ARBITRATION,
INTERNATIONAL
American commissioners refused “unless tlie principles which should govern the arbitrators in the consideration of the facts could be first agreed upon.” After some discussion the British commissioners consented that the three following rules should apply. A neutral government is bound—(1) to use due diligence to prevent the fitting out, arming, or equipping within its jurisdiction of any vessel, which it has reasonable ground to believe is intended to cruise or to carry on war against a power with which it is at peace, and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use ; (2) not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms or the recruitment of men ; (3) to exercise due diligence in its own ports and waters, and as to all persons within its jurisdiction to prevent any violation of the foregoing obligation and duties. The arrangements made by the commission were embodied in the treaty of Washington, which was signed on 8th May 1871, and approved by the Senate on 24th May. Article 1, after expressing the regret felt by Her Majesty’s Government for the escape, in whatever circumstances, of the Alabama and other vessels from British ports, and for the depredations committed by these vessels, provided that “the claims growing out of the acts of the said vessels, and generically known as the Alabama claims ” should be referred to a tribunal composed of five arbitrators, one to be named by each of the contracting parties and the remaining three by the king of Italy, the president of the Swiss Confederation, and the emperor of Brazil respectively.^ By Article 2 all questions submitted were to be decided by a majority of the arbitrators, and each of the contracting parties was to name one person to attend as agent. Article 6 provided that the arbitrators should be governed by the three rules quoted above, and by such principles of international law not inconsistent therewith as the arbitrators should determine to be applicable to the case. By the same article the parties agreed to observe these rules as between themselves in future, and to bring them to the knowledge of other maritime powers. Article 7 provided that the decision should be made within three months from the close of the argument, and gave power to the arbitrators to award a sum in gross in the event of Great Britain being adjudged to be in the wrong. The treaty was, on the whole, welcomed in England. The United States appointed Mr C. F. Adams as arbitrator, and Mr J. C. Bancroft Davis as agent. The British Government appointed Sir Alexander Cockburn as arbitrator, and Lord Tenterden as agent. The arbitrators appointed by the three neutral powers were Count Sclopis (Italy), M. Staempfli (Switzerland), Baron dTtajuba (Brazil). The first meeting of the tribunal took place on 15th December 18/1 in the Hotel de A ille, Geneva. As soon as the cases had been formally presented, the tribunal adjourned till the following June. There followed immediately a controversy which threatened the collapse of the arbitration. It was found that in the American case damages were claimed not only for the property destroyed by the Confederate cruisers, but in respect of certain other matters known as indirect losses,” viz., the transference of the American marine to the British flag, the enhanced payments of insurance, the expenses of pursuit, and the prolongation of the war. But this was not all. The American case revived the charges of insincere neutrality” and “veiled hostility” which had figured in the diplomatic correspondence, and had been repudiated by Gieat Britain. It dwelt at length upon such topics as the premature recognition of belligerency, the unfriendly utterances of British politicians, and the material assistance afforded to the Confederates by British traders. The inclusion of the indirect losses, and the other matters just referred to, caused great excitement in England. That they were within the treaty was disputed, and it was urged that, if they were, the treaty should be amended or denounced. In October 18/2 Lord Gianvile notified to General Schenck, the United States Minister, that the British Government did not consider that the indirect losses were within the submission, and in April the British countercase was filed without prejudice to this contention. On the lotn of June the tribunal reassembled and the American argument was filed. The British agent then applied for an adjournment ot eight months, ostensibly in order that the two governments might conclude a supplemental convention, it having been meanwhile privately arranged between the arbitrators that an extra-judicial declaration should be obtained from the arbitrators on the subject of the direct claims. On 19th June Count Sclopis intimated on behalf of all his colleagues that, without intending to express any opinion upon the interpretation of tire treaty, they had arrived at the conclusion that “the indirect claims did not constitute upon the principles of international law applicable to such cases a good foundation for an award or computation of
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damages between nations.” In consequence of this intimation Mr Bancroft Davis informed the tribunal on 25th June that he was instructed not to press those claims ; and accordingly on 27th June Lord Tenterden withdrew his application for an adjournment, and the arbitration was allowed to proceed. The^ discussion turned mainly on the question of the measure of “due diligence.” The United States contended that it must be a diligence commensurate with the emergency or with the magnitude of the results of negligence. The British Government maintained that while the measure of care which a government is bound to use in such cases must be dependent more or less upon circumstances, it would be unreasonable to require that it should exceed that which the governments of civilized states were accustomed to employ in matters concerning their own security or that of their citizens. The tribunal adopted the view suggested by the United States. The vessels complained of were the Florida and her tenders the Clarence, Tacony, and Archer; the Alabama and her tender the Tuscaloosa; the Shenandoah; the Georgia, the Sumter, the Nashville, the Tallahassee, the Chickamauga, the Sallie, the Jefferson Davis, the Music, the Boston, and the V. H. Joy. The tribunal found that Great Britain was responsible for all the depredations of the Florida and Alabama, and for those committed by the Shenandoah after she left Melbourne. In the case of the Alabama the court was unanimous ; in the case of the Florida Sir A. Cockburn alone, and in the case of the Shenandoah both he and Baron dTtajuba dissented from the majority. The tenders were held to follow in each case the fate of their principals. In the cases of the other vessels the judgment was in favour of Great Britain. The tribunal decided to award a sum in gross, and (Sir A. Cockburn again dissenting) fixed the damages at $15,500,000. On 14th September the award was formally published and signed by all the arbitrators except Sir A. Cockburn, who filed a lengthy statement of his reasons. This document contained an elaborate reply to certain attacks which had been made upon the good faith of the British Government—attacks which had better have been left unnoticed. They formed no part of the issue ; and if they were to be refuted that task was for the British counsel, not for the British arbitrator. The stipulation that the three rules should be jointly submitted by the two powers to foreign nations has never been carried out. For this the British Government has been blamed by some. But there appears to have been a general impression upon both sides, as well as among Continental publicists, that . the language of the rules was not sufficiently precise to admit of their being generally accepted as a canon of neutral obligations. Of instances of arbitration on unlawful arrests and seizures we may specially note the following. On 7th June 1863 three officers of a British ship, the Forte, stationed on the coast of Pdo Janeiro had a fracas with ^'p^’e „ a Brazilian sentinel, and were in consequence arrested by the police and lodged in prison. This being notified to the British Consul, he explained to the authorities who the prisoners were, whereupon they were at once liberated. The British Government took up the matter and demanded redress from the Brazilian Government. The dispute threatened to be serious. It was referred, by consent, to the arbitration of the king of Belgium, who pronounced against the officers, on the ground that as they were not in uniform when arrested, no insult to the British Navy could possibly have been intended. In September 1854 the steamer Benjamin Franklin and the barque Catherine Augusta, both the property of Carlos Butterfield and Co., cleared at New York for the port of St. Thomas in the Danish West Indies. The Catherine Augusta was laden with cannon and other war material. At that time revolution was supposed to be imminent in Venezuela, and there were grounds for suspecting that these two vessels were destined to aid the insurgents. On the voyage the Catherine Augusta was much damaged by a storm, so that it became necessary for her to land her cargo for repairs. The Danish governor, who had received a communication from Venezuela, insisted cn her giving, as a condition of her landing, security to the extent of $20,000 that no breach of the neutrality of the port was intended. To this the owners were compelled to S. L —7i
