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The Sabotage Claims Against Germany
Published online by Cambridge University Press: 12 April 2017
Extract
On October 30, 1939, a series of 153 awards in the so-called Sabotage Claims against Germany was handed down by the Mixed Claims Commission under the Agreement of August 10, 1922, between the United States and Germany. These awards were made pursuant to the decision of the Commission rendered on June 15, 1939, and the order entered the same day, which held that German sabotage agents in this country were responsible for the destruction of the Black Tom Terminal on the night of July 29,1916, and the Kingsland Plant on January 11, 1917, and that Germany was liable for the damages resulting from these destructions. After the pleadings had been filed in 1927-1928, together with considerable evidence, and after the argument in Washington in April, 1929, and the reargument at The Hague in September, 1930, the Commission withdrew to Hamburg and rendered a decision dated October 16, 1930, dismissing all of the claims as not involving German responsibility. The Commission, however, found that the German Government had authorized a general campaign of sabotage in the United States during the period of neutrality and had sent men to this country for that purpose. The efforts of the American Agent in opposition to the German Agent to obtain a reconsideration of this decision resulted in several decisions of interest to the science of international law. The limited space permits only a summary discussion of the main questions.
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References
1 The Commission was without a German member after March 1, 1939, when he retired.
2 The reargument was due to further evidence filed under order of the Commission and also to the death of Umpire Parker.
3 The decision was rendered by the Umpire and the two national Commissioners, the Umpire and each Commissioner signing the decision. Decisions and Opinions, p. 994; also this Journal, Vol. 25 (1931), p. 147.
4 The American Agent throughout was Robert W. Bonynge and the Assistant Agent and Counsel was Harold H. Martin, who became the Acting Agent upon the death of Mr. Bonynge.
5 Petitions of Jan. 12 and 22, 1931. In the early proceedings, the Black Tom case and the Kingsland case were kept separate, but later they were joined and treated together.
6 The American Agent relied on the Commission’s decision in the Philadelphia-Girard National Bank case (Decisions and Opinions, p. 939), and on two decisions of the General Claims Commission, United States and Mexico, 1923, in the W. A. Parker claim (Opinions, p. 35; this Journal, Vol. 21, 1927, p. 174) and the G. W. Cook claim (Opinions, p. 311; this Journal, Vol. 22,1928, p. 185). The latter case referred to the Parker decision and also to the decision of the French-Venezuelan Commission of 1902 in the Jules Brun claim (Ralston’s Report, p. 25).
7 United States briefs on petitions of Jan. 12 and 22, 1931.
8 Decisions and Opinions, p. 939. This decision was rendered by the two national Com missioners without the concurrence of the Umpire.
9 Memorandum reply briefs of the German Agent, dated Jan. 15 and Feb. 3, 1931.
10 Decisions and Opinions, pp. 995-996. In his decision of Dec. 3, 1932, in these cases Umpire Roberts said “this tribunal . . . is still bound to act only upon proof which reason ably leads to the conclusions upon which liability is consequent.” Id., p. 1028; this Journal, Vol. 27 (1933), p. 345 at 364.
11 Certain parts of the Treaty of Versailles were also incorporated in the Treaty of Berlin, but they seem to add nothing to this phrase.
12 See Sandifer, Evidence Before International Tribunals, p. 97.
13 In the Brun case, supra, the Umpire referred to “the presumption which arises when one is in possession of important truths essential to a judicial inquiry and elects not to produce them.”
14 Art. VI of the agreement also provided: “The decision 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.”
15 United States briefs on petitions of Jan. 12 and 22, 1931.
16 Memorandum reply briefs of the German Agent, filed Jan. 16, and Feb. 5, 1931.
17 German brief filed Jan. 16, 1931, p. 17.
18 Brief of American Agent in reply to the memorandum reply brief of the German Agent, filed Jan. 16, 1931.
19 Decisions and Opinions, p. 996. The petitions of Jan. 1931, also requested the Commission to issue subpoenas requiring certain persons in the United States under the Act of July 3, 1930, to testify before the Commission. This law required formal action on the part of the Commission as an official body. On this point the Commission held that the power to issue subpoenas given under this Act could not be exercised by the Commission under the terms of the Claims Agreement of Aug. 10, 1922, and such additional powers could not be conferred by a later statute of the United States. (Decisions and Opinions, pp. 996-997.) On Feb. 5, 1932, the American Agent filed a motion requesting either the production of certain witnesses for oral examination before the Commission or the issuance of subpoenas for such examination, which again raised the question of the power of the Commission to issue subpoenas. This motion was opposed by the German Agent. Thereupon the Commission suggested that the question be referred to the two Governments for settlement. The German Government refused to consent and no further agreement was reached. (Decisions and Opinions, p. 1001.) In his petition of May 4, 1933, the American Agent insisted that the Commission should act by subpoena or otherwise so as to obtain evidence from certain witnesses within the United States. This difficulty was finally overcome by the Act of June 7, 1933 (amending the Act of July 3, 1930), which provided for the issuance of subpoenas upon application by the American Agent to the Federal courts without formal action by the Commission. This was similar to the provision of the German ordinance of June 8,1923, permitting the German Agent or other officials connected with the Commission to institute proceedings in the German courts to compel the production in Germany of evidence concerning matters before the Commission. Eventually the Commission itself did in June, 1937, issue subpoenas for and hear a number of witnesses in July, 1937.
20 Decision of Umpire Roberts, Dec. 15, 1933; Report of Robert W. Bonynge, 1934, p. 195; infra, p. 154.
21 German brief filed April 27, 1931.
22 Decisions and Opinions, p. 17.
23 Moore, Arb., 1357, 2186.
24 Id., 1357.
25 American brief filed April 27, 1931.
26 The question was covered in the Commission’s decision of Dec. 15, 1933, referred to hereafter.
27 On July 28, 1931, the Commission ordered the Joint Secretaries to “receive provisionally” the evidence offered, “but reserves for later decision the question of its right to admit new evidence and all other questions arising in connection with the aforesaid petition if the evidence be admitted.”
28 Oral Argument, Washington, November, 1932, p. 243; Report of American Commissioner, 1933, pp. 57-58.
29 Oral Argument, Washington, November, 1932, p. 244; Report of American Commissioner, 1933, pp. 46-47. In his additional opinion of Nov. 22, 1933, the German Commissioner indicated that the idea that the Commission must deny a petition for reopening if one Government opposed it was “in the mind of the German Agent when answering the Umpire’s question in the last Washington argument.” (Report of American Commissioner, 1933, p. 53.) For comments of the American Commissioner on this statement, see id., pp. 56, 61.
30 Decisions and Opinions, p. 1004.
31 Ibid.
32 Decisions and Opinions, pp. 1004, 1028; this Journal, Vol. 27 (1933), p. 345. In his decision of Dec. 15, 1933, the Umpire appears to disagree with this view, saying “a case once decided can only be reopened by a formal agreement of the two Governments,” not by their Agents. Neither did the Umpire discuss whether any of the evidence offered fell in the class of after-discovered evidence. The decision of Dec. 3, 1932, was unanimously set aside in the Commission’s decision of June 3, 1936. “This decision reinstates the cases into the position they were before the Washington decision [of 1932] was given.”
33 Considerable evidence was also taken in court under the Act of June 7, 1933.
33a The Commission also heard witnesses on the question of collusion in July, 1937.
34 Decision of Dec. 3, 1932.
35 Minutes, p. 1599.
36 Minutes, p. 1600. The Secretary of State in a letter to the Secretary of the Treasury, dated Feb. 16, 1933, stated: “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.” (Report of American Commissioner, 1933, p. 49.)
At the meeting of the Commission on Dec. 31, 1933, the American Commissioner stated that he regarded the difference of opinion which existed between the two Governments as a proper one to be decided by the Commission, and that the attitude of the German Government was an attempt to determine the question independently of the Commission and on political or other considerations.
37 Their disagreement had previously been stated by the Umpire in his decision of Dec. 3, 1932, in which Dr. Kiesselbach concurred.
38 The opinions of the German Commissioner of May 6, 1933, and of the American Com missioner of June 21, 1933, are printed in the Report of the American Commissioner, 1933, p. 29 et seq. The German Commissioner submitted an additional opinion Nov. 22, 1933 (id., p. 52), and the American Commissioner submitted a supplemental opinion Nov. 27, 1933 (id., p. 55). In his additional opinion the German Commissioner said: “If nevertheless a petition for rehearing is filed the Commission is bound to pass upon it, but to deny it if and as far as one Government opposes it.”
At the time the German Commissioner filed his original opinion he wrote a letter of May 5, 1933, to the American Commissioner stating 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.” (Id., p. 55; Minutes, Oct. 31, 1933.) In an exchange of notes between Ambassador Luther and the Secretary of State dated May 7, 1934, it was agreed “that the Commission shall not be asked in the future to consider new cases or cases already decided other than the Sabotage cases, and the case of Mrs. Catherine McNider Drier.” (Minutes, May 7, 1934.)
38 The entire decision is printed in the Report of the American Commissioner, Dec. 30, 1933, p. 63; also in this Journal, infra, p. 154.
40 Under Art. VII of the Jay Treaty of 1794 with Great Britain a controversy arose as to the power of the Commission to decide whether it possessed jurisdiction of claims which had been decided by the Lord Commissioners of Appeal. Lord Grenville submitted the question to Lord Chancellor Loughborough, who declared “that the doubt respecting the authority of the Commissioners to settle their own jurisdiction was absurd; and that they must necessarily decide upon cases being within or without their competency.” (Moore, Int. Law Dig., Vol. VII, p. 33.)
41 Gardiner case, United States and Mexico (Moore, Arb., p. 1248); Weil and La Abra cases (Moore, Arb., p. 1329; 29 Ct. Cls. 521; 32 Ct. Cls. 529; 35 Ct. Cls. 53; 175 U. S. 423); Leggett claim (Moore, Arb., p. 1278); The Mannesmann claim against Morocco (1 Fauchille, Traité de Droit International Public, Vol. I, Pt. 3 (1926), p. 567); Pelletier and Lazare claims against Haiti (Moore, Arb., pp. 1794-1800; U. S. For. Rel., 1887); The Gypsum Queen, Canadian Reparations Commission, 1932.
42 Harby Steamship Co. (Doc. 6288); Thomas S. Hamlin (Doc. 7676); Edward Nickerson (Doc. 7796); Wollenberger & Co. (Doc. 7978); Elizabeth Achelis et al. (Doc. 8094); Alexander Sprunt & Son (Docs. 8145-9); Lezcano & Co. (Doc. 13787); Paul Devantier (Doc. 15884); and other cases cited in American brief filed April 27, 1931.
43 Young, Smith & Co. (Moore, Arb., p. 2184), de Acosta y Foster case (id., p. 2187), Moore case (id., p. 1357), Compton case (id., p. 2188), Schreck case (id., pp. 1357, 2186.)
The Weil claim (Moore, Arb., pp. 1309-1329) is sometimes cited as contra. But in that case the application of the Mexican Agent for rehearing was improperly submitted to the Umpire through the Secretary of State after the Commissioners had concluded their work and ceased to function. In the Schreck case the same Umpire, on a proper application to the Commission, and after a patient rehearing, reversed his former ruling and made an award in favor of the claimant.
44 Printed in this Journal, Supplement, Vol. 33 (1939), p. 770.