in opposition
to the petition for rehearing, and confer with the Commission as to the fixing
of a time for argument and for the filing of briefs on that issue.
I attach hereto the certificate of disagreement by the National Commissioners,
together with their separate opinions and supplemental opinions attached
thereto.
Done at Washington July 29th. 1935.
Owen J.
ROBERTS
Umpire
LEHIGH VALLEY RAILROAD COMPANY, AGENCY OF CANADIAN
CAR AND FOUNDRY COMPANY, LIMITED, AND VARIOUS UNDER-
WRITERS (UNITED STATES) v. GERMANY
(Sabotage Cases, June 3. 1936, pp. 1175-1177.)
PROCEDURE: REHEARING, SETTING ASIDE OF PREVIOUS DECISION, UNFOUNDED
SUSPICION. REINSTATEMENT OF CASE INTO PREVIOUS POSITION, REOPENING.
Setting aside of Commission's decision of December 3, 1932 (see p. 104
supra), according to which new evidence so far submitted by claimants
could not lead to reversal or material modification of decision of October 16,
1930 (see p. 84 supra): no sufficient ground for suspicion expressed by the
then German Commissioner before case was argued that claimants withheld
DECISIONS 223
from Commission unfavourable expert report. Cases reinstated into position
before 1932 decision, but not reopened as far as 1930 decision is concerned.
Bibliography: Witenberg. Vol. III. pp. 31-32; Woolsey, A.J.I.L.. Vol. 33
(1939), p. 739, Vol. 34 (1940). p. 34, and Vol. 35 (1941), pp. 283-284.
Decision of the Commission
Reference is made to the decision of this Commission dated December 3d.
1932, in which the Umpire held that
" if the new evidence " (submitted to him at the time in order to impugn the
decision of this Commission rendered at the Hague under the date of October 16th
1930) " were formally placed on file and considered in connection with the whole
body of evidence submitted prior to the Commission's Opinion of October 16th
1930, the findings then made and the conclusions then reached Would not be reversed
or materially modified ".
Against this Decision and the Decision rendered at the Hague October 16,
1930, the petition for a rehearing now under consideration is directed. Its
allegations are, inter alia, that before the case was pleaded at Washington the
then German Commissioner brought it to the knowledge of the Commission
that according to information received by him Claimants had obtained a report
from one of their experts the contents of which were adverse to the genuineness
of the main documents on which they relied but were withholding such report
from the Commission. As to the actual happenings the Umpire has stated
during the argument of these cases:
" I have known Mr. Albert S. Osborn for many years. When I was in practice
I retained him in connection with several problems arising with respect to docu-
ments whose authenticity was contested. At some time he referred me to Mr.
Elbridge W. Stein as a competent expert in similar matters. Mr. Stein, at that time,
had an office in the Bulletin Building, Philadelphia. On one or more occasions
I consulted him.
"Just before the date set for hearing in the sabotage cases (probably some time
in November 1932), Mr. Stein attempted to get into communication with me by
telephone. He wished an interview with me concerning the sabotage cases in which
I knew he was a witness for the claimants. I refused to allow him to communicate
with me.
" During the meetings of the Commission preliminary to the hearing, Dr.
Kiesselbach advised Mr. Anderson and me that the claimants had suppressed an
expert report adverse to the authenticity of the Wozniak letters and the Herrmann
message. I cannot say that Dr. Kiesselbach specifically stated the source of his
information.
" The communication naturally disturbed me but I knew of no action that the
Commission or I, as Umpire, could take in the premises and so stated.
" My impression that there had been some such suppression was strengthened
by Mr. Osborn's statement, in one of his affidavits, that it was remarkable that no
opinion by Mr. Stein, a competent expert in such matters, had been submitted as
to the age of the documents but only an opinion as to handwriting, a matter that
was uncontested.
" In the oral argument the German Agent made no reference to this matter and
as the American Agent did not refer to it the impression remained that there had
been a withholding of a report which might have shed light on the question argued
before the Commission."
In addition this Commission states through its Members present at the time
that there can be no doubt as to the entire good faith of the then German
Commissioner when he made this communication. The Umpire and the Amer-
ican Commissioner hold, that Claimants have shown, that there was no sul-
224 UNITED STATES/GERMANY
ficient ground for suspicion, and that for this reason Claimants are entitled
to a reconsideration. The German Commissioner, whilst doubting that
Claimants were actually wronged (especially as in his view mere suspicions
never can be a basic element of juridical findings) takes the stand, that in
international arbitration it is of equal importance that justice be done and that
appearances show clearly to everybody's conviction that justice was done. He does
not think that the second requirement was satisfactorily complied with in the
present case, and for this reason, he accedes to the conclusion of the other
members of this Commission. It is therefore decided, that the Decision of
this Commission rendered at Washington on the third of December 1932 be
set aside. This decision reinstates the cases into the position they were before
the Washington Decision was given. It has no bearing on the Decision rendered
at the Hague and does not reopen the cases as far as that decision is concerned.
Before the Hague Decision may be set aside the Commission must act upon the
claimant's petition for rehearing. Whether upon the showing made, the
Commission should grant a rehearing, unless Germany shall agree to a different
course, must, under the Commission's Decision of July 29, 1935, be determined
by a hearing separate from and distinct from any argument on the merits.
Both parties are entitled to file evidence (and to exchange briefs) as well in
the proceedings in which a ruling for a reopening is sought as in the subsequent
proceedings dealing with the merits, should such a ruling be granted. Evidence
filed and briefs submitted in the proceedings, in which a reopening is sought,
must remain within the limitations set by the Commission's Decision dated
December 15, 1933.
Done at Washington, June 3, 1936.
Owen J.
ROBERTS
Umpire
Chandler P. ANDERSON
American Commissioner
Dr. Victor L. F. H. HUECKING
German Commissioner
NOTE
[At an informal meeting of the Commission held June 17. 1936, the Com-
mission granted Motion of the German Agent dated June 16, 1936, asking for
a postponement of further proceedings for the reason that invitation had been
received by the Department of State, Washington, D.C., from the German
Government suggesting that representatives of the United States meet with
representatives of Germany with a view to negotiating a compromise settlement
of the sabotage claims.
In accordance with this invitation, negotiations were had in July, 1936,
in Munich, Germany, between the duly authorized representatives of the two
Governments. As the result of these negotiations, a compromise settlement
of the sabotage claims and the Drier claim, being all claims then pending
before the Commission, was reached. The formal papers usual for carrying
out settlements of this character were, however, not signed by the German
Agent. Protests against carrying out the settlement were likewise filed with the
Department of State on behalf of certain American nationals holding awards of
the Commission and on behalf of certain German nationals holding awards
of the War Claims Arbiter.
In view of the fact that the German Agent did not sign the usual formal
papers, Motions were filed with the Commission by the American Agent for
DECISIONS 225
awards in accordance with the Agreement reached at Munich in July, 1936.
The American Agent likewise filed with the Commission the several protests
received on behalf of American nationals and on behalf of German nationals.
The questions involved in these Motions and protests were discussed in
briefs filed with the Commission, and were the subject of oral arguments before
the Commission at the meeting held July, 7 1937, at which meeting the following
rulings thereon by the Commission were announced by the Umpire:]
" The Commission has considered the motion with care and has also consid-
ered all of the points made in the briefs and oral argument. Without reiterating
its reasons, it is of the opinion that the motion must be dismissed, unanimously
of that opinion.
" With regard to the protests by certain German nationals, those protests the
Commission feels, in large part, fall as a result of its decision. The same thing
is true of the protests by certain awardholders.
" With regard to the applications filed by certain claimants, either German
nationals or holders of claims under certain arbitral awards, and with regard
to the applications of certain American awardholders to permit them to
intervene in the proceedings, the Commission unanimously denies those
applications." (Minutes of meeting, July 7. 1937, p. 1658.)
LEHIGH VALLEY RAILROAD COMPANY, AGENCY OF CANADIAN
CAR AND FOUNDRY COMPANY, LIMITED. AND VARIOUS UNDER-
WRITERS (UNITED STATES) v. GERMANY
(Sabotage Cases, June 15, 1939, pp. 310-312; a Certificate of Disagreement and
Opinion of the American Commissioner, June 15, 1939, pp. 1-310.)
JURISDICTION: EFFECT ON — OF WITHDRAWAL OF MEMBER FROM COMMISSION
AND FAILURE TO FILL VACANCY. — PROCEDURE : UNANIMITY. DELIBERA-
TIONS. ROLE OF UMPIRE. — INTERPRETATION OF TREATIES: PRACTICE, PUR-
POSE, BENEFITS RECEIVED, MUNICIPAL DECISIONS, TEXT WRITERS.
With-
drawal of German Commissioner from Commission on March 1, 1939,
after submission of cases to Commission on January 27, 1939, followed by
conferences of Umpire and Commissioners with a view to the decision of the
issues presented until February 28, 1939. Failure of German Government
to fill vacancy (see Agreement of August 10, 1922, art. II). Held that Com-
mission not functus qfficio and, acting through Umpire and American Com-
missioner, has power to proceed with cases and decide whether fraud proved
sufficient to set aside decision of October 16, 1930 (see p. 84 supra), and
whether claimants proved their cases: (1) under Agreement supra, art. II
and VI, and its Rules of Procedure, unanimity not required, and concur-
rence of only two members necessary for decision (practice ever since
Commission's creation), (2) both before and after special rules of procedure
for sabotage cases were adopted, Umpire participated in deliberations and
opinions of Commission (reference made to decision of March 30, 1931,
p. 101 supra), (3) after submission of case to Commission, retirement of one
National Commissioner cannot prevent decision by remaining members of
a Henceforth, references to page numbers are to Opinions and Decisions on the
Sabotage Claims Handed Down June 15, 1939, and October 30, 1939. and Appendix.
(Washington, Government Printing Office, s.d.). Cornp. Vol. VII, p. 3.
226 UNITED STATES/GERMANY
Commission: (a) this would defeat purpose of Governments in establishing"
Commission, (b) Germany received benefits after Commission's creation,
i.e., under Settlement of War Claims Act of 1928, 80 per cent of German
property returned to former owners, (c) reference made to municipal decis-
ions, inter alia. Republic of Colombia v. Cauca (1903), 190 U.S. 524, and to text
writers on international law.
SABOTAGE DURING PERIOD OF AMERICAN NEUTRALITY. — PROCEDURE : SETTING
ASIDE OF PREVIOUS DECISION; REINSTATEMENT OF CASE INTO PREVIOUS
POSITION, REOPENING; REHEARING: OLD AND NEW EVIDENCE, FRAUD,
EXAMINATION OF MERITS. — EVIDENCE: FRAUD IN— ; WITNESSES, AFFIDA-
VITS, DOCUMENTS, AUTHENTICITY OF DOCUMENT. Setting aside of Commis-
sion's decision of October 16, 1930, on merits (see p. 84 supra), reinstate-
ment of case into position before 1930 decision, reopening, rehearing granted
on the whole record: held that material fraud in evidence presented by
Germany seriously misled Commission and affected its decision in favour of
Germany. Though unnecessary in circumstances, Commission also examined
proofs tendered by United States to determine whether claims had been
made good: German Commissioner insisted, that misleading of Commission
immaterial if United States failed to sustain burden of proof incumbent
upon it; held that, on the record as it now stands, claimants' cases are made
out. Analysis of new evidence: see supra and Analytical Table infra.
Cross-reference: A.J.I.L., Vol. 33 (1939), pp. 770-772; Witenberg, Vol. Ill,
pp. 70-721 (French text).
Bibliography: Witenberg, Vol. Ill, pp. 33-72; Woolsey, A.J.I.L., Vol. 33
(1939), pp. 737-740, and Vol. 35 (1941), pp. 289-298.
ANALYTICAL TABLE OF CONTENTS
OF THE CERTIFICATE OF DISAGREEMENT AND OPINION OF THE
AMERICAN COMMISSIONER
Page
History of Cases :
Petition of May 4, 1933 238
Decision of December 15, 1933 238
Motion of May 2, 1935 239
Decision of July 29, 1935 239
Decision of June 3, 1936 240
Cases closed January 14, 1939 240
Cases submitted January 27, 1939 240
Conferences between Commissioners and Umpire 240
German Commissioner retires March 1, 1939 241
Letters of German Commissioner and replies thereto 241
Certificate of Disagreement 241
Points of Difference:
(a) Whether the evidence established fraud of such character 241
(b) Whether the American Agent had proven his case 241
Opinion of the American Commissioner:
I. Jurisdiction:
Letter of German Commissioner and replies 241
Letter of American Commissioner to Secretary of State 242
Question stated 242
Treaty of Berlin 242
DECISIONS 227
Opinion of the American Commissioner [continued)
I. Jurisdiction (continued) Page
Agreement of August 10, 1922 242
Purpose for which Commission created 243
Rules of Procedure 243
Special Rules of Procedure 243
Unanimity not required 244
Umpire participates in deliberations and in opinions 244
Question restated 245
Republic of Colombia v. Cauca:
190 U.S. 524, affirmed 195 U.S. 604 245
106 Fed. 337 246
113 Fed. 1020 248
Decision of U.S. Supreme Court 248
Unanimity not required 249
United States not obligated to return alien property 249
War Claims Act 1928 249
Atchison, T. & S.F. Ry. Co. v. Brotherhood etc., 26 Fed. (2d) 413 . . 249
International Law Text Writers 250
Commercial Arbitration Cases 251
Facts restated 251
Decision 252
II. Fraud
Questions Stated 253
A. Fraud in the Pleadings:
(1) Memorials filed by U.S 253
(2) Answers filed by Germany:
(a) No sabotage in neutral countries 253
(b) No sabotage in U.S. during neutrality 253
(c) Circular authorizing sabotage a fabrication 253
(d) Order extending circular to U.S a. fabrication .... 25 3
(e) Message of Jan. 26, 1915 genuine but mistake of sub-
ordinate and never acted on 254
(3) Papen's affidavit 254
(4) Nadolny's statement 255
(5) Nadolny's affidavit 255
(6) Marguerre's affidavit 256
(7) von Bernstorff's denials 257
(8) von Bernstorff and Rintelen 257
(9) von Bernstorff and National Constituent Assembly . . . . 259
(10) von Bernstorff and Canadian Pacific Railroad 259
(11) Message of January 26, 1915 260
(12) German Brief of Sept. 14, 1929 261
(13) Telegrams between Eckardt and " Sektion Politik " in re
Herrmann and Tampico Oilfields 262
(14) Herrmann, Gerdts and Tampico Oil fields 263
B. Fraud in the Evidence:
(1) Wozniak:
Wozniak's bench 265
Wozniak and the decision at Hamburg 265
228 UNITED STATES/GERMANY
Opinion of the American Commissioner (continued)
B. Fraud in the Evidence (continued)
(1) Wozniak (continued) Page
How Wozniak became a witness for Germany .... 266
Tannenberg vouches for Wozniak 266
Wozniak declines witness' fees (according to Tannen-
berg) 266
Wozniak, Healy and Tannenberg on compensation . . 266
Wozniak's letter demanding compensation 268
Correspondence about compensation between Wozniak
and Tannenberg 268
Impossible for Tannenberg to get in communication with
Wozniak but letters were passing 269
Wozniak's threat to accept an offer and its result . . . 269
Wozniak's trip to Washington 4/16/31 270
$500 to Wozniak to be " good " to him 270
Wozniak's degradation 270
Wozniak's compensation 271
Deductions from the letters 271
Wo7niak's true character was known before his affidavits
were introduced 272
Wozniak's letters and postcard to the Russians .... 273
Wozniak's contradictory statements 276
Wozniak's conduct immediately preceding, during, and
after the fire 277
Wozniak's character as a witness 280
(2) Lyndhurst Testimony:
Decision at Hamburg 284
LaScola's affidavit:
August 9, 1930 284
Apr. 26, 1933 285
Ruggiero's affidavit:
August 4, 1930 286
Payrolls of Company 287
Urciuoli's affidavit 287
Marrone's affidavit 287
Correspondence between Carella and Tannenberg . . . 287
Healy's affidavit 289
Frangipane's affidavit:
August 1930 289
German Agent's statement 289
Draft of telegram from Tannenberg 289
Telegram of May 1, 1931 290
Prittwitz's telegram:
Dec. 14, 1931 290
Purpose of Lyndhurst affidavits 291
Evidence since Hamburg 291
(3) Purpose of Affidavits of Ahrendt, Hinsch and Woehst :
(a) To strengthen Germany's pleading 291
(b) To destroy confessions of Herrmann and Hilken . . . 292
DECISIONS 229
Opinion of the American Commissioner (continued)
B. Fraud in the Evidence (continued)
(3) Purpose of Affidavits of Ahrendt, Hinsch and Woehst
(continued)
(c) Meeting of Hilken and Herrmann with " Sektion Poli-
tik " Nadolny and Marguerre — Hilken's descrip-
tion Ex. 583 292
Hilken's examination by Peaslee, Rec. p. 2180 293
Herrmann's description 293
(4) Affidavits of Ahrendt :
Ahrendt's biography 294
Hinsch's absences from Baltimore and New London . . 295
Ahrendt's crossing the border with Hinsch 295
Ahrendt and messages in secret ink 297
Ahrendt's knowledge of sabotage by Herrmann and
Hinsch 297
Ahrendt's postcript in letter to Hilken 298
Herrmann's description of Ahrendt's sabotage activities 299
(5) Hinsch:
The decision at Hamburg 300
Hinsch's relations with von Rintelen 301
Rintelen's sabotage activities 301
Rintelen, Hilken and Scheele 301
Henjez's report on Rintelen 303
Henjez's testimony before U.S. Court 303
Barnitz's testimony before U.S. Court 303
Hinsch's description of his sabotage activities 304
Hilken's description of his relations with Rintelen and
Hinsch 304
Was Hinsch telling the truth in claiming that he ceased
sabotage activities after the U-boat enterprise started 305
Hinsch and Carl Dilger and Herrmann 305
Hinsch and his sabotage helpers 310
(a) Felton 310
The Canton fire 311
Hinsch's sorrow for 311
(b) George Turner 311
(c) John Grant 311
(d) Arthur Young 311
Arnold-Hilken correspondence: Woehst — a young man
with new samples 312
Absence of Hinsch and Herrmann from Baltimore before
and after destruction of Black Tom 313
Absence of Hinsch from New London before and after
Kingslandfire 314
Hinsch's sabotage activities continued in Mexico after
U.S. entered war 316
Hinsch's denial of the veracity of Thorne 319
Hinsch's false claim that Gerdts was unknown to Hilken 322
Hinsch changes " me " to " us " 323
16
230 UNITED STATES/GERMANY
Opinion of the American Commissioner {continued)
B. Fraud in the Evidence [continued)
(5) Hinsch {continued) Page
Hilken-Hoppenberg-Lowenstein correspondence proves
Gerdts was known to Hilken 323
Hinsch's affidavit of July 22, 1932, false 323
Hinsch guilty of changing affidavit to meet needed proof 325
(6) Testimony of Willie Woehst :
Purpose of Woehst's testimony — to substantiate Hinsch
and to destroy confessions of Hilken and Herrmann . 325
Herrmann's testimony regarding Woehst 325
Woehst, Herrmann and Gerdts under suspicion of
Department of Justice 326
Woehst's autobiography 326
Woehst's denials of sabotage instructions or participation
in or knowledge of sabotage or sabotage activities . . 327
Woehst's activities in the United States 328
Marguerre denied that he gave Woehst instructions for
America 328
Woehst dismissed for " failure " 328
Woehst denied staying at Prince George Hotel .... 329
Herrmann's letter to Hauten (Woehst) 329
How often did Woehst see Hinsch? 330
Woehst's movements after Kingsland fire 330
Woehst's concern over spots on Hildegarde Jacobsen's
face 331
Hildegarde Jacobsen's information given Department of
Justice regarding Woehst, Herrmann and Gerdts . . 331
Hildegarde Jacobsen's affidavit in 1935 verifies Hilken
and Herrmann and contradicts Woehst 331
Woehst's letters to blackmail the Hilkens 333
Woehst tries to secure money from German Government
because he was active in New York and Baltimore
from Oct. 1916 to Feb. 1917 333
How Woehst's expenses in U.S. were paid 335
Herrmann's testimony about Woehst confirmed by Hilken-
Arnold correspondence 337
(7) The Arnold Correspondence Proves Sabotage by German
Agents in Neutral Countries Including the United
States:
Germany's pleadings re-examined 339
Marguerre's affidavit restated 339
Hinsch's claim of ceasing sabotage after spring of 1916 340
Hilken's reply to these claims 340
What the Hilken-Arnold correspondence proves ... 34. 0
Arnold's cover addresses 341
Hilken's cover addresses 341
Arnold tries to persuade Hilken to go to South America 342
Hilken offers to send Herrmann 342
Arnold forced to go to a cool country with his samples . 342
Big market for — shaving brush — in Argentine . . . 342
Arnold needs money 342
DECISIONS 231
Opinion of the American Commissioner (continued)
B. Fraud in the Evidence (continued)
(7) The Arnold Correspondence Proves Sabotage by German
Agents in Neutral Countries Including the United States
(continued) Page
Arnold congratulates Hilken on his success 342
Hilken's principals abroad send a young man (Woehst)
with new supplies 343
Hilken finances Arnold 343
Arnold's trip to U.S 343
" Dynamometer " and " money " letters 344
Sink them without a trace or let them go through . . . 344
Dynamite against outgoing ships if it be impossible to
recognize its origin 344
The sin of getting caught 345
(8) Financing the Saboteurs:
Marguerre's task in neutral countries 345
The meeting with " Sektion Politik " Feb. 18, 1916 . . 345
Nadolny leaves the room 345
Hilken's task: " to pay out money to the agents ".. 34. 5
Marguerre's instructions to Herrmann 345
Marguerre turns his back on Hilken 346
Hilken describes the meeting 346
Hilken's banks for sabotage funds 346
Hilken pays Herrmann and Hinsch more than 550,000.00 346
Hilken sends Hinsch to Mexico with 523,361.75 and
SI,500 346
Hilken sends more than 5100,000 346
Hilken received 510,000 from Rintelen for Hinsch . . . 346
Anton Dilger receives from Hilken 595,000 in Mexico . 346
Hilken sent between $200,000 and 5300,000 to Mexico 347
Hilken pays Herrmann, Hinsch, Woehst, Arnold and
Gerdts from account in one bank 551,071.40 from
August, 1916, to August, 1917 347
(9) Summary and Conclusion on the Question of Fraud :
Summary of pleadings 347
Summary of Evidence :
Sabotage authorized and committed in neutral coun-
tries 347
Sabotage authorized and committed in U.S 347
Wozniak's false testimony 347
Wozniak's affidavits paid for 347
Wozniak's letters and post card to Russians 347
Lyndhurst testimony 348
Ahrendt, Woehst and Hinsch's perjuries 348
Hinsch did not cease sabotage 348
Hinsch's false statements 348
Confessions of Herrmann and Hilken left without stigma 348
Conclusions on question of fraud 348
232 UNITED STATES/GERMANY
Opinion of the American Commissioner {continued)
B. Fraud in the Evidence (continued) Page
III. Herrmann Message:
What it proves, if genuine 349
1. Herrmann:
Herrmann's biography 351
Meeting with Marguerre and Nadolny 352
Herrmann's aliases 352
Eastern Forwarding Company and Schumacher & Co. . . . 353
Black Tom explosion, July 30, 1916 353
Hilken pays Hinsch S2000 for Black Tom 353
Eastern Forwarding Co.'s windows broken by Black Tom
explosion 353
Herrmann and the Dilgers 353
Herrmann hired Wozniak and Rodriguez for Kingsland . . 354
Herrmann and Gerdts sail for Havana February 24, 1917 . . 354
Herrmann and Gerdts under surveillance Department of
Justice 354
Herrmann and Gerdts go to Mexico:
Meet Siegel on the steamer 354
Meet Maj. Schwierz 354
Herrmann and Gerdts see Eckardt 354
Eckardt's telegram to General Staff 354
General Staff confirms Herrmann 354
Herrmann sends Gerdts to Hoppenberg and Hilken with
message 354
Herrmann identified Ex. 904 354
Gerdts returns with $800 :
States Hinsch will bring balance of 525,000 355
Siegel's first statement confirms Herrmann 355
Herrmann's description, 4/3/1930, of sending Gerdts to Hilken
with a couple of letters 355
Herrmann's testimony under subpoena :
Never saw Gerdt's affidavit in 1930 355
The missing back page 356
Does not remember the code used 356
Does not recall where magazine was bought, Havana or
Mexico City 356
Berliner's report on Gerdts and Herrmann, 1917 356
Herrmann bought two American magazines 356
How message was composed and written 356
Herrmann sends wire to Hildegarde Jacobsen 357
Two messages 357
Herrmann contradicts Hinsch :
Message not written on plain page 357
Hilken knew Gerdts 357
DECISIONS 233
Opinion of the American Commissioner {continued)
B. Fraud in the Evidence {continued) P"g
e
2. Siegel:
Siegel's biography 357
Mentioned in Tunney's report 357
Witzke describes Siege] and Herrmann as working with
Hinsch 358
Siegel meets Herrmann and Gerdts in port of Havana en
route to Vera Cruz 358
Siege] associated with Herrmann, Gerdts and Schwierz in
Mexico 358
Simpich reports Herrmann and Siegel as co-operating with
Rademacher 358
Siegel and Herrmann make trip to Lower California . . . 358
Mason's affidavit 358
Guyant, August 24, 1917 359
Hilken at first did not remember Siegel 359
Siegel's first statement 359
Siegel's second statement:
Herrmann's representations 360
Siegel's assumptions 360
What Herrmann failed to tell Siegel 360
Herrmann's answer to Siegel's second statement 362
Hinsch's description of the message 362
Siegel's second statement shows that a code was used . . . 363
Hinsch describes a message not needing to be coded . . . 363
3. Gerdts:
Gerdts' history before he carried the message 363
Gerdts brings the message to Hilken in Baltimore .... 364
Gerdts'report to Lay ton 7/29/17 364
Guyant's report 8/24/17 365
How Gerdts' affidavit was secured 366
Gerdts' first affidavit:
Confirms Layton and Guyant 366
Description of message and trip to New York and Balti-
more 367
Met Siegel on steamer in Havana Harbor 367
Offered a bonus by Herrmann to assist in blowing up
Tampico oil wells 367
Offered $25,000 by Herrmann if he would blow up
Tampico 367
Discharged upon his refusal 367
Gerdts' second affidavit:
Met Paul Hilken four or five times in New York also in
Baltimore 367
Message written in lemon juice — he bought the lemon . 367
Recognizes photostatic copy 368
Differences in Gerdts' reports 368
234 UNITED STATES/GERMANY
Opinion of the American Commissioner (continued)
B. Fraud in the Evidence (continued) Page
4. Hilken.
(1) Hilken's receipt and development of the message .... 369
(2) Hilken already knew Gerdts and no introduction was
necessary 370
(3) Hilken goes to New London and brings Hinsch back to
Baltimore 371
(4) Hilken and Hinsch's interview with Gerdts April 29. 1917 371
(5) Hinsch criticizes Herrmann's code 371
(6) Hilkens' sabotage payments to Hinsch, Mav, 1917. . . . 371
(7) Hilken and Hinsch send Gerdts back to Mexico with S 1,000 372
(8) Hilken knew Siegel 372
(9) Hilken stores the message in the attic of his home in Balti-
more 372
(10) Hilken's house not watched 372
(11) Hilken discovers other papers with message 372
(12) Hilken and Herrmann and Liberty articles 373
(13) Hilken's family and publicity 374
(14) Hilken rediscovers message Christmas, 1930, and delivers
same to Peto, April 27, 1931 374
(15) Hilken's claim of rediscovery substantiated by his wife and
daughter 374
(16) Hilken substantiated by Carr and Cooney 375
(17) Hilken substantiated by Mrs. Elizabeth Braun 376
(18) Hilken's efforts to show the message to the Umpire . . . 376
(19) Hilken's efforts to see Boyden confirmed 376
(20) Hilken's effort to see Boyden confirmed by Miss Phillips . 377
(21) Hilken's effort to see Boyden confirmed by Curry .... 377
(22) Hilken's visit to the Umpire's office confirmed by Umpire's
secretary 377
5. Internal Evidence:
Seven purposes:
(1) To enlist Hilken's aid in convincing von Eckardt of Herr-
mann's bora fides and his mission to Mexico 378
(2) To persuade Hilken to send Herrmann $25,000.00 ... 380
(3) To persuade Hinsch and Hilken to leave the United States 382
(4) In connection with Hinsch to promote the destruction of
enemy commerce on the West Coast 383
(5) To warn Hilken where he might expect trouble from
co-saboteurs and their friends 387
(6) To awaken memories of sabotage acts 389
(7) " Bearer will relate experience and details. Greetings " . 390
Attacks on the Herrmann Message:
1. By Ahrendt:
Purpose of Ahrendt's attack :
To show that no written message was received by Hilken 391
Ahrendt's comprehensive denials 391
Ahrendt's attack destroyed by Siegel 392
DECISIONS 235
Opinion of the American Commissioner (continued)
B. Fraud in the Evidence (continued) Page
2. ByHinsch:
Hinsch's attack 392
Hinsch's attack analysed 393
The message as described by Hinsch 393
Conformed with Blue Book message in two particulars 393
Differed from Blue Book message in two particulars 393
Gerdts' oral message as described by Hinsch 393
Conforms with Blue Book message in seven particulars 393
Conforms the record as to Herrmann's authority to set
fire to Tampico oil fields 394
(1) Was the border being closely watched when Gerdts
came to Baltimore? 394
(2) Was the Herrmann message destroyed? 397
(3) Was the Herrmann message written in lemon juice or
invisible ink? 397
(4) Was Gerdts unknown to both Hilken and Hinsch
when he brought the Herrmann message to Balti-
more? 400
(5) Was the message written in a magazine or in a book
with a stiff cover? 401
3. Attack by Osborn and Tannenberg acting as investigators or
sleuths :
Osborn's two letters of Oct. 28, 1931 403
Osborn convinced the Blue Book message a forgery .... 403
Diary for Oct. 28, 1931 404
Draft by Osborn of affidavit for H. Meyers 404
" Statement of Mr. Albert S. Osborn " 405
Comparisons :
" Eleven or twelve years of age " 406
v.
" Blue Book Magazine of year 1917 " 406
" Six or seven months " 406
v.
" Several months " 406
Statement of Agent of Germany 407
Discrepancies 407
Oral argument 1932 408
Osborn's diary entry for Oct. 28, 1931 (omitted in his
transcript) 408
Source of Osborn's information 409
Osborn denies he did investigative work 410
Osborn " prepared " affidavit for Meyers 410
Osborn " arranged about affidavit of H. Meyers " . . . . 410
" Mr. Osborn has not taken any part in this investigation " 411
Osborn went with Tannenberg to Meyers' store " to show
him the way " 411
Osborn denies showing him the way 411
The Quakers story 412
The Umpire's review 412
Opposition to securing testimony of the Quakers .... 413
236 UNITED STATES/GERMANY
Opinion of the American Commissioner [continued)
B. Fraud in the Evidence (csntinued)
Comparisons (continued) Page
Original story of marking titles 413
Story repeated 413
Horace Quakers examined under subpoena 414
Horace Quakers admits if sequence is vertical-horizontal
cross marks not made by him and brother 414
John Quakers says marks in Ex. 904 not made by him . 414
Ex. 904 in different condition from any magazine Horace
had 414
Sequence in Ex. 904 different from Quakers marks . . 414
OsboTn's book 415
Herman Meyers denies that Blue Book containing the
message was bought in his store 416
Denies Fred Herrmann was one of the purchasers of the
January, 1917, Blue Book 416
Ditto Hilken 416
Quakers magazines not offered for sale till April, 1931 . 416
4. Charge by Osborn and Stein that a report by Stein had been
suppressed 416
Osborn's letter 4/21/32 to Tannenberg 416
German Commissioner's letter 5/18/32 to Umpire .... 416
German Commissioner made oral statement to Umpire that
Stein's report had been suppressed 417
Umpire's letter 5/28/32 417
Stein's letter Nov. 4, 1932 to Arnold 417
Stein's letter Nov. 5, 1932 to Arnold withdraws letter Nov.
4/32 418
Decision of June 3, 1936 418
Stein's alleged report of June 10, 1931 never delivered:
First. Stein's letter of Nov. 4, read with his handwriting
report disproves the delivery 420
Second. Stein's claim transcends the bounds of reason . 421
Third. Stein's claim is contradicted by the facts in the
record 422
5. The Attack by the Experts :
The direct and indirect attacks have failed 424
The internal evidence sustains the message 424
Osborn the spear head of the expert attack 424
Osborn as an investigator or sleuth 424
Osborn and Stein and the suppressed report 4?4
The decision of Dec. 3, 1932 evenly balanced 425
The impression of a suppressed report 425
Ignorance of Osborn's activities 425
Ignorance of charging date for Meyers' affidavit .... 425
Osborn's employment as an expert:
(a) By the claimants 426
(b) By the Commission 427
Osborn's fee 429
The problem for the experts stated 430
Facts ascertained by an examination of Ex. 904 431
Facts established by expert testimony 431
DECISIONS 237
Opinion of the American Commissioner (continued)
B. Fraud in the Evidence (continued) Page
Contest between the experts focused around four points:
f 1 ) Is it possible from the condition of the pin pricks to
determine when the pin pricks were put through
the paper? 433
McGrail on pin pricks 433
McGrail attacked by Osborn 433
McGrail's qualifications 433
McGrail's conclusions as to pin pricks 433
Osborn denounces McGrail's conclusions as " pre-
sumptuous " and " dangerous " 434
McGrail's second affidavit 434
Answers Osborn and Clark 434
Re-examination and conclusion 435
Lofton's report 435
Osborn's affidavit of Aug. 13, 1932 attacks Lofton's
report, accuses Lofton of carelessness, lack of accu-
racy in observation, and gross error 436
Skinner, Clark, Griffin, and Billings support Osborn's
attack on Lofton's report 437
Lofton's reply 437
Esselen's report June 1, 1932 sustains McGrail and
Lofton on pin pricks 438
Esselen's qualifications 438
Heinrich's qualifications 439
Heinrich's report on pin pricks confirms McGrail and
Lofton 439
Osborn's exhibit confirms McGrail and Lofton . . . 439
Hibbert and Minor's report on pin pricks confirms
McGrail and Lofton 440
(2) Is it possible from the perforations and abrasions by
the pen to determine the age of the paper when the
message was written thereon?:
Osborn's original affidavit claims perforations in the
edges of the sheets 440
Three instances of perforations in the margin . . . . 440
" No perforations elsewhere " 441
Skinner and Clark sustain Osborn as to charge of
perforations in margin but not in the body . . . 441
Heinrich's report:
Finds five punctures and fifteen pen digs in the
central areas (not in the margins) 441
Osborn's answer to Heinrich:
Holes are defects in the paper not caused by pen . 441
Esselen's report:
Supports Heinrich 441
(3) Is it possible from the extent to which the lemon juice
has penetrated or struck through the paper to deter-
mine the age of the paper at the time when the
writing was imposed thereon?:
Osborn's first affidavit 442
Clark's affidavit 442
Fox's qualifications 443
238 UNITED STATES/GERMANY
Opinion of the American Commissioner (continued)
B. Fraud in the Evidence (continued) Page
Fox's affidavit:
Summarizes conclusions of expert for Germany . . 443
Absorbent quality of old and new paper .... 444
Conclusions 445
Skinner, Clark, Griffin, and Billings attack Fox . . 445
Their errors 445
William J. Hurst's qualifications 446
Hurst supports Fox on strikes through 446
Hurst's conclusions 447
Gurrin's qualifications 447
Gurrin secured Fox 448
Gurrin's affidavit 448
Gurrin supports Fox 448
Esselen on absorbent qualities and strikes through . 449
Hibbert and Minor examine Osborn's contention . . 450
Hibbert's qualifications 451
Minor's qualifications 451
Admiral Sir William Reginald Hall 452
Examination of heel marks 452
(4) Is it possible from a comparison of the handwriting of
Herrmann at or about the time the message was
alleged to have been written in 1917, with his hand-
writing at or about the time when it was claimed by
Germany that he wrote it in 1931, to determine at
which age he actually wrote the message?:
Heinrich's report:
The final " t " 453
Conclusion from the expert evidence 454
IV. Conclusions 454
Conclusion on the question of fraud restated 457
Decision of the Commission rendered by the Umpire 458
Certificate of Disagreement and Opinion of the American Commissioner
These cases originated out of two disasters, — the first, the destruction at
Black Tom, N. J., on July 29-30, 1916; the second, the fire at Kingsland, N. J.,
on January 11, 1917.
In these disasters millions of dollars worth of property was destroyed, and
in the case of Black Tom, at least two lives were lost.
The Memorials of the United States were filed in March, 1927, and therefore
the cases have been pending before the Commission more than twelve years.
The present status of these claims is as follows: The American Agent on the
4th day of May, 1933, filed a petition for rehearing and reconsideration of the
decision at Hamburg, dated the 16th day of October, 1930, on the ground
that it was induced by fraud and collusion on the part of witnesses and suppres-
sion of evidence on the part of some of them. The purpose of the petition is
fully set out in the following language in the decision of the Umpire at Wash-
ington, December 15, 1933 (Report of American Commissioner dated Decem-
ber 30, 1933, pp. 75, 76):
" Its allegations are that certain witnesses proffered by Germany furnished the
Commission fraudulent, incomplete, collusive, and false evidence which misled the
Commission and unfairly prejudiced the claimant's cases; that certain witnesses,
DECISIONS 239
including some who previously testified, who are now within the United States,
have knowledge and can give evidence which will convince the Commission that
its decision was erroneous; that evidence has come to light showing collusion
between certain German and American witnesses to defeat the claims. These are
serious allegations, and I express no opinion of the adequacy of the evidence ten-
dered by the American Agent to sustain them. I have refrained from examining
the evidence because I thought it the proper course at this stage to decide the
question of power on the assumption that the allegations of the petition may be
supported by proof, postponing for the consideration of the Commission the
probative value of the evidence tendered.
" The petition, in short, avers the Commission has been misled by fraud and collusion
on the part of witnesses and suppression of evidence on the part of some of them.
The Commission is not Junetus ofpeio. It still sits as a court. To it in that capacity
are brought charges that it has been defrauded and misled by perjury, collusion,
and suppression. No tribunal worthy its name or of any respect may allow its
decision to stand if such allegations are wellfounded. Every tribunal has inherent
power to reopen and to revise a decision induced by fraud. If it may correct
its own errors and mistakes, a fortiori it may, while it still has jurisdiction of a
cause, correct errors into which it has been led by fraud and collusion.
" I am of opinion, therefore, that the Commission has power to reopen these cases,
and should do so, in order that it may consider the further evidence tendered by
the American Agent and, dependent upon its findings from that evidence and any
that may be offered in reply on behalf of Germany, either confirm the decisions
heretofore made or alter them as justice and right may demand."
On the 2nd day of May, 1935. the American Agent filed a Motion, asking
that an Order be entered
" to the effect that the Commission does not desire to take submission of these
claims until all evidence that either Government desires to have considered in
support of or in opposition to the pending petition for rehearing has been filed
in order that the Commission may, when it takes submission, enter an Order
finally disposing of these claims on their merits and that the Order further advise
the Agents of the two Governments accordingly."
The German Agent opposed the making of such an Order, and, in the decision
of July 29, 1935, denying the Motion, the Commission, by the Umpire, said
(P-2):
" By the petition and answer an issue was framed. This issue may be stated
thus: ' Was the Commission misled by fraud practiced upon it? ' If that issue be
decided in favor of the claimants, the Commission should reopen the case upon
the merits and reexamine the conclusions reached in the light of the whole record,
including the proofs offered to impeach evidence forming part of the record when
its decision on the merits was rendered. Obviously the case is not reopened by the
presentation of a petition praying for such action. Especially is this true where the
allegations of the petition are categorically denied. This the American Agent
concedes. The decision of November 4, 1934 \ so recognizes. It is there said:
' The issue which will come before the Commission is made up by the allegations
of the petition and the categorical denials of the answer.' "
In the course of his opinion the Umpire also said (p. 3):
" * * * If the claimants prevail upon that preliminary question [the right to
reopen]. the former decisions will be laid aside and the merits reexamined in the
light of all the evidence, including that tendered on the issue of fraud and
collusion. * * *
" It is, of course, conceivable that the Commission should hear argument on both
the propriety of reopening the case and the merits at one and the same time. Much
may be said pro and con such a procedure. Nevertheless, I suppose that if the
1 Announced November 9, 1934.
240 UNITED STATES/GERMANY
parties were in agreement that this course should be followed, the Commission
would acquiesce. There is no such agreement. Germany insists that the pre-
liminary question be determined separately. I am of opinion this is her right.
She now has a judgment. Before that judgment may be set aside and a new
hearing held upon the merits, it is incumbent upon the claimants to sustain the
affirmative of the issues made by their petition. The next hearing, therefore, will
be upon the question of reopening vel non, and not upon the merits."
Following this decision, additional evidence and exhaustive briefs were filed
on behalf of each Government. Oral arguments were then had on May 12
to 29, 1936. The Commission on June 3, 1936, handed down a unanimous
decision, setting aside the decision of December 3, 1932, and restoring the
claims to the position they were in before that decision was rendered. In the
course of its decision the Commission said:
" Before the Hague Decision may be set aside the Commission must act upon the
claimant's petition for rehearing. Whether upon the showing made, the Com-
mission should grant a rehearing, unless Germany shall agree to a different course, must,
under the Commission's decision of July 29, 1935, be determined by a hearing
separate from and distinct from any argument on the merits." (Emphasis sup-
plied.)
That Germany, following the decision of June 3, 1936, did elect to follow
" a different course ", is evidenced by the fact that the German Agent exercised
the right given him in the Order of the Commission of December 1, 1937,
reading as follows:
" that the German Agent may not only file the documents called for under Rule
4 [of the Special Rules, under Order of March 20, 1929],
b but may submit, if he
desires, further evidence."
The same Order provided that:
" The German Agent shall file with the Commission any other evidence [in
addition to that called for under Rule 4] he desires to file on or before March 1,
1938, and not thereafter."
Pursuant to this Order, the German Agent did file a considerable amount
of evidence other than that called for under Rule 4 of the Special Rules, his
last evidence being filed on January 14, 1939.
During the past twelve years, thousands of pages of evidence, consisting of
official documents from the files of various Government Departments, affidavits,
examinations of witnesses under the Act of July 3, 1930 (46 Stat. 1005), and
under the act of June 7, 1933 (48 Stat. 117), and other instruments have been
filed and during that period, voluminous briefs were filed by each side and
lengthy oral arguments heard, covering the various features of the cases.
The cases were closed on January 14, 1939, and each Agent has filed ex-
haustive briefs covering a full discussion, not only of the questions raised by the
petition of May 4, 1933, but likewise arguing the cases on the merits. The
American Agent filed his briefs on September 13, and December 5, 1938. The
German Agent filed his briefs on November 16, 1938, and January 12, and 14,
1939. After exhaustive oral arguments by distinguished counsel extending
through twelve days, the cases were finally submitted to the Commission on
the 27th day of January, 1939.
After about two weeks had elapsed, the Umpire and the Commissioners
began their conferences. These conferences continued, but not on consecutive
days, until Tuesday, February 28, 1939, when the last conference was held.
b Note by the Secretariat, this volume, p. 244 infra.
DECISIONS 241
Another conference was scheduled to be held on Thursday, March 2, 1939,
at the office of the Umpire. Shortly before the time for the conference, a letter
from the German Commissioner, announcing his retirement, was delivered to
the Umpire and a similar letter was delivered to the American Commissioner.
These letters and the replies thereto have been made matters of record.
1
The subject of these conferences, in their early stages, was whether the evi-
dence which had been adduced had proven fraud sufficient in character to
set aside the decision at Hamburg.
In the course of these conferences, the American Commissioner expressed
to the Umpire and to the German Commissioner his opinion that the decision
at Hamburg had been reached on false and fraudulent evidence and that the
proof of fraud was sufficient to set aside the Hamburg decision and reopen the
cases.
After the conferences had continued for a considerable time, the Umpire
expressed himself in entire agreement with the American Commissioner on the
question of fraud. Thereupon the German Commissioner argued that, if,
upon an examination of the whole record, both before and subsequent to the
Hamburg decision, the Commission were to come to the conclusion that the
United States had not proven its case, even though there had been fraud in the
evidence before The Hague argument, it would be necessary to dismiss the
petition, and he urged upon the Umpire and the American Commissioner the
necessity of considering the whole evidence for that purpose.
It was thereupon agreed that the whole record should be examined to deter-
mine whether the American case had been proven or not, and it was while the
Commission was engaged in examining this question that the letters aforesaid
of the German Commissioner were received.
As was indicated clearly in the Umpire's reply, the letter to the Umpire
presented a wholly false picture of the deliberations of the Commission. The
effort of the German Commissioner to justify his retirement, by attributing bias
to the Umpire, will receive, as it deserves, the disapprobation of every right-
thinking person.
CERTIFICATE OF DISAGREEMENT
Under these circumstances, I deem it my duty as American Commissioner
to certify, and I do hereby certify, to the Umpire that, in both of the cases now
under consideration by the Commission, there was a disagreement between the
American Commissioner and the German Commissioner on all material points
before the Commission, and particularly on the point as to whether the evidence
which has been adduced had established fraud sufficient in character to justify
the Commission in setting aside the decision at Hamburg.
I further certify that at the time when the German Commissioner retired, the
Commission was, at his instance, considering the question whether the American
Agent had proven his case, and, more particularly, whether the Herrmann
message was an authentic instrument; and with this, my certificate, I am
submitting my opinion with respect to said cases and the points of difference
certified, and I respectfully ask that this opinion be filed as a part of the record
in this case.
I. JURISDICTION
There have been spread upon the minutes of the Commission the letter of the
German Commissioner, addressed to the Umpire, announcing his retirement
1 For letters, see appendix. (Note by the Secretariat, this volume, Appendix V. p. 493.)
242 UNITED STATES/GERMANY
from the post of German Member of the Mixed Claims Commission; the Um-
pire's reply thereto; the letter of the German Commissioner to the American
Commissioner apprizing him of his retirement ; the American Commissioner's
reply thereto, and the letter of the American Commissioner to the Secretary
of State, notifying the Secretary of State of the German Commissioner's retire-
ment and the status of this case at the time of the retirement of the German
Commissioner.
Although the German Commissioner announced his retirement on March 1,
1939, and more than three months has expired, the German Government has
failed to follow the procedure prescribed by the Agreement of August 10, 1922,
for filling the vacancy.
Under the circumstances set out above and in the letters spread upon the
minutes, the question which is now before the Commission for its decision is,
whether the Commission, acting through the Umpire and the American Com-
missioner, has the power to proceed with the cases and to decide whether the
evidence which has been adduced has proven fraud sufficient in character to
set aside the decision at Hamburg; and, second, whether upon an examination
of the whole record, the American Agent has failed to prove his case.
Or, to put the question in a different form, did the retirement of the German
Commissioner on March, 1 1939, render the Commission functus qfficio and
deprive the Commission of the power to decide the questions at issue?
In order to examine and decide this question, it is necessary to refer to the
pertinent provisions of the Treaty of Berlin; the Agreement of August 10, 1922,
between the two Governments, under which this Commission was organized,
and the Rules of Procedure adopted by the Commission.
Under the Treaty of Berlin it was provided, in section 5, of the Joint Reso-
lution of Congress, approved by the President July 2, 1921,
1 and incorporated
in said Treaty, as follows:
" All property of the Imperial German Government, or its successor or succes-
sors, and of all German nationals, which was, on April 6, 1917, in or has since
that date come into the possession or under control of, or has been the subject
of a demand by the United States of America or of any of its officers, agents, or
employees, from any source or by any agency whatsoever, * * * shall be
retained by the United States of America and no disposition thereof made, except
as shall have been heretofore or specifically hereafter shall be provided by law
until such time as the Imperial German Government * * * shall have
* * * made suitable provision for the satisfaction of all claims against said
Governments respectively, of all persons, wheresoever domiciled, who owe perma-
nent allegiance to the United States of America and who have suffered, through
the acts of the Imperial German Government, or its agents, * * * since
July 31, 1914, loss, damage, or injury to their persons or property, directly or
indirectly, * * * or in consequence of hostilities or of any operations of war,
or otherwise."
Under the Agreement of August 10, 1922, between the United States and
Germany, the preamble states that the two Governments,
" being desirous of determining the amount to be paid by Germany in satisfaction
of Germany's financial obligations under the Treaty concluded by the two Govern-
ments on August 25, 1921, * * * have resolved to submit the questions for
decision to a mixed commission."
Article II of said Agreement reads as follows:
" The Government of the United States and the Government of Germany shall
each appoint one commissioner. The two Governments shall by agreement select
1 42 Stat . 105
DÉCISIONS 243
an umpire to decide upon any cases concerning which the commissioners may
disagree, or upon any points of difference that may arise in the course of their
proceedings. Should the umpire or any of the commissioners die or retire, or be
unable for any reason to discharge his functions, the same procedure shall be
followed for filling the vacancy as was followed in appointing him."
Under this Agreement, the Mixed Claims Commission, United States and
Germany, was constituted and was authorized to pass upon three categories
of claims set out in said Agreement, and has decided many cases involving
millions of dollars.
The purpose for which the Commission was created is to determine the
amount to be paid by Germany in satisfaction of Germany's obligations under
the Treaty of Berlin to satisfy all claims against Germany of all persons who owe
permanent allegiance to the United States and who have suffered through the
acts of the Imperial German Government, or its agents, loss, damage, or
injury to their persons or property, directly or indirectly.
As indicated above, the German Commissioner retired on March 1, 1939,
and although more than three months have expired, Germany has not followed
the procedure provided by the Agreement of August 10, 1922, for filling the
vacancy.
Article VI of the Agreement of August 10, 1922, contains the following:
" The decisions of the commission and those of the umpire (in case there may
be any) shall be accepted as final and binding upon the two Governments."
Article VI (d) of the Rules of Procedure reads as follows :
" (d) When a case is submitted in pursuance of the foregoing provisions, the
proceedings before the Commission in that case shall be deemed closed, unless
opened by order of the Commission."
Article VIII, of the Rules of Procedure adopted by the Commission, reads
as follows:
" DECISIONS
" (a) The two National Commissioners will certify in writing to the Umpire
for decision f 1) any case or cases concerning which the Commissioners may disagree,
or (2) any point or points of difference that may arise in the course of their proceed-
ings, accompanied or supplemented by any statement in writing which either of
them may desire to make of his opinion with respect to the decision of the case or
cases or point or points of difference certified.
" (b) The Umpire shall at all times have the right to the complete record in
any and all cases and to hear oral argument in his discretion.
" (c) The Umpire may join with the two National Commissioners in announcing
— or in the event of their disagreement certified to him shall announce — principles
and rules of decision applicable to a group or groups of cases for the guidance as
far as applicable of the American Agent, the German Agent, and their respective
counsel, in the preparation and presentation of all claims.
" (d) All decisions shall be in writing and signed by (1) the Umpire and the
two National Commissioners, or (2) by the two National Commissioners where
they are in agreement, or (3) by the Umpire alone when the two National Com-
missioners have certified their disagreement to him. Such decisions need not state
the grounds upon which they are based."
On March 20, 1929, the Commission entered an Order providing additional
rules governing the sabotage cases, reading as follows (Report of the American
Agent, 1934, p. 177):
" IT IS ORDERED BY THE COMMISSION that special additional rules
applicable to this group of ' sabotage cases ' are adopted as follows:
244 UNITED STATES/GERMAN Y
" (1) The Umpire will sit with the National Commissioners throughout the
argument.
" (2) Each member of the Commission will carefully consider the entire record
and the points and arguments put forward in the briefs whether the Agents and
counsel refer thereto in their oral arguments or not. This will enable counsel for
both sides to confine their arguments to those points which they believe to be most
essential without incurring the risk of waiving a point not mentioned on the oral
argument but considered relevant by any member of the Commission.
" (3) If any member of the Commission considers a point not orally argued one
which should be taken into account in the Commission's decision, counsel's attention
will be called thereto during the progress of the argument or subsequent thereto,
and counsel for both parties will be given an opportunity to discuss same on the
oral argument or to file written or printed briefs within a time to be fixed by the
Commission covering such particular point or points.
" (4) Where either party has for lack of time or other reason (other than a lack
of diligence by such party) failed to produce evidence in rebuttal of that filed by
the other party, and in the opinion of any member of the Commission such evidence
in rebuttal is material; or where in the opinion of any member of the Commission
further evidence on any point should be presented to aid the Commission in
reaching a sound decision, the Commission will, within the time to be fixed by it,
give the party or parties an opportunity to prepare and file such additional evidence.
Where such additional evidence is not strictly in rebuttal the adverse party will be
given a reasonable opportunity, within a time to be fixed by the Commission, to
file evidence in rebuttal thereof.
" (5) Where, under orders of the Commission, evidence is filed during the
progress of the oral argument or subsequent thereto, both parties will be given
an opportunity, within a time to be fixed by the Commission, for the filing of
written or printed supplementary briefs dealing with the evidence so filed."
Ever since these additional rules were adopted, the Commission has func-
tioned in the sabotage cases as an arbitration body with three members, and
the Umpire has sat with the two National Commissioners at each hearing,
both during the examination of witnesses and the argument of counsel and has
participated in the opinions.
By the very terms of the Agreement of August 10, 1922, and by the express
terms of Article VIII of the Rules of Procedure, " any cases concerning which
the Commissioners may disagree " and " any points of difference " may be
decided by the concurrence of the two Commissioners, or by the concurrence
of the Umpire and one National Commissioner.
Thus it appears that, under the organic law by which the Commission was
created, and under its own Rules of Procedure, unanimity is not required, and
the concurrence of only two is necessary for a decision, and this has been the
practice ever since the Commission started functioning.
After the Hamburg decision was announced, that decision was attacked by
the American Agent on the ground that it was irregularly rendered, because the
Umpire participated in the deliberations of the National Commissioners and
in the opinion of the Commission.
On March 30, 1931, the Commission, in a unanimous opinion, answered
this ground of attack as follows :
" This question is raised by the American Agent's claim that the decision was
irregularly rendered because the Umpire participated in the deliberations of the
National Commissioners and in the opinion of the Commission. The Umpire
participated in the deliberations of the Commissioners and in the opinion in
accordance with the usual practice of the Commission in cases of importance since
its foundation in 1922, a practice never before questioned and not in our judgment
of doubtful validity even if it had not so long been accepted by all concerned."
DECISIONS 245
Thus, both before the special additional rules were adopted and after they
were adopted, the Umpire has participated in the deliberations of the Commis-
sioners and in the opinions of the Commission.
Under the organic law governing the procedure of the Commission, that is
to say, the Treaty of Berlin, the Agreement of August 10, 1922, and the Rules
of Procedure adopted by the Commission, and under the practice which has
obtained, since the Commission was established, is it possible, after a case
has been submitted to the Commission and the two National Commissioners
are in disagreement as to the direct issue before the Commission, for one
National Commissioner to retire and prevent a decision by the remaining
members of the Commission?
If it be possible for one National Commissioner, whether under the express
order or with the tacit consent of his Government, thus to bring to naught
and render worthless the work resulting from the expenditure of thousands of
dollars and years of careful research, and thus to defeat the very purpose for
which the Commission was constituted under the Treaty of Berlin, such a
result would make a mockery of international arbitration.
A somewhat similar case is the case of Republic of Colombia v. Cauca (1903),
190 U.S. 524 (modifying and affirming s.c, 113 Fed. 1020; s. c. 106 Fed. 337).
In that case the Republic of Colombia brought a suit in equity in the Circuit
Court for the District of West Virginia against the Cauca Company and the
Colombian Construction and Improvement Company, two corporations
organized under the laws of the State of West Virginia. The purpose of the
bill was to obtain a decree canceling an award made by two of three arbitrators,
acting under an agreement of arbitration between the Republic of Colombia
and the Cauca Company in connection with a contract for the construction
of the Cauca Railway. The award was signed by two of the three arbitrators
and was in favor of the Cauca Company for a large sum of money. One of
the grounds for claiming that the award was invalid was because it was signed
by only two of the three arbitrators.
It was alleged in the bill of complaint (U.S.S.C. Transcripts of Record,
p. 28165) as follows:
" That in and by such Agreement [of Arbitration] it was provided in Article 6,
that should any of the members of the commission decline to act or resign from
the commission or for any reason cease to act, the proceedings of the commission
should not thereby be invalidated, but the commission should be restored by a new
appointment which was to be made, by the party who appointed the member
who failed to act, within thirty days, counting from the date on which said failure
to act should occur. If such party should not comply with such obligation, the
Secretary of State of the United States of America and the Minister of Colombia
at Washington should proceed by agreement to appoint a person to fill the
vacancy."
It was further alleged that, after the Commissioners were duly appointed,
they held thirty-four sessions, and at the 35th session " the Commission was
notified by Manuel H. Pena, the Commissioner named by the Minister of the
Treasury of complainant, that he had resigned to the said Minister of the Trea-
sury who had appointed him, the office of Commissioner, and he transmitted
to the other commissioners, through its secretary, a copy of his letter of resig-
nation addressed to the said minister; that the said resignation was the indepen-
dent act of the said commissioner — not done by the order of, or with the know-
ledge of the complainant, the Republic of Colombia, which only had knowledge
of it after the resignation, which was to take effect from its date, was actually
transmitted to the Minister of the Treasury of this complainant."
17
246 UNITED STATES/GERMANY
It was further alleged that no request had been made by the defendant or
either member of the commission or the complainant, or any member of its
government, or its representative in the United States, to restore the commission
by filling the vacancy; that notwithstanding the voluntary retirement and
resignation of Pena, the remaining members, without any notice to the com-
plainant or anyone representing it, and without request or opportunity for
restoring the commission by the appointment of a third member, but immediat-
ely, on the same day that said Pena resigned, assembled together and assumed
to continue the functions of said commission in the absence of Pena, and finally
formulated a pretended decision or award; that the commission, after the
retirement and resignation of Pena, was wholly incompetent in law to proceed
further or to make any decision or award, or to do any other matter until the
commission had been restored in accordance with Article six of the agreement
under which the commission existed, that is to say, by the appointment by the
complainant of another person in his place and stead.
It was further alleged that the two remaining members of the commission,
in disregard of their duty of fairness and impattiality, misconducted themselves
in the last two sessions; that one of the arbitrators was guilty of misconduct
as an arbitrator; that the two commissioners received wholly incompetent
evidence.
One of the prayers was, that the pretended award promulgated by the two
commissioners might be decreed to be utterly null and void and of no effect.
Honorable Nathan B. Goff, Judge of the United States Circuit Court of the
District of West Virginia, heard the case and wrote the opinion. After stating
the facts upon which the suit was founded, he described the terms of the agree-
ment by which the arbitration was effected (106 Fed. 337, 342). He then
described the organization of the commission and stated (106 Fed. 343) :
" The Commission decided at its second meeting * * • that all of its decisions
should be by majority vote of the members, and at its third session it was resolved
that, in case of disagreement between the members of the Commission, the chair-
man should decide the question at issue."
In summarizing the action taken by the sessions of the commission, Judge
Goff says (106 Fed. 344):
" At its thirtieth session, * * * the Commission commenced the considera-
tion of the testimony — oral arguments and briefs of counsel having been made
and filed — for the purpose of formulating its award."
Then follows a description of the awards in certain sums for different pur-
poses.
And then Judge Goff states (106 Fed. 344):
" At the meeting of the Commission held on October 19, 1897, it was moved to-
award the company as interest on the cost of physical construction to January 26,
1897, the sum of $48,668.18, and the questions relating thereto were discussed,
but the vote thereon was postponed. * * * The meeting was the thirty-
fourth of the Commission, and all the members of the same were present, as they
had been at all previous meetings; all the members had heard the testimony and
the arguments, and all had taken part in the discussion and deliberations relating
thereto, * * * "
At the thirty-fifth session, Pena did not appear, but he caused to be presented
his letter of resignation. In his letter to the Minister of the Republic of Colom-
bia he based his determination to resign upon the declared intention of the
other two members of the Commission to allow the Cauca Company large
amounts for the alleged expenditures having no relation to either construction
DECISIONS 247
expenses or the purchase of material, and, therefore, Pena claimed that the
Commission had no jurisdiction to pass upon or allow such expenditures; and,
further, that the Commissioners had departed from the terms of the convention
and proposed to act wholly beyond their official powers. Therefore he expres-
sed his intention to refuse to act further as a commissioner and to decline to
remain a member of the Commission until the illegal intentions of the Com-
mission should have been carried out (106 Fed. 345).
The two remaining Commissioners met and passed a resolution setting out
a short history of the resignation of Pena and the failure of the Republic of
Columbia to appoint a successor, then it was resolved that the Commission
should proceed forthwith to make its award and formulate its decision as to
the matters involved in the convention.
After setting out the above facts, Judge Goff formulated the question involved
in the following language (106 Fed. 347):
" Is the award defective because only signed by two of the three arbitrators? "
In discussing this question it was held that a unanimous decision was not
required in express words, and that in a case of this character it should not be
implied, and that, if Pena had not tendered his resignation and had he been
present at the session when the award was made and had he then entered his
dissent, still the award would have been binding on the parties unless some
other good cause could have been shown to render it void.
Then Judge Goff said (p. 348):
" In addition to this, I think that the submission was in the nature of a public
contention; that the compromise and adjustment of the same through the medium
of the commissioners was based on a public law, — an act of the congress of the
republic of Colombia; and that, therefore, under the well-established rule applicable
to such controversies, the decision of the majority will conclude the minority, and
their act will be the judgment of the whole number appointed. The dispute was,
at least, brought to an issue by an act of the congress of the republic of Colombia,
by which the franchise of the railway claimed by the Cauca Company was in
effect forfeited. The submission was evidently the result of the friendly suggestions
emanating from the secretary of state of the United States, and conveyed to the
government of the republic of Colombia through the minister of the United States
residing at Bogota. The third member of the commission was chosen, not by the
parties nor by the commissioners appointed by them, but by the representatives
of the governments of the republic of Colombia and of the United States. The
original concession to Cherry recognized the enterprise he was authorized to carry
out to be of public utility, and conceded to him all the rights usual under such
circumstances. In such cases, unless there is a special provision to the contrary,
unanimity in reaching a decision is not required of the commissioners. Co. Litt.
181a; Grindley v. Barker, 1 Bos. & P. 236; Ex parte Rogers, 7 Cow. 526."
In later discussing the question as to whether there really was a vacancy
or not, Judge Goff said (p. 348):
" Clearly, it was not the intention of the parties to the convention that the existence
of the commission should be destroyed by a resignation of the character of that
presented by Commissioner Pena. It would be an impeachment of the common
honesty of the parties to the agreement, and a travesty on their evidently honorable
intentions, to hold that they designed it should thus be in the power of one man
— actuated by, to say the least, not commendable motives — to render worthless
the work resulting from the expenditure of thousands of dollars and months of
careful research, in an effort to amicably adjust an unfortunate controversy, that
was rapidly reaching the point of embarrassment because of its national and
diplomatic character. The testimony forces me to the conclusion that Commissioner
Pena's only motive in withdrawing from the Commission was to prevent, if possible,
a conclusion from being reached, or to render the award invalid should one be
248 UNITED STATES/GERMANY
made. This conduct — keeping in view all the circumstances surrounding him
and the commission of which he was still a member — was not only reprehensible
in character, but was fraudulent in its tendencies."
As in the Cauca Case, so in the sabotage cases, one is impelled to the conclusion
that the German Commissioner's only motive for retiring from the Commission
was to prevent, if possible, a conclusion from being reached, or to render the
award invalid should one be made.
This case was carried to the Circuit Court of Appeals for the Fourth Circuit
and in a per curiam decision, that Court said (113 Fed. 1020) :
" We have carefully considered the opinion of the Circuit Court, the subject
matter of appeal in these two cases. We can add nothing to the clear statement
of the facts of the case made by the learned judge who delivered the opinion of
the court (106 Fed. 337), and we can add nothing to the reasons which led him
to his conclusion, in which conclusion we entirely concur. The decree of the
Circuit Court is affirmed."
When the case came before the Supreme Court of the United States (190
U.S. 524), that Court reversed the case as to the amount of the award that had
been granted but affirmed it in other respects. The decision of the Court
on the question as to the necessity of a unanimous vote is set out in the second
syllabus, as follows:
" Where the parties to a controversy have submitted the matter to a commission
of three who have the power to, and do resolve that all decisions shall be by majority
vote, an award by a majority is sufficient and effective."
The decision on the question of the power of one party to an arbitration or
dispute to defeat the operation of the submission after receiving benefits there-
under by withdrawing, or by adopting the withdrawal of its nominee, is thus
stated in the third syllabus of the case:
" In an arbitration between a sovereign State and a railroad company and
affecting public concerns, whatever might be the technical rules for arbitrators
dealing with a private dispute, neither party can defeat the operation of the
submission after receiving benefits thereunder, by withdrawing, or by adopting
the withdrawal of its nominee, after the discussions have been closed."
Mr. Justice Holmes, after stating the facts leading up to the arbitration agree-
ment, related the terms of the arbitration agreement and discussed the effect
of the resignation of one of the arbitrators as follows:
" The essential features of the agreement were that the company by the second
article surrendered the railroad, and that Colombia agreed to pay a just indemnity,
the scope of which will be considered later, and which was to be determined by
the commission. The commission consisted of three — one appointed on behalf
of Colombia, one on behalf of the company and the third by agreement between
the Secretary of State of this country and the Colombian Minister at Washington.
The Commission, spoken of in the agreement in the singular, was to ' determine
the procedure to be followed in the exercise of the power conferred upon it, both
as to its own acts and as to the proceedings of the parties'. In pursuance of this
power it resolved that all decisions should be by majority vote. Thereafter the
casewas tried, and several items were allowed to the company which it was contended
by the representatives of Colombia were not within the scope of the submission.
At the end of the trial, when hardly anything remained to be done except to sign
the award, the questions remaining open concerning only matters of interest which
have been disallowed, the Colombian commissioner announced his resignation to
the commission.
" The agreement gave Colombia thirty days to appoint a new member, and on
its failure the Secretary of State for the United States and the Colombian Minister
were to appoint him. But the Commission was allowed only one hundred and fifty
DECISIONS 249
days ' from its installation,' which might be extended sixty days more for justifiable
grounds. It had sat two hundred and three days when the resignation was announ-
ced. Manifestly it was possible, if not certain, that its only way of saving the
proceedings from coming to naught was to ignore the communication and to
proceed to the award. This it did. Colombia by its bill and argument now lays
hold of the resignation of its commissioner as a ground for declaring the award void.
" Colombia thus is put in the position of seeking to defeat the award after it
has received the railroad in controversy and while it is undisputed that an appre-
ciable part of the consideration awarded ought to be paid to the company under
the terms of the submission. It is fair to add that the bill offers to pay the undis-
puted sum, but not to rescind the submission and return the railroad. We shall
spend little argument upon this part of the case. Of course, it was not expected
that a commission made up as this was would be unanimous. The commission
was dealt with as a unit, as a kind of court, in the submission. It was constituted
after, if not as the result of, diplomatic discussion in pursuance of a public statute
of Colombia. It was to decide between a sovereign State and a railroad, declared
by a law of Colombia to be a work of public utility. In short, it was dealing with
matters of public concern. It had itself resolved, under the powers given to it in
the agreement, that a majority vote should govern. Obviously that was the only
possible way, as each party appointed a representative of its side. We are satisfied
that an award by a majority was sufficient and effective. We are satisfied, further,
that whatever might be the technical rule for three arbitrators dealing with a
private dispute, neither party could defeat the operation of the submission, after
receiving a large amount of property under it, by withdrawing or adopting the
withdrawal of its nominee when the discussions were closed. See Cooleyv. O'Connor,
12 Wall. 391, 398; Kings/on v. Kincaid, 1 Wash. C. C. 448; Exporte Rogers, 1 Cowen,
526; Carpenter v. Wood, 1 Met. 409; Maynard v. Frederick, 7 Cush. 247; Kunckle
v. Kunckle, 1 Dall. 364; Cumberland v. North Yarmouth, 4 Greenl. 459, 468; Grindley
v. Barker, 1 Bos. & P. 229, 236; Dalling v. Matchett, Willes, 215, 217. In private
matters the courts are open if arbitration fails, but in this case the alternative was
a resort to diplomatic demand."
As has already been shown in this opinion, it was not contemplated by the
organic law under which this Commission has operated that the decisions
should be unanimous. On the contrary, it is perfectly apparent that in no
case has it been necessary to have the concurrence of more than two members
of the Commission. It is also perfectly clear that the United States was under
no obligation whatever to return the property which had been seized, but in a
spirit of generosity it provided in the Treaty of Berlin that this property should
be held as collateral security to pay the claims of American nationals who had
suffered loss in persons or property at the hands of the German Government
or its agents. Cummings v. Deutsche Bank, 300 U.S. 115, 122-125; United States
v. While Dental Co., 274 U.S. 398.
Under the Settlement of War Claims Act of 1928 (45 Stat, 254-279), 80%
of the German enemy property at that time remaining was immediately
returned to its former owners. The German Government, therefore, is in no
position to contend that the act of its Commissioner in resigning can have the
effect of preventing the remaining members of the Commission from passing
upon the questions at issue when he retired.
The case of Colombia v. Cauca Co. again came before the Supreme Court of
the United States in 195 U.S. 604, where it was held that nothing in the former
decree prohibited the Circuit Court from allowing interest on the amount of
the items allowed. In the last case (195 U.S. 604), the Court again affirmed
its action in modifying the action of the Circuit Court only in respect to the
amount allowed.
In Atchison, T. &• S. F. Ry. Co. v. Brotherhood of L. F. and E., 26 Fed. (2d),
413, there was an arbitration under the Railway Labor Act (45 U.S.C.A.,
sees. 151-163). It was held by the Circuit Court of Appeals, Second Circuit,
250 UNITED STATES/GERMANY
that an award by a majority of the members of an arbitration board appointed
pursuant to provisions of the act, before expiration of time provided in agree-
ment for entering an award, was valid, notwithstanding the refusal of certain
members to participate therein, on the ground that the board had previously
filed a report showing an inability to reach an agreement.
In reaching its decision, Evans, Circuit Judge, laid down the following
proposition (p. 417):
" Equally well settled is the rule that one arbitrator or a minority of arbitrators
cannot, after the dispute has been fully submitted to the Board, defeat an award
by resigning, withdrawing, or otherwise refusing to participate in the hearings.
Colombia v. Cauca Co., supra. Such a resignation or withdrawal shortly before
the time fixed for the expiration of the arbitration, constitutes a fraud and, as
such, defeats its purpose."
Text writers on international law seem to approve the principle of the Cauca
Case, which was followed in the case last cited, namely, that one arbitrator, or
a minority of arbitrators, cannot, after the dispute has been fully submitted,
defeat an award by withdrawal or by adopting the withdrawal of its nominee,
or by otherwise refusing to participate in the hearings after the discussions
have been closed.
Witenberg, L'Organisation Judiciaire, la Procédure et la Sentence Internationales,
1937, states the rule thus:
" 24. In the calculation of majority all members of the tribunal must be counted,
including those who might refuse to take part in the voting. These latter must be
considered as having voted against the decision of the majority of the judges present
and a report of their refusal shall be drawn up." (p. 281) (Translation from
the French.)
Mérignhac has the following to say in his Traité Théorique et Pratique de
L'Arbitrage International (pp. 276-77) :
" If one or more of the arbitrators refuse to take part in the deliberations,
M. Calvo feels that they should be replaced: and in case this is impossible the
tribunal should be dissolved. The Institute of International Law has decided with
sound reason in Article 21
1 of its rules that the majority suffices for judgment
in the hypothesis we have spoken of. It is, in effect, impossible to admit that one
arbiter by bad faith, perversity, or simple negligence can paralyze the action of
the tribunal."
Calvo, to whom Mérignhac refers, has said:
" When the arbitral tribunal is composed of several members certain publicists
are of the opinion that the absence of one of them prevents all valuable deliberation
and decision even though the other arbitrators would form the majority and
would agree, for the reason that the missing member might modify the decision
of the others by the exposition of his own opinion.
" However Sir Robert Phillimore takes the view that if the absence of one of
them is intentional or the result of intrigue the other members have the power
to continue the procedure. As far as we are concerned we think that in such a case
the proof being made of the unwillingness of the missing member it would be
necessary to replace him or otherwise dissolve the arbitral tribunal as would be
done in the case of the death of one the members unless special provisions are
prescribed in the original compromis for such eventuality." (Sec. 768, Le Droit
International Théorique et Pratique, Vol. Ill, 5th edition, Charles Calvo, Argentine).
1 Article 21 i s a follows:
" Every final or provisional decision shall be made by a majority of all the
arbitrators named, even when one or more of the arbitrators refuse to take part
therein."
DECISIONS 251
Whether Calvo would apply this rule in a case like the instant case, where
the presentation of testimony had been closed, briefs filed and arguments
completed, may be doubtful; but in any event his views appear not to have
the support of the other text writers.
Sir Robert Phillimore, to whom Calvo refers, says:
" If there be an uneven number of arbitrators the opinion of the majority would,
according to the reason of the thing and the Jus communa of nations be conclusive.
If one of the arbitrators were maliciously to absent himself it might be competent
for the others to proceed; but if one were dead, the arbitration would be dissolved,
unless provision had been made for the contingency in the original covenant."
(Commentaries upon International Law, London, Vol. Ill, p. 4).
In commercial arbitration cases the trend of authorities seems to be in accord
with the rule laid down in the Republic of Colombia v. Cauca, 190 U.S. 524, and
followed in the case of Atchison, T. &• S. F. Ry. Co. v. Brotherhood of L. F. and E.,
26 Fed. (2d) 413. See Burtlet v. Smith, 94 Eng. Rep. 587 (King's Bench);
Dalling v. Matchett, 125 Eng. Rep. 1138; Widder v. Buffalo &• Lake Huron Ry.
Co., 24 U.C.R. 222 (Canada 1865); Carpenter v. Wood, 42 Mass. (1 Mete.)
409 (1840); American Eagle Fire Ins. Co, v. JV. J. Ins. Co., 240 N. Y. 398, 148
N.E. 562: State v. Tucker, 166 N.W. 820 (N.D. 1918); Toledo S.S. Co. v.
Zenith Transp. Co., 184 Fed. 391 (CCA 6th, 1911).
5 Corpus Juris, p. 100, sec. 218, treating the subject " Refusal of Some of the
Arbitrators to Participate after Disagreement " lays down the rule as follows:
" The refusal of one or a minority of a number of arbitrators, having authority
to render a majority award, to proceed further with the hearing or discussion
of the case, after a disagreement has arisen, does not divest the majority of power
to proceed, in the absence of the minority, with the hearing and to render an
award in accordance with their authority,"
citing, among others: Kingston v. Kincaid, 14 F. Cas. No. 7,821, 1 Wash. C.C.
448; Witz v. Tregallas, 82 Md. 351, 33 A. 718; Sperry v. Richer, 4 Allen 17;
Maynard v. Frederick, 7 Cush. 247; Carpenter v. Wood, 1 Mete. 409; Dodge v.
Brennan, 59 N.H. 138; Atterbury v. Columbia College Trustees, 66 Misc. 273, 123
N.Y.S. 25; Zorkowski v. Astor, 13 Misc. 507, 34 N.Y.S. 948 (aff. 156 N.Y. 393,
50 N.E. 983); Battey v. Button, 13 Johns. 187; Matter of Young, 13 C.B. 623,
76 E.C.L. 623, 138 Reprint 1344; White v. Sharp, 1 C. & K. 346, 47 E.C.L.
348; Goodman v. Sayers, 2 Jac. & W. 249, 37 Reprint 622. See also 6 Corpus
Juris Secundum, p. 206.
As we have already seen, these cases have been pending for more than
twelve years. Thousands of pages of evidence, consisting of original documents
from the files of the various government departments, affidavits, examinations
of witnesses, and other instruments have been filed during that period ; large
sums of money have been spent in procuring this evidence and producing it
before the Commission. It has been an enormous work, involving labor of
many persons — experts, technicians and lawyers. The cases have been
argued before the Commission on six different occasions by eminent counsel.
Learned and exhaustive briefs have been filed, entailing great labor on the part
of those who composed them; and every phase of the case has been fully dis-
cussed, both in written briefs and orally. The oral arguments have consumed
a period of about sixty days.
On the pending petition, the cases were closed for filing of evidence and
briefs on January 14, 1939.
After exhaustive oral arguments by distinguished counsel, extending
through twelve days, the cases were finally submitted to the Commission on
the 27th day of January, 1939. After about two weeks had elapsed, the Um-
252 UNITED STATES/GERMANY
pire and the Commissioners began their conferences. These conferences
continued, but not on consecutive days, until Tuesday, February 28, 1939,
when the last conference with the German Commissioner was held. Another
conference was scheduled to be held on Thursday, March 2, 1939, at the office
of the Umpire. Shortly before the time for the conference, the letters of the
German Commissioner announcing his retirement were delivered to the Umpire
and the American Commissioner, respectively.
1
As is clearly indicated by the letter which was written by the American
Commissioner to the Secretary of State, the American Commissioner and the
German Commissioner were in direct disagreement as to the issues before the
Commission, that is to say, as to whether the record established fraud of a
sufficient character to set aside the decision at Hamburg, and, at the instance
of the German Commissioner, the Commission was examining the record to
determine whether the American Agent had proven his case, and specifically
whether the Herrmann message was genuine, when the German Commissioner
announced his retirement.
Under the circumstances set out above, to hold that one National Com-
missioner could, by his voluntary retirement, whether authorized by his
Government or not, prevent the Commission from further proceeding with the
cases, and especially from deciding the questions at issue when the German
Commissioner announced his retirement, would defeat the purpose of the two
Governments in establishing this Commission, would deprive the American
Nationals in these cases of the remedy provided by the Treaty of Berlin and
the Agreement of August 10, 1922, for American Nationals with claims against
the German Government recognized by that treaty, and would raise many
questions difficult of solution, as to the disposition of the funds now remaining
in the Treasury of the United States, pursuant to the Settlement of War Claims
Act.
Accordingly, I am of the opinion that the retirement of the German Commis-
sioner on March 1, 1939, did not render the Commission functus qfficio and did
not deprive the Commission of the power to decide the questions at issue at
the time of his retirement.
Since the above opinion on jurisdiction was prepared, the American Com-
missioner has been furnished with a copy of a translation of a note from the
German Embassy to the Secretary of State dated June 10, 1939,
2 in which
the German Embassy notifies the Secretary of State that, since the withdrawal
of the German Commissioner, the Commission has been incompetent to make
decisions, and there is no legal basis for a meeting of the Commission at this
stage, and that the German Government " will ignore the decision to call the
meeting of the Commission on June 15th, as well as any other act of the Com-
mission that might take place in violation of the International Agreement
of August 10, 1922 and the generally established rules of procedure ".
The possibility that the German Government would take this position was
taken into consideration in writing this opinion, and this action on the part
of the German Government strengthens the decision already reached, to-wit,
that the retirement of the German Commissioner on March 1, 1939, did not
render the Commission functus qfficio and did not deprive the Commission of
the power to decide the questions at issue at the time of his retirement.
1 For letters, see Appendix, (Note by the Secretariat, this volume, Appendix V,
p. 493.)
2 For note, see Appendix. (Note by the Secretariat, this volume, Appendix V,
p. 493.)
DECISIONS 253
II. FRAUD
The questions involved under the issue of fraud may be examined under
three heads.
First, were the pleadings filed by Germany, in answer to the Memorial filed
by the United States, false and fraudulent; and, if so, who participated in
such fraud and what was its effect in the decision at Hamburg, October 16,
1930?
Second, was the evidence adduced to substantiate the pleadings false and
fraudulent; and if so, who participated in such fraud and what was its effect
in the decision at Hamburg, October 16, 1930?
Third, have the counsel who represented Germany made fraudulent mis-
representations to the Commission or suppressed evidence unfavorable to
Germany; and if so, how far has this conduct affected the decision in this case?
While it is perfectly patent that the decision at Hamburg cannot be set aside
on account of fraud in the pleadings alone, the question of fraud permeates both
the pleadings and the evidence and the conduct of counsel, and it is logically,
and chronologically, proper to examine the question of fraud in the pleadings
first.
A. Fraud in The Pleadings
The Memorials filed by the United States charged in substance that, im-
mediately after the outbreak of the European war, Germany ordered and
conducted throughout the world a general campaign for the destruction of war
supplies in neutral countries, and that this campaign of sabotage in neutral
countries for the destruction of war supplies, particularly munitions, was ex-
tended to the United States while the United States was at peace with Germany.
The Memorials further charged that the destructions at Black Tom and Kings-
land were the result of sabotage by German agents.
In the Answers of Germany, filed December 14, 1927, in the Black Tom
case, and January 17, 1928, in the Kingsland case, it was denied that, immedi-
ately after the outbreak of the European war, Germany ordered and conducted
throughout the world a general campaign for the destruction of war supplies
in neutral countries; and it was specifically denied that the campaign of sabo-
tage in neutral countries was ever extended to the United States. (See Section
III, p. 2 and Section IV, p. 9 of each Answer of Germany.)
In her Answers, Germany admitted that she conducted expeditions against
Canada, and these expeditions were initiated from the United States, but
alleged that such acts had no relation to the charge made against Germany
in this case; that the acts were directed exclusively against enemy property
and were not intended to do harm to American property. (See Section IV,
par 12 of each Answer.)
Germany denounced as a fabrication an alleged circular, authorizing sabo-
tage in neutral countries, and, as a further fabrication, an alleged order,
expressly extending the operation of the circular to the United States; and,
in making this denial, the Answers use the following language:
" In this connection the German Agent declares again that he is authorized to
state on behalf of his Government that no such order was ever issued by any
department or agency of his Government." (Section IV, par. 13)
The United States had cited an intercepted cablegram or message from the
General Staff dated January 26, 1915, addressed to the Military Attaché in
Washington (Ex. 320, Rec. p. 802). This message as sent from Berlin on
January 25, 1915, to Washington via Stockholm, reads, in the translation
furnished by the German Agent, as follows :
254 UNITED STATES/GERMANY
" Translation.
" Received January 24, 1915.
Berlin, N. W. 40, January 24, 1915
Moltkestrasse No. 8
A. S. 307.
ACTING GENERAL STAFF
OF THE ARMY
Division 11 It To the
No. Pol. 205. Foreign Office
Secret : Berlin.
— With reference to A. S. 56 of the 23rd inst.
It is respectfully requested to have dispatched the following telegram in cipher
to the Imperial Embassy at Washington:
[For Military Attaché: People fit for sabotage in United States and Canada
can be ascertained from following persons:
1) Joseph Mac Garrity, 5412 Springfield Philadelphia, Pa., 2) John P. Keating,
Maryland Avenue Chicago, 3) Jeremia O'Leary, Park Row, New York. No. 1
and 2 absolutely reliable and discreet, No. 3 reliable not always discreet. Persons
have been named by Sir Roger Casement. In United States sabotage can reach
to all kinds of factories for war deliveries; railroads, dams, bridges must not be
touched there. Under no circumstances compromise Embassy, and equally
Irish-German propaganda.
Acting General Staff"]
(In the name of the Under secretary of State In mundo)."
(Ger. Ex. XXXIV, a and b)
In its Answers, Germany admitted that this message was genuine, that it
had been sent by the Intelligence Division of the General Staff, and had been
received by the Military Attaché at Washington, Captain von Papen. The
Answers refer to exhibits filed therewith by Messrs. Nadolny, von Papen. von
Igel and Count Bernstorff, and then allege as follows :
" These statements show that the sending of the message was the act of a sub-
ordinate division of the General Staff; that the suggestions made therein were entirely
disregarded by von Papen; that the Message remained in the files of the latter
and that no action whatsoever was ever taken upon it ; that no other suggestions of this
kind were even given by the General Staff, that the whole event is but the blunder of
a subordinate and that the incident had no consequences whatsoever." [Emphasis supplied.]
(Sec. IV, par. 14 of each Answer.)
Exhibit G filed with the Answers, is an affidavit of von Papen, who was
Military Attaché to the Embassy in Washington and to the German Legation
in Mexico at the outbreak of the World War, and who continued as Military
Attaché in Washington until he was recalled at the instance of the United States
Government. In this instrument he denied that he had ever in any way given
any suggestions, instructions, orders or authorizations for destroying factories
and stores of munitions within the United States, and that he had lent his
support to or furthered any projects aiming at such destruction. He further
stated (p. 5) :
" I also never received orders or instructions to commit acts of force against
American munitions factories or stores of munitions, from central military authori-
ties or other superiors. I did, however, receive one authorization for undertaking
such acts, which I shall treat separately."
DECISIONS 255
He denied having received the alleged circular of the General Staff author-
izing sabotage or the letter in regard to said circular giving effect to such
circular on American territory.
With reference to the message of January 26, 1915, he stated as follows (p. 6) :
" I persisted in my opposition to sabotage acts, even when I received the tele-
gram dated Jan. 26, 1915 (Exhibit 18 and Exhibit 320, page 35), in which the
Department III-B of the Home General Staff declared sabotage on the territory
of the United States to be permitted, at the same time giving addresses where
information for this purpose might be obtained. From the very first I was of the
opinion that it would be an indefensible decision to make use of this telegram.
I did not impute to it any great significance because I was convinced that it did
not spring from the initiative of a German military authority but was due to the
urging of Sir Roger Casement who had, in the United States given vent to similar
projects. To this was added the fact that it was not an utterance of a leading
military authority, who alone could have dispatched such important questions and
instruction binding for me, but instead was a communication of a subordinate
department of the Home General Staff. Therefore, I did not, even in passing,
consider acting on the telegram but for the reasons stated above simply considered
it as requiring no further action. I expressed myself to the same effect to Mr.
von Igel. Furthermore, it is my distinct recollection that I did not talk to the
Ambassador. There was no necessity for that because I did not receive definite
instructions for undertaking sabotage, it being left entirely to my discretion whether
to initiate such acts."
In his affidavit, von Papen specifically disapproved of von Rintelen's acti-
vities and those of Dr. Scheele in the manufacture of bombs.
Exhibit B, filed with the Answers, is a statement of Nadolny. In this state-
ment, Nadolny, the Chief of " Sektion Politik " of the General Staff, alleged
that reports were coming to his office " that America was not taking a neutral
attitude but was opposing Germany especially by way of effectively supporting
our opponents with war materials "; that persons were coming from America
who advised taking steps against American factories engaged in supplying enemies
with war materials and who named to the Political Section people " who could
in many possible ways frustrate such production by acts of sabotage."
Then the Chief of the " Sektion Politik " stated as follows:
" Following this advice, we in fact once sent such instruction to Washington at
the beginning of 1915, if I remember it correctly. It was, however, especially
pointed out therein that acts of sabotage were only to be directed against the delivery of
war materials and not against any other objects.
" However, the Foreign Office took the position that even sabotage of that kind
was not permissible as America, in spite of its war support which was contrary
to the spirit of neutrality, was officially a neutral country. For that reason — as
far as I know — no further instructions were sent out. As I learned later on, the
first order was not carried out either, because the Authorities in Washington also
opposed the execution and did not take any steps." (Emphasis supplied.)
Germany filed as German Exhibit XXXV, an affidavit of the same man,
Rudolph Nadolny. In this exhibit, Nadolny claimed that the telegram of
January 26, 1915, originated out of the activities of Sir Roger Casement, the
Irish agitator, who had been in the United States and paid a visit to Germany,
and the claim was made that it was sent at his instigation, as he was a man
" easily aggravated ". Nadolny explained that he could no longer remember
whether the telegram was formulated in the Political Section, or had been
brought in by Casement, but he definitely recalled that the Military Attaché
would be advised
" that other objects than factories must by no means be attacked and that no
act whatever must be done whereby any danger could arise of compromising our
representation in the United States or the German-Irish movement." (p. 3.)
256 UNITED STATES/GERMANY
It is contended by Nadolny that the telegram did not " contain an order",
and, therefore, he did not communicate with the Mobile General Staff or with
the Ministry of War, and the telegram was sent " on my own responsibility ".
Nadolny further avers:
" From the fact that the telegram did not contain an order, it follows as a matter of
course that Mr. von Papen, if he did not agree with it, had the right to disregard it
altogether." (Emphasis supplied.) (p. 4.)
He repeated a conversation with the Foreign Office where " I had to go
very frequently ", to the effect that the Foreign Office told him " that sabotage
in the United States must by no means be undertaken".
In the light of the subsequent history of sabotage in America while the United
States was neutral, the distinction between an " order " for sabotage and
" authority " for sabotage would appear to be a form of specious pleading.
To substantiate its pleadings, Germany later filed, as German Exhibit
CXXIII, an affidavit of Hans Marguerre, a major in the regular army and
attached to the " Sektion Politik " of the General Staff, of which Nadolny
was the head. In his affidavit, Marguerre related that " Sektion Politik "
had sent agents to neutral countries in order to locate establishments producing
war material or selling raw material for such production; and to collect in-
formation with regard to the production of ammunition, ammunition stores,
the shipping of ammunition, and in regard to transports, with the requirement
that they should report thereon to undercover addresses or in coded telegrams.
The purpose of collecting this information was to enable " Sektion Politik "
to collect data as complete as possible about the resources of various neutral
countries. He denied that these agents had orders to destroy such establish-
ments while the countries were neutral, and then he states (p. 7, Testimony of
July 30, 1930):
" It is true that as soon as the neutral country entered the war, they [the agents] were im-
mediately to start actions against the establishments found by them to be essential for
carrying on the war, so that the resources of the now enemy country would be
depleted as much as possible. The agents were, therefore, when the neutral country
entered the war, to remain in that country and were then to begin actions against
ammunition plants and other plants important for carrying on the war. As long as the
country was neutral, however, they were only to collect the data * * * and
report thereon." (Emphasis supplied.)
In denying that their agents had been sent into America to commit sabotage
against the American ammunition industry or against American ammunitions,
Marguerre said (p. 8) :
" It is true, / sent agents to America and provided them with instructions and material
to stop American establishments, essential for war, from working, if possible. These instructions,
however, were to be followed out only in the event of America entering the war and
they were to take effect only from that date on." (Emphasis supplied.)
Marguerre related how, in February, 1916, he had a conference in Berlin
with Hilken and Herrmann, in which he gave Herrmann similar instructions
and furnished him with incendiary devices designed to cause fires and explosions.
In justifying this act he said (p. 15):
" As I said before, in our organization we took into account all possibilities, also
that of America entering the war. On account of the great distance and the supervision
of means of transport becoming closer all the time it would have been impossible to send agents
and sabotage materials to America after the outbreak of the war. For this reason we had,
as I said, to make our preparations in America during neutrality so that in case of America's
entering the war we would have agents and material on the other side." (Emphasis supplied.)
DECISIONS 257
Marguerre admitted that Hilken was the financial agent of " Sektion
Politik " in America for the purpose of furnishing " funds to our agents ".
The affidavit clearly discloses that Marguerre, in his conference with Herrmann
and Hilken, arranged that Herrmann should draw necessary funds from Hilken,
and Hilken was instructed to pay the funds required by Herrmann up to a
certain limit without requesting an accounting. Marguerre said he could not
confirm Carl Dilger's claim that later he (Dilger) received from Marguerre
and Nadolny a trunk with a false bottom containing incendiary devices.
He did, however, testify as follows (Testimony of August 1, 1930, p. 2):
" Did you send further incendiary pencils to America after Herrmann's departure?
" A. I remember that some time after Herrmann's visit we had a trunk made
with a double bottom, in order to pack glass tubes therein in a secret partition.
I do not know who was entrusted with this trunk." (Emphasis supplied.)
He also testified that he could not deny that Carl Dilger was right in claiming
that the trunk was delivered to him.
The record further shows that devices of this character were also furnished
Woehst by Marguerre and brought to this country in the fall of 1916.
The record clearly discloses that the incendiary devices which were furnished
to Herrmann, to Carl Dilger and to Woehst were used for sabotage in the United
States, while the United States was neutral, that these incendiary devices were
taken by Herrmann to Mexico for the purpose of setting fire to the Tampico
Oil Fields, and that such incendiary devices were also used in the Argentine,
which never entered the war. In the light of this record the explanation of
Marguerre would seem to pass the bounds of human credulity, and brands his
affidavit as false.
In Exhibit E, filed with the Answers, Count von Bernstorff, the Ambassador
to the United States, denied that he had ever had anything to do, directly or
indirectly, with acts of sabotage against munitions plants in the United States or
that he had ever lent any support by word or deed or in any other way to such acts.
As to the telegram of January 26, 1915, to the Military Attaché, he denied
it was submitted to him or that he ever saw it while he was Ambassador. He
justified the do-nothing attitude of von Papen, since such action was in accor-
dance with the usual procedure between him and von Papen, and he denied
that the recall of the Military and Naval Attachés in 1915 had anything to
do with sabotage against American property.
While Germany denied in its Answers, and specifically through the statement
of the Ambassador, Count von Bernstorff, that it was responsible for the activities
of Rintelen in this country, the record in this case proves conclusively that
Rintelen's activities in this country were connected with inoculating horses and
cattle, the destruction of piers and elevators and munitions factories; that he
was furnished with incendiary devices by a German chemist, Dr. Scheele,
who manufactured bombs and other incendiary material, not only for Rintelen,
but for other saboteurs.
Hinsch, who was Germany's main lay witness to destroy the authenticity
of the Herrmann message, admitted starting his sabotage activities after he
met Rintelen in May, 1915, practically two years before America entered the
war. In April, 1915, Rintelen met Hilken, the admitted sabotage paymaster
in this country; and Rintelen, in his book, The Dark Invader, gives a clear
picture of his activities showing that they were not only known to, and approved
by, the Military Attaché, but also Count von Bernstorff himself.
When Rintelen arrived in this country, two telegrams were sent from the
German Government in Berlin to the Embassy in Washington, the first, dated
April 4, 1915, reading as follows:
258 UNITED STATES/GERMANY
" Inform RINTELEN who arrives today that (?) RICKET arrived April 21st.
Inform him about PAPEN'S proposals." (Ex. 320, rec, p. 818)
The second, dated April 5, 1915:
" Inform BOY-ED as to PAPEN'S proposals for transmission to RINTELEN."
(id. p. 819)
Although Count von Bernstorff in his book, My Three Tears, and in his
affidavit, disclaims reponsibility for, and knowledge of, the activities of Rintelen,
this disclaimer is contradicted, not only by Rintelen himself, but by a telegram
dated May 12, 1915, sent by the Ambassador to Berlin, which reads as follows
(Ex. 320, Rec. p. 821):
" RINTELEN has asked me to give him a letter of introduction to a firm of
lawyers who are ready to take legal proceedings against the (?LOCK) Company
for supplying munitions, but who are unwilling to proceed with the matter unless
RINTELEN is provided with an official introduction. In the circumstances I do
not feel justified in compromising the Embassy to any further extent, as any such action
on my part might be the last straw which broke the camel's back. I have accor-
dingly the honor to request that RINTELEN may be furnished with a letter of
introduction by the Ministry of War at the earliest convenience of that Depart-
ment." (Emphasis supplied.)
A careful analysis of the three telegrams quoted above will show that the
Government in Berlin was anxious for Papen's proposals to reach Rintelen
immediately upon his arrival in the United States; that the Embassy was
apprised by cable of the date of Rintelen's arrival in America; that the Am-
bassador did know Rintelen, and that Rintelen knew the Ambassador well
enough to request, five weeks after Rintelen's arrival, a letter of introduction
to some lawyers who were ready to take proceedings against a company sup-
plying munitions, but who were unwilling to proceed unless Rintelen should
be provided " with an official introduction ". The Ambassador informs Berlin that
he does not feel justified in compromising the Embassy to any further extent, as
such action on his part might be the last straw to break the camel's back, but he
does have the honor to request his Government to furnish Rintelen with a letter
of introduction by the War Department at the earliest convenience of that
Department.
The fact that the Ambassador did know Rintelen and his mission in America
is further proven by the following telegram sent to Berlin on December 10,
1915 (Ex. 320,