received from Venezuela, in settlement of this case, a reasonable compensation, the amount thereof to be fixed by the Secretary of State of the United States of America, to the defendant attorney or attorneys in the suit instituted on or about March 18, 1905, in the Federal Court and of Cassation of the Republic by Mr. Padrón Uztariz against said Manoa Company Limited and Orinoco Company Limited, as compensation for the professional services of said defendant attorney or said defendant attorneys in said suit. I thus answer the courteous note of Your Excellency of even date herewith in regard to the foregoing. Please accept Your Excellency, etc., etc., etc. To His Excellency WILLIAM W. RUSSELL, JUAN PIETRI E.E.&M.P. of the U.S.A. ARBITRATION OF CLAIMS Protocol signed at Caracas February 13, 1909; exchange of notes at Entered into force September 14, 1909 1909 For. Rel. 617; Treaty Series 5222 PROTOCOL William I. Buchanan, High Commissioner, representing the President of the United States of America, and Doctor Francisco González Guinán, Minister for Foreign Affairs of the United States of Venezuela, duly authorized by General Juan Vicente Gomez, Vice-President of the United States of Venezuela, in charge of the Presidency of the Republic, having exhibited to each other and found in due form their respective powers, and animated by the spirit of sincere friendship that has always existed and should exist between the two nations they represent, having conferred during repeated and lengthy conferences concerning the manner of amicably and equitably adjusting the differences existing between their respective Governments with regard to the claims pending between them, since neither the United States of America nor the United States of Venezuela aspires to anything other than sustaining that to which in justice and equity it is entitled; and as a result of these conferences have recognized the great importance of arbitration as a means toward maintaining the good understanding which should exist and increase between their respective nations, and to the end of avoiding hereafter, so far as possible, differences between them, they believe it is from every point of view desirable that a treaty of arbitraiton shall be adjusted between their respective Governments. With respect to the claims that have been the subject of their long and friendly conferences, William I. Buchanan and Doctor Francisco González Guinán have found that the opinions and views concerning them sustained by their respective Governments have been, and are, so diametrically opposed and so different that they have found it difficult to adjust them by common accord; wherefore it is necessary to resort to the conciliatory means of arbitration, a measure to which the two nations they represent are mutually bound 'For a discussion of settlement of claims against Venezuela, see American Journal of International Law, vol. 3, p. 985. by their signatures to the treaties of the Second Peace Conference at The Hague in 1907, and one which is recognized by the entire civilized world as the only satisfactory means of terminating international disputes. Being so convinced, and firm in their resolution not to permit, for any reason whatever, the cordiality that has always existed between their respective countries to be disturbed, the said William I. Buchanan and Doctor Francisco González Guinán, thereunto fully authorized, have adjusted, agreed to and signed the present Protocol for the settlement of the said claims against the United States of Venezuela, which are as follows: 1. The claim of the United States of America on behalf of the Orinoco Steamship Company; 2 2. The claim of the United States of America on behalf of the Orinoco Corporation and of its predecessors in interest, The Manoa Company Limited, The Orinoco Company and The Orinoco Company Limited; 2 and, 3. The claim of the United States of America on behalf of the United States and Venezuela Company, also known as the Crichfield claim.3 ARTICLE I With respect to the first of these claims, that of the Orinoco Steamship Company, the United States of Venezuela has upheld the immutability of the arbitral decision of Umpire Barge, rendered in this case, alleging that said decision does not suffer from any of the causes which by universal jurisprudence give rise to its nullity, but rather that it is of an unappealable character, since the compromis of arbitration can not be considered as void, nor has there been an excessive exercise of jurisdiction, nor can the corruption of the judges be alleged, nor an essential error in the judgment; while on the other hand, the United States of America, citing practical cases, among them the case of the revision, with the consent of the United States of America, of the arbitral awards rendered by the American-Venezuelan Mixed Commission created by the Convention of April 25, 1866, and basing itself on the circumstances of the case, considering the principles of international law and of universal jurisprudence, has upheld not only the admissibility but the necessity of the revision of said award; in consequence of this situation, William I. Buchanan and Doctor Francisco González Guinán, in the spirit that has marked their conferences, have agreed to submit this case to the elevated criterion of the ARBITRAL TRIBUNAL created by this Protocol, in the following form: The ARBITRAL TRIBUNAL shall first decide whether the decision of Umpire Barge, in this case, in view of all the circumstances and under the principles of international law, is not void, and whether it must be considered so con 3 "For text of settlement dated Sept. 9, 1909, see TS 5332, ante, p. 1108. For text of settlement dated Aug. 21, 1909, see TS 5312, ante, p. 1105. 'TS 370, ante, p. 1082. clusive as to preclude a reexamination of the case on its merits. If the ARBITRAL TRIBUNAL decides that said decision must be considered final, the case will be considered by the United States of America as closed; but on the other hand, if the ARBITRAL TRIBUNAL decides that said decision of Umpire Barge should not be considered as final, said ARBITRAL TRIBUNAL shall then hear, examine and determine the case and render its decision on the merits. ARTICLE II During the many conferences regarding the matter of the United States of America on behalf of the Orinoco Corporation and of its predecessors in interest against the United States of Venezuela, held between William I. Buchanan, High Commissioner, representing the President of the United States of America, and Doctor Francisco González Guinán, Minister for Foreign Affairs of Venezuela, they have found the views and conclusions held and maintained by their respective Governments with respect to the rights and claims of the claimant company so diametrically opposed to each other, as to make it impossible to reconcile them through the medium of direct negotiations between their Governments. Among these they have encountered the allegation of the United States of America, on behalf of the claimant company, that by the act of the National Congress of Venezuela, and by resolutions and other acts of the Executive Power thereof, the rights and claims insisted upon and claimed by the United States of America on behalf of the claimant company, in and under the Fitzgerald concession, the origin of the present case, are firmly recognized and affirmed as subsistent and valid, and that the Government of Venezuela has insisted and insists that the decision of Umpire Barge of April 12, 1904, which Venezuela considers irrevocable, and the decision handed down by the Federal Court and of Cassation of Venezuela on March 18, 1908, furnish of and in themselves conclusive proof against the rights and the pretentions of the claimant company, since said company, even though it be accepted as the assignee of the others, has not established itself in accordance with the laws of Venezuela, and even though it had so established itself, it was beforehand subjected to Venezuelan laws and it was agreed that these should govern and decide the contentions and differences that might arise; whereas the United States of America, on behalf of the claimant company, has declined and declines in any manner to admit that said decision of Umpire Barge or that of the Federal Court and of Cassation of Venezuela could terminate or has terminated or extinguished the rights and claims asserted by the claimant company under said Fitzgerald contract, but that on the contrary the rights and claims asserted in connection therewith by the claimant company are valid and subsisting. In view of these and other equally conflicting conclusions reached and persistently maintained by their respective Governments with regard to this case, the Representatives herein named, animated by a firm resolve to do all in their power to maintain and increase a good understanding between their Governments, and by a fixed desire to provide for the adjustment of the differences existing between them in this case, in justice and equity, can not escape the conclusion that the same cordial spirit which has prevailed in their many conferences already held counsels and points to the expediency and necessity of submitting this case to an impartial International Tribunal in order that the differences arising therefrom may be once and for all determined and concluded in a just and equitable manner. To reach this desirable end, and in accordance with the principles set out: It is AGREED between William I. Buchanan, High Commissioner, representing the President of the United States of America, and Doctor Francisco González Guinán, Minister for Foreign Affairs of the United States of Venezuela, duly authorized to this end by their respective Governments, that the matter of the United States of America, on behalf of the Orinoco Corporation and of its predecessors in interest, The Manoa Company Limited, The Orinoco Company and The Orinoco Company Limited, shall be submitted to the ARBITRAL TRIBUNAL created by this Protocol. Said ARBITRAL TRIBUNAL shall examine and decide: 1. Whether the decision of Umpire Barge of April 12, 1904, under the principles of international law is not void and whether it preserves a conclusive character, in the case of the predecessors in interest of the claimant company against Venezuela; 2. If the ARBITRAL TRIBUNAL decides that said decision shall be considered conclusive, it shall then decide what effect said decision had with respect to the subsistence of the Fitzgerald contract, at that date, and with respect to the rights of the claimant company or those of its predecessors in interest in said contract; 3. If it decides that the decision of said Umpire Barge shall not be considered conclusive, said ARBITRAL TRIBUNAL shall examine on their merits and shall decide the matters submitted to said Umpire by the predecessors in interest of the claimant company; 4. The ARBITRAL TRIBUNAL shall examine, consider and decide whether there has been manifest injustice done the claimant company or its predecessors in interest regarding the Fitzgerald contract through the decision of the Federal Court and of Cassation, rendered March 18, 1908, in the suit maintained by the Government of Venezuela against the predecessors in interest of the claimant company, or through any of the acts of any of the authorities of the Government of Venezuela. If the ARBITRAL TRIBUNAL decides that such injustice has been done, it is empowered to examine the matter of the claimant company and of its predecessors in interest against the Government of Venezuela on its merits, and to render a final decision with respect to the rights and the obligations |