principal, to wit: five thousand dollars ($5,000) (United States answer, p. 1). The only question remaining for decision by this Tribunal is whether or not interest upon the principal should be awarded, and, if so, for what period and at what rate. On this point it should be observed that from the beginning this claim has never been presented to nor considered by the United States Government as a claim for the payment of a liquidated and ascertained sum of money, but as a claim for indemnity and redress because the United States Government wrongfully took possession of and used the vessel belonging to the claimant. That plainly appears as well from the application made as aforesaid in 1819 by His Britannic Majesty's Government, as from the valuation made by the United States Government in 1837, and from the admission that the valuation of five thousand dollars ($5,000) was the real value of the vessel at the time of the capture. In international law, and according to a generally recognized principle, in case of wrongful possession and use, the amount of indemnity awarded must represent both the value of the property taken and the value of its use (Rutherforth's Institutes, Bk. 1, ch. XVII, sec. V; VI Moore's International Law Digest, p. 1029; Indian Choctaw's Case, Law of Claims against Governments, Report 134, 43 Cong., 2nd sess. House of Representatives, Washington, 1875, p. 220, et seq.) This principle applies especially when the Terms of Submission, as in this case, provide for interest and specify the dies a quo and the dies ad quem for the allowance of interest, as the Tribunal thinks equitable. It is admitted in this case that the sum of five thousand dollars ($5,000) represents only the value of the vessel, and does not cover the use by the United States Government of the vessel or the money equivalent to its value. Under these considerations it would have been justifiable to allow interest from the time of the capture, i. e., from June 12, 1812, except that according to Section IV of the Terms of Submission annexed to the Pecuniary Claims Convention, interest is not to be allowed by this Tribunal previous to the date when the claim was first brought to the notice of the other party, and as above stated that date must be fixed as February 3, 1819. As to the rate, it is a generally recognized rule of international law that interest is to be paid at the rate current in the place and at the time the principal was due. But in this case, by the Terms of Submission above mentioned, the two parties have agreed that in respect of any claim interest is not to exceed four per cent. (4%) per annum, and in view of all the circumstances, the Tribunal considers that the allowance of interest at this rate is equitable. On these motives The Tribunal decides that the agreement given by the Government of the United States to pay to His Britannic Majesty's Government the sum of five thousand dollars ($5,000) claimed by the legal representatives of the owners of the Lord Nelson, shall be put on record; and further awards that the said sum shall be paid accordingly with interest at four per cent. (4%) from February 3, 1819 to April 26, 1912. The President of the Tribunal, HENRI FROMAGEOT. Washington, May 1, 1914. AWARD IN THE MATTER OF THE GREAT NORTHWESTERN TELEGRAPH COMPANY OF CANADA CLAIM No. 22 Decision rendered May 1, 1914 This is a claim presented by His Britannic Majesty's Government on behalf of the Great Northwestern Telegraph Company of Canada, a British corporation, for one thousand thirty-nine 58/100 dollars ($1,039.58 as stated in their memorial, which amount was reduced on the oral argument to nine hundred thirty-nine 58/100 dollars ($939.58), together with interest from July 17, 1904, for damage caused to the telegraph cable of the said company in Quebec harbor on July 17, 1904, by the United States gunboat Essex, in dropping her anchor in a reserved space and fouling that cable. Both parties agree as to the facts. It appears from an affidavit of the superintendent of the company (British memorial, pp. 28-29) that within eight days after the cable was damaged, the damage was examined and estimated to be equal to at least one-third of the original cost of the cable, viz., six hundred seventynine 48/100 dollars ($679.48). It appears further that the actual cost of repairs was one hundred forty-eight 10/100 dollars ($148.10). The claim is presented for both those items, being altogether eight hundred twenty-seven 58/100 dollars ($827.58), to which is added, as a third item counsel fee for two hundred twelve dollars ($212), afterward reduced to one hundred twelve dollars ($112),-a total of nine hundred thirty-nine 58/100 dollars ($939.58). The United States Government admits its liability for eight hundred twenty-seven 58/100 dollars ($827.58), but denies any liability as to counsel fees and interest. The Tribunal cannot but remark that the estimated damage of six hundred seventy-nine 48/100 dollars ($679.48) is simply the contention of the injured party without being supported by any other evidence than its own statement and that the actual expenses for repairs, being one hundred forty-eight 10/100 dollars ($148.10) is accounted for separately. Under these circumstances, and considering Section 4 of the Terms of Submission, the Tribunal is of opinion that the sum of eight hundred twenty-seven 58/100 dollars ($827.58) as accepted by the United States Government is sufficient compensation for any loss incurred by said damage, and in view of all the circumstances it does not consider it equitable to allow interest. On these motives The Tribunal decides that the agreement given by the Government of the United States to pay His Britannic Majesty's Government the sum of eight hundred twenty-seven 58/100 dollars ($827.58) claimed by the Great Northwestern Telegraph Company of Canada shall be put on record, and further awards than the said sum shall be paid accordingly without interest. Washington, May 1, 1914. The President of the Tribunal, AWARD IN THE MATTER OF THE CADENHEAD CASE CLAIM No. 37 Decision rendered May 1, 1914 His Britannic Majesty's Government present a memorial in this case "in support of the claim respecting the killing of Elizabeth Cadenhead," a British subject, who left next of kin her surviving as stated in annex 1 of the memorial, all of whom are British subjects. The amount claimed as compensation for the death of Miss Cadenhead is twenty-five thousand dollars ($25,000). The death of Miss Cadenhead occurred under the following circumstances: July 22, 1907, Miss Cadenhead with her brother George M. Cadenhead and Katharine Fordyce Cadenhead were at Sault Ste. Marie, a city in the State of Michigan, United States of America; it was about 3.30 p.m. and they were returning to the city from a visit to a military post named Fort Brady, the entrance of which is situated on a public highway, called South Street. They were proceeding along the sidewalk of South Street, and when at about two hundred yards from the entrance of the fort, Miss Cadenhead was hit by a rifle shot and instantly killed. The shot was fired by a private soldier belonging to Company M of the Seventh Infantry, garrisoned at Fort Brady, and was aimed at a military prisoner, who was escaping from his custody when at work just at the entrance of the fort on South Street, by running easterly along the sidewalk on that street in the rear of the Cadenhead party. His Britannic Majesty's Government contend that this soldier was not justified in firing upon an unarmed man on a public highway, that he acted unnecessarily, recklessly and with gross negligence, and that compensation should be paid by the Government of the United States. on the ground that under the circumstances it was responsible for the act of this soldier. The question whether or not a private soldier belonging to the United States Army and being on duty acted in violation of or in conformity with his military duty is a question of municipal law of the United States, and it has been established by the competent military court of the United States that he acted in entire conformity with the military orders and regulations, namely, Section 365 of the Manual of Guard Duty, United States Army, approved June 14, 1902. The only question for this Tribunal to decide is whether or not, under these circumstances, the United States Government should be held liable to pay compensation for this act of its agent. It is established by the evidence that the aforesaid orders under which this soldier, who fired at the escaping prisoner, acted, were issued pursuant to the national law of the United States for the enforcement of military discipline, and were within the competency and jurisdiction of that government. It has not been shown that there was a denial of justice, or that there were any special circumstances or grounds of exception to the generally recognized rule of international law that a foreigner within the United States is subject to its public law, and has no greater rights than nationals of that country. Furthermore, no evidence is offered and no contention is made as to any personal pecuniary loss or damage resulting to the relatives or legal representatives of the unfortunate victim of the accident, and it is to be noted that this is a pecuniary claim based on alleged personal wrongs of nationals of Great Britain, as appears from its inclusion in clause III of the schedule of claims in the Pecuniary Claims Convention, under which it is presented. Under those conditions the Tribunal is of the opinion that in the circumstances of this case no pecuniary liability attaches to the Government of the United States. It should be said, however, that it may not have been altogether prudent for the United States authorities to permit prisoners under the charge of a single guard, to be put at work just at the entrance of a fort on a public highway in a city, and order or authorize that guard, after allowing one of these prisoners to escape under these circumstances, to fire at him, while running along that highway. This tribunal, therefore, ventures to express the desire that the United States Government will consider favorably the payment of some compensation as an act of grace to the representatives of Miss Cadenhead, on account of the unfortunate loss of their relative, under such distressing circumstances. On these motives The Tribunal decides that with the above recommendation, the claim presented by His Britannic Majesty's Government in this case be disallowed. The President of the Tribunal, Washington, May 1, 1914. HENRI FROMAGEOT. ETHEL C. MACKENZIE V. JOHN P. HARE ET AL. Supreme Court of California [S. F. No. 6465. In Bank. Filed August 5, 1913] Application in this court for a writ commanding defendants, as members of the Board of Election Commissioners of the city and county of San Francisco, to register the plaintiff as a qualified voter of said city and county. |