before 7 p. m. According to the protest the crew used their best efforts to get the ship off the reef during the next four days, and succeeded in doing so to such an extent that at half past 4 p. m. of the 1st of December they were within a very short distance of deep water, and would, as the captain believed, have reached in about an hour's time an anchor which was laid out in five and half fathoms water. At that hour Brazilian officer with fourteen armed men came on board. The umpire believes, and the United States Government acknowledges, that the Canada was at the time within Brazilian jurisdictiction. Therefore it matters little whether this force came at the invitation of the captain or without it. But the officer is charged with having, with the assistance of the men under his command, forcibly prevented the crew from continuing to heave the ship off the reef. It is declared that the captain protested against this act, and finally threw the whole responsibility upon the Brazilian authorities; that the guard subsequently let go the hausers, so that the ship fell back on the reef; that on the following morning the captain offered again to take charge of the ship and save her; but that the officer refused to allow the ship to be taken off the reef. It is possible that the officer thought the ship would have been in danger of sinking if she had got into deep water and deemed it his duty, in the interest of the Brazilian revenue, to prevent her being exposed to such a danger, but he certainly exceeded his duty; for on board his own ship the captain alone is responsible for its navigation and safety, and should be supreme. In contradiction to these statements, the only eyewitnesses whose evidence is produced by the United States Government, though not by that of Brazil, are Rosa and Pequeno, and the undersigned has shown that their evidence can not be taken into consideration. And yet another ocular evidence might have been obtained. Why were not the officer, Fortunato José de Lima, the soldiers under his command, and the custom-house officers who were on board, examined on oath after the receipt by the imperial government of the protest signed by the crew? Their testimony, as of eyewitnesses with respect to the facts stated. to have happened, would have been of great value. The umpire does not therefore consider that the declarations of the crew of the Canada are disproved by evidence. As to the possibility that the ship would be and actually was nearly heaved off the reef, the undersigned can not give any weight to the opinion of senhor Jacinto da Rocho e Silva, or to his statement, not made on oath, that she could not be and had not been moved at all. Hundreds of vessels stranded and in a far worse position than the Canada have been saved, in spite of the opinions of experienced seamen, and even naval officers of high rank. And senhor Jacinto did not remain on board to see with his own eyes whether the Canada was moved or not. Neither can the umpire take into consideration the position of the vessel when the survey was made upon her on the 14th of February 1857, seventy-four days after the captain and crew left her. Senhor Paranhos himself says, in his note of August 14, 1868, that the waves which break upon those reefs are violent by reason of the currents and ordinary winds; and when it is remembered that everything which was on board on the 1st of December 1856, had been taken out before the 14th of February following, whereby the vessel was much lightened, it is impossible to suppose that she had not been driven much higher upon the reef. The Canada went upon the reef at eleven minutes before 7 p. m., not at low tide, as the United States minister states, but an hour and a quarter after high tide; for the undersigned is informed by the United States Naval Observatory at Washington, that on the 27th of November 1856 it was high water at that place at 5 h. 34 m. p. m. The reef is of that nature that it is too soft seriously to injure a vessel going upon it in a smooth sea, and yet too hard to allow the vessel to become deeply embedded as in mud or sand. When it is remembered then, that upward of twelve hundred barrels of water were emptied and pumped out, that heavy anchors and chain cables were taken out, and that all the least valuable articles were thrown overboard, there is no reason why the vessel should not have been lightened from three to four feet, which, even without a little advantage from a higher tide, would have been quite sufficient to have enabled the crew to heave her off the reef. The umpire is therefore impelled to give credit to the statements of the officers and crew of the Canada, and to believe that the loss of the vessel was owing to the improper interference of the officers of the imperial government, which is therefore responsible for the domage as hereinafter stated. It has been urged that the claim is barred because a note of the imperial government was left unanswered for some years. The undersigned can not acquiesce in this opinion. The claiming government may suspend its action from consideration for the other government, in which it sees no disposition to yield to the influence of reason, and with which it has no wish to have recourse to force, or itself may be engaged with other matters and unable to attend to the claim of its citizens. But this is no proof that the claim has been waived, and the undersigned has too much confidence in the justice of the Brazilian government to suppose that it would avail itself of such an argument; indeed it has itself declared that it does not pretend to do so. Neither can the umpire be influenced by the fact that the United States Government at one time offered to accept a reduced sum as a compromise for the claim. Such offers are made. for various reasons. It may be that the claimant is much in want of the money to which he is entitled, and desires to obtain compensation at once. His government is perhaps wearied of litigation and desires not to embitter the relations between two friendly countries by useless discussion. An offer is therefore made, even involving a sacrifice. But once the offer is refused, and the discussion is continued till at length arbitration is agreed upon, the duty of the umpire is to calculate the amount of damages in accordance with the evidence submitted to him, and without taking into consideration any proposal which may have been made to accept a reduced sum. Indeed, at the time of making the offer, the rights of the claimants were reserved in case the offer should be rejected. It now becomes the duty of the undersigned to consider the amount of indemnity for which the imperial government is liable, and in doing so he will go through the different items which have been claimed. The Canada was built in New York in 1823 as a first-class vessel, and was employed as a liner from that port to Liverpool. From that time to 1856 she was constantly kept in thorough repair, and impartial persons acquainted with such matters have estimated her value in 1856 at $ 18,000; the amount claimed therefore, of $ 15,000 is, so far not excessive; but it must be remembered that the imperial government is liable only for her actual value on the 1st December 1856, after she had been considerably damaged by being of the reef. The undersigned can not conceive that Captain Ricketson would have continued his voyage without docking or beaching and repairing his vessel, and from the undersigned's experience of the country, he believes that the vessel could not have been put into a fit state, including all expenses, for less than $5000. The umpire therefore fixes the value of the vessel at $ 10,000. He has also made inquiries as to the expense of fitting a vessel of that class for a four years whaling expedition, and furnishing her with provisions and all other necessaries, and has been assured that te cost would not have been less in 1856 than $ 45,000. The undersigned has further examined the accounts rendered by the owners, and has found no charge to which he can object; he must therefore admit the sum of $ 41,000 as the value of the outfits, etc. But he must take into account that as acknowledged by the officers and crew, several articles though of little value, were thrown overboard in order to lighten the vessel. The undersigned has no details of these articles, but he supposes that the captain could hardly have replaced them in Brazil under $ 2000. He therefore places the value of the outfits, etc., for which the government of Brazil is liable, at $ 39,000. The charge of $ 3543-75 for the oil which had already been secured, the umpire considers a legitimate claim. But the undersigned can in no case admit a right to prospective profits; for the ship and the whole capital might have been entirely unsuccessful and without profit. In this particular case the objection is still stronger, because the Canada was commanded by a captain who, very little after sunset, when darkness could have hardly set in, ran his vessel upon a reef with the existence and position of which he ought to have been well acquainted. The undersigned can not, however, admit the validity of any argument which would exempt the imperial government from the payment of interest. If the claim in itself can be sustained, of which the umpire has no doubt, the claimants are entitled to interest. Certain expenses incurred for the maintenance and passage home of the crew, as also three months' wages to each of the crew, being the amount which all owners of vessels of the United States are bound to pay to seamen discharged abroad, the undersigned considers to be justly due, but can not allow more than this, on the same principle on which he founds his opinion that prospective profits are inadmissible. The undersigned therefore lays down the items as follows: Value of ship Canada on De- $ 10,000. 39,000. « 5,543.75 227.82 432. 44 260. $ 53,464.01 SIR: I have the honour to receive the note of to day's date addressed to me by your Excellency, proposing certain modifications of the plan of arrangement submitted to you on the 7th instant, for the adjustment of the reclamations made by my Government against that of Spain, I take much pleasure in stating that the changes suggested in the memorandum inclosed in your note have my entire concurrence, and have been duly embodied in the following record of the basis upon which we have agreed. Memorandum of an arbitration for the settlement of the claims of citizens of the United States, or of their heirs, against the Government of Spain for wrongs and injuries committed against their persons and property, or against the persons and property of citizens of whom the said heirs are the legal representatives, by the authorities of Spain in the island of Cuba or within the maritime jurisdiction thereof, since the commencement of the present insurrection. 1. It is agreed that all such claims shall be submitted to arbitrators, one to be appointed by the Secretary of State of the United States, another by the Envoy Extraordinary and Minister Plenipotentiary of Spain at Washington, and these two to name an umpire who shall decide all questions upon which they shall be unable to agree; and in case the place of either arbitrator or of the umpire shall from any cause become vacant, such vacancy shall be filled forthwith in the manner herein provided for the original appointment. 2. The arbitrators and umpire so named shall meet at Washington within one month from the date of their appointment and shall, before proceeding to business, make and subscribe a solemn declaration that they will impartially hear and determine, to the best of their judgment and according to public law, and the treaties in force between the two countries, and these present stipulations, all such claims as shall, in conformity with this agreement, be laid before them on the part of the Government of the United States; and such declaration shall be entered upon the record of their proceedings. 3. Each Government may name an advocate to appear before the arbitrators or the umpire, to represent the interest of the parties respectively. 4. The arbitrators shall have full power subject to these stipulations and it shall be their duty, before proceeding with the hearing and decision of any case, to make and publish convenient rules prescribing the time and manner of the presentation of claims and of the proof thereof; and any disagreement with reference to the said rules of proceeding shall be decided by the umpire. It is understood that a reasonable period shall be allowed for the presentation of the proofs: that all claims and the testimony in favor of them shall be presented only through the Government of the United States; that the award made in each case shall be in writing and if indemnity be given, the sum to be paid shall be expressed in the gold coin of the United States. 5. The arbitrators shall have juridiction of all claims presented to them by the Government of the United States for injuries done to citizens of the United States by the authorities of Spain in Cuba since the first day of October, 1868. Adjudications of the tribunals in Cuba, concerning citizens of the United States, made in the absence of the parties interested, or in violation of international law, or of the guarantees and forms provided for in the treaty of October 27, 1795, between the United States and Spain, may be reviewed by the arbitrators, who shall make such award in any such case as they shall deem just. No judgment of a Spanish tribunal, disallowing the affirmation of a party that he is a citizen of the United States shall prevent the arbitrators from hearing a reclamation presented in behalf of said party by the United States Government. Nevertheless, in any case heard by the arbitrators, the Spanish Government may traverse the allegation of American citizenship and thereupon competent and sufficient proof thereof will be required. The Commission having recognized the quality of American citizens in the claimants, they will acquire the rights accorded to them by the present stipulations as such citizens. And it is further agreed that the arbitrators shall not have juridiction of any reclamation made in behalf of a native-born spanish subject naturalized in the United States if it shall appear, that the same subject-matter having been adjudicated by a competent tribunal in Cuba and the claimant, having appeared therein, either in person or by his duly appointed attorney and being required by the laws of Spain to make a declaration of his nationality, failed to declare that he was a citizen of the United States; in such case and for the purposes of this arbitration, it shall be deemed and taken that the claimant, by his own default, had renounced his allegiance to the United States. And it is further agreed that the arbitrators shall not have jurisdiction of any demands growing out of contracts. 6. The expenses of the arbitration will be defrayed by a percentage to be added to the amount awarded. The compensation of the arbitrators and umpire shall not exceed three thousand dollars each; the same allowance shall be made to each of the two advocates representing respectively the two Governments; and the arbitrators may employ a Secretary at a compensation not exceeding the sum of five dollars a day for every day actually and necessarily given to the business of the arbitration. 7. The two Governments will accept the awards made in the several cases submitted to the said arbitration as final and conclusive, and will give full effect to the same in good faith and as soon as possible. I avail myself of this opportunity to renew to your Excellency the assurance of my most distinguished consideration. 1 1 1 Treaties and Conventions between the United States and other Powers, 1776 to 1887, p. 1025. Dès le 12 février 1871 le Gouvernement espagnol acquiesçait à l'arrangement proposé. Successivement le 23 février 1881 et le 6 mai 1882 deux nouveaux articles furent ajoutés au memorandum reproduit plus haut dans le but de fixer la date finale de l'arbitrage. Agreements for extending the time for the termination of the claims commission under the agreement of February 12, 1871. 8. All claims for injuries done to citizens of the United States by the authorities of Spain in Cuba, since the first day of October, A. D. 1868, which have not heretofore been presented by the Government of the United States to the Commission now sitting in Washington under the agreement of February 12, 1871, shall be so presented to the said Commission within sixty days, from this twenty third day of February, 1881, unless in any case where reasons for delay shall be established to the satisfaction of the Arbitrators, and in any such case the period for presenting the claim may be extended by them to any time not exceeding thirty days longer. The Commission shall be bound to examine and decide upon every claim which may have been presented to it, or which shall hereafter be presented to it in accordance with this article, within one year from the 12th day of May, 1881. Provided, however, that in any particular case in which delay in completing the defense shall make an extension for the claimant's proofs or final argument, or decision, beyond this period, necessary for justice, such extension may be granted, by the Arbitrators, or, on their disagreement by the Umpire. The Arbitrators shall have full power, subject to these stipulations, to make and publish convenient rules for carrying into effect this additional Article, and any disagreement with reference to such rules shall be decided by the Umpire. 9. It being impossible for the Commission, in consequence of the death of the Arbitrator and of the Advocate on the part of the United States, to examine and decide within one year from the 12th of May 1881 each and every claim which has been presented, it is agreed that the term aforesaid be extented to the 1st of January 1883, for the sole purpose of permitting the Commission to examine and decide the claims actually pending. And it is further agreed to this end 1st. That no evidence in any case shall be received after the 15th day of June next. 2nd. That no printed or written brief or argument before the Arbitrators shall be filed on behalf of any claimant after the 15th day of July 1882. 3rd. That no printed or written brief or argument shall be filed in reply on behalf of Spain after the 15th day of September 1882. 4th. That no oral arguments shall be heard by the Arbitrators after the 1 day of November 1882. 5th. That no arguments either written or oral shall be made before the Umpire except on his written request addressed to the Commission, specifying the time within which he will hear or receive said arguments. 6th. That the Arbitrators may establish in accordance with the preceding stipulations convenient rules for the better and more rapid despatch of the business of the Commission, and any disagreement which may arise between them as to those rules or their interpretation, shall be decided by the Umpire. Decisions in every pending case shall be given by both Arbitrators before the 27th day of December next: jointly if they agree, separately when they disagree. All cases in which on that day the two Arbitrators shall not have agreed, or in which neither Arbitrator shall have rendered a decision, shall go to the Umpire. All cases in which the American Arbitrator shall have failed to give a decision shall be rejected or allowed, as the case may be in the form determined by the decision of the Arbitrator of Spain if the Spanish Arbitrator shall have given a decision and vice-versa all cases in which the Spanish Arbitrator shall have failed to give a decision shall be allowed or rejected, as the case may be in the form determined by the decision of the American Arbitrator if the American Arbitrator shall have given a decision: it being the purpose of both parties to have the work of the Arbitrators finished before December 27, 1882. The Umpire is requested to render decisions before January 1, 1883, in all cases submitted to him in order that the work of the Commission may cease on that day. But if the Umpire fails to comply with this request, decisions rendered by him after that day shall be respected by both parties, notwithstanding that the Commission shall be deemed to be terminated and dissolved after the 1st day of January 1883. » Les arbitres se réunirent pour la première fois le 31 mai 1871 et terminèrent leurs travaux le 27 décembre 1882. Les dernières décisions du surarbitre furent enregistrées le 22 février 1883. Les demandes soumises aux arbitres sont résumées dans le tableau suivant: 1 Treaties and Conventions... 1776-1887, p. 1033, 1035. |