* Established in pursuance of the agreement between the United States and Germany of August 10, 1922. Edwin B. Parker, Umpire; Chandler P. Anderson, American Commissioner; Wilhelm Kiesselbach, German Commissioner; Robert W. Bonynge, American Agent; Karl von Lewinski, German Agent.

Headnotes and references in brackets inserted by the Editor of the Journal. Lack of space prevents the publication of the disagreeing opinions of the two National Commissioners.

1 In these cases it was used save in one instance, and the table used in that instance did not differ substantially from the American Table.

2 From the table of “ Death Rate Per Cent of Mean Insurance in Force of 56 Life Insurance Companies, 1903 to 1922, inclusive” appearing in the Insurance Year Book for 1923—Life Insurance, compiled and published by the Spectator Company, it appears that there was, speaking generally, a steady decrease in the death rate (with a few unimportant exceptions) from 1903 to 1918; that in 1915, the year of the Lusitania disaster, there was a slight increase over the previous year, but the death rate for 1915 was lower than in any previous year save 1913 and 1914; that in 1918, the year of the influenza epidemic and also the year when the United States had its armies on the fighting front, the rate increased substantially, but beginning with 1919 it decreased steadily, falling to 0.79 in 1921 as against 1.22 in 1903. Eleven of the 12 companies claimants herein were included in the 56 companies from whose actual experience this table was compiled.

3 The American Table was based on actual experience under policies expressly excluding certain hazardous occupational risks and also travel risks in the Tropics or in the western part of the United States, inhabited by Indians. All these exceptions have long been eliminated from policies; and these risks, to the extent of their existence in fact, are assumed by insurers, as well as innumerable other risks unknown when the American Table was compiled.

4 Vanderbilt et al. v. Travelers' Insurance Company, 1920, 184 N. Y. Supp. 54, affirmed 1922, 202 N. Y. App. Div. 738; Hopkins v. Connecticut General Life Insurance Company, 1918, 225 N. Y. 76.

5 The published reports of the claimants herein which are contained in the Insurance Year Book for 1923—Life Insurance, compiled and published by the Spectator Company, far from indicating that any group losses have been sustained by any of the claimants resulting in the impairment of their reserves, indicate exactly the contrary. In fact, the dividends paid to policyholders by mutual companies are constantly increasing, even to the point of exceeding the amount paid on death claims.

6 While American insurers suffered losses caused by the acceleration in the time of payments of death claims, it will be borne in mind that payments made by American insurers to American beneficiaries involved no national loss. The insurers do not complain that Germany's act deprived America of property but only that Germany's act resulted in the premature payment of money from one group of American nationals to another group of American nationals in pursuance of intercontractual relations between them.

7 Decisions and Opinions, pages 1–15 inclusive. [Printed in the Journal, vol. 18, pp. 175–186.]Google Scholar

8 Decisions and Opinions, pages 17–32 inclusive. [Printed in the Journal, vol. 18, pp. 361–373.]Google Scholar

9 42 United States Statutes at Large 105; this joint resolution will hereinafter be designated “resolution of Congress.”

10 This construction of the Treaty of Berlin has been expressly adopted by Germany in a formal declaration presented to this Commission by the German Agent on May 15,1923, in which it was declared that “ Germany is primarily liable with respect to all claims and debts coming within the jurisdiction of the Mixed Claims Commission under the Agreement of August 10, 1922.” Minutes of Commission, May 15, 1923.

Article I of the Agreement of August 10, 1922, establishing this Commission and defining its powers and jurisdiction provides that :

“The commission shall pass upon the following categories of claims which are more particularly defined in the Treaty of August 25, 1921, and in the Treaty of Versailles:

“(1) Claims of American citizens, arising since July 31, 1914, in respect of damage to, or seizure of, their property, rights and interests, including any company or association in which they are interested, within German territory as it existed on August 1, 1914;

“(2) Other claims for loss or damage to which the United States or its nationals have been subjected with respect to injuries to persons, or to property, rights and interests, including any company or association in which American nationals are interested, since July 31, 1914, as a consequence of the war;

“(3) Debts owing to American citizens by the German Government or by German nationals.”

See also paragraph (e), subdivision (2) of paragraph (h), and paragraph (i) of Article 297 and Article 243 of the Treaty of Versailles.

11 It will be noted that the language of Article 232 is practically identical with that in the Pre-Armistice Memorandum prepared by the Allied Powers and on November 5, 1918, presented by President Wilson to, and accepted by, Germany, which provided that “compensation will be made by Germany for all damage done to the civilian population of the Allies and their property by the aggression of Germany by land, by sea, and from the air.”

12 Decisions and Opinions, pages 2 and 3.Google Scholar[Vol. 18, p. 176 of the Journal.]Google Scholar

13 Paragraph 4 of the Annex to Section IV of Part X of the Treaty of Versailles. See also declaration of German Government through German Agent, note 10 supra.

14 Section 2, resolution of Congress.

15 See note 11 [12] Decisions and Opinions, pages 14 and 15.Google Scholar[vol. 18, p. 185 of the Journal,.]Google Scholar

16 See note 13 and concluding clause of next preceding paragraph.

17 The first category of this Annex I (to Section I of Part VIII, Reparation) reads:

“(1) Damage to injured persons and to surviving dependents by personal injury to or death of civilians caused by acts of war, including bombardments or other attacks on land, on sea, or from the air, and all the direct consequences thereof, and of all operations of war by the two groups of belligerents wherever arising.”

18 The ninth category of this Annex I reads:

“(9) Damage in respect of all property wherever situated belonging to any of the Allied or Associated States or their nationals, with the exception of naval and military works or materials, which has been carried off, seized, injured or destroyed by the acts of Germany or her allies on land, on sea or from the air, or damage directly in consequence of hostilities or of any operations of war.” ”

19 See note 13.

20 Paragraph 4 of the Annex to Section IV of Part X, Treaty of Versailles.

21 While the German Commissioner did not concur in Administrative Decision No. I, he and the German Government have nevertheless accepted it as the law of this case binding both governments.

22 Paragraph 1 of Annex I to Section I of Part VIII read in connection with paragraph 4 of the Annex to Section IV of Part X of the Treaty of Versailles and also in connection with the declaration of the German Government set out in note 10 supra.

23 Broom's Legal Maxims, 8th American (1882) edition, page 650, 7th English (1900) edition, page 491.Google ScholarMatter of Connor, 1 N. Y. St. 144 at 148.Google ScholarOpinion of Umpire Ralston in Sambiaggio Case, Venezuelan Arbitrations 1903, pages 666, 679.Google ScholarVan Bokkelen Case, II Moore's Arbitrations, 1807Google Scholar.

24 Exhibits H and I in claim Docket No. 19.

25 As pointed out in the Opinion in the Lusitania Cases (page 17) [vol. 18, p. 361 of the Journal] “liability for losses sustained by American nationals was assumed by the Government of Germany through its note of February 4,1916,” and this assumption of liability was reiterated before this Commission by the German Agent.Google Scholar

26 Administrative Decision No. II, Decisions and Opinions, pages 12 and 13, all three members of the Commission concurring in the conclusions. [vol. 18, pp. 183–184 of the Journal.]Google Scholar

27 Paragraph 1 of Annex I to Section I of Part VIII (Reparation), Treaty of Versailles. Great Britain's reparation claims contain an item of £32,436,256 for damages suffered through the loss of life of civilians. It is interesting to note that in estimating these damages Great Britain applied substantially the same rules as are laid down by this Commission in its Opinion in the Lusitania Cases. Another item of £3,054,607 in Great Britain's reparation claims covered injuries to persons or to health of civilians. France pursued a somewhat different method, probably producing approximately the same result. Prior to the coming into effect of the Versailles Treaty, France had by statute provided for the pensioning of the surviving dependents of civilians whose lives had been lost through acts of war and also the pensioning of civilians invalided in consequence of acts of war. The aggregate cost— past and prospective—to France of such pensions, when reduced to its present value, amounts to 514,465,000 francs, which was carried into and formed a part of her reparation claim.

28 Decisions and Opinions, pages 17–32, inclusive, all three members concurring in the conclusions.Google Scholar[vol. 18, pp. 361–373 of the Journal.]Google Scholar

29 Decisions and Opinions, pages 22–23.Google Scholar[vol. 18, pp. 365–366 of the Journal.]Google Scholar

30 Paragraph 1 of Annex I to Section I of Part VIII, Treaty of Versailles.

31 This statement has been challenged: Hubgh v. New Orleans & Carrollton Railroad Co., 1851, 6 Louisiana Annual 495;Google ScholarHermann v. same, 1856, 11 Louisiana Annual 5.Google Scholar

32 Grotius, Book II, Chapter XVII, Sees. 1, 12, and 13.Google Scholar

33 Borrero v. Compania Anonyma de la Luz Electrica de Ponce, 1903, 1 Porto Rico Federal Reporter 144.Google ScholarRavary et al. v. Grand Trunk Railway Co., 1860, 6 Lower Canada Jurist 49.Google Scholar

34 Kake v. Horton, 1860, 2 Hawaiian Reports 209.Google Scholar

35 The Schooner Robert Lewers Co. v. Kekauoha, 114 Federal Reporter 849, decided by the Circuit Court of Appeals in 1902.Google Scholar

36 Connecticut Mutual Life Insurance Co. v. New York & New Haven R. R. Co., 1856, 25 Connecticut 265;Google ScholarMobile Life Insurance Co. v. Brame, 1878, 95 U. S. 754.Google ScholarSee also Sedgwick on Damages, 9th (1912) edition, Vol. I, Sec. 120;Google ScholarAnthony v. Slaid, 1846, 11 Metcalf (52 Massachusetts) 290;Google ScholarRockingham Mutual Fire Insurance Co. v. Bosher, 1855, 39 Maine 253;Google ScholarDale et al. v. Grant et al., 1870, 34 New Jersey Law 142;Google ScholarAshley v. Dixon, 1872, 48 New York430;Google ScholarBrink v. Wabash R. R. Co., 1901, 160 Missouri 87;Google ScholarRinneman v. Fox, 1906, 43 Washington43;Google ScholarThompson v Seaboard Airline Ry. Co., 1914, 165 North Carolina377;Google ScholarTaylor v. Neri, 1795, 1 Espinasse Nisi Prius Cases 386;Google ScholarCattle v. Stockton Waterworks Co., 10 Law Reports Q. B. D. (1874–1875) 453;Google ScholarSimpson & Co. et al. v. Thompson, Burrell et al., 1877, Law Reports 3 Appeals Cases 279, opinion of Lord Penzance;Google ScholarAnglo-Algerian Steam-ship Co., Ltd., v. The Houlder Line, Ltd., 1907, I (1908) Law Reports K. B. D. 659, 24Google ScholarTimes Law Reports 235;Google ScholarLa Societe Anonyme, etc., v. Bennetts, 1910, 1 (1911) Law Reports K. B. D. 243, 27 Times Law Reports 77.Google Scholar

37 See authorities cited in note 36.