UC-NRLF B M ba^ GOT REPORT OP FRENCH-VENF.ZUELAN MIXED CLAIMS COMMISSION OF 1902. PREPARED BY JACKSON H. RALSTON, ' Late American Agent, Pious Fund Case, before The Hague Permanent Court of Arbitration, and Umpire of the Italian-Venezuelan Mixed Claims Commission, ASSISTED BY W. T. SHERMAN DOYLE, Late Assistant Agent of the United States, American-Venezuelan, and Netherlands' Agent, Netherlands-Venezuelan, Mixed Claims Commissions. WASHINGTON: GOVERNMENT PRINTING OFFICE. 1906. PRESERVATION COPY ADDED ORIGINAL TO BE RETAINED NOV 2 3 1992 to ^'i'ó Banci'jj . >--.üiai> PREFACE. This work is a supplement to the vohime entitled "Venezuelan Arbitrations of 1903," prepared by the same editors and published as Senate Document No. 316, Fifty-eighth Congress, second session. The protocol, by virtue of which the Commission acted, whose pro- ceedings are reported herein, was dated February 19, 1902; but the Commission sat at Caracas at the same time with the Conunis- sions appointed under the protocols of February, 1903, and, as will be observed, its work and the questions submitted to it partook largel)^ of the same nature and character. In the preparation of this volume the editor desires to present his full acknowledgment for assistance received from ]\Ir. W. T. S. Doyle; ]\lr. W. B. Turner, printing clerk of the Senate; Mr. O. T. Cartwright, of the State Department; and Mr. C. J. Kappler. The opinions herein reported were kindly furnished by the Umpire, Hon. Frank Plumle}"; the Venezuelan Commissioner, Dr. José de Jesús Paúl; and the French Commissioner, Count E. de Peretti de la Rocca. The headnotes were in all cases prepared by Mr. Plumley. Jackson H. Ralston. Washington, D. C, September 25, 1906. OOîiTEl^TS. Page. Table of authorities cited vu Table of cases cited xi Protocol 1 Pci-sonnel of Commission 4 Claim of heirs of Jules Brun 5 Opinion of Venezuelan Commissioner G Opinion of French Commissioner !) Additional opinion of Venezuelan Commissioner 13 Additional opinion of French Commissioner 20 Opinion of Umpire 21 Claim of Frierdich & Co 31 Opinion of Venezuelan Conmiissioner 32 Opinion of French Commissioner 32 Additional opinion of Venezuelan Commissioner 33 Additional opinion of French Commissioner 36 Opinion of Umpire 37 Claim of heirs of Jean Maninat 44 Opinion of Venezuelan Commissioner 45 Opinion of French Commissioner 50 Additional opinion of Venezuelan Commissioner 55 Additional opinion of French Commissioner 67 Opinion of Umpire 69 Claim of Antoine Fabiani 81 Opinion of Venezuelan Commissioner 81 Opinion of French Commissioner 83 Additional opinion of Venezuelan Commissioner 97 Additional opinion of French Commissioner 103 Opinion of Umpire 110 Exhibit: Award of Swiss Arbitrator under convention of 1891 147 Claim of Fieri Dominique & Co 185 Opinion of Venezuelan Commissioner 186 Opinion of French Commissioner 193 Additional opinion of Venezuelan Commissioner 195 Additional opinion of French Commissioner 198 Opinion of Umpire 201 Claim of heirs of Massiani 211 Opinion of Venezuelan Commissioner 212 Opinion of French Commissioner 217 Additional opinion of Venezuelan Commissioner 223 Additional opinion of French Commissioner 233 Opinion of Umpire 235 V VI CONTENTS. Page. Claim of Company General of the Orinoco 244 Opinion of \'en(>zuolan Commissioner 246 Opinion of French Commissioner 282 Addit ional opinion of Venezuelan Commissioner 286 Additional opinion of French Commissioner 314 Opinion of Umpire 322 Claim of French Company of ^'enezuelan Railroads 367 Opinion of \'enezuelan Commissioner 360 Opinion of French Conmiissioner 405 Addit ional opinion of Venezuelan Commissioner 409 Additional opinion of French Commissioner 425 Opinion of Umpire 428 Summary of awards by Umpire 453 Appendix 454 Leduc, St . Ives, Fischer & Co. case 454 Kogé case 454 Decauville Company case 456 Lalanne and Ledour case 458 Battistini case 459 Piton case 462 Summaiy of claims adjudicated by the Commissioners at Caracas 464 Claims referred to the Umpire 465 Index 467 TABLE or AUTHORITIES CITED. Annual of the Institute of International Law: Page. Vol. II, 1878, pp. 1.50, 151 258 American and English Encyclopedia of Law, 2d edition: Vol. II, pp. 610, 671, 672, 699. 445 Vol. II, p. 789 141 Vol. II, pp. 806-807, n 141 Vol. VI, p. 694 448 Vol . VI, p . 704 449 Vol. VI, p. 713 449 Vol. VI, p. 729, n 449 Vol . VI, p. 738 449 Vol. VI, p. 741 449 Vol. XXII, p. 1267, n. 24 42 Vol. XXII, p. 1269, n. 1 and 3 42 Vol. XXII, pp. 1270-1271, n. 4 42 Vol. XXIV, pp. 611, 612 448 Vol. XXIV, p. 621 364 Vol. XXIV, p. 775 357 Vol. XXIV, p. 775 358 Vol . XXIV, p. 785 359 Vol. XXIV, p. 791 358 Best: Evidence, Subsec. IV, Title "Presumption in favor of validity of acts" 42 Bluntschli: Droit International Codifié, sec. 374 74, 224 Boutwell's Report: Page 83 60 Page 129 57 Bouvier, Law Dictionary (Rawle's) : Verb. Agreement, vol. 1, p. 124 74 Verb. Cause of Action, vol. 1, p. 295 359 Verb. Construction, vol. 1, p. 416 74 Verb. Contract, vol. 1, p. 429 74 Verb. Interpretation, vol. 1, p. 1107 — 74 Calvo: Dictionary of International Law, vol. 2, sec. 889 295, 297 Cogordan: La Citoyennité, 39 64 Dalloz : Jurisprudence Générale, vol. 4. i\jbitration No. 471, n 41 Répertoke Général, Instruction Civile, No. 83 296 vu vin TABLE OF AUTHORITIES CITED. Page Encyclopedia Pleading and Practice: Vol. I, p. 209 359 Vol. \' . p. 7S() 357 \ol. IX, pp. G22-brpt (Boutwell's Rep., 129; Moore, 2491) 57 Leggctt (Moore, 1276 et seq.) 141 Lizardi (Moore, 2483) 57,227 McLcod (Moore, 2419). .'. 139 Maihado (Moore, 2193) 138 Maninat (heroin, p. 44) 242, 243 Mathison (Ralston 's Rep.. Ven. Arl). of 1ÍK)3, 429, 433M38) 64, 74, 225 Miliani (Ralston's Rep., Von. Arh. of 19()3, 7.>4-7()2) 59, 61, 65. 225 Moiitijo (Moore, 1421-1447) 206 Orinoco Steamship Company (Ralston 's Rep., \'en. Arb. of 1903, 74) ,58 Poggioli (Ralston's Rep., Ven. Arb. of 1903, 847-866) 64, 225, 228 Puerto Cabello, etc., Railway (Ralston's Rep., Ven. Arb. of 1903, 455) 424 Rollins ats. Heinemann (120 U. S. Sup. Ct., 605) 42 Sac County ats. Cromwell (4 Otto U. S. Sup. Ct., 351-371 ; L. C. P. Co. 24, 19.5-204, n.). 3.58 Southern Pacific R. Co. v. U. S. (168 Sup. Ct. Rep., 1; L. C. P. Co. 42, 377) 3.55 Stevenson (Ralston's Rep., Ven. Arh. of 1903, 438-455) 60, 64, 72, 225, 242 Terrj' (Moore, 2995) 26 Throckmorton ats. U. S. (98 U. S. Sup. Ct. Rep., 61 ; L. R. 25, 93) 1 44 Turner (Moore, 3684-.5) 2(j Tyler Mining Co. ats. Last Chance Mining Co. (157 U. S. Sup. Ct., 683-685; L. C. P. Co. 39, 862) 3.58 Union Bank v. Geary (5 Peters, U. S. Sup. Ct., 99) 449 U. S. ex rel. Boynton v. Blaine (139 U. S., 306; L. R. 35, 183) 142 U. S. ats. Choctaw Nation (119 U. S. Sup. Ct., 1 ; L. R. 30, 306) 144 Lf. S. Appt. V. Dickolman (92 U. S. Sup. Ct. Rep., .520; L. R. 23, 742) 144 U. S. ex rel. Rua, cxrx. v. Bayard (127 U. S., 251 ; L. R. 32, 159) 141 U. S. ats. Southern Pacific R. Co. (168 Sup. Ct. Rep., 1 ; L. C. P. Co. 42, 377) 3.55 U. S. u. Throckmorton (98 U. S. Sup. Ct. Rep., 61; L. R. 25,93) 144 U. S. ats. Williams (1 Howard, U. S. Sup. Ct., 290) 42 Vasse ats. Comegj's et al. (26 U. S., 193; L. R. 7, 108) 143 Williams V. U. S. (1 Howard, U. S. Sup. Ct., 290) 42 WuliT (Moore, 13.53-13.54, n.) 58, 228 FRENCH-VENEZUELAN MIXED (lAlllS COMJIISSION OF 11)01 PROTOCOL. Los suscritos, el Señor H, Maii- bourguet, Plenipotenciario de los Estados unidos de Venezue- la, y el Señor Th. Delcassé, Dipu- tado, Ministro de Negocios Ex- tranjeros de la República Fran- cesa, debidamente autorizados por sus respectivos Gobiernos, han convenido en lo siguiente : Artículo I. Al propio tiempo que nombren sus Ministros en l-'arís y Caracas, los Gobiernos Venezolano y Francés designarán cada uno un arbitro y elegirán por tercero en discordia al Excelentísimo Señor F. de Leon 3' Castillo, Marqués del Muni, Embajador Extraordi- nario y Plenipotenciario de Su Majestad el Rey de España cerca del Presidente de la Repúl^lica Francesa. Los dos primeros arbitros se reunirán en Caracas inmediata- mente después de la entrega por el Ministro de Francia al Presi- dente de los Estados Unidos de Venezuela de sus credenciales, á efecto de examinar, de concierto, las demandas de indemnizaciones presentadas por Franceses, por daños sufridos en Venezuela con motivo de los acontecimientos revolucionarios de 1892. Las de- mandas de indenmizaciones que no pudieren arreglarse amigable- mente entre estos dos arbitros serán sometidas por ellos al ter- cero en discordia. S. Doc. 533—59-1 1 Les soussignés, M. IL Maubour- guet. Plénipotentiaire des Etats- Unis du \énézuéla, et M. Th. Delcassé, ^Député, Ministre des Affaires Fltrangères de la Ré- publique Française, dûment au- torisés par leurs Gouvernements respectifs, sont convenus de ce qm suit: Article I. En même temps qu'ils nomme- ront leurs Ministros à Paris et à Caracas, les Gouvernements Véné- zuélien et Français désigneront chacun un arl)itre et choisiront, pour tiers arbitre. Son Excellence M. F. de Leon y Castillo, Marquis del Muni, Aml)assadeur Extraor- dinaire et Plénipotentiaire de Sa Majesté le Roi d'Espagne près le Président de la République Fran- çaise. Les deux premiers arbitres se réuniront à Caracas, aussitôt après la remise par le Ministre de France au Président des États-Unis du Venezuela de ses lettres de cré- ance, à l'effet d'examiner, de con- cert, les demandes d'indemnités présentées par de Français pour des donunages subis au Venezuela du fait d( s événements insurrec- tionnels de 1892. Les demandes d'indemnilésqui ne pourraient être réglées à l'amiable entre ces deux arbitres seront soumises par eux au tiers arbitre. PROTOCOL. Si no se hubiere estatuido nada définit ivanionte, va por los dos ar- bitros, ya por el tercero, dentro del plazo de un año contado desde la llefíada del arbitro francés á Caracas, el Gobierno Venezolano entrefjará al Gobierno Francés, para distribuirse por él entre los derecli()-]ial)ientes. un millón de bolivares en deuda diplomática del S%, mediante el cual pago quedarán definitivamente arre- gladas todas las reclamaciones motivadas por les sucesos revolu- cionarios de 1892. S'il na pas été définitivement statué, soit par les deux arbitres, soit par le tiers arbitre, dans un délai d'une année à compter de l'arrivée de l'arbitre français à Caracas, le Gouvernement A'énézu- élien remettra au Gouvernement français, pour être réparti par ses soins entre les ayants droit, un mil- lion de bolivares en dette diplo- matique 3 p. 100, moyennant quel versement toutes les réclamations du fait des événements insurrec- tionnels de 1892 seront définitive- ment réglées. Artículo II. Las demandas de indemniza- ciones extrañas á las c^ue son ob- jeto del artículo I, pero que estén fundadas en liechos anteriores al 23 de mayo de 1899, serán examina- das de concierto por el Ministro de Relaciones Exteriores de Vene- zuela y por el Ministro de Francia en Caracas. Si dentro de un plazo d(> seis meses, contado desde la entrega de las credenciales del Ministro de Francia en Caracas, no se ])Usi(Ten de acuerdo sobre el monto de las indemnizaciones que hayan de concederse, las deman- das serán sometidas por ellos al tercero en discordia designado en el artículo precedente. El Ministro de Relaciones Exte- riores de Venezuela y el Ministro de Francia en Caracas jxxlrán delegar, cada uno en lo que le con- cierna, la ejecución de las disposi- ciones cpie preceden en el arbitro nond)rado ])or su Gobierno. Si varias demandas de indemni- zaciones fundadas en hechos dife- rentes se presentaren j)()rel mismo reclamante y una áv ellas estu- vien^ en el caso de someterse al procedimiento esta])leci(l<) en el presente artículo, las demás se juntarán á ella j)ara ser objeto de de un arreglo único. Article II. Les demandes d'indemnités au- tres que celles qui sont visées à l'article V, mais fondées sur des faits antérieurs au 23 mai 1899, seront examinées de concert par le ministre des affaires étrangères du Venezuela et par le ministre de France à Caracas. Si dans le délai de six mois à dater de la remise des lettres de créance du ministre de France à Caracas, ils ne tombent pas d'accord sur le montant des indemnités à allouer, les demandes seront soumises par eux au tiers arbitre désigné à l'ar- ticle précédent. Le ministre des affaires étran- gères du Venezuela et le ministre d(> Fran('(> à Caracas poiu'ront dé- léguer, chacun en ce qui le con- ceriu», pour l'exécution des dispt)- sitions ci-dessus, l'arbitre nonuné ])ar leur gouvernenuMit. Si plusieurs demandes d'indem- nités, fondéeos sur des faits diffé- rents, sont j)résentées ])ar le même réclamant et (¡ne l'uni» dent re elles soit dans le cas d'être soumise à la |)r()cédure établie au présent arti- cle, les autres y seront jointes, pour faire l'objet d'un règlement uniipie. PROTOCOL. Queda entendido que este ])!•()- cedimiento,como el adoptado para las reclamaciones de 1892, no se instituye sino á título excepcional, j no invalida la convención del 26 de noviembre de 1885. Artículo III. El tercero en discordia decidirá sin apelación. Las indemnizaciones se pajea- rán al Gobierno Francés en títulos de la deuda diplomática del 8% dentro de los tres meses que sio^an al acuerdo ó al fallo. Artículo) IV. 11 est entendu que cette procé- dure, comme celle qui est adoptée pour les réclamations de 1892, n'est instituée qu'à titre excep- tionnel et n'infirme pas la conven- tion du 26 novembre 1885. Article III. Le tiers arbitre décidera sans appel. Les indemnités seront versées au Gouvernement Français, en titres de la dette diplomatique 3 % dans les trois mois qui sui- vront l'entente ou le prononcé de la sentence. Article IV. El Gobierno Venezolano pedirá Le Gouvernement Vénézuélien al Congreso que inscriba en el demandera au Congrès d'inscrire Presupuesto de Gastos las sumas au Budget des dépenses les sommes nécessaires au payement des men- sualités arriérées de la dette diplo- necesarias para el pago de las mensualidades atrasadas de la deuda diplomática, y los tene- dores de títulos de esa deuda de- berán, por lo demás, participar de todas las ventajas que resulten para ellos de la estricta aplicación de las leyes venezolanas orgánicas sobre la materia. El presente Arreglo será ratifi- cado y las ratificaciones se can- jearán en París ó en Caracas cuan- to antes se pueda v á más tardar el 30 de abril de 1902. En fé de lo cual, los suscritos, debidamente autorizados por sus Gobiernos respectivos, han ex- tendido el presente acto y puesto en él sus sellos. Hecho por duplicado en París el 19 de febrero de 1902. H. Maubourguet Delcassé. matique, les porteurs de titres de cette dette devront d'ailleurs bé- néficier de tous les avantages qui résultent pour eux de la stricte application des lois vénézuéliennes organiques sur la matière. Le présent Arrangement sera ratifié et les ratifications en seront échangées à Paris ou à Caracas le plus tôt que faire se pourra et au plus tard le 30 avril 1902. En foi de quoi, les soussignés, dliment autorisés par leurs Gou- vernements respectifs, ont dressé le présent acte et y ont apposé leurs cachets. Fait à Paris, en double exem- plaire, le 19 février 1902. [l. s.] [l. s.] PERSONNEL OF COMMISSION. rmpire." — Hon. Frank Plumley, of Northfichl, Vt. French Commissioner. — Count E. de Peretti de i.a Rocca. Venezuelan Commissioner. — Dr. José de Jesús Paúl. Secretary to Umpire. — Mr. Charles A. Plumley. French Secretary. — M. Paul Waltz. Venezuelan Secretary. — Dr. J. F. Padrón Ustáriz. ^ By the protocol the Martiuis del Mimi, aniljassador oxtraordiiiarv and plonipotentiarv of Spain to France, was appointed, but, he declining, Hon. Frank l^lunilcy was iinalh* selected. CLAIM OF HEIRS OF JULES BRUN. No. I.'» HEAD NOTES. A state of war, a battle, or a skirmish excuses only those casualties which are unavoidal)le. A city not in revolt, but temporarily occupied by insurf^ent forces, is entitled to receive from the Government the ufniost care and protection not inconsistent with tiie retaking of the town from the insurgent forces, and is subject only to the inerltahle contingencies ' attending such an undertaking. There is a presumption that the Government will do its duty in this regard; but it is met, if not overcome, by a presumption which arises from a refusal of the Government in .such a case to permit the use of its judicial processes to .settle the exact facts easily ascer- tainable. If there is a claimant rightfully in the case, liowever informally present, it is sufficient to permit and to rerjuire a disposition of the case on its meiits and all parties will be iviWy bound by tlie decision. Where the claimant is the mother, a widow, and the claim is for the unlawful killing of her son, the measure of damages is the amount which will meet the pecuniary loss she has sustaineigh tlie reason and justice of the alleged claim. Mr. J. B. Peysselon, representative of the " Compagnie Française de Chemins de Fer Vénézuéliens," after the death of Mr. Brun, in a state- ment which he ratified before the considar agent of France at Mara- caibo, relates the facts as follows: From the 4th day of May the village of Santa Bárbara, the place of our ri'sidenco, was occupied by a revolutionary troop. On Sunday, the Kth, the legal troops, transported by the steamer Progreso, arrived at midday at the village. Under tliese circuiustaiues we must foresee a battle in the streets. This foresiglit ordered us to immediately close all the doors and blinds of our dwelling house. While I was closing a window overlooking the s(|uare .Mr. Bnin w«.s closing (hat of his sleeping room, which overlooks Sunto Domingo street. OPINION OF VENEZUELAN COMMISSIONER. 7 At the same moment the musket volleys began in this street; the window was already closed; but Mr. Brun had no time to remove his hand from the lock when the bullet of an arm of precision pierced the blind through, twisted the lock in an extraordinary way, pierced Mr. Brun's hand through and through and threw the chips on his breast. Mr. and Mrs. Crinière, who inhabit the house of the director, attended Mr. Brun on this sad circumstance. I immediately went out to the square to call a physician. I met with 20 armed men of the Government, and tiie only person known to me to whom I could apply was Gen. Eleazar Montiel, the head of the party. As the physician had not arrived, I went out for a second time and saw the same Montiel with Messrs. Bellais and Acosta, his lieutenants, and another troop of the Government. When the first panic was over, Drs. J. Rosales and J. Cohen could be called, and immediately came to attend our friend. Mr. A. Crinière, bookkeeper of the company at Santa Bárbara, declares before the same consular agent : We were anxious, because we heard and saw nothing. When at midday the report cir- culated that the steamer Progreso was at the entrance of Santa Bárbara, a great movement took place, and we saw a white flag at the station. This inspired us with some confidence, and we thought that the two parties would come to an understanding. Unfortunately it did not happen so, and at the same time a lively musket firing broke out in Santo Domingo street. It was the soldiers from Maracaibo that arrived at the bottom of the vil- lage and attacked the forces of Generals Figuera and Pozo in the rear. Immediately Messrs. Brun, Peysselon, and myself ran to close the doors and windows to protect ourselves from the bullets. 1 had already heard the noise of something like mortar falling behind me. It was a bullet that had pierced through the window of the hall overlooking the square which had two flags. Almost at the same time I heard Mr. Brun cry, "I am wounded." We all ran to him to help him and saw his right hand horribly mutilated by a bullet. All of this passed like a thunderbolt. We rendered the first attentions required bj' so serious a wound, and, the musket firing having ceased, Mr. Peysselon ran in search of a physician. I followed him and saw soldiers of the legal forces with the French flag over their heads guard- ing the entrance of the office in the street, which did not prevent them from preparing to fire at us; but fortunately Mr. Peysselon had sufficient presence of mind to cr}': "French company," which produced the effect of changing theii: bad intention, and Mr. Peysselon was able to go out. From the medical inspection made b}'^ Dr. J. Cohen and reported to the consular agent at Maracaibo, it appears that Mr. Brun, immedi- ately after the incident, presented a wound in his right hand, with the following circumstances: On the p:Jm side of the hand the wound pre- sented an extent of from 7 to 8 centimeters and a strange appearance that showed that it had been produced not only by the bullet, but also by the violent pressure of a hard body, with hr.lf-cutting edges, which intersected the skin, the muscles, and the arteri¿>l arc. It also appears that the physician, in view of the dangerous nature of the wound, pro- ceded to render the patient, in company with Dr. Paminas Rosales, all such attention as medical science prescribed; that these cares con- tinued during all the days 9, 10, 11, and 12, in which nothing particular occurred, the treatments being made reguLirly and with a great atten- tion; that on the 12th, at 11 a. m., Mr. Brun was embarked on board the steamer Progreso for his transportation to Maracaibo without showing theretofore any alteration; that at 4 o'clock that day Doctor Cohen proceeded, on board the Progreso, to dress the womid, and 8 CASE OF HKIRS OF JÜLE.S BKUN. found in tlie purulent focus formed at the side of the wound on the dorsal face of the hand a complete absence of orleet and three g:angre- nous points on the dorsul face of the thumb; that such symptoms insi)ired him with the fear of a great danger, for which reason he noti- fied the acting representative of the rights of the company what he had seen and ordered a certain preventive method. The patient was well until 7, when in a violent manner the fever made its invasion with a strong delirium and all the consequences attending an infec- tion; that everytliing was attempted, but in vain, for neither scientific cares nor those of friendsliip were enough to avoid the catastrophe that took place at 8.45, when the patient died of a puru- lent infection of violent invasion, which could not be overcome. The corpse having been carried to Maracaibo on the s.ime steamer Progreso, the government of the State of Zulia, upon learning the regrettable event, thought it to be its duty to join, as it did in effect, in the sorrow produced in the State by the death of Mr. Brun, and decided among other manifestations to assist at the act of the burial of the corpse of the esteemable gentleman, who lost his life on account of a lamentable accident. iVnother proof given by the government of the sympathy with wliich it was inspired by the fate of Mr. Brun appears from a note addressed by Gen. J. M. Gomez, chief of the tliird military circum- scription of the Republic to Mr. Julio d'Emp:-ire, in charge of the con- sular agency of France in the city of Maracaibo. In that note a cop}^ is inclosed of that wliich in the name of Mr. Brun, while suffering in his bed the consecjuence of his wound, was addressed on the I'ith of May, 1898, by Mr. J. B. Peysselon, mspector of the exploitation, to Gen. Mamerto D. Gonzalez, military agent of Gen. Garcia Gomez in the Santa Bárbara district. Mr. Peysselon's note runs thus : Compagnie Française de Chemins de Fer Vénézuéliens. Line from San Carlos to Mérida. Direction of the e.xploitation. L. R. No. 658. Santa Barbara, 12th May, 1898. General Mamerto D. González. My dear sir: As the agent of the company, and Mr. Brun being unable to do so himself, I thank you for the restoration of order and for having taken the proper measures for the bringing of the steamer Santa Bárbara. It would be liiglily agreeable to us to sec you among us protecting our persons and our interests. I am with all consideration. Your respectful servant, J. B. Pkysselo.n, Inspector of the Exploitation. This note, unoer t.ne circumstances under which it was written, Mr. Brun being airead}' wouiuh'd, order being restored in th(> place by the forces commanded by Gen. Mamerto González, ami the steamer Santa Bárbara, that had been t;.ken by the revolution.. ries, being retiu'ned to the company, throws suihcient light to make one consider as ungrounded the attacks wliich Mr, Peysselon desired to adduce with the purpose, after the (le:'lli of Mr. Brun, of giving the nccidenl lia])- OPINION OF B'KENCH COMMISSIONER. 9 pening to the latter a character of r.ggressioii against the building of the company, tha,t is not in any way proved. For iJl the reasons above stated the cl;;ini presented by the Com- missioner of France on account of the death of Mr. J. Brun is desti- tute of any ground that may render it acceptable for any amount, and the Commissioner for Venezuela, therefore, entirely rejects it. Caracas, May 27, 1903. OPINION OF THE FRENCH COMMISSIONER. The 8th of Ma}^, 1898, M. Brun, superintendent of bridges and causeways on leave, director of the French company of Venezuelan railroads was grievously wounded by a discharge from Government troops which took place in the village of Santa Barbara occupied by the insurgent forces. M. Brun, who was in his house, over which floated the French flag, had his hand shattered b}' a ball, at the moment when he was closing the shutters of the window of his room, and died four days later because of this wound. These facts have caused the lodg- ment by the French Government of the claim of 500,000 bolivars before the mixed commission appointed according to the protocol of the 19th of February, 1902. These facts are well established by the depositions of eyewitnesses and of the doctor who cared for ^L Brim. The Venezuelan authorities have by their attitude confirmed their correctness, which the Venezuelan Government has never placed in doubt. At the sitting of the 27th of May, 1903, the mixed commis- sion considered tliis claim. Dr. Paúl rejected it, considering that it had not been presented by a representative of M. Brun and that this fact suffices for its not being taken into consideration at all by the commission; that the death of M, Brun had a cause purely accidental, and that it could not in any way serve as a basis for a demand of indemnity from the Venezuelan Government. I replied that the French Government had substituted itself for the presentation of this claim by the heirs whose interests it had taken in hand, the mother of M. Brun being aged and infirm, and that besides the responsibility of the Venezuelan Government seeming to me established I accorded a demand and indemnity in satisfaction of 500,000 bolivars. It is said nowhere in the protocol that the claims must be presented by those having a right in themselves. It is at the same time con- formable to international law and commanded l)y good sense and equit}^ that the French Government present in its name the claims of those of its dependents who are not capable themselves of defend- ing their rights, and nothing interferes with this. As for the respon- sibility of the Venezuelan Government, it is difficult to place it in 10 CASE OF hî:iks of jcjles brtin. doubt, even lioldinfj; to the principles orenerally admitted by inter- national European law, the existence of which are o.'ten disregarded in affairs between the countries of Europe and certain South Amer- ican republics, because of the social and political conditions of these countries. Immediately after the decease of M. Brun M. Ilanotaux, minister of foreign affairs, telegraphed the 4th ol June, 189S, to M. Quievreux, chargé d'affaires of France at Caracas, to take the necessary steps to safeguard the eventual rights of the family. M. Quievreux the same day wrote to the minister of foreign relations of Venezuela, rendering homage to the correctness of the attitude of the high authorities at Maracaibo, whose evidences of sympathy were an undeniable proof of the confidence which M. Brun had inspired and of the services wliich he had rendered to the country in directing a great enterprise of pub- lic utility. Quievreux made known that the local officials had not con- ducted themselves so well. The succes.sor of M. Brun in the direction of the company could not obtain from the judge of the district per- mission to proceed according to the legal forms to make the different proofs relating to this dreadTul incident and to the circumstances accompanying it. The house of M. Brun, property' of the company, was connected with the shops and storehouse for material and the central office. But the doors of the principal shop o" the office of bookkeeping and the telegraph office were broken down a^ter one of the discharges fired upon the property oí the companj- had wounded M. Brun. In conclusion M. Quievreux asked relief from the Federal Govern- ment and that they kindly invite the local officers to lend their indis- pensable assistance to an investigation of this nature by the agents of the French company. In his reply the minister for foreign affairs tried to establish theo- retically that the judicial authorities were not obliged to proceed to any investigation. He added that the death of M. Brun and the breaking of the doors were simply accidents of war. The death of M. Brun could no more require compensation than that of a Vene- zuelan who, crossing a street in Paris in 1871 . during the struggles of the Commune, was killed by a stray ball. The representative ot France in his repl}^ called attention to such strange theory, as it seemed to him. lie suggestively remarked that the terms of the letter of the minister had oidy strengthened his ])ur- pose to have an examination of the unfortunate incidents which had marked the taking of Santa Barbara by the troops of the Govern- ment. It was inadmissible, he added, that the department of foreign relations should try, under cover of the authorities of international law, to liken the breaking of the doors of the buildings of the French company to the destruction of the hostile intrenchments, which would OPINION OF FRENCH COMMISSIONER. 11 lead one to suppose that the aforesaid buildings over which floated the French flag were occupied by revolutionary forces, but this hypothesis was so contrary to the real fact that the Venezuelan Government itself has not thought to claim it. M. Quiévreux said at the end of his letter — I regret that it docs not seem possible to your excellency that the judicial autliorities of the district in which Santa Barbara is situated should lend to the officials of the French company of Venezuelan railroads their aid in view of establishing the exact truth about the events which the national Government deplores with me. I see myself obliged, there- fore, to make all my reserves fo • the case where the interested party having to formulate a precise claim upon the subject of this affair it would not be possible for them to base it upon tlie statements made according to the usual and legal forms. This will not be in accordance with their will or mine. In spite of this courteous admonition the Venezuelan Government persists in its resolutions. This attitude proves clearly that it feared the consequences of a legal investigation and that it was ready to intrench behind technicalities more or less contestable upon expla- nations upon international law and upon comparisons not well justi- fied. We are convinced besides that this eagerness to defend itself by the aid of citations of authorities of international law even before having been attacked, to reject a claim which was not yet presented, shows clearly that the Venezuelan Government itself confessed that a compensation for damages might be demanded of it under a just title. If it had been assured that an investigation conducted conformably to Venezuelan laws by the Venezuelan officials would have simply per- mitted to conclude upon the irresponsibility of the Government for the accident of the war no doubt but that it would have proceeded immediately to the aforementioned investigation. That would have established the responsibilities. That is what the Venezuelan Govern- ment wished to avoid. It has not recoiled before a denial of justice and it has thus condemned itself. In the several trips I have made to Santa Barbara for the purpose of forming personal opinions upon the French claims I have been able, although five years have passed since the events, to make some obser- vations which have terminated by convincing me that the wounding of ^I. Brun could not be regarded as a simple accident of war. Accom- panied by the commander of the French cruiser Jouffroy, by a repre- sentative of the French company, by the civil head of Santa Barbara, and by some prominent men of the place, I visited the house where M. Brun was wounded. The window of the room situated on the first floor where this accident took place is pierced by several balls, the traces of which one sees clearly on the shutters of smooth wood and on the walls back of the chamber. Stray balls do not converge thus on a precise point. It is certainly a question of a volley fired intentionally upon a window^ which had just been closed and above which floated the French flasr. According to the declarations wliich have been 12 CASK OF HKIKS OF .IFLKS HKLX. made to me by the civil chief and by the notables who were at vSanta Bárbara wlien the village was taken, the troops which fired came by a street perpendicular to the side of the house where the window of M. Brun was located. There were neither in the street nor in the house any insurgents, the presence of whom could have ex])lained the shots, and the armed band was commanded by an officer, Mr. Montiel, and compo.sed of soldiers who know the house of M. Brun and M. Brun himself very well. The tone with which these declarations were made lead me to believe that the aggressors knew what they were doing and were led by a chief who profited from an occasion oifored to satisfy a former grudge. The investigation asked for and refused under the conditions, which I have explained, would at least have permitted the Government of Venezuela to punish those who thus fixed its responsibility. These necessary explanations tend to transform the simple accident of war which the Venezuelan Govermnent would like to content itself with deploring into a murder connnitted knowingly, perhaps premeditated, and in any case accompanied })y acts of vio- lence upon foreign property without any provocation or any resist- ance being i\h]o to excuse or even explain them. Can one equitably establish a parallel between a like instance and the fortuitous death of a Venezuelan who, in 1871, was hit by a stray ball while crossing a street during a com})at going on between the insurgents and the army of Versailles? M. Brun, director of a public service, who was obliged to remain at his post, has been wounded in his house siu'niounted by a PVench flag by a volley intentionally aimed at his window by a ])arty of regular soldiers who knew him without one's being able to find in it any excuse or provocation. The same soldiers then broke down the doors of the buildings which they invaded and can not give as an excuse for this violation of foreign property the necessity of driving insurgents from it and of making them cease their resistance. The nature of the acts, the conduct of the local authorities, the attitude of the Wnezuelan Government, and the result of a personal investigation have led me to judge that an indenuiity was due the family of the victim. I have placed it at ô()(),()0() bolivars, judging as an arbitrator who acts according to his conscience without allowing himself to be influenced by the (piality of the parties which he liasno mission either to attack or defend. T have estimated, and still esti- mate, after having heard my honorahl(> colleague exi)ress his o|)inion, that tliis indenuiity is an e<|uital)le rej)aration for the material damage^ suil'ered by the family of M. Brun. This sum represents in caintal the amunil salary of the (hrector of the PVench ci)mi)any. who earned in ])ursuit of his duties from 20,000 to 2.'), 000 bolivars. We should reach a nmch greater sum if we calculated the indemnity at the normal rate of interest in Venezuela, which is ])ractically 12 per cent. We ought to consider besides that, nccoi'ihn;^ to tlic Ici'nis of the 'pioiocol, liiis OPINION OF FRENCH COMMISSIONER. 13 indemnity has to be paid in bonds of the diplomatic debts and not in gold. Thanks to this concession kindl}'^ granted by the French Government to the Vene/Aielan Government to permit it to pay its debts with greater facility, the figure of the indenmity fmds itself singularly reduced in reality. The bonds issued by the Veno/uclan Government have an actual variable value in fact whicli always rests far from their nominal value. In ^lay, 1903, they underwent a depre- ciation of 30 per cent. To-day the Venezuelan Government, having proceeded to new issues to pay the indenmities accorded by the mixed commission, the depreciation reaches 70 per cent. The latter can only increase still more l)y future issues. It would be then, if the umpire should partake of the sentiment of the French arbitrator, scarcely the sum of 150,000 ])olivars in gold which the heirs of M. Brun would receive from the Venezuelan Government. - December 15, 1903. EXHIBIT ATTAC'IIEI) TO THE OPINION OF THE FRENCH COMMISSIONER. Under date (if June 17 last, (lie inotlier of ^f. Brun, having learned that the Venezuelan arbitrator had raised a cjucstion of fact because the Brun claim was not directly presented by the interested parties, sent rae the attached letter. Afme. Brun, a^ed and infirm, has counted upon the French Government to sustain her claim against the Venezuelan Government. She declares that she approves what the min- istry of foreign affairs has done in her interest and requests it to continue its proceeding in the same manner. June 28, 1904. Ijodeve (Hér.\ult), June 17, 1904. M. DE Pereth de la uOCCA, French Arhilratov in Venezuelan Claims, Ministry of Foreirin Affairs, Paris, France. Sik: I have learned that the Venezuelan arbitrator at Caracas has raised some difficulties with regard to the claim which T have for the death of my son, José Brun, director of the Company of French-Venezuelan Railways, assassinated at Santa Barbara, Ven(>zuela, because I have not acted myself, but T count upon what has been done by the French Gov- ernment in maintaining my claim to follow its course. I infonn you then by the present that I give full approbation to what the ministry of foreign affairs has done, asking it to be pleased to luaintain my claim in the manner in which it has supported it itself. Widow Brun (née Carreo). Boulevard de l'Hôpital, Maison Laurès, Lodève, Tlérault. ADDITIONAL OPINION OF THE VENEZUELAN COMMISSIONER. As commissioner for Venezuela, I have held, as shown In' the abstract of the oral proceedings had on May 27, 1903, that the com- mission should a])stain from con.sidering the merits of the documents produced, as at first glance it appeared that a claim for indemnifica- tion had not been properly entered against the Venezuelan Govern- ment by a citizen or a party in interest of French nationality, showing 14 CASE OF HEIRS OF JULES BRFN. his capacity as universal heir to M. Jules Brun, nor his legal title to receive any sum by wa}' of indemnification. I also held that, from the examination of the documents then before me, no cause was shown to substantiate the allcf^ed liability of the Venezuelan Government for the death of M. Brun, as the testimony of the eyewitnesses clearly proved that the death of the party was produced accidentally, was due to a casualty, at the time an armed conflict was takino; place near his residence. In support of the first point held in my opinion, I he^ to call the attention of the honorable umpire to the precise lann}îaf;enu'iit s^ínoux des dcu.v parties, nous arborions vers les di.\' heures du matin ù la maison de la Direction des drapeaux nos couleurs franvaises, dont doux à la fenêtre du salon donnant sur la place, par M. Brun lui môme et aid¿ de Miguel Labarca, deux par moi dont un tI•^s grand sur la rue Santt> Domingo; c'est ]Hir cette rue que les soldats de la force léi/ale ouf entouré le village et où donnait la chambre dans la(|uelle .\I. lîmn a trouxY- la mort en fermant une fenêtre. * * * t'ne vive fusil- lade éclate au même moment dans la rue Santo Doininijo; c'était les soldats envoyés de Muracail)ii (pii amcaient ]>ar le fond du lùlUujc, et prenant par derriêix* les fi)rces de.s genereaux Kiguora et Pozo, inunédialement .Messieui"s Hrun, Peysst>lon et moi, jtous ADDITIONAL OPINION f)F VENEZUELAN COMMISSIONER. 17 précipitons pour fermer portes et fenêtres pour nous préserver des proyectiles. Déjà j'avais entendu comme un hruit de plâtre tomber derrière moi; c'était uno balle qui avait traversé la fenêtre du salon donnant sur la place et munie des deux drapeaux (a window different from the one where a few moments later M. Brun wa-s wounded) et presque aussitôt j'entendais Monsieur Brun s'écrier: Ah, je suis blessé, nous tous nous précipitons vers lui pour lui por- ter secours et lui voyons la main droite horriblement mutilée d'une balle. Tout ceci a duré l'espace d'un éclair. * * * J'ai été témoin de tous ces faits et je suis en possession du verrou de la fenêtre de la chambre de Monsieur Brun, et aussi d'une balle que j'ai ramassée au milieu du salon (not M. Brun's room); je les tiens à votre di.sposition et ils prouveront sur- abondamment la véracité de ces faits regrettables. [Translation.] On the morning of Sunday, May S, fearing a serious fight between the two parties, we hoisted our French colors at about 10 a. m. over the company's house. Two of said flags were placed in the window of the parlor overlooking the .square by M. Brun himself, a.ssisted by Miguel Labarca, and two by me, the very large one in the window- facing the street of Santo Domingo. It was by this street that the legal troops surrounded the village and which the window overlooked where M. Brun met his death in closing this window. A lively fusillade rang out at that moment on Santo Domingo street; it came from the soldiers sent from Maracaibo, who were arriving at the rear of the village, taking the forces of Gen- erals Figuera and Pozo at their liack. Messrs. Brun, Peysselon, and I at once proceeded to close doors and windows to protect ourselves from the mùssiles. I had already heard a noise behind me as of falling plaster; it was from a ball that had come through the parlor window that overlooked the square and from which hung the two flags; almost at the same instant I heard M. Brun cry out, "I am wounded." We all rushed to his aid and found his right hand horribly mangled by a ball. All this had happened in a flash. I have been a wMtness to these events and have in my pos.session the window bolt of M. Brun's room and also the ball which I picked up in the middle of the salon; they are entirely at your dis- posal and afford abundant proof of these lamentable facts. Mr. Peysselon states: Le dimanche S. les troupes legales amenées parle vapeur Progreso arrivaient à midi et demi dans "le pueblo." Nous devions dans cette circonstance prévoir une bataille dans les rues. Cette prévoyance nous commandait de fermer immédiatement toutes les portes et volets de notre maison d'habitation; pendant que je fermais une fenêtre donnant sur la place, M. Brun fermait celle de sa chambre donnant sur la rue Santo Domingo; au même instant la, fusillade commençait dans cette rue, la fenêtre était déjà fermée, mais Monsieur Brun n'avait encore pas eu le temps de quitter la main dessus le verrou, quand une balle d'arme de précision est venue traverser le volet, tordre le verrou d'une façon extraordinaire, percer de part à part la main de Mons. Bran, et lui projeter des éclats en pleine poitrine. * * * Mons. Bran est resté à Santa Bárbara jusqu'à la première occasion pour descendre à Maracaibo et il a été embarqué le jeudi matin vers les dix heures avec plus grands soins. Son état ne nous permettait pas de prévoir une is.sue aussi fatale et si prompte. Il est mort pendant la traversée, le même jour à 8 heures 45 minutes du soir. Tel est l'exposé sincère des faits dont j'ai été témoin oculaire jusqu'à l'embarquement de M. Brun. [Tran.roiert oursehrs from the missiles. I'uder such circumstances we anticipated a light in the streets. This led us to immediately close all the doors and shutters of our dwelling house. While I was closing a window (Peysselon states) overlooking the scjuare, M. Brun was closing that of his room facing Santo Domingo street, and at the same moment the firing began in this street. The window had been already closed, but M. Brun had not yet had time to withdraw his hand from the bolt when a bullet from a rifle perforated the .shutter, twisted the bolt in an extraordinary manner, and pierced the hand of M. Brun. Now, do not these two depositions clearly show the innninent risk which all the persons living in the house were running that the mis- siles might come in through doors and windows, and for this reason they hastened to close them? And was it not precisely in obedience to the instinct of self-preservation that M. Bnm went to the window in his room, which faced Santo Domingo street, when a lively fusillade rang out in this street, and while being precisely there with his hand still on the bolt, the window being closed, a bullet wounded his hand? Neither the conclusions arrived at by the learned commissioner from France in the narrative of his ocular inspection nor his theory of the perpendicular line in the subject of the direction of projectiles in a fight, which grew to the proportions of a battle, can alter in the slightest degree the deep conviction produced by the depositions of Peysselon and Crinière that the wound received by M. Brun, which some da3^s later brought about his lamented death, was an accident, and by no means the outcome of a malicious plan. I beg to call the attention of the honorable umpire to the contents of the official communications addressed by the president of the State of Zulia, and by the commander of the Third military zone, where the town of Santa Bárbara belongs, to M. Jules d'Empaire, in charge of the French considar agenc}^ in Maracaibo, wherein such officers express their earnest regret on account of the death of M. Jules Brun, a French subject, produced by a wound received under sad and for- tuitous circumstances. With the last-named communication, the military commander of the zone also sends a true copy of a letter M. Peysselon, inspector of the compan}', addressed in behalf of ^I. Brun to the military com- mander of the district, the letter in question being verbatim, as follows: Como agente de la compañía y por impedimento del Sr. J. Bmn (this is four days after being wounded), doy á Yd. las gracias por el restablecimiento del (írden y por haber tomado las di.sposiciones eficaces para la traida del vapor Santa Bárhara. Nos complacemos alta- mente verlo á Vd. entre nosotros para protejer nuestras personas y nuestros intereses. 20 CASE OF HEIRS OF JULES BRUN. [Translation.] As the agent of the company and by reason of disability on the part of M. J. Bran, I beg to thank you for the restoration of order and for having taken eíTective steps for the coming of the steamer Santa Bárbara. We are highly pleased to see you among us to protect our lives and property. Could it be possible that M. Brun would instruct M. Pevsselon to thank the military connnander of the district having under command the troops which made the attack on the town of Santa Bárbara, and to whose body the (jroup of soldiers under the officer Montiel belon<:ed. if M. Brun had not been satisfied that the wound he received and for which he was then suffering had not been entirely accidental? I come to a close, confirming in all its particulars my former opinion, which I send with the present oj)iniün, in which opinion I did'er from my learned colleague, rejecting in full the claim that the Venezuelan Government must indemnify with any amount whatever the mother or family of M. Brun by reason of his death, which was entirely fortuitous and does not create any liability whatsoever on the part of said Government. NoRTHFiELD, Vt., February 1, 1905. ADDITIONAL OPINION OF THE FRENCH COMMISSIONER. After having heard the additional opinion drawn up by my hon- orable colleague I ought to declare that his arguments have not in any wise weakened my convictions. In the first place, I maintain that one could not refuse the French Government the faculty of the right to interfere for Mme. Brun, aged and infirm, and conse- cjuently incapable of acting by herself. This would be contrary to humanity, to good sense, and to the protocol of 1902. It is suj)ernuous to indicate in fact that the French Government would have failed in its duty in not ])resenting this claim, but it is important to remark here that it has not in doing this acted contrary to the obligations which the protocol places upon it. Article 2, which concerns the claims which we are considering, is formulated thus: The demand of the indemnities other than those which are covered by article 1, hut founded on acts anterior to the 23d of May, 1899, shall be examined in concert, etc. It is not said that these demands will have to be presented by the claimants themselves, who are at liberty to have them presented to the arbitrators by advocates or by their natural rei)re- sentative which is the government of their country. In the mixed commissions established at Caracas by the protocols signed in lOO.'i at Washington did not each government have an agent charged with presenting the claims in its name? It is necessary to remark besides that in the particular case the French Government by a scruple which OPINION OF UMPIRE. 21 nil only honor it has not made itself the advocate of Mme. Brun. Nothing, however, for])ade tliis, but it is content to serve as impartial intermediary. On the contrary, in denying the French Govern- ment the faculty of presenting this claim one goes against the spirit of the ])rotocol, whicli has for its end the settlement of all the claims of French citizens, for one would oblige the French Government to reply to this claim by the diplomatic way now that the i)rotocol has been signed, precisely in view of removing these difficulties from the ordinary course, to submit them to arbitration. In the second place, in my opinion, the responsibility of the Venezuelan Government rests pliinl}^ established by the incident which has led to the death of M. Brun. I remain pursuaded that M. Brun has not been the victim of a simple accident of war. The results of my personal investigation are not at all proofs, without doubt. I present them merely ts the basis which hr.s permitted me to form a conviction. I persist, more- over, in considering the refusal of the Venezuelan Government to proceed after the incident to an investigation upon the spot by its own officers as a valuable indication of the fear which the result of such an investigation would inspire in it. OPINION OF THE UMPIRE. The honorable commissioner for France asserts a claim of 500,000 francs, while the honorable commissioner for Venezuela rejects the claim in its entirety. Hence it comes to the umpire for his decision. The unquestioned facts are that in the State of Zulia in the United States of Venezuela on May 8, 1898, there was a railroad extending from San Carlos to Mérida and in San Carlos was the village of Santa Barbara about the harbor of the same name. That this railroad was operated by a certain French company, whose superintendent or director was Mr. Jules Brun. His residence and the shops and offices of the company were in said village of Santa Bárbara. That for some time preceding the date mentioned there had been a revolt ill the State o." Zulia against the government of that State and of the Republic, and that these insurgents had taken possession of the country in the vicinity of San Carlos and since May 4 had been in possession of the said village of Santa Bárbara. That the govern- ment was taking measures through military operations to dislodge the insurgents from this village and to defeat and disperse them; and for that purpose on Sunday, May S, the Government troops arrived in the harbor of Santa Bárbara on the steamer Progreso, a little before noon of the day. That about 10 o'clock in the morning Superintendent Brun, his associates, and those who were occupants of the house with him, fearing an engagement between the two forces, placed conspicu- ouslv five French flags over their residence to attest its neutrality and 22 CASE OF HEIRS OF .TILES «RUN. mark it for |)ri)tec'ti<)ii. Not iar from 12, noon, a l)attle seemed imminent between the two forces and the inmates of this residence, inchidinji the suporintondont. made hastp to close the shutters of the house. While Su|)(TÍntendent Brun was engaged in closing the shutters of the window overlooking the public square he was Wounded by a rifle ball coming from the gun of a Government soldier, which penetrated the shutter, struck the bolt and drove it into his right hand, the ball passing through. It proved to be a most serious injury, crushing the hand and bones and lacerating the arteries, so that he lost seriously in blood and had a very jagged wound. Four other rifle bullets penetrated the house, coming through the window prac- tically at the same time with this one which wounded Mr. Brun. Almost immediately following tho wound two of the inmates went to the door to call a ph^^sician and found standing very near th? residence about twenty soldiers, certain minor officers, and General Montiel in charge. At substantially the same moment of the firing into the house as aforesaid the doorsof the principal shop and the office of the bookkeeper and the telegraph office belonging to this com])any were broken downi by the Government soldiers l>y the order of General Montiel. There were summoned as soon as possible to the aid of Mr. Brun competent physicians and surgeons who gave him thereafter so long as he survived skillful care and attention. However, despite the best of care, gangrene supervened and Mr. Brun died from the effects of the wound on May 12, four days a'tor the wounding. May 14, two days after the death of Mr. Brun, the gentleman then in charge of the French company's Venezuelan railroad made applica- tion in writing to the citizen judge of that district, praying that judicial proceedings be had to ascertain the facts connected with the injury and death of Mr. Brun and the damage to the railroad pro]v.^rty occurring at the same time. There was no reply to his re(iuest,but General Montiel evidenced a violent hostility to this request. Follow- ing this application there came letters from the chargé d'aíTairesof France at Caracas to the minister of foreign afl'airs of Venezuela, the first being written on June 4 and the second on June 12, asking the minister to request the local authorities of the State of Zulia to take the i)r()i)('r judicial stejis to ascertain the exact truth of the events of May 8, resulting in the fatal wounding of Mr. Brun and the damage to the railroad property. The first comnumication was not answered, but to the second letter a reply was mance of ¡dl ¡nihcia OPINION OF UMPIRE. 25 common to such an occasion, if there had been at this point a battle or even a skirmish. The umpire is satisfied, therefore, to a moral cer- tainty that no battle took place around or near this house at the time in question, and that the firing which did occur and from which the fatal wound resulted was unnecessary, and was in the presence of a high oilicer in command of the military forces. From all of the facts in the case the umpire finds that the bullet wound thus inflicted was the proximate cause of the death of Jules Bnin, that the injur}^ came under circumstances engaging the responsibility of the respondent Government, and that it must be held in damages for such sum as in equity should be assessed therefor. The umpire might hesitate to adopt these findings if it were not true, and had not been always true, that the respondent Government could ascertain and produce before this mixed commission the exact facts regarding the positions and movements of its own soldiers, and the position and movements of the insurgent forces at the time in question. Especial force attaches to this when it is known that the respondent Government was asked and urged by the representatives of the French company and by the representatives of the claimant Government to permit the use of its judicial processes and functions, in order that the truth might be established, but the privilege was denied them. Hence agr.inst the very proper presumption that the Government of Venezuela will f.lways do its duty by its own nation:. Is end by its neutral friends resident within its domain mr.y very properly be placed the presumption which arises when one is in possession of important truths essential to a judiciid inquiry and elects not to produce them. It must be remembered also that the vilbge of S:nta Barbara was not in revolt. It was a loyal community temporarily under the con- trol of an enemy — the insurgent forces. Within this lo3^al community were the shops and offices of a neutral company and the residence of the superintendent, also a neutral, whose conduct in Venezuela had been such as to gain and hold universal esteem. This property was then distinguished by a display of its national colors. Both the com- munity and the compaii}^ were the friends, not the enemies, of the Gov- ernment and were both entitled to receive from the Government the utmost care and protection not inconsistent with the retaking of the towTi from the hands of the revolutionary forces and were subject only to the inevitable contingencies attending such an undertaking. The umpire considers that in fixing responsibility upon the respond- ent Government he walks in the path of conscience, prompted by the spirit of justice and sustained by principle, by publicists, and by precedent. He invites the courteous attention of the honorable com- missioners to the authorities and precedents which follow. 26 CASE OF HEIRS OF JULES BRITN. •Ill the case of Terry and Angus between the United States of America and Mexico, Moore's Arb., 2995, the commissioners found that — So far as the evidence discloses he had done nothin<î which could be constnied into a violation of the neutralit)' which his position retiuircd. The destniction of the property was neither incidental nor a conserjuence of f lie nnlitary operations which the Mexican forces adopte»! to recover the possession of the city. That part of th(> city in which the property was located was wholly in the possession of the Mexican troops, and it does not appear that its destruction could in any manner facilitate their efforts to dispossess Colonel Childs of the part which was occupied by him. This property was in Puebla in Mexico, wliich cit}^ had been tîiken possession of by the ITnited States Army; and that portion of the United St.ites Army left in command had been forced b}^ the Mexican army, seeking to repossess itself of the city, into a remote part of the city fron: the property in question, and the property- in question was wholly within the zone of the occupancy of the Mexican authorities. In view of these facts the commissioners also held that — The destiTJction of the property of the claimants, under these circumstances, in the opinion of the board, constituted a valid claim for indemnity against the ^Icxican Republic. Moore's Arb., 2995. See the case of Jaennaud v. United States, Moore's Arb., 3000, where it wí:s held that the damage was not done " in brittle or as a necessary and lawful military act." The cotton gin in which the cotton was stored which wls burned " had not furnished a shelter from wliich the Confederi^tes had fired or might thereafter fire upon the United States forces." The evidence shows that the burning was a wanton act of the soldiers in the excitement of the moment, as they were marehing back to tlieir camp from a successful battle with the Con- federates. It was without any justifiable excuse, in violation of order and discipline, and committed when marching back to camp under the command and in the presence of their officers, who by the usual and ordinary enforcement of military discipline might and could and should have prevented it, but who do not appear to have used any means whatever to prevent it. In such a case we think that an allowance should be made. Moore's lut. Arb., 3000-1. In the case of Alfred Jeannotr.t v. Mexico under the convention of July 4, 1868, Sir Edward Thornton, umpire, it was held by him that since — the mischief is unnecessaiy and wanton, the responsibility must be accepted. * * * Jt does not api)ear tiiat without the arrival of the military force which, oufifit to have protected the peaceable inhahitantu of the toxcv, there would have been any inclination to conmiit such acts of violence. The umpire is theicfore of opinion that compensation is due to the claimant from tlie Mexican Ciovernment. Moore's Int. Aib., 3673. S(>(' also the case of Edward C. Du Bois against the Government oí Chile, Moore's Arb., 3712-14. See Turner's ct:se, Moore's Arb., 3684-5. See Hollenbeck's case, Moore's Arb., 3716-17. OPINION OF UMPIRE. 27 In the case of George Pen Johnston v. Mexico, Moore's Arb., 3673, Sir Edward Thornton, umpire, held : With regard to the damage alleged to have been done to the crops of cotton, barley, and oats by General Corona's forces in the spring of 186G, the; umpire is of opinion tliat some damage was done, but not to tiie extent of the claim made, * * *; that as the defend- ants have not proved that tlie requirements of war rendered that damage necessary, it must therefore be considered to have been unnecessaiy : and that therefore the claimants are, on account of tiiat damage, entitled to compensation. Distinctions, however, should always be made in regard to tiie character of the people in the district of countrj'^ which is militarily occupied or passed over. The people of the coun- try in which you are likely to operate may be divided into three classes: First, the traly loyal, who neither aid nor assist the rebels except on compulsion, but who favor or a.ssist the Union forces. Where it can possibly be avoided this class of persons .should not be .sub- jected to military requisitions but should receive the protection of our anm^. The preceding paragraph is taken from instructions by the com- mander in chief of the armies of the United States (Gen. Henry W. Hùlleck) to the commanding officer in Tennessee under date of March 5, 1863. Haheck's Int Law. vol. 2, page 56. The military commander of the legitimate government, in a war of rebellion, distinguishes between the loyal citizen in the revolted portion of the country and the di.sloyal citizen. Conmion justice and plain expediency require that the military commander protect the manifestly lo3'al citizens, in revolted territories, against the hardships of the war as much as the common misfortune of all war admits. Instructions for the government of armies of the United States in the field, April 24, 1863. Halleck's Int. Law, 55. Military necessity, as understood by modern civilized nations, consists in the necessit}^ of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war. Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war. lb., 41, par. 11-1.5. Even in bombardments it is now deemed necessary to avoid as far as possible injuries to churches, museums, and hospitals, and not to direct the artillery upon the quarter inhabited by civilians, unless it is impossible to avoid them while firing at the fortifications and military buildings. But had tlie guns of the besiegers been deliberately turned upon the dwelling houses of the bombarded town, or had an open or undefended vilUage been fired into, the persons respon- sible for such proceedings would have been justly accused of barbarity, forbidden by modern usage. Lawrence, p. 344. In further support of the finding of the umpire herein he cites RrJston, umpire in the Biajo Cesarino case, Venezuelan Arb. of 1903, 771. He also cites the De Lemos case, ib., 303. The honorable commissioner for Venezuela contends that this case lacks the essential prerequisite of a claimant, who, being a French 28 CASK OF HKIKS OF JULES BRUN. citizen, b}^ his individual action brings his claim before the commission, demandino: a stated indenmification; and the lionorablc commissioner supports liis contention by quotinji from the learned opinion of Com- missioner Little in the claiuLs of Xarcissa de Hammer and Amelia de Brissot l)efore the Ignited States and Venezuelan Commission, found in Moore's Int. Arb., 2459-2460. In the case cited the two claimants were widows, respectively, of Captain Hammer and Mr. Brissot, deceased, and upon tlie manner of whose killing the claims arose. The widow de Hammer and the widow de Brissot were each Venezuelan born and of Venezuelan nationality until married, when by the laws of both countries they became American citizens and remained such until the death of their respective husbands, when they reverted to their original Venezuelan nationality and were Venezuelans when they appeared before the American- Venezuelan commission cLáming compensation of Venezuela for the killing of their respective husbands. It was under these conditions that Commissioner Little gave his opinion as to the scope of the pro- tocol constituting that commission, and, as the umpire understands it, these two cLJmants, \\adows as aforesaid and Venezuelans, were denied place before that commission, because they were Venezuelans and not Americans. The difference between the case cited and the case before the umpire is easily seen. The cose for this claim exists in the claim of Jules Brun, which occurred before May 23, 1899, and at the time of his death, and always since, the claimant, Mme. Brun, mother of the deceased, has been a French citizen, resident of France and entitled to invoke the aid of France, and under the protocol of February 17, 1902, to appear before the tribunal there constituted to present her claim. That she has now actually done this, although in an informal way, can not be fairly questioned. She will be estopped from any future right or claim against the respondent Government on account of the death of her son as fully and as completely as though she had appeared earlier in the case, and the respondent Government will be protected and the claimant Government barred as eil'ectually in every particidar as though matters had proceeded more precisely and more formally. In a case like the present, where the judgment of the umpire is the sole arbiter of amounts, the facts upon which his judgment is to be predicated are essential, but the stated indenmiiication of the claim- ant is not especially imj)ortant. It is a matter of regret that the umpire knows so little concerning imj)ortant matters which would have greatly aided him in arriving at the sum to be assessed as dam- ages, and he may easily err because of such ignorance. He is of the ojjinion that he has jurisdiction of the parties and of the subject-matter and nuist make a decision ui)on the merits. OPINION OF UMPIRE. 29 There remains to be determined the sum to be assessed against the respondent Government because of this unfortunate incident, and here occurs a wide divergence of views between the lionorable com- missioners. In the opinion of the umpire it is such an amount as will meet the pecuniary loss which the widowed mother has sustained through the death of her son. This is not the sum which put at interest would earn an amount equal to his annual wage. It is only her fair expectancy in his wage and from his accumulations, which, had he lived, woidd reach her from year to year. In the absence of all proof that he had accunudatcd aught, or that he had contributed anything to her comfort and support, there is for the umpire no rule of action but to assume the ordinary conditions as to accumulations and the ordinary willingness of a dutiful son to (contribute generously to the comfort and happiness of his widowed mother in her declining years, where as in this case the deceased had no dependent family. Her age is not stated, but to be the mother of one l)orn forty-five years since, she is a woman near ''threescore years and ten" and her expectation of life is relatively short. The honorable commissioner for P'rance insists with nmch learning and ability that the sum which would otherwise be assessed by the umpire in this case must be augmented by the difference which now exists in the market value in gold of the Venezuelan diplomatic debt of 3 per cent which is the method of payment provided in the protocol. This proposition is seriously opposed and with marked ability by the honorable commissioner for Venezuela. If the umpire were to take the advice of the honorable commissioner for France in assessing this sum he must hold to the same rule where the amounts due are capa- ble of exact ascertainment and in his award augment these fixed sums by the same ratio of increase. If he did not do this, he might cause serious inequity, by inequality, between the individual claimants now before him ; and if he did do this, he would preserve equity by equality, among the claimants directly before him, but he woidd work injustice and inequity, by inequality, to every other holder of this diplomatic debt. He would reduce still lower the market value of such diplo- matic debt to the manifest loss of all, and it would not be impossible to deprive the diplomatic debt of all value if each lowering rate per cent in this diplomatic debt of .3 per cent was followed b}^ a proj^or- tionately increased assessment. Aside from the apparent unwisdom and inequity of such a holding, the umpire is satisfied that he is not competent under the protocol to do other than to ascertain as nearlv as he can the actual sum due from the respondent Government in each particular case and to award that particular sum. Under the •protocol it is not for him to determino the means or the methods ( f payment; this is wholly with the treaty-making power of the two 30 CASE Ob" HEIRS OF JULES BRUN. Governments, and it has been settled by the protocol in accordance with their high judgment. It follows, therefore, that the sum to be assessed and awarded in this case and in all others before this umpire nmst be based on tiie damages actually sustained, and must be stated without reference to the way or market value of the means of provided payment. In his best judgment the sum due from the respondent Govern- ment to the claimant Government for the benefit of Madame Brun is 100,000 francs, and the award will be prepared and signed for that sum. NoRTHFiELD, July SI, 1905. CLAIM OF FRIERDICH & COMPANY.— NO. 2. HEAD NOTES. The hurdon is upon the company to es(al)lisli clearly niul (Icfiiiitoly that fhc respondent Government proceeded in an unlawful luaiiiier eonceriiinrc the hoat of said cotnpatiy after it arrived in the port of Giiiria. The initial wrong was all with the claimant company (a) in the engagement of an ituonipe- tent captain, with knowledge of his incompetency, (h) in the taking away of the ship's papers by a partner of the company, (c^ in permitting the ship thus stripped of its papers to go out on the open sea, (d) in entering the harbor of Giiiria under t hese circumstances. The arrival of this ship in port under the circumstances attending it justified suspicion and examination of the real status of the schooner by the revenue officers of the port. The schooner was not in the port of Giiiria through any imperious necessitj^, but voluntaril}'. Such compulsion as existed was through the act or neglect of a member of the company; and its unjustifiable departure from the Port of Spain, its journey across the sea, and its entrance to the harbor of Güiria were wholly attributable to the company and its agents. In order that there may be intervention on the part of France, there must be a legal wrong on the part of Venezuela. If Venezuela conforms with its own laws in its own ports, and if these laws are such as are the product of civilization, then there is no error, hence no responsibility on the part of Venezuela and no right of intervention on the part of the claimant Government. It appears that Venezuela acted in this respect through its regular officers and, until the con- trary is clearly shown, the acts of these officers must be assumed to be regular and proper. Such a presumption of regularity and propriety is a proper protection of the public and its interests. Venezuela is also entitled to that presumption of good faith in favor of its public officers which ordinarily attends the acts of public officials. So far as appears, the court in proceeding to condemn the schooner to pay a fine was acting within its jurisdiction and within its right, and until the contrarj^ appears its acts will be presumed to be regular and its judgment righteous. The laws of Venezuela in regard to such matters as are before the umpire in this case appear to be in harmony with the laws of other civilized countries. That the Government at Caracas permitted the boat to be returned to its owners without exaet-ing payment of the fine is not an admission on its part that its acts in reference to the schooner had been irregular and unlawful. The question presented here is one of detention only, and the detention involves oidy the question of its reasonableness in point of time. Sufficient time to know all the facts, to assemble them before the court, and for the court to act upon them was a necessary adjunct of the situation. OEXTR.\CT FROM THE MINUTES OF THE SITTING OF MAY 12, 1903. An examination of the claim of the Orinoco .\sphalt Company, amounting to 176,080.10 bolivars, was next taken up. Doctor Paúl rejected it absolutely as without foundation. M. de Peretti, considering the schooner belonging to the company had been illegally detained at Giiiria for thirty-four days, asks therefor an indemnity of 5,000 bolivars. Doctor Paúl does not recognize the illegality of the measure in question. The arbitrators not having been able to come to an agreement, this claim will be likewise submitted to the jampire. 31 32 FRIERDICH ¿i CO. CASE. OPINION OF THE VENEZUELAN COMMISSIONER. This claim, presented to the minister of foreign affairs of France by Mr. A. Sanary, who styles liimseh" Hqiiidator of the "Sociedad Betunes del Orinoco," is destitute of all documents proving the juridic person- ality of such company or the capacity of him who calls himself its liquidator as its trustee. What has been produced is a contract entered into in Paris, on the 2d of December, 1898, by which Messrs. Ernesto Nicolás Frierdich and Tácito Delort, on the one part, and Messrs. Courtant Bergerault and A. Cremer, on the other, agree upon constituting a commercial partnership on the part of Frierdich and Delort, and a silent partnership on the part of Bergerault and Cremer, the firm-name of which was to be "E. Frierdich & Co." Messrs. Frierdich and Delort only were authorized to manage and sign for the company. Besides, the fact on which the claim is based is only the detention sustained by the schooner Love and Lulu in the harbor of Güiria during thirt3-seven days on account of a confiscation suit entered against her before the finance court for having arrived at that port without a matricula or register and other papers concerning her correct clearing, and in wliich suit she w^as condemned to pay a fine, she being released a"terwards at the instance of the consul of Holland in Port of Spain, who claimed the preferential payment of debts con- tracted in said island, for wiiich she was sold to the highest bidder there. As is seen from the simple statement of these events, there exists no ground to demand an indemnity for the consequences of a suit brought in conformity with the laws on the matter, it being observed that it was Delort himsel' who denounced to the authorities at Guiria the want of papers of the schooner, alleging that they had been violently taken from the captain by his (Delort's) associate, Frierdich, when the vessel was leaving the island of Trinidad. For the reasons expressed the arbitrator disallows the claim pre- sented. Caracas, May 12, 1903. OPINION OF THE FRENCH COMMISSIONER. The liquidator of the French Society Frierdich & Co., known also by the name of the Orinoco Asphalt Society, claims of the Venezue- lan Government an indemnity of 176,030.10 bolivars, because the latter having retained illegally in the port of Güiria the schooner of this society for thirty-nine days should be responsible for the complete ruin of the concern. The information which 1 have gathered at Trinidad and in Venezuela about this company has convinced me that the condition in which it operated did not bring nl>out such n serious result. At the moment when the accident happened which OPINION OF FRENCH COMMISSIONER. 33 incited the claim it was already in insolvency. We can not argue, then, that the intervention of the Venezuelan administration, stop- ping the affairs of the company, obliged it to abandon its operation. If the Love and Lulu had not been detained at Giiiria and could have been able freely to pursue her voyage, the fate of the enterprise would not have been changed. However, it seems to me that the administration of the custom-house of Giiiria committed an abuse of power in retaining for more than a month, without reason, the schooner Love and Lulu, and I consider that the damage caused the owners of a boat of its towage by its lying idle for more than a month should be compensated by the granting of an indemnity of 5,000 bolivars. In fact, the nominal owner of the schooner, Mr. Tacite Delort, silent partner of the firm Frierdich & Co., was on board at the arrival of the boat at Giiiria, and he himself implored the aid of the authorities of the port against the insubordinate crew. The absence of navigation papers was due to a case oí force majeure (superior force) analogous to those which the Venezuelan law anticipated ; the papers in question were besides delivered as soon as possible ; and finally, the rigorous measure, the forfeiture and sale of the boat, ordered by the tribunal of Giiiria, were carried out upon the order coming from Caracas. I have not taken into account a letter which Mr. Frierdich addressed to me the 28th of April, 1903, to request me to withdraw the claim presented under the firm-name of Frierdich & Co., because it was not Mr. Frierdich who presented this claim, but the liquidator of the compan}^ Mr. Frierdich, resident in Venezuela, an insolvent, it appears, was on bad terms with his former partner, to whom he was indebted for quite a large sum. This situation and also, without doubt, the fear of displeasing the authorities of a country where he has definitoly established his residence, and where he has married, explains sufficiently the proceeding of Mr. Frierdich. In these con- ditions, this proceeding (the sending of the letter) could not be taken into consideration. The indemnity of 5,000 bolivars, which I believe equitable, would be, it is necessary to note, diminished by more than half by the fact of payments in bonds of the diplomatic debt, accepted by the French Government, to the end of permitting the Venezuelan Government to pay its debts more easily, Paris, August 26, 1904. ADDITIONAIi OPINION OF THE VENEZUELAN COMMISSIONER. As stated in my opinion preceding this additional opinion the detention of the schooner Love and Lulu hj the authorities of the port of Giiiria and the subsequent legal action thereon was due, as shown by the documents submitted, to the fact that said schooner arrived in the above-mentioned port without her register and other S. Doc. 53:3, 59-1 3 34 FKIERDICH ¿c CO. CASE. papers which the laws of Venezuela require from vessels coming into a Venezuelan port from foreign ports. Only in case of sho^^^ng ])roof that the arrival of said áchooner at the port under said conditions was due to any of the unforeseen circumstances specified by law, could the schooner Love and Lulu be exempted from the penalty imposed by article 48 of the "Código de Hacienda" (Code of Fiscal Laws) of Venezuela then in force. The detention of the schooner lasted the time necessary for the investigation of the facts and the hearing of the testimony of her owner, whose defense was the allega- tion that the papers had been violently snatched from him in Trini- dad by his partner, Mr. E. Frierdich, and that the schooner had sailed by order of the master and crew who did not obe}^ his (the own- er's) determination to discontinue the trip. It is moreover shown by the same documents (see note of the con- sul for the Netherlands in Port of Spain, dated March 1, 1901, to the minister of the Netherlands in London) that the schooner Love and Lulu returned sometime afterwards to Port of Spain, where she was embargoed and sold under the hammer by the courts of the island, for the payment of the workingmen and other creditors. It is also shown b}^ another communication bearing the signature of the con- sular agent for the Netherlands, under date of May 29, 1899, to F. A. Thompson, register, that on that date, a few days later than the 17th of May of the same 3^ear, when the schooner was released bj' the courts of Güiria, she had been already condemned by the courts of Port of Spain, and that it was on May 29, 1899, that the public sale was to take place. The register was not the only document lacking the schooner when she came into the port of Güiria. As shown by the note of the consul for the Netherlands, under date March 1, 1901, airead}' quoted, Frierdich, Delort's partner, also took in Trinidad from the master of the Love and Lulu the permit or clearance issued by the Venezuelan consul enabling the schooner to go into Venezuelan ports, the certili- cate issued by the same official showing that the ship had complied with all the requirements, and other papers. Article 48 of the Fiscal Code (Código de Hacienda) then in force in Venezuela provides that should only the register be missing, then such measures as are provided by law shall be taken on board of the vessel, * * * and the fine of 5,000 bolivars shall not be levied and collected, nor shall the bond be demanded when the master ean prove that the lack of the register is due to an accident which he could neither prevent nor foresee, such as shipwreck , fire , or v-iolence from an enemy or pirates.'^ a Art. 48. Cuando el buque traiga cl sobordo y sus demás papeles despachados en forma por el Cónsul de la procedencia, y sólo le falte la patente de navcfíaciiín, se tomarán á su bordo las precauciones prevenidas en el artículo anterior, y además de imponerse al Capi- ADDITIONAL OPINION OF VENEZUELAN COMMISSIONER. 35 In the case of the schooner Love and Lulu, which came inider the authorities of Güiria, upon whom devolved the (hit y of strictly com- ])hàni; with the law, the master did not suiTer violence from enemies or pirates, but it was Mr. Frierdich himself, the i)artner of the plain- tiff, Tácito Delort, who took the schooner's papers, and it was the master, Luis Rodriguez, who of his own accord resolved to sail with- out the indispensable documents which he left behind at the port whence he sailed. Article 194 of the same code provides that the sliip's master is guilty of an offense and is liable to a fine of 10,000 bolivars and other stated penalties whenever he does not produce the other docu- ments, if during the trial, as pro\àded, he fails to show that the absence of such documents is due to any of the iniforeseen circumstances set forth in section 2 of article 48." It was not shown, nor was any endeavor whatever made to show at the trial of the schooner Love and Lulu that the absence of the other papers was due to unforeseen circumstances of shipwreck, fire, or under duress from enemies or pirates. On the contrary, the proofs then adduced show the party responsible for the absence of the ship's papers to be a partner of Mr. Delort. The Venezuelan courts by virtue of their rightful and well-estab- lished jurisdiction and in conformity ^dth the laws under which they are established were authorized and under obligation to bring an action against the schooner Love and Lulu to hold her and to compel the settlement of the liability incurred b}- her master for gross offenses (faltas graves) expressly defined and punished by the Venezuelan laws. From the above statement of the facts it appears that it was through the fault of the claimant, Mr. Delort, and tlu-ough the fault of the master in command of the schooner Love and Lulu, and the fault of ^Ir. Delort's partner, Mr. E. Frierdich, that the schooner in question was subjected to legal proceedings before the fiscal court (tribunal tan la multa del artículo 194, número 1°, se le exigirá una fianza de cinco mil bolívares, si el buque fuere de vela, ó de diez mil si fuere de vapor, otorgada por él y por dos comerci- antes abonados, á satisfacción del Administrador, Ja cual se hará efectiva en el caso de que el buque salga del puerto sin permiso de la Aduana, y de la autoridad política respectiva, sin perjuicio de las demás penas á que haya lugar. No se impondrá la multa ni se exijirá la fianza cuando compruebe el Capitán que la falta de la patente provino de un accidente que no pudo prever ni evitar, como naufragio, incendio á violencia perpetrada por enemigos ó piratus. En este caso se dará cuenta al Ministerio de Hacienda con todos los ponnenores. «Art. 194. El Capitán de un buque incurre en falta y paga multa en los casos siguientes: 1". Cuando no presente la patente de navegación, pagará de cuatro mil á cinco mil bolívares en el caso del artículo 48; doblándose esta nmlta y haciéndose efectivas !as demás penas á que haya lugar por la no presentación de los otros documentos, en el caso del aitículo 47, si en el juicio respectivo no comprueba el Capitán que la falta proviene de alaguno de los accidentes fortuitos previstos en el inciso 2" del artículo 48. 36 FRIERDTOH ¿¿ CO. CASE. . de hacienda) of the port of Giiiria, and to })e held and condemned in conformity with the laws in the premises. It is to his ovm acts or neo;lii]:ence, to say the least, that the claimant owes, either directly or indirectly, the grievances or injury he complains of, if he ever did suffer any grievance or injury. I beg to submit, together %vith tliis opinion, a letter duly authenti- cated, which was sent to Caracas to me in my capacity of com- missioner, by Mr. E. Frierdich, a partner of the plaintiff, of the firm of Frierdich & Co., in liquidation, which letter shows, as does also the letter which the same ^Ir. Frierdich sent my learned col- league, that he has authorized no one to enter a claim against the Venezuelan Government by reason of the seizure of the schooner Love and Lulu, and that he does not consider that the authorities of the port of Giiiria have given any cause in the present case to enter any claim whatever. I beg to differ completely from the learned commissioner of France's opinion, that the letter in question must not be taken into consideration by reason of certain personal facts connected Nnth the writer thereof, such as his being insolvent with his partners, and a resi- dent of Venezuela married in the same country, and to be acting under fear of offending the authorities of the country where he resides. The contention that he is insolvent with his partners and the facts of his having his residence in Venezuela and having married a Vene- zuelan are not, in mj opinion, of sufficient weight to destroy the testi- mony of a person bound no less than by the ties of business associa- tion to the claimant, who makes use of the name of the ih-m to enter the claim in question. As regards the charge of fear, so far no proofs have been offered to show the fact that Mr. Frierdich is susceptible to such fear nor that he is actually laboring under it. In \'iew of the foregoing, I come to a close supporting my opinion that the claim of the j)artnersliip F'rierdich & Co., in liquidation, named "Société des Bitumes de l'Orénoque,'' has no grounds what- ever and that under the circumstances it should be disallowed. And I beg the honorable umpire to gnintmy request. NoRTHFiELD, Vt., February 1, 1905. ADDITIONAL. OPINION OF THE FRENCH COMMISSIONER. The reading of the additional memoir of my honorable colleague has not c-hanged my ojjinion on the two single points which I have thought I ought to mention in the above memoir and upon which T am not in agreement with Doctor Paul. In the (¡rst place, it seems to me evident that the society of Fi'ierdich & Co. ])eing in insolvency it per- tains to the üípiidator, Mr. Senary, whose powers to rei)resent the aforesaid society are contained in the dossier. ADDITIONAL OPINION OF B^RENCH COMMISSIONER. 37 Mr. Frierdich, insolvent debtor of his associates, proves by his pro- ceedings that, not content with not paying his debts, he still tries to injure his creditors by ])reventing them from getting the benefit of an eventual indemnity. I am not called uj)on to consider this manner of action. I am content to refuse to Mr. Frierdich the right which he arrogates to himself of speaking in the name of a company at present in insolvency of which he is only the debtor. Consequently I think the arbitrators have to take no account of his letters. In the second place, I consider that the custom-house of Güiria has caused, by retaining for thirty-nine days without reason the schooner Love and Lulu, an injury to her owners, whatever might have been the condition of the latter at that moment, a situation as to which I share, besides the opinion of my colleague. In fact, either the custom-house of Güiria proceeded according to the Venezuelan law in retaining this vessel and then should have inflicted the penalty ])rovided by law, and in case of nonpayment should have proceeded to sell accord- ing to law, or indeed the law did not authorize the retention of this vessel after the delivery of the papers on board, and then it ought to have delivered her immediately to Mr. Delort. But it stopped the procedure entered upon, which seems to indicate that it had no longer a legal right to prosecute, but it continued to retain the boat, wliich it did not sufficiently protect against depredations and which it only surrendered thirty-nine days after the seizure. I maintain, then, that the custom-house of Güiria committed an error; that this error entailed an injury upon the partnership of Frier- dich & Co. in depriving it for more than a month of the use of this schooner, and that this injury would be equitably compensated by an mdemnity of 5,000 bolivars. NoRTiiFiELD, February 3, 1905. OPINION OF THE UMPIRE. The claimant company was organized in France and has unques- tioned French nationality. Tacite Delort and Ernesto Nicolás Frierdich are the active partners and managers of the company, and two other French gentlemen are silent partners. The business of the company consisted of mining, refining, export- ing, and marketing the products of a certain asphalt mine situated at Pedernales in Venezuela, about 70 miles from Port of Spain, Trinidad. The company entered upon this business in 1898, and to aid in the importation of materials and men for the works and in the exportation of the asphalt to Port of Spain the company bought a schooner, Love and Lulu, which at the time of its purchase and thereafter ward s was of Dutch nationality. It was registered in the name of Tacite Delort. 38 FRIERDICH & CO. CASE. Owing: to the character of the channel through which Pedernales was approached, it was necessary that the boat be of a peculiar build, which necessity was fully met by the Love and Lulu. Its purchase price was $2,100. From the commencement of work at the mines to April 8, 1899, the company had exported and sold about 800 tons of asphalt. On the date last named the Lo\'e and Lulu was in the harbor of Port of Spain and Mr. Delort and Mr. Frierdich were in the city of Port of Spain. One Luis Rodrig^uez had been engaged as captain of the boat. This man could neither read nor A\TÍte, had been previously a river pilot, did not understand the laws attending navigation, and objected to the service at the time of the engagement, because of liis ignorance and of his fear that he would commit some blunder in the office. Notwith- standing the knowledge of the company of this ignorance he w;.s made captain. On said Sth of June, 1899, Mr. Delort learned that the schooner had received its clearance papers and was about to sail for Giiiria. He desired to go with the boat when it sailed, but did not desire to go then. lie undertook to detain the boat and obtained an order from the Dutch consul to the captain, directing him not to go. He was taken to the schooner and gave the captain the order of the Dutch consul; but the captain refused to recognize the authority of the consul and upon being ordered by Mr. Delort not to sail, the captain reñised to recognize Mr. Delort's authority and proceeded to prepare to s.:il. It was about this time that Mr. Frierdich, the other manager, c^me to the schooner in a small boat and demanded of the captuin, and received from him, all of the ship's papers. Mr. Delort attempted to prevent their delivery to Mr. Frierdich by personal intervention and the use of some violence, but the captain overcame Mr. Delort's resistance and delivered the ship's papers to Mr. Frierdich, í:s above stated. Xotwitlistanding that he had no papers permitthig him to sail and against the continuing and earnest protest of Mr. Delort, and with him on board, the captain set sail for Giiiria, which ])ort he reached some time that day. Immediately upon the arrival of the schooner at Giiiria Mr. Delort informed the harbor master of that port of the condition of affairs, and on the next morning he made jirotest before the vice-consul of Spain at Giiiria, and at the request of Mr. Delort the testimony of the cap- tain and of the steward was taken. Some time after April 11 Mr. Frierdich surrendered the ship's papers to the Dutch consul at Port of vSpain and they were forwarded by special messenger to Giiiria, reaching there about the 14th day of April, on which day they were brought to the attention of the cusloins officers of that ])()rt, and there behig no Dutch consul nt Giiiria the OPINION OF UMPIRE. 39 vice-consul of Spain, as the officer of a friendly nation, on the same day at the request of Mr. Delort visited the customs officials at Güiria and solicited of them and also of the captain of the j^ort that the Love and Lulu be turned over to Mr. Delort. A formal refusal was made by these officers. On April 17 the papers had been sent back to the Dutch consul at Port of Spain and he presented them to the Venezuelan consul of that port and formally asked the release of the Love and I^ulu at Güiria. Proceedings were instituted against the Love and Lulu before the proper tribunal at Güiria under articles 48 and 144 of the Maritime Code of Venezuela. A fine of 5,000 bolivars was duly imposed by the court and due notice was given of the sale of the schooner for the recovery of the fine. Frierdich & Co. had no other boat than the Love and Lulu and not being able to obtain one at Port of Spain suited to the channel of Pedernales they could not transport supplies to the works or bring out the products of the mines, and, as a result, the asphalt works were abandoned and the workmen taken back to Port of Spain. The com- pany had no means to pay the workmen for their labor or to answer the demands of their other creditors, and possession was taken by these creditors of such property of the company as they could find in order to secure their pay. Pending the sale of the schooner at Güiria, the Dutch consul at Port of Spain asserted to the customs authorities at Guiria a prior and superior lien upon the schooner and demanded its return to Port of Spain to answer to this lien. It resulted that the Government of Venezuela, recognizing the validity of this claim, directed the return of the Love and Lulu to Port of Spain, and the schooner arrived there May 17. The fuie has been in no part paid. No appeal was taken from the action of the tribunal imposing this fine, and it remains a final and unsatisfied judgment. On the arrival of the Love and TjuIu at Port of Spain it was seized under process issuing from the court of Port of Spain and was sold at public auction under such process. Before the sale, however, due notice was given by the Dutch consul to the proper parties in charge of the sale of the superior lien of his consulate, and he demanded pay- ment of this amount before the purchaser could take possession of the schooner. Later, proceedings in li([uidation were instituted at Havre, France, and Mr. A. Sanary was constituted liquidator, and it is on his behalf, at his initiative, and for the benefit of the insolvent company and its creditors as such li(|uidator, that this claim is here presented. Mr. Frierdich has filed with both of the honorable commissioners a protest against this claim, denying that there was any fault on the part of the authorities at Güiria at the time in question, or that any respon- 40 FRIERDICH 6¿ CO. CASE. sibility attaches to Venezuela on account of what happened in con- nection willi this schooner. Quite a large sum of money is claimed by the comi)any of \'enezuela on account of its alleged fault, but in the opinion of the honorable commissioner for France there is a just claim for 5,000 bolivars only. He does not ascribe the insolvency of the company to the detention of the schooner at Güiria, and he limits his award t(i a sum which he regards as not excessive for the abuse of i)owcr which he hol-ds was committed by the administrators of the custom-house at Güiria and through the action of the court in detaining the schooner for the time stated, which detention he considers unreasona])lo. The honorable commissioner for Venezuela sees no error in the action of the Venezuelan authorities and refuses any compensation. The honorable commissioners having failed to agree, they join in sending the claim to the umpire for his decision. They have rendered the umpire very efTicient aid in their opinions, original and supple- mentary, and by their courteous answers to his interrogatories. If the company has a right to claim anything of Venezuela, it is the loss of use of the schooner by its detention a certain length of time in the port of Güiria. This right of use or the rental value of the schooner can not be very large, since the value of the schooner as deter- mined by its selling price was only $2,100. In order that the company should have a claim upon Venezuela, the burden is upon it to estab- lish clearly and definitely that the respondent Government has pro- ceeded in an unla\vful manner concerning said boat since it amved in that port on the 8th of April, 1899. A detention without reason is suggested, but certainly some detention was not only reasonable but necessary. It was at least six days before its papers arrived from Port of Spain which would permit the company to justify in any way the right of the schooner to be upon the seas or in this ])ort of \'cne- zuela. The spirit with which this claim is pressed by the company is manifest from the fact that the claim for detention covers the entire thirty-nine days which elapsed from the time the schooner sailed from Port of Spain and the day of its return to that port. This is so mani- festly wrong that it raises a suggestion of insincerity on the part of the claimant which must necessarily affect the value of the company's assertions in other particulars. The initial wrong was all with the claimant company. It began in the reckless and ill-advised engagement of a caj)tain entirely unfitted for his place, of which unfitness they were advised by the captain himself. It continued in the serious cpiarrel which had .some time developed between the two managers of the company ami, so far as this case is concerned, first manifested itself in the open rupture at the schixmer's .side at Port of Sj)ain on A])ril (>, when the ('ai)tain, apparently through the advice and a})i)roval of one of the managers, OPINION OF UMPIRE. 41 openly defied the other, and where one of its managers was wilHng to see the schooner leave the port stripped of every essential paper to protect itself upon the seas, to become a floating derelict without right, opposed to the laws of all civilized nations and open to capture and condenmation without recourse or remedy. It was concluded when this same captain, ignorantly riding over the laws of ever^^ sea and the laws of every civilized port, sailed into the harbor of Güiria. The statements of Mr. Delort, made to the harbor master of the port and to the customs oííicials and before the consul of Spain, supported as they were in great part by the captain and whilom steward, were so improbable as to stagger belief and might well awaken just suspicions in the breast of the revenue officers of that i)ort concerning the real status of the schooner. Article -IS of the Fiscal Code then in force in Venezuela was : Should OTily the register be missing, then such measures as are provided in law shall be taken on board the vessel, * * * ¡^^i^d tjjc fj^g of 5,000 bolivars sluill not be levied and collected, nor shall the bond be demanded when the master can prove that tbe lack of the register is due to an accident which he could neither prevent nor foresee, such as ship- wreck, fire, or violence from an enemy or pirates. « But more than the register was lacking. The clearance issued by the consul of Venezuela at Port of Spain was lacking. There were lacking, also, the certificate by the same consul of compliance on the part of the schooner with all the requirements of the law and all other papers ordinarily belonging to a ship that is about to sail or that is sailing on the seas. The master could not prove in excuse that he was in this plight through any lack of foresight or through any accident. By the statement of both Mr. Delort and the master it was essentially true that there had been no accident of any kind, and they were not in the port of Güiria through am^ imperious necessity which they could not meet and overcome. They were there voluntarily so far as the master was concerned, and such necessity as attended their situ- ation and their presence was the act of one of the managers of e(iual power with the other; no stranger had intervened, no trespasser had done them any evil ; their unjustifiable departure upon and across the seas and their entrance into the harbor of Güiria were wholly attribut- able and only attributable to the company, its managers and agents. Thus far Venezuela is not involved. Does it act without law after- wards or without legal right? If it does not, then, even if it may be considered as acting harshly, which the umpire does not assert, the Republic of France has no right of intervention; for before there is right of intervention there must be a legal wrong on the part of Vene- zuela. If it conforms with its own laws in its own ports, and if those laws are such as are the product of civilization, then there is no error, hence no responsibility upon the state and no right of intervention on « See footnote p. 34. 42 FRIERDICH it CO. CASE. the part of the claimant Government. It appears that Venezuela acted in this respect through its regular odicers and, until the contrary is clearly shown, the acts of those oilicers must be assumed to be regular and i)roper. There is a very proper presumption to this effect; and it is proper public policy and a proper protection of the public and its interests that such a presumption should attend the execution of ollicial duties. (120 U. S. Sup. Ct., 605; 14 Johnson (X. Y.), 182; 19 Johnson (X. Y.), 345.) The general presumption is that public oilicers perform their ollicial duties, and that their odicial acts are regular. (American and Eng. Enc. of Law, 2d edition, Vol. 22, i)age 1267, citing in note 24, a long line of cases in England and the United States.) Where some preceding act or preexisting fact is necessary to the validity of an oilicial act, the presumption in favor of the validity of the oilicial act is presumptive proof of such preceding act or preex- isting fact. (lb. 1269 and note 1 on same page, citing long line of supporting cases in the U. S. Sup. Ct. and in State courts.) Similarly there is a presumption of good faith in favor of public oihcers. This presumption is applied to sustain the regularity of official acts in favor of individuals who rely thereon. (Supra and note 3, citing a line of decisions made by the United States Sup. Ct.) A natural presmnption attends them to that extent. So far as appears, the court which proceeded to condemn the schooner to pay a fine was acting within its jurisdiction and within its right, and, until the contrary appears, its act will be presumed to be regular and its judgment righteous. This presumption, supported by authorities above cited, applies equally to the actions and decisions of courts. It is only necessary to show that jurisdiction is clearly vested, and then the maxims or rules "Omnia prsesumimtur rite esse acta" and "Omnia priesumun- tur legitime facta, donee probetur in contrarium" apply. (See Am. and Eng. Enc. of Law, 2d edition, Vol. 22, pages 1270-71 and the cases cited under note 4 of page 1271, both from the United States Sup. Ct. and from many of the State courts.) The acts of the court must, in (lie first iiistaiico, hi presumed to l)c rcction and notes. So fur its has appeared befon» the iiinpire, the Lnvs of A'enezuela in regard to these matters are in harmony with the laws of otluM- civiiizeil countries, and it does not yet apjx'ar befoiv the tunpire wluM'cin the fiscal court at the port of Giiiria committed ern)r in subj(>cting this schooner to the fine which had been voluntiirily invited by its !ij)p('ar- ance in the condition which is i)roven and admitted. OPINION OF UMPIRE. 43 That the Government at Caracas yielded later to the strenuous demand of the consul of Holland at Port of Spain rather than to withstand the demand is not to the umpire an admission on the part of the respondent Government that its acts in reference to the Love and Lulu had been irregular and unlawful. From the facts appearing in this case the umpire is fully satisfied that Frierdich & Co. was practically defunct on the Sth of April, 1S99, and that, regardless of the incident of the Love and Lulu, it would have met substantially the same subscfjuent conditions and would have ended in as complete and hopeless failure as in fact followed. This failure was in no especial sense hastened by the incident at Güiria, and the only burden which the detention of the Love and Lulu at Güiria placed upon the company was the sum which it had to pay for the use of the boat that took the workmen from its asphalt mines back to Trinidad; and this is, of course, a sum of no great significance. Whether or not the action of the customs oilicers at Güiria and of the fiscal court were in fact regular and necessary is a matter of but slight pecuniary importance to the claimant com})any, and since it was the primary and potent cause of its own misfortunes in connection with this incident and by its own voluntary misconduct brought these inr[uiries, vexations, and expenses upon the customs officers and the court at Güiria, it is not in position to scrutinize very closely what the officers or court of Venezuela did or did not do. Here may be applied with a certain degree of propriety one of the most important maxims of e([uity, viz, ''He who comes into ec|uity must come with clean hands." It certainly has brought pecuniary indebtedness to Venezuela in virtue of what occurred at Güiria through its own fault, which it has not yet asked the privilege to discharge. And in this connection the claimant company may properly consider the value of another of the maxims of e([uity, viz, "He who seeks equity must do equity." As the (|uestion is presented here, it does not involve the final judg- ment of the court condemning the ship to a payment of the fine ; nor any matter of restitution of the ship, for that occurred. It involves only the cjuestion of detention, and detention involves only the ques- tion of its reasonableness in point of time consumed, for a suflicient time to know all the facts and to assemble them before the court, and for the court to act thereon was a necessary adjunct to the situation. If the conditions on both sides are regarded as producing an ef|uilib- rium, justice is done, in the opinion of the umpire; and he so holds. This claim is dismissed for want of equity in the claimant company, and the award will be diawn accordingly. NoRTHFiELD, July 31, 1905. CLAIM OF HEIES OF JEAN MANINAT.— NO. 3/' HEAD NOTES. The respondent Government is hold liahle for injuries suiîercd hj- a Frenohman in the pres- ence of the general in eoniniand of a division of the Venezuelan army, it appearing that the party injured was in the presence of the conunanding general hj- his personal order and that the injury was caused by a subordinate officer without justifying reasons. The injury being found to be reprehensible in character and the respondent Government for reasons of state declining or neglecting to punish the guilty persons, it is chargeable with the actual damages suffered by the injured person and sucli further sum as is held to be sufficient to make proper amends to the claimant Government for this affront to it through one of its nationals. It l)eing found by the umpire that the person came to his death through the injuries thus suffered, but before February 19, 1902, it is held that such only of his brothei-s and sisters as are of French nationality can present a claim before this commission to recover for his death. This tribunal does not exist because of damages suffered in Venezuela, except these be dam- ages of Frenchmen, limited in this case to the next of kin of the deceased, who are them- selves Frenchmen. If none be French, then the claim falls. It is not possible to hold other than that the national quality of the claimant in fact determines tiie jurisdiction of the commission. It is elementary that the burden of establishing nationality is with the claimant. It can not be assumed or conjectured, but must be clearlj' proven. Record proof is not essential if there be other that is convincing. « EXTRACT FROM TIIE MINUTES OF THE SITTING OF MAY 19, 1905. We then took up the examination of the claim of the heirs of Mi', .lean Maninat. The Fiench arbitrator, considering on one hand that Mr. Jean Maninat has died as a result of a wound which the Venezuelan officer gave him, but, on the other hand, that Mr. Pierre Maninat does not prove sufficiently his grievance against the Venezuelan authorities in the course of his legal proceedings with his creditors, accords to the heirs of Mr. Jean Maninat a sum of .500,000 bolivars for the ensemble of damages which they have suffered for the reparations which were due them. The Venezuelan arbitrator is of the opinion that Mr. Jean Maninat was cured of his wound when he was attacked by tetanus, from whicli he died; that none of the grievances formu- lated by him or his heirs is established by sufficient proofs: that besides Pierre Maninat, born in Venezuela, is a Venezuelan according to Venezuelan law, and that all his four .sistei-s, were born without doubt also in Venezuela. Two are married to foreigners, and have con.se- quentl}' lost their French nationalitj'. Wherefore he rejects ab.solutely the claim in question. M. dc Peretti replies that according to the Frencli law M. Pierre Maninat and his sisters, save those two who have married foreigners, have conserved their Frencli nationality, besides the fact that Mr. Jean Maninat, born in France, enjoyed incontestably French nationality justifies in his eyes the competency of the conunission. As he maintained his opinion previously expressed, it is agreed that the claim be sub- mitted to tlie Hon. Frank IMuiiilcy, .Northfield, Vt. 44 OPINION OF VENEZUELAN COIÍMISSTONER. 45 The marriage of a sister of the deceased to a Frenchman established her French nationahty during marriage, which under French hiw remains after the deatli of her lui.shand. There is some proof tliat she was born in France, none tliat s!ie was born in Vonczuehi. Her French nationahty being cloarly estabhshod in her marriage, the burden shifts and rests upon Venezuela to show Venezuelan origin to divest her of the nationality attained through her marriage. This not being done by Venezuela, she is declared French and competent to present her claim as next of kin to her deceased brother for the damages sufl'ered by her because of his death. Both Governments must be assumed to have had definite knowledge of the serious disagree- ment between them in the matter of citizenship, yet they agreed upon the use of the expression " Frenchmen." To agree there must have been mutual assent ¡ind common understanding of the term employed. It is not suggested that either of tiie contract- ing parties yielded any point of its difference in this matter of citizenship. To agree, then, they must meet upon a common ground. This common ground must have been the plain where by the laws of both countries the claimant is a Frenchman. Two interpretations being possible, that is to be taken which is least onerous upon the party to be charged with the service or with the loss resulting from the agreement. There is also the loile that in conflict of laws the law of the place of domicile should prevail* For France to intervene where the claimant is a Venezuelan by the laws of Venezuela and French under the laws of France would make the law of France superior to the law of Venezuela, which is not permissible between two sovereign nations. The right of the respondent Government to regulate her own internal affairs by determining who are her citizens, which involves mutual protection and .support, is too essential an attribute of sovereignty to be invaded or disturbed. The rule of a nation requiring that one who is bom in the country shall ordinarily be its citizen is a reasonable requirement. To all the world but Venezuela Fiance may follow each succeeding generation born in Vene- uela but of French origin so long as her affections dictate or her laws require or permit; but not so as to Venezuela. The effort of one of the sons to establish French nationality by acts of allegiance after the death of the injured person can not affect his right as a claimant here, as that depends in this case upon the national quality of the claimant at tlie time of the inception of the claim. The next of kin found to be of French nationality, being a widowed sister, can properly sus- tain and maintain a claim for some pecuniary loss, although she was never dependent upon him for care or support and although there is no proof that he ever rendered either and no proof that she was ever so circumstanced as to need either. In this case the greater portion of the damages assessed and made payable to the next of kin, found to be French, is because of the unatoned indignity to France through the injury received by one of her nationals. This tribunal has no part in the final allotment or distribution of the sum awarded to France through the personahty of the sister for whom Franc* has a right of intervention. France has absolute dominion over the proceeds of the award, and with its distribution this commission has nothing to do. OPINION OF THE VENEZUELAN COMMISSIONER. Pedro Maninat , now a resident in Guatemala, presented to the minis- ter of foreign affairs of France, on the 19th of August, 1901, a demand of indemnit}' against the Government of Venezuela for the sum of 2,000,000 francs, adducing as the ground thereof that in the year 1898, while he, withliis brother Juan Maninat, was residing and estab- 46 CASE OF HEIRS OB^ JEAN MANINAT. lished in tlio city of Yaloncia, under the firm name of ''Maninat Her- manos," with two branch houses, one at Tinaquillo and the otlier at San Carlos, a revohition l)roke out; that his houses were robbed and submitted to requisitions; that liis brother Juan Maninat was ill- treated and wounded in the presence of General Atilio Vizcarrondo, the second cliief of the expeditionary army of the government of Gen- eral Andrade, and died one month after that outrage; that Pedro ^laninat himself was the victim of numerous persecutions, in the subsequent years, which compelled him to abandon the country and thus avoid attempts of murder. Mr. Pedro Maninat adds that the conformity of the amount of his claim is proved by the following documents, deposited with the lega- tion of France at Caracas: A. Declaration written by his brother himself before his death and addressed to Mr. Quievreux. B. Declaration signed by tliirty-tliree merchants, witnesses of the facts that took place at Tinaquillo. B *'■'*. Copy, certified and legalized by the legation at Caracas, of the final part of the declaration B, corroborating its contents. C. D. E. F. Declaration of which the author of the outrage pre- tended to make use in order to make it appear that he had been attacked by the brother of Maninat. Extract of the certificate of birth. Report of the physicians. Certificate of death. G. Petition of Mr. Pedro Maninat to Mr. Quievreux asking liim to ask for a certified copy of several writings forming part of the records relating to the bankruptcy of ''Maninat Hermanos," existing in the arcliives of the court of the first instance in civil and mercantile mat- ters at Valencia mentioned with indication of sheets, and which Mani- nat considers indispensable to ask for the intervention of the French Government and demand from the Government of Venezuela the payment of a just indemnification, the justice and precision of which are irrecusably established in the documents asked for. There also appears among the papers of these records a letter dated Lima, the 2d of March of the current year, signed by Justina Maninat, widow of Cosse, addressed to the minister of France in Venezuela, bringing to liis knowledge that she is one of the sisters of the late Juan Bautista Maninat, whose claim initiated by him in 180S and pursued after his death })y his brother Pedro ^hminat in 1901, must be in his possession. The signer of this letter asks the minister of France, at the same time, to kindly take note of the existence of her sister Clotilde Maninat de Saldías, domiciled in Lima, and in whose house she lives with her sister Juana Maninat, as well as of the existence of Josefina Maninat de Beguerisse, residing in Guatemala; and that, as they are the only persons entitled to the claim brought against the Govern- ment of Venezuela for the robberies, outrages, and chieily for the OPUíION OF VENEZUELAN COMMISSIONER. 47 proved murdor of their brother Juan, she asked, in lier own name and in that of her sisters, to be informed as to the present state of said claim. In this claim two t)rders of facts are intermingled and confounded, so as to give rise to a variety of ([uestions, which, leased only on the statement of the claimant, are destitute of all proof and ground. Some are relative to the wound received by Juan Bautista Maninat in the city of Tina({uillo on the 15th of April, 1d a Peruvian and she has not lost her French nationality unless the Peruvian law accords the natiotuility o" her husband. In this case she has also lost her Vene- zuelan nationality; but even as to this last mentioned, the only one among the heirs of M. Maninat whose nationality may be doubtTul, the commission of arbitration is competent to accord to her an indem- OPINION OF VENEZUELAN COMMISSIONER. 55 nity, since she presents herself only as the heir of a claimant wño enjoyed exclusively French nationality. Finally, we ought not to forget that according to the terms of the protocol an indemnity ought to be paid in bonds of diplomatic debts and not in gold. Thanks to this concession granted to the Vene- zuelan Government by the French Government to permit her to pay her debts with greater ease, the figure of indemnities accorded to Frenchmen finds itself singularly reduced in reality while the indem- nities of other foreigners are payable in gold and do not undergo any decrease on the fixed amount. The bonds issued by the Venezuelan Government sustain at this moment a depreciation of 60 per cent of their nominal value. The result would be then, iî the umpire shares the sentiment of the French arbitrator and recognizes for those inter- ested an indemnity of 500,000 bolivars, a sum of 200,000 bolivars in gold would be paid to the heirs of M. Jean Maninat by the Vene- zuelan Government. ADDITIONAL OPINION OF THE VENEZUELAN COMMISSIONER. The claim under discussion was made by M. Pedro Maninat on April 19, 1901, as shown in his communication from the city of Lima, bearing said date, addressed to his excellency the nnnister of foreign affairs for France (Exhibit 3, document 59). Subsequent to tins, in a letter dated at the said city of Lima on March 2, 1903, Justina Maninat, widow of Cossé, informed the French minister in Caracas, M. Wiener, that she was a sister of the deceased Juan Bautista Maninat, having an interest as such in the claim entered by Pedro Maninat, and that there were three other sisters, Clotilde Maninat de Saldías, resident in Lima; Juana Maninat, resident in the same city, and Josefina Maninat de Beguerisse, residing in Guatemala (Exhibit 3, document 62). Among the documents delivered to the French commissioner sub- sequent to the meeting of May 19, 1903, when I rendered my opinion on the subject — documents which have now come to my notice — there are two letters dated at Lima on March 24 and April 22, 1903, bearing the signatures of Clotilde Maninat, wife of Saldías, and duly authorized b}' her husband, Eulogio S. Saldías ; Justina Maninat , widow of Cossé, and Juana Maninat, who, of their own personal accord, and desirous of maintaining their legitimate rights, urge upon the French minister in Caracas the continuation to a successful issue of the claim entered by their brother, Pedro ^laninat, now a resident of Guatemala, and formerly of Lima. Neither at the time of the meeting of May 19, 1903, nor in conjunction with the new documents produced, has any proof whatever been introduced showing that the aforesaid Josefina Maninat de Beguerisse, who, it is averred, resides in Guatemala, claims any sum whatever from the Venezuelan Government, nor that either the lady herself or her husband, Charles Beguerisse, may have given 56 CASE OF HEIRS OF JEAN MANINAT. their consent and authority to introduce their nameü and persons in this claim, an indispensable requisite to become a party to the case. It becomes necessary to point out the several grounds, groAving out of facts of very difl'erent nature, advanced by Pedro Maninat and his sisters Clotilde, Justina, and Juana, upon which rest their claim for the sum of 2,000,000 francs. Some of these grounds are made to originate at the death of M. Juan Bautista Maninat, wliicli took place in May, 1898, as it is averred that liis death was the result of a wound received by liim in the general headquarters of the Government troops, and because of the damages sustained thereby by the firm of "Maninat Brothers," which it is claimed was compelled to go into liquidation after the death of the head of the firm. Other grounds are based upon certain requisitions and seizures made upon the property of the firm by both the Govermnent and the revolutionary troops and upon the persecutions and denial of justice of which Pedro Maninat claims to have been the victim in subsecpient years and wliile he was engaged in defending his rights. The French commissioner in his opinion deems an indemnity of 500,000 bolivars to be a fair compensation for the heirs of Juan Maninat, by reason of the death of a brother and because of the dam- ages suiTered before and after liis death; and as regards the denials of justice of wliich Pedro Maninat complains as having occurred din-ing the proceedings originating in the failure of "Maninat Brothers," the commissioner does not deem the claim sufficiently substantiated to affect the responsibility of the Venezuelan Government and to justify a demand for indemnification. Therefore our opinions as commissioners differ on points relating to the several questions directly connected with the wounding and death of M. Juan Bautista Maninat; to the persons of the claimants Pedro, Clotilde, Justina and Juana Maninat, and in the matter of the liability of the Venezuelan Government. All these cpiestions must be investigated and decided by the light of the principles and precedents established by international law, the Venezuelan laws applicable to the case, and the sound and just consideration of such facts as are fully verified. The learned commissioner for France makes the following state- ment on page S of his opinion : " .The Venezuelan coniniissionor holds that the claim of Pocho Maninat and his sisters is not admissible, because they are W-neziielans l)v nationality, beinj;; born in Venezuela, but Juan Maninat, whoso death and material losses are the exclusive «iiounds (s-njci) of the iiulem- nity to be awarded, was born in France of French parents and did never ac(|uire \'ene7.uelan citizenship, nor did he lose his French nationality, which, on the other hand, no one has over disputed. Tfiis in itself is sufficient, no matter what the condition of the heirs mial subject of the claim, one will grant that Jean Maninat would with difficulty have been al)le to make his claim himself. In the fourth place my colleague quotes decisions rendered within the English and Italian- Venezuelan commissions. I am not ac(|uainted with the cases in cpiestion and conscfiuently can not judge of their degree of analogy with that ]>efore us. In a general way I consider tliat in a matter of arbitration precedents have no value. K(|uity, good sense, and the terms of the protocol are the only rules for the conduct of an arbitrator, who is not bound to conform to the con- tradictory opinions of his ])redecessors any more than to tlie i)¡irticu- lar law of the States, as the protocols of Washington \\i\\c («xprcssly declared. In the fifth ])lace Doctor Paúl luaiiilains that tlu> heirs of Jean Maninat have no right to juake a chiiin for I he (h-ath of (luir hiolher, OVINION í)F UMPIRE. 69 whicli would not have caused Ihein direct damaj^c. I will merely reply that Pierre Maninat was associated with his brother in the iirni Maninat Brothers, and that the death of his elder brother will culmi- nate the ruin of this house of commerce. Is not this a direct damaages 352 to 355, both inclusive. It is agreed that Juan Maninat was of French nationality. His sisters Rosa Clotilde and Juana and his brother Juan Pedro were unquestionably of Venezuelan birth. Are Josefina Beguerisse and Justina, or is either of them, of undoubted French nationality? The um])ire holds that the burden of establishing this essential fact is with the claimant; that such nationality is not to be assumed or conjec- tured, but proved. No authority needs to be quoted to sustain either of those propositions. They are elementary. In this case there is no record proof concerning the place of birth of either Josefina or Justina, and there is no explanation made for its absence. OI'INION OF UMPIRE. 73 The case of Justina will first be considered. In the record of her marriage she is set down as having been born in Tarbes, France. This is a declaration of fact essential to the record, made at a time when there could have been no ulterior pur])ose to sub- serve. In the joint written statement of Justina, Clotilde, and Juana, made in 1903 for tlie use of the arbitrators at Caracas, the birth of Justina is placed in France. In the letter of Pedro to the minister of France at Caracas, of date July 24, 1903, he states that Justina is by birth French. Justina married Charles Joseph Cossé, who was unquestionably French, which fixed her nationality as French during his life, and by French law this nationality continued after the death of her husband, as she has done notliing since to divest her of such nationahty. By Venezuelan law if she were of Venezuelan birth and Venezuelan at the time of her marriage to Cossé her Venezuelan nationality is restored to her after the death of her husband. But there is no prooi that she ever was Venezuelan. There is incontestable proof that she was French by marriage and b}" origin, if not bj^ birth. To strip her of her French nationality once attained by the law of both countries requires definite and satisfactory proof. If she were of Venezuelan birth, the respondent Government could easily have produced the rec- ord, as Valencia is near Caracas, and its records are easy of access. In view of all the facts affirmative and negative the umpire has reached a con^nction of moral certainty that Justina Maninat Cossé is of French nationality and competent to appear as a claimant before this tribunal. Concerning Josefuia Maninat Beguerisse, wife of Charles de Begue- risse, it is sufficient to say that she has not presented any claim before this commission and is not in any sense by any act or authority of hers a party thereto. She has apparently refrained from asking the intervention of France in her behalf in this matter, and her right to do so is wholly academic, and therefore unimportant to this tribunal. It remains to determine whether the other next of kin, being with- out question French by French law, and Venezuelan by Venezuelan law, have rightful place before this commission. A treaty is a solemn compact between nations. It possesses in ordinary the same essential qualities as a contract between individuals, enhanced by the weightier quality of the parties and by the greater magnitude of the sul)ject-matter. To be valid, it imports a mutual assent, anrl in order that there may be such mutual assent there must be a similar understanding of the several matters involved. It can never be what one party understands, but it always must be what both parties understood to be the matters agreed upon and what in fact was the agreement of the parties concerning the matters now in dispute. In tliis case did Venezuela agree in the protocol that France 74 CASE OF HEIRS OF JEAN MANTNAT. alone should iianip those who are Frenchmen, or did France as:reo in the i^rotocol that Venezuela alone should make the selection; or does the ])rotoc()l, bcino; an af^reement. imply that the word Frenchman as there used shall mean such only as are recognized by the laws of both countries? It is evident that the high contracting parties agreed on this point, and yet both partitas knew that there was in fact a very essential difference in the holding of each country upon that question. How, then, could they reach a point of agreement? Only by meeting upon a ground common to both; and that common ground is the plain where b}" the laws oí' both countries the claimant is a Frenchman. This process of reasoning seems to dispose of all genuine doubt as to what is meant by this term as used in the protocol; yet were there room for doubt the ordinary rules of interpretation would be eilicient aids. Among others, there is the rule o": interpretation that where the agreement is susceptible o1 two interprétations that interpretation is to be taken which is least onerous upon the party who nuist render the service or suffer the loss under the agreement. (Woolsey, Intro. Int. Law, sec. 113. Bouvier Law Diet., vol. 1, p. 124. lb., p. 1107; ib., p. 429; ib., 416. Bouvier Law Diet., vol. 1, p. 1106, citing 71 Wisconsin, 177.) In a conflict of laws îis to nationality the law of the place of domicile should ])revLÍl. Such wi:s the opinion of the umpire in the M.-thison case found in R^lston's Venezuelan Arbitrations of 1903, pr.ge 429, wherein are found his reasons therefor ; nd the authorities siqiport- ing them, to which he respectfully refers without further r.llusiou. A similar holding b}^ him is found in the Stephenson case, same volume, piige 438, and to that case, his reasons there given and his authoriti(>s there quoted or cited, he respectfuU}' mvites attention. * * * So far as they apply he adopts them to save unnecessary amplification here. He would add a quotation from Bluntschli in a note which he places in his Droit Public Codifié, sec. 374, wherein he says : Contrary to m}' former opinions, I think to-day tliat in case of conflict of law one ought, in favor of the liberty of emigration, to accord the preference to the nationality of fact — that is to say, to that which unites itself to the domicile.o When by the law of the respondent Government the claimant is a Venezuelan, France may not intervene, as to do so would make her law superior to the law of Venezuela, which is not permissible as between two sovereign nations. The right of Venezuela, as the respondent Goverrmient, to regulate her own internal affairs and to determine who are her citizens, involving mutual ])rotection and support, is too essential an attribute of sovereignty to be invaded or a Contrairement à mes opinions antérieures, je pense aujourd'hui (|uVn cas de collision on doit, en faveur de la liberté d'éinigralii)ii, lurorder la préférence u la nationalité de fait, c'est-à-dire à celle qui s'unit au domicile. OPINION OF UMPIRE. 75 disturbed. If the treaty bore unmistakable evidence that this attri- bute of sovereignty hiid been abdicated, it would be the duty of this tribiniîJ to act accord iufijly, but it bears no such evidence. Wlien the nation insists that one who is native to the land shall under ordinar}»- circumsti:nces be a citizen, it is such a reasonable requirement thnt all nations should rest content. To i:ll the world but Venezuela, France may follow each succeeding generation born in Venezuela, but of French origin, so long as her affections dictate or her laws require or permit, but to Venezuela, where the father established his domicile, raised his roof-tree, and reared his famil}^, the sons and daughters there born are Venezuelans to all the world, until by emigration and selection they have foresworn allegiance to their native h:nd and sworn allegiance to some other. In this protocol France is permitted to intervene onl}- on behalf of Frenchmen who are recognized as such by the Liws of Venezuela, and whatever equities may exist between the claimants and Vene- zuela, none can be considered by this tribunal except those which are thus presented. Pedro ^laninat was born in Venezuela, passed a portion of his minority in France, attained his majority in Venezuela, and there remained l)y choice until several j^ears after the h;ippcning of the events giving rise to tliis reclamation. Nothing which he has done since in the way of asserting French nationality" affects his national quality at the time when this claim had its inception, since his right to appear in this tribunal is dependent upon the fact that he was a Frenchmr.n when the injury was suffered of which he complains, and a Frenchm-.n when this treaty was perfected. Rosa Clotilde and Juana are either Venezuelans or Peruvians. They are not French in the meaning ascribed to that term by the umj)ire. In the opinion of the umpire, therefore, Justina Maninat (^ossé is the only next of kin of Juan who imder the protocol of February 19, 1902, has that quality of French nationality which permits a claim for indemnity before this commission because of the injury to and death of her brother Juan. Although alien born Juan Maninat had a right imder the laws of Venezuela to the same protection as is granted to its nationals. He had promptly complied with the several military exactions consequent upon the disturbed condition of the nation, and in requiring the pro- duction of an order before complying with the requisition made u])on him at this particular time he was taking only a proper precaution. Wlien he entered the presence of the V(>nezuelan general it was the duty of that general to throw around him the protection of the Gov- ernment and to make his person while there safe — absolutely saf{\ When he was wounded under the eye and witliin the power of this 76 CASE OF HEIRS OF JEAN MANINAT. general a gross outrage liad been ])ermitte(l, tho office of the com- manding generül had boon perverted or set at naught, and the respondent Government luiving intrusted this general to hold that office and stand in its stead in that connnunity is responsible for the unla^\^ul deeds done or suffered to be done by him. The ])resence of the national army and of an officer high in connnand should have brought to that village and to all of its inhal)itants a sense of perfect security; that instead it brought to Juan Maninat threats, harsh treatment, imprisonment, and wounds, is clearly established. There results unquestioned, undebatable responsibility in the respondent Government. The extent of that responsibility alone remains to be determined. Notwithstanding the apparent convalescence of Juan from his wound of May 15, the joint certificate of his two attending ph3'sicians, asserting his death from traumatic tetanus is proof that the conva- lescence was apparent only. The honorable connnissioner for Vene- zuela speaks correctly of many causes for tetanus especially existing in torrid countries, but he has named no instance where traumatic tetanus has been certified by reputable ph3^sicians, except the primary cause was a wound or an external injury of the nature of a wound. The very name traumatic forbids. It is the adjective form 'of the noun trauma. Of trauma the Century Dictionary has this definition: 1. An abnormal condition of the living body produced by external violence, as distin- guished from that produced by poisons, zymotic infections, bad habits, and other less evident causes; traumatism; an accidental wound as distinguisiied from a wound caused by the surgeon's knife while in operation. 2. External violence producing bodily injury: the act of wounding, or infliction of a wound. Traumatic. — (1) Of or pertaining to wounds: as traumatic inflammation. (2) Adapted to the cure of wounds; vulnerar}': as traumatic balsam. (3) Produced by wounds: as traumatic tetanus, etc. Traumatism. — Any morbid conditions produced by wound, * * * Tetanus.— It is occasioned either by exposure to cold or by some irritation of the nerves in consetjuence of local injur}' by puncture, incision, or laceration; hence the distinction of tetanus into idiopathic and traumatic. Lacerated wounds of tendinous parts prove in warm climates a very frequent source of these complaints. In cold climates, as well as in warm, lockjaw (in whidi the spasms are confined to the muscles of the jaw or throat) sometimes arises in consequence of the ampu- tation of a limb or from lacerated wounds. Tetanic affections which follow the receipt of a wound or local injury usually prove fatal. * . * * It is usually the sequel of wounds and injuries. Witthaus and Becker, in their Medical Jurisprudence of Forensic Medicine, Toxicology, vol. 1, page 513, say that — Tetanus is an infective bacterial disease, afl'ecting chiefly the central nervous systi'm and almost always, if not always, originating from a wound. Tetanus, like erysipelas, is probably always traumatic and never strictly idiopathic. The wound may be so slight as to escape notice. When it follows such injuries as simple frac- ture, internal infection pr()i)al)ly occurs, though such causes air extremely rare. It is said that the weather influences the development of tetuuus, and that it is uiore common in the OPINION OF ITMPIRF. 77 tropics. TluTO iirc also cortaiti sections wiicrc tetanus is much more common tiian else- where and where it ma}' he said to be almost endemic. * * * Tetanus usually appears about the end of the first week after a wound has been received, but it may not appear for a longer period, even three or four weeks, so that the wound may. have been sometime healed. To connect tetanus with a particular wound, note (1) if there were any .symptoms of it before the wound or injury, (2) whether anj' other cause intervened after the wound or injury which would be likely to produce it, and (3) whether the deceased ever rallied from the effects of the injury. In the work of Allan McLane Hamilton and others, entitled "A Sys- tem of Legal Medicine," Vol. II, page 585, it is said that — Tetanus occurs most frequentl}' in wounds accidentally inflicted, particularly in punctured and penetrating wounds, and in those in which a foreign body remains behind. Its exist- ence is now believed to depend upon the presence of a special organism, the Bacillus tetani. A variable length of time is occupied in the period of incubation, according to the number of bacilli introduced (Watson Chej-ne), the location of the point of infection, the anatomical characteristics of the surrounding ti.ssues, and the capacity of the dilferent tissues to j-ield the ptomaines under the influence of the bacillus. It is also probable that the degree of virulence governs, to a certain extent, both the duration of the stage of incubation and the sev- erity of the attack. * * * and as the bacillus of tetanus requires the exclusion of oxy- gen in order to grow, it is evident that a punctured wound quickly closed ofl'ers just the conditions appropriate for the reproduction of the germ, if it has been introduced into the depths of the wound. Trauma means, strictly speaking, a wound. The term is used ju.stly as synonymous with an injury. lb., 298. When it comes to the actual trial of actions for personal injuries, there are two diíTicult questions, to the solution of which the testi- mony of the medical expert may be directed. One of these is how far the defendant's negligence is responsible for some subsequently devel- oped infirmity or disease or, in other words, how far a given injury may be said to be the natural and proximate cause of a subsequently devel- oped condition and therefore render the defendant liable for that con- dition. The general rule is easily stated, to wit : if the subsequent disease or infirmity is one which would occur as the natural result of the injurj', and it is not shown that any other independent cause existed of winch it migiit have been tlie result, then the author of the original injury is liable for the subsequent disease or infirmity. lb., 379. From the foregoing authorities it easily develops that tetanus usu- ally follows trauma, that it is a natural secpience of it, and that neither the severity of the laceration nor the length of time which had elapsed in this case after the wound was given, nor the apparent partial recov- ery have any significance in determining whether the traumatic teta- nus stated by the ph3'sicians to be the cause of Juan's death was the result of the wound received on the 15th of May preceding. Tetanus from that wound was a natural result within the period which in fact elapsed between May 15 and the beginning of the tetanic attack. An early healing of the lacerated wound was an apt aid to tetanus. When the physicians in attendance ascribed Juan's death to traumatic teta- 78 CASE OF HEIRS OF JEAN MANINAT. nus, they said, in eíTect, that it was tetanus arising from wounds or external injuries. As no other wound or injury is even sujiirested, they also said, in effect, that the tetanus related back to the trauma inflicted by the machete of the oiFicer upon Juan w'hen he was under the care of the Government troops and in the i)resence of the com- manding general. Since his death resulted through a line of natural secjuences from a wound inflicted under the circumstances named, the responsibility of the respondent Government is the same as though death had been the immediate result of the machete stroke. "Whether the physicians who gave the certiñcate were intelligent and trustworthy is of course a proper impiiry. There is no (¡uestion made by the respondent Government, and there is no indication in anytliing connected with the facts of tills case which suggests the contrary-. It becomes, then, the duty of the umpire to hold that Juan Maninat came to his death because of a wound inflicted upon him uniler such circumstances as to impose responsibility upon the resjiondent Gov- ernment. In this case, unlike that of Jules Brun, there are other considerations than the loss which Justina de Cossé has suffered through the death of her brother Juan. There is no evidence that she was ever dependent upon him for care or support, or that he ever rendered either, or that she was so circumstanced as to need either, or that he was of ability or disposition to accord either. Therefore it is diilicult to measure her exact pecuniary loss. There exists only the ordinary presumptions attend- ing the facts of a widowed sister and a brother of ordinary ability and affection. Some pecuniary loss ma}' well be predicated on such condi- tions. For this she may have recompense. But the more important feature of this case is the unatoned indignity to a sister Kepublic through this inexcusable outrage upon one of her nationals who had established his domicile in the domain of the respondent Government. There w^as abundant reason, which France may well ap})re(iate, why the respondent Government could not censure ov punish the gen- eral in command or the ofhcer who, in fact, made the attack uj)on Juan. The country was in the throes of a strong revolution, the sup- porting hand of every one loyal to the titular government was essential to its support. It could not meet successfully the possible results if it had undertaken to censure or punish the guilty parties. Silence and tacit acquiescence was the only position then open to the titular govern- ment. Since that period and prior to the sitting at Caracas of this mixed connnission there had been no real opportunity for the two governments (li])lomatically to consider or pass upon the merits of this case, and it remained practically for this tribinuil to speak the voice of regret and to tender atonement for a sad result. Justina de (\)ssé can be the medium f)f transmission of this atonement from the respondent Government to France and by a payment of money honorably answer OPINION OF UMPIRE. 79 the just demands of the claimants and assure to the intervenino; Gov- ernment the constant wilUngness of Venezuela to atone for this wrong by the only means now in her power. The honorable commissioner for France disclaims all right to an award based upon the injuries directly attributable to the failure of Maninat Brothers as a claim consequent upon the death of Juan for reasons which he succinctly states; but beholds that some disastrous resvdts following his death and the pillages and requisitions preceding his injury may properly move the generous impulses of the lunpire when he comes to make uj) his award. It is probable that the honorable commissioner for France and the umpire do not, in fact, really differ in their conception of what is equity in such a matter. But to plant an equity always requires the basic quality of a right in the party receiving, because of a WTong moving from the party to be charged with the onerous conditions of the equitable conclusion. Generosity is not equity; equity has no part in generosity. Equity exists when exactly the right thing is done between the parties. Neither more nor less than this is equity. A just conclusion only opens the door to equity. So far as the respond- ent Government is responsible for the wrongs suffered by the next of kin of Juan who have a right to the intervention of France because of their nationality, so far and so far only does equity require or permit action on the part of the umpire. In every respect other than this, he has no right either to add to nor subtract from. To act at all, he must find a right to claim on the part of the claimant, and a wrong to be redressed on the part of the respondent Government. Within those circumscribed limits he has liberty of and necessity for action; outside of those limits he is a trespasser. He can not be generous; he can only deal justl}" and equitably. So far as the injuries to the Society of Maninat Brotliers is concerned, the interest of Juan in the requisitions and pillages mentioned, which occurred prior to his death, it is sufficient to say that the claimants have had the preparation of this cause for presentation before this tribunal. No reason is given why this reclamation did not include a definite and precise statement under that head, if reimbursement was sought. It was surely capable of some degree of exactness in the statement and some degree of certainty in the proof. Neither has been attempted. By their own inattention and inaction they have deprived the umpire of all opportunity to know anything of this branch of their alleged injuries, and tliev must not ask him to con- jecture and estimate when they might have permitted him a settled judgment, nor can they at all expect that he will add aught to his award because of these probable, but vaguely uncertain, losses which they project into this reclamation. 80 CASE OF HKIRS OF JEAN MANINAT. Because of tlio holding by tlic umpire that Pedro Maninat is a Venezuelan, it results necessarily that nothing can be considered in his behalf on account of failure of justice or denials of justice, if such occurred, succeeding the death of Juan and personal to him or to the mother of his wife, who attempted to assist him. In naming one only of the Maninat heirs as competent to present a claim under the protocol of February 19, 1902, no inequity is done the other heirs. It does them no harm that she is not a Venezuelan, but of French nationality only. The laws of France governing the dis- tribution of estates are not involved in tliis decision, neither arc they invaded nor disturbed. This tribunal has no part in the final allotment or distribution of the sum which by the award herein is made payable to France, through the personality of Justina de Cossé, for whom that country has right of intervention. Over the proceeds of the award here made France has absolute dominion, so far as this tribimal is concerned, and in the perfect justice and equity of her procedure there can be complete content. It is the judgment of the umj^ire that a just compensation which covers both aspects of this case is 100,000 francs, and the award will be prepared for that amount. NORTHFIELD, JullJ 31, 1905. CLAIM OF ANTOINE FABIANI.— NO. 4.« HEAD NOTES. This claim came to the umpire after having been once heard and determined by the lionor- al)le President of the Swiss Federation, being sul)iiiilted to him under the protocol of February 19, 1891, the first paragraph of whicli reads; "The Government of the United States of ^^'nezuehl and the (loveiiiinent of Ihc French Republic have agreed to submit to an arl)itrator (he claiius of M. Antonio Fabiani against the Venezuelan Government." Against the proposition that such an arbitrament and award is conclusive upon all i)arties the claimant urges that tlie Swiss arbitrator held t hat he had not jurisdiction o\ er a large part of the claims and therefore was incompetent to consider and to pass upon them; that the Swiss arl)itrator in fact extracted and sulitracted from those claims such as lie held were without his jiirisdictioiï and only awarded concerning the rest. Tiie umpire holds, however, that no jiu'isdictional (¡uestions were before the Swiss arbi- trator, none were urged by either party, and none in fact were determined; that all claims of Fabiani were in fact submitted by the protocol to the decision of the Swiss arbitrator and all were in fact decided by him. That there were certain restrictions placed upon the Swiss arliiliator in tliepi'otocol which had the eil'ect to limit the scope of the claims left inidi.sposed of b}' the two Governments for decision by the Swiss arbitrator. That under the protocol the Swiss arbitrator must first determine whether the \'eiiezuelan Government was responsible for any damages to Fal)iani; tliat this responsiliility must be determined in view of the limitations of the protocol wliich were to the Swiss arbi- trator his suprem.e law. These limitati(jns were cssentialh" that the decision was to be a EXTRACT FROM THE MINUTES OF THE SESSION OF MAY 30^ 1903. The claim of Antoine Fabiani was then taken up. Doctor Paúl rejects it as having ah-eady been judged by the arbitral court of Berne, the award of which, in his opinion, lias decided definitely on all the points of indenuiity presented by M. Fabiani. M. de Peretti, on the other hand, claims that the .Swiss arbitrator has brushed aside all the points represented to-day by M. Fabiani as not being covered by the agreement of arbitra- tion signed the 24th of February, 1891, by the two Governments. The President of the Swiss Confederation has, then, declared himself incompetent to examine the aforesaid points, which by this very fact have found themselves reserved for tlie examination of the commission instituted by the protocol of Pans. Consequently M. de Peretti admits the demand of M. Fabiani, which lie recognizes to be well founded, and accoriis to ium tlie .sum which he claims. Doctor Paúl declares that the decision taken by M. de Peretti, according to .M. Fabiani the sum which he claims, has not been preceded by any discussion between the arbitrators upon the amount of the claim, which Doctor Paúl rejects for the reason already expressed — namely, that all the claims newly presented by M. Fabiani have become res judicata. This claim will then be submitted to the examination of the umpire. S. Doc. 533, 59-1 6 81 82 FABIANI CARE. reached in accordance with " the laws of Venezuela, the general principles of the law of nations, and the convention in force l)etween tlie two contracting powers." The convention then in force between the two nations was that of November 26, 1885, and had especial reference to article 5 thereof. The force and effect of article 5 of said treaty was considered and determined by the Swiss arbitrator, and his interpretation thereof is conclusive, .so far as the claim of Fabiani is concerned. In order to determine the scope, depth, and breadth of that treaty, the Swiss arbitrator had to define the meanini^ of tlic expression "denials of justice" found in .said treaty. His definition is conclusive upon the claim of Fabiani. When the Swiss arbitrator decided the principles {^overninsr tlie claim submitted to liim, he had decided afhrmalively or neojativcly the diflerent claims made in Fal)iani's i)ehalf, not in detail iiut in principio. When France intervened in belialf of her national, his claim was no longer individual and private, but national. Thenceforward it was national interests, not private interests, that were to he safeguarded. It was the national welfare and national honor which were to be considered. Should the general good of France at any time during the negotiations with Venezuela require a surrender of all of Fabiani's claims, France may make such surrender, or it may sur- render a part thereof, and for such surrender Fabiani, if he has a claim anywhere, has it against his own Government. When a nation intervenes in belialf of her national and iiiially consents to arbitration of the difTerence, the primary purpose of such arbitration is to remove the vexed question from the arena of diplomatic dissension and controversy. It is not to be considered that France would consent to submit to arbitration a part only of her national's claim, leaving large and important parts of it undisposed of, and to remain as vexatious ques- tions between the two Governments. Neither is it to be considered that Venezuela intelligently entered upon an arbitration of a question in dispute between the two Governments understanding that the eiVect of the agreement to arbitrate would l)e to hold her to make reparation for such an amount as might be held to be denials of justice by the arbitrator, while for all not so held she would later be compelled to again oppose them or to pay them or to arbitrate them. Venezuela did not enter upon this arbitration by the Swiss arbitrator with the understanding that if ho decided everything against Fabiani all that had originally been claimed would be left unsettled by his decision, and be restored to their primal state of existing claims for which the Government of France could intervene. Equally certain is it that she did not enter into the arbitration with the understanding thai if any part oi tlie claim were decided in her favor that part might yet he l)rought liefore another arbitral tribunal. In that and in every similar international controversy tlie two Governments seeking an agreement look well for a common meeting point which is usually to be gained only by mutual concession and mutual remission of matters which can yield and when that common meeting point is reached to submit it to the arbitrator as the whole contro- versy; or as being all that which botii parties will admit is the controverted question. Which mutual point ol agreement is as much a matter of agreement between the high contracting parties as is the covenant to ari)itrate itself and is an integral i>arl of that covenant. Each concession so made by one party cancels the one made by the other, >ijinal and conclusive upon the tvhole of the original controrersij. That whicli Fabiani chiiins to have been a subtraction by the Swiss arbitrator is in fact merely designating tlie diilerent elements of his controversy wliicli in elVect íIk^ liigh contracting parties had agreed to ehniinale and subtract in order to reach an agreement of arbitration. So far as these concessions apjjroaching and ¡jermitting an agreement to arbitrate linally aiïected the pecuniary interests of Fabiani they were in elFect tlie especial tribute re(|uired of him by his Governnffnt to conserve its general good. The honorable arbitrator of Berne on his own initiative eliminated nothing, subtracted nothing, and there was left for him nothing except to settle the meaning of the protocol and then to observe its effect and to point out which of the claims came within and which without the action of the rule agreed upon and prescribed to him by the two honorable Governments, settle the danniges on what remained, and make award accordingh'. It follows that the protocol arranged between the honorable Governments of France and Venezuela February 21, 1891, succeeded by the award of the lionorable President of tlie Swiss Federation December 15, 1S9G, were, acting together, a complete, final, and conclusive disposition of the entire controversy on behalf of Fabiani. OPINION OF THE VENZUELAN COMMISSIONER. Antonio Fabiani has presented bel'ore this commission a demand of indemnity amounting tc 9,509,728.30 bolivars, for losses and damages comprised in the items which, he says, were eliminated by the Swiss arbitrator in his award rendered in the French-Venezuelan suit called the "Fabiani controversy," on the 30th of December, 1S96, and by which award the Government of the United States of Venezuela was condemned to pay to Fabiani, by way of indemnity, in the terms of the protocol of the 24th or February, 1891, including all expenses, the total sum of 4,346,656.57 bolivars, with interest at the rate of 5 per cent a year from the date of the award. Fabiani argues that the Swiss arbitrator deliberately subtracted from his decision, because they were not comprised in the terms of the protocol, certain sums demanded by him in his claim presented to said arbitrator and partly contained in seven separate tables, imder the letters A, B, C, D, E, F, and G, svhich he presented to the arbi- trator when the demand was formulated. These tables, as said by Fabiani himself, in his statement, pago 629, had for their object to facilitate the investigations of the arbitrator and corresponded to the situation that had been created to him in Venezuela by the series of prejudicial acts on which he based his claim, and he adds, on that account, the following consideration: Although the whole links together without solution of continuity, we ha\e thought that it was convenient to keep a certain chronological order and take into consideration the time when the damages were caused and when they exercised theii- inlluence on our fate and on the destinies of our commercial establi.shments. The demand entered by the Government of the French Republic, plaintiff, against the Government of Venezuela, defendant, before the 84 FABIANI CASE. President of the Swiss Confederation, appointed arbitrator hy a protocol signed in Caracas on the 24th of February, ISOl. re.^erred to the decision of said arbitrator the question as to whether — according to the laws of Venezuela the general principles of the law of nations and the con- vention (of the 2Gth November, 1885) in force between the two contracting powers the Venezuelan Government was responsible for the damaties vÁuh Fabiani claimetl he sustained through denials of justice, and the arbitrator was also chari^ed with the dut\" of determining — in case this respünsil)ility was recognized, as to all or jxtrf of the claims in question, the amount of the pecuniary indemnity that the \'enezue]an Goveinment ougiit to pay into tlie hands of M. Fabiani, which payment would be made in funds of tlic Venezuelan 3 percent diplomatic debt. (Arbitration protocol of 1891.) The demand was entered to obtain the reparation of damages caused by denials of justice through acts imputed to the administra- tive and judicial authorities of the Ivejniblic of Venezuela, for which damages the state ought to be responsible and which comprised : First. The reparation ol the damage sustained ; Second. The gain frustrated; Third. The interest calculated from the date of the damageable acts; Fourth. The compound interest; Fifth. The sacrifices made by the injured party for the maintenance of his industry; Sixth. The prejudice deriving from the expense made and from the time lost to arrive at the execution oí' the sentences; Seventh. The damag(^s to be considered as the necessary conse- quence of the offenses ; Eighth. The damage done by the privation of work in tlic luture; and Ninth. The reparation of the moral prejudice. The demonstrative UúAo of the claims of Fabiani was annexed to the demand with determination oí the several items for capital and capitalized interest, amounting to the total siun of 4().i)44,r)()o.l7 francs. The wSwiss arbitrator, in determining tlie object of tlic dcMnand referred to his decision, fixed the reach that he considered lun-essary to attribute to the words "denial of justice," construing that the powers which signed the compromise had given to said wt)rds their widest meaning and lind meant by them — all the acts (f judicial authorities which might imply a direct or disguised refusal l<> do justice. Said arbitrator determimitely says in the award in (juestion : The duty of the arbitrator |)recisely consists in deciding whether Venezuela — is responsible for the damages which Fabiani .says to have sustained through di'nials of jus- tice. * * * Thus the object of the confrorersg and its origin are ucknow leilgid l)v the parties; it was on account of the lefusal of the execution of tli(< award of tlie l.'itli Decem- ber, 1880, which Fabiani possessed against two del>tors doiuiciltMl in W'lie/.ucla or on account OPIKIOIS" OF VENEZUELA!^ COMMISSIONER. 85 of the default of execution owing to th(> admission of illegal recourses that France took the interests of her native into her hands. The Swiss arbitrator also declares that — Venezuela does not incur any resjwnsihility according to the prolocol, on account of facts foreign to the judicial authorities of the respondent (Jovemincnt. Fabiani now maintains, more than six years after the sentence of Berne became affirmed, that the Swiss arbitrator deliberately elimi- nated iY^o faits du yrincCj because he considered them excluded I'rom the terms of the protocol. It does not appear from the careful examination of that sentence that the arbitrator had eliminated any fact directly or indirectly connected with the fundamental cause of the suit aufl with its object, namely, the denials of justice arid the claims that Fahiani had lyresented, pretending? that the Government of the Re])ublic was responsible for all of them. The arbitrator eliminated some of those claims, because the facts on which they were based did not make Venezuela incur an}^ responsibility, as they were stranjje to the judicial authorities of the resj)ondent state. The arbitrator expressly declares that some — of those claims ha-sed on faits tin prince, which are either changes of legislation or arljitrar}'' acts of the executive power, are absolutel}' sul)trac(ed from his decision, wherefore he elimi- nates fi'oni the procedure all the allegations and means of proof iclaling thereto, as long as he can not leserve them to establish other concluding and connect(>d facts relating to the denials of justice. And the wSwiss ar})itrator adds thereupon, in the motives of the sen- tence, the following declaration: It is certainly the denials of justice committed in the course of the proceeding for the exe- cution of the award of the IStli of December, 1.S80, a?ul the eventual appreciation of their pecuniary consequences that form the object of the present litigation. It is, however, neces- sary to remove another objection of the petition. The judicial position of Fabiani in Venezuela was first liquidated by the compromise of the 31st of January, 1873. After a series of incidents Fabiani renounced the benefit of this act and signed the compromise that gave birth to the award of 1880. The plaintiff has stated tliat he adhered to this compromise under the empire of main force and that it did not cover the pifiar denials of justice. But he (the plaintif!) recognizes without hesita- tion (petition, p. 142, et secj) that Fabiani, who could have had the compromise aimulled by the French courts, preferred to reserve the future of his commerce in \'enezuela by exhausting all means of conciliation. Fabiani thus contented himself with the state of things created b}^ the acceptance of the arbitrators' jurisdiction, and, besides, from that moment his judicial efforts in Venezuela only tended to the execution of the judgment of the 15th of December, 1880. The motive drawn from the vis major, which would have affected the compromise of 1880 and would remove farther back the starting point of the denials of jus- tice compri.sed in the present instance can not be taken, therefore, into consideration. Denials of justice in virtue of which it would be possible to procetnl against Venezuela for responsibility before the arliitrator could not have taken place before the introduction of the proceeding for the execution of tlie award of the 15th of Decemi)er, 1880, or before the 7th of June, 1881, the date of the petition for the exequátur entered before the high federal court. The arbitrator has not, therefore, admitted besides the/«í7.s' du prince any of the facts foreign to the nonexecution and to the effects of the nonexccution of the sentence above referred to to be proved. 86 FA RIANT CASE. It is seen from the foregoinfi insertion tliat the ar])itrator, exercising his wide powers of appreciation, left out of consideration any fact, whether a denial of justice, prior to the 7th of June, 1881, when the demand of execution of the sentence of Marseilles was entered be^jre the high federal court, or those called /aiis au prince, that he could not reserve \\ath a view to prove other concluding and connected facts relating to denials of justice. That elimination of proofs and allega- tions concerning facts entirely strange to the mission oí" the arbitrator, which precisely consisted in deciding — wliether Venezuela was responsilde for the damages wliich Fabiaiii clainied lie sustained through denials of justice, does not constitute, on any reason of law or of procedure, a declara- tion of incompetence or of want of jurisdiction on the ])art of the arbi- trator, with regard to some particulars of the demand, but only estab- lishes that some of those particulars or the facts upon which they rested, were destitute of the conditions necessary for their being accepted as the consequence of denials of justice, and, therefore, for their being admitted by the arbitrator as elements of appreciation tending to cause Venezuela to be declared responsible for the damages that Fabiani claimed as the consequence theroof and as the o])ject of the demand. The Swiss arbitrator did not fail to appreciate some of thoso faits du prince which, while not establishing an intimate connection with the acts of denial of justice, contributed in the mind of the arbitrators to form appreciations as to the extent of the guilt and the amoimt of the damages recognized in favor of Fa})iani. Such is collected from the motives of the sentence of the arbitrator, contained in page 30 : Different indications make one believe that the respondent Govoriunont openly hosfilized Fabiani and that this position might incite or encourage the judicial autiiority, at least in the provinces distant from the capital and without the control of a watchful public opinion, to ignore the rights of a foreign plaintiff, to whom influential persons of tiie state would not conceal their hostility. Such is the officiai approval of (he 21st August, 1883, given to the cession, consented by B. Roncayolo, of the contract of the La Ceiija Kailway, although it was notorious in Venezuela that that cession had for its object to Jir}iinish or annihilate the pledges of a creditor (faits du prince). Such appears also to be the niodiliratioii ailopteil by the legislation of the state of Falcon in articles ñ and 7 of tlie organic law of the judicial ])i)wer in January, ISKÎ (faits du piince); such was also the witlulrawal of (he towing stM'vice which under the circumstances and at the time it was decided liad (o be intcrprclecl as an act of reprisal directed against Fabiani (faits da prince). It is not possible? to fail to recognize, according to a sound logic, that the Swiss arbitrator gave ihosv faits du prince all the importance that he was permitted to give them within the terms of the arbitration compromise; that he consciously appreciated them, inferring from them serious consetiuences to the extent of considering them as a manifestation of the fact that the govemwent openhj antagonhed Fabiani; eiicouraging and inciting th< judicial aiithoritij to ixmI'oi in the OPINION OF VENEZUELAN COMMISSIONER. 87 acts considered by the arbitrator as denials of justice, and finally that they (the faits du prince) under the circumstances they occurred had to be considered as acts of reprisal directed apiinst Fabiani. In virtue of that appreciation the Swiss arbitrator established that the responsibility of Venezuela for the acts properly called of denial of justice was tantamount to, at least, the one derivinoint out to it where he may find i( and disallow our demand, if the denial of justice does not exist. There is no more tedious a (ask than to have at every moment to demonstiate what is evident. In the same page : Certainly the refusal of execution of the sentence exists in the proces.s as an imjiortant ele- men( among the numerous denials of justice that we denounce against Venezuela: i)ut the resistances of the Cal)inet of Caracas, imwairanted both as to their (onn and rea.-ons, its abso- lute refusal to agree to friendly negotiations, have led our Government not to sacrifice any- thing for the sake of peace and (o demand an express conrpronJte conceived in general terms in order to protect all (he rights, all the interests of the French citizen who asked for its protection. In page Ki: In our judgment the cjuestion may ix' considei'cd fi-om iinotlier point of view, that of the terms of the protocol, general terms which autliorizc the arl)itralor to appreciate any denial of justice duly proved, and permit Fabiani to prc.'unt all the pecuniary claims relative to damages sustained through denials of justice. (The po( uniury iTj)iiration is the cH'cit, (he (Iciiial of justice i.s (lie cause). OPINION OF VENEZUELAN COMMISSION ER. 89 If Fabiani formulates cZaim*' having a?io//¿e/' raí/ .ve than the denial of iusiicc, or if it xhould not clearly appear that therj are imputable to a denial of justice, the arbitrator shall purely and simply disallow them, because they will be without the limits of the protocol, that is to say, without the law and not without his competence ; the protocol was the law) ; and, if he recognizes the responsibility of Venezuela he will point out, in the proportions his conscience may suggest him, all the damages he may judge to be the direct and immediate con- sequence of the infractions committed by Venezuela. It will be permitted to us to add that, even if the protocol instead of ix-ing conceived in general terms should have established all the details of the litigious points, it would not be necessarily inferred therefrom that every motive or claim that was not expressly enun- ciated in the protocol should be set aside, without any discussion, as being without the terms of that protocol. If no other difference is the question, or if the question is a difference ^wxteriorly occurred between the jxirties; if the new motives of demand, although they are not expressly specified in the protocol, are found therein, however, virtually comprised, whether as an integral part of the litigious points designated, or as a consequence thereof; if the source of those motives is found in the compromise; if the demand is not different from those which the com- promise has foreseen and the settlement of which it has had in view; and, finally, if the motives they pretended to have set aside might later give place to the same debates as those enunci- ated in the i>rotoco\, the arbiter may appreciate the merits of those motives and include them in his decision. The new Denizart arbitration No. 10 is not less precise. The arbitrators may take cogni- zance of the accessories of the instance and of all those incidents in such a manner connected with the case, that it would happen, if the judgment thereof were omitted, that the parties would always be divided by the same question that had been the object of the protocol. Therefore, when motii^es of demand not expressly enunciated in the protocol are con- nected with the case itself in such a manner, that, if the judgment thereof were omitted, the parties would be left in the presence of the same litigation, the arbitrators are competent to take cognizance thereof. Might it not be added that, if they were openly .set aside, the decis- ion might be considered as rendered without the terms of the protocol? It appeal's to us to be very difficult to imagine an arbitration in which the motives of demand, which they pretend to have set aside under the pretext that the same are without the protocol, may exhibit a greater connection with tiie facts that are found expressly enun- ciated therein. Not only they would be supported in this judgment on the same means and would require tiie same debates as the motives, the admissibility of which is not discussed, but it could not be ignored that it would be impossible to soundly appreciate the merits of the other motives, if the first denials of justice, the causes which have been the motive and the purpose of the denials of justice and are, therefore, the essential part, the ground of the suit, were not, after having constantly drawn the attention of the judge, to be considered a.s one of the liti- gious points submitted to his decision. The evident purpose of the arbitration, which purpose is justified b\' the general terms of the treaty of the 24th of February, 1891, has been to decide whether there has been denials of justice; to fix, if there has been any, the damages imputable to the denial of justice, not some damages, but all the damages that Fabiani claims to have sustained; to determine the amount of the reparation and to put a definitive end to the difference arisen between France and Venezuela. It is important that the deci-sion to be rendered may, conformably to the nc'.jle and pacific formula of the peace tribunals, declare any new claim of Fabiani for denial of jus- tice inadmissible. Everytliing tends, therefore, to prove that the identity of the nature of the demand, the absolute similitude of the motives invoked, the links of absolute connection uniting the alleged new motives with all the others would recommend, if the protocol offered any 90 FABIANI CASE, obscurity, that questions the inadvisibility of which appears proved b>jaU Ou circumstances of the suit should not be separated. In the statement of Fabiani, he says, in pao^e 615, when dealino; witli the extent and justification of the (hiniat^es and losses, the following: If the arbitrator, after having examined and analyzed our different motives of claim, should be induced to recognize that all those motives are justified and that we have valued our dam- ages without anrexaggeration, Venezuela could congratulate itself at its insistence in having a little equitable mode of payment accepted, since the sums it would i)e obligated to deliver to us would not represent the actual amount of the indemnity that maj- be adjudged to us by the award; so that it would not be exact to say that the author of the infraction has paid and we have obtained the amount of the damage fixed by the arbitrator. And if it should i)e admit- ted that the judge, acting either by way of elimination or by way of reduction, should find that there is a reason to restrict the measure of our damages, valued in specie, when taking into con- sideration its conversion into 3 per cent bonds, at the price of those values, he could not, even if he should allow to us the whole of our demand in bonds, assure to us an integral restitution unless his valuations, determined absolutely according to his conscience, cause our claims to undergo a strong reduction. Now, therefore, in short, if the arbitrator finds that our valuations have been made justly, measuring the damage sustained, he will regret when rendering his sentence not to be able to assure to us a restitution in integrum. And if he considers it equitable to make us sustain a reduction in some of our claims, or even if he holds that some of them must be set aside, he will find himself, de.spite of his taking into consideration the quotation of the bonds, in the pres- ence of a true lesion, unless he considers himself to be in the case of reducing, in a notable proportion, the amount of our claim. In page 622 of his statement, Fabiani, as if he prejudged the decis- ion of the Swiss arbitrator, and as if he himself were dictating the award that this commission of arbitration must rentier upon his pres- ent claim, states the following: The arbitrator being, as every tribunal, vested with a sovereign right of appreciation, with a real discretional power to fix the amount of the reparation without the obligation of expressing the motives that may mduce hmi to give this sum instead of another, the ari)i- trator, we say, in allowing a lump sum is not obligated to render his award in accordance with the proofs furnished by the parties or to indicate the details of the various elements serving to determine the just measure of the damage. The compromi.se puiely and simply vests him with the duty oï fixing the amount of the ítuíemnity, if the responsibility of Vene- zuela is found to be grounded. The arbitrator acts with the plenitude of his independence, having no other gviide than his lights and his love for justice, /¡e enquires ; whether such a prejudicer or surh a damage has been the direct and necessary consequence of the infractions that have engaged the resjions-ihihty of the defendant; from the moment his judgment and his conscience give him the conviction that the prejudices and damages can not \w separated I rom the reproached infractions, that they can not have had other causes, he is dispensed with deviating into the labyrinth of more or less immediate or more or less remote conser|uences, and especially in our allair it will be easy for him to convince himself that no intermediate fad has come to divide respon- sibilities; that no occurrences alienate from the reproachable facts imputed to the author of the infraction can have exercised or has exercised any mjluence, however smalt it may be, on the disastrous consequences of the facts charged. It is tho.«e acts, namely, tli(> illegal obstacles opposed to the exercise of our rights, iho fails du prince, m the most brutal acce|itation of this word, that constitute the 07ihi cau.'s.ies we have sustained, and it is impossible even to suggest that otiier causes would have produced the same lo.sses and the .same disa.s- Irous ed'ecis, il' Iho.se nhslaclis and those faits du pruur liiid not e\is|e responsibility of Venezuela aggravated ])y the existence of vcriiún flits du prince, as inchcations of the hostile attitude of \'enezuela against Fabiani and 92 FABIANT CARE. molivos of incitation for the judicial authorities to the denial of justice; and he made use of the means of proofs and alleg;ations with the pur- pose to establish the existence of other concluding and connected facts relating to the denials of justice. By the proceeding of elimination and reduction of the several sums to which Fahiani made his claim amount, the arbitrator fixed, as the total indemnit}' that \'enezuela was to deliver to Fabiani, the sum of 4,346,656.51 francs for the following respects: Francs. 1. Koncayolo's debt 124, 177. 55 2. Income for pilot service for Decetnbcr, 1877, to the 15th of July, 1882... 68, 312. 45 3. Income for towing service from 1880, 1881, to the 1.5th of July, 1882 ... . 2.'>1, 1(50. 51 4. E.xpenses for the execution of the sentences, including interest 200, 000. 00 5. Material and moral damage caused Fabiani by his bankruptcy 1 , SOO, 000. 00 6. Indirect damage, compound interest, and an indemnit}' for the profit that Fabiani might have derived in his business from the investment of the .sums 2 and 3, taking into consideration the realization of a mortgage for 120,000 francs 1 , .500, 000. 00 7. Costs of the international instance 100, 000. 00 Total 4. 346, 656. 51 It is evidenced by the foregoing demonstration that the Swiss arbitrator decided all the connected points of the claiin of Fabiani that are minutely determined in tlie nine paragraphs comprising the object of the demand, according to the classification made by the arbitrator in page 11 of the sentence, namely: First, the reparation of the damage sustained ; Second, the gain frustrated; Third, the interest calculated from the date of the damageable acts; Fourth, the compound interest; Fifth, the sacrifices made by the injured party for the maintenance of his industry ; Sixth, the prejudice deriving from the expense made and from the time lost to arrive at the execution of the sentences; Seventh, the damages to be considered as the necessary consequences of the offenses; Eighth, the damage done by the privation of work in the future, and Ninth, the reparation of the moral prejudice. The sentence of the Berne tribunal fixes the amount of the indem- nity for all the aforesaid causes in a less sum than that established by Fabiani, the arbitrator using in this point his free power of apprecia- tion, but admitting in principle all the conclusions of the demand. Such is expressly declaretl b}- the scMitence in its final paragraph C, Part VI, page 47, running as follows: As to tlie cost of the present instance, the arbitrator, making it to n|)pear that the con- clu.sions of the petition are adjudged in principle, but that the exaggeration of the claims put forward has occa.sioned useless expense, charges the respondent Govermncnt with the OPINION OF FRENCH OOMMTSSTONER. 93 expense of tlio cliiiining government, liciniduted at tlic sum of 1(X),(KM) fnincs, and compen- sates between the parties the expense of the arbitration. P'or all the reasons above expressed the arbitrator for Venezuela is of opinion that, as there exists an award passed and adirnied on all and every one of the points comprised in the demand decided by the Swiss arbitrator, and originated by the claims of Antonio Fabiani against the Government of Venezuela, in accordance with the compromise entered into between said Government and the Government of France, on the 24th of February, 1801, every new demand of indemnity on the part of Fabiani referring or confined to the same claims that were the object of that protocol and of the subsequent suit and sentence, tried and ren- dered by the tribunal of arbitration at Berne, is inadmissible. He, therefore, absolutely rejects the demand of indenmity which has given a motive for this opinion. Caracas, May 30, 1903. NOTE BY THE VENEZUELAN COMMISSIONER. The French arl)itrator was of opinion tliat, as tiierc was no sentence passed and aflirnied on the points of-tliis claim, ho admitted it for its integral amount, and consequently, as appears from the records of the proceedings, it was referred to the decision of the umpire. OPINION OF THE FRENCH COMMISSIONER. Doctor Paill has, without examining it dee])ly nor discussing the figures submitted by the claimant, rejected the claim presented by M. Antoine Fabiani as having alivady b(>cn decided by the court of ari)itration of Berne, the sentetice of whicii has, in his opinion, passed definitely upon all the leading points of tlie iiideimiity presented by M. Fabiani. The Venezuelan arbitrator considers that the President of the Swiss Confederation has eliminated a certain number of the points of the claim because the facts u])on which these are founded, being foreign to the judicial authorities of the respondent State, do not make Vene- zuela responsible. This elimination does not constitute in his eyes a declaration of want of jurisdiction based upon the terms of the agree- ment of the 24th of February, 1891, but it would establish that these facts are not of a nature to justify the demands for indemnity. It is upon this theory that M. Lachenal woidd have definitely put them aside. Consequently ^I. Fabiani could not, according to Doctor Paúl, be admitted to present before the court of arbitration appointed by the protocol of the 19th of February, 1902, a new claim, his cause having been already entirely and definitely settled. Finally, my honorable colleague observes incidentally that M. Fabiani has waited six years since the award of Berne has been effective for setting up his new claim. On the contrar^'^, from the reading of the award rendered the 30th of December, 1896, b}^ the President of the Swiss Confederation, 94 FABTANI CASE. I liavc coucludecl that the arbitrator had sot aside all the points renewed to-day by M. Fabiani, not because they could not in anyway place the resi)<)iisibility upon Venezuela, but only because they are not in accord with the agreement of arl)itration si>;ned the 24th of Febru- ary, 1891, by the two Governments. M. Lachenal has then contented himself, in my opinion, to declare himself incompetent to examine the said claims, which b}' tliis verj* fact find themselves reserved for the examination of the court of arbitration instituted by the protocol of Fel)ruary 19, 1902. He has in no way decided that these main points, upon which he has refused to render a decision, could not form the object of any demand for indemnity. ^Vfter having said in fact, on page 22 of the award : It results, from the evidence of the very text of the agreement and from the ensemble of the facts of the case, that the respondent Government is sued solely by reason of the non- execution b\^ the Venezuelan authorities of the arbitral award rendered at Marseilles on the date of the 1.5th December, 18S0, between Antoine Fabiani on one part, Benoit and André Roncayolo on the other part. M. Lachenal adds, on page 2.5: In return Venezuela does not incur any responsibility, according to the agreement, on account of facts foreign to the judicial authorit}' of the defendant State. The claims which the petition bases upon fa?7s du prince, which are either changes of legislation or arbitrary acts of the executive power, are absolutely withdrawn from tlie decision of the arbitrator, who eliminates from the procedure all the allegations and means of proof relating thereto, as long as he could not reserve them to establish other concluding and connected facts rela- tive to the denials of justice. In his desire to state very precisel}' the object of the litigation follow- ing the agreement, M. Lachenal even fixed the date (Jime 7, ISSl) after which the denials of justice ought to be produced in order that by their act it might be possible according to the agreement to again hold Vene- zuela to responsibility. Is this to say that for ever}' denial of justice previous to this date M. Fabiani would not have been able to demand indemnity from the Venezuelan Government before anj- tribunal had it, like this one, the most extended jurisdiction? It woidd not be more unreasonable and more unjust to pretend that to refuse to M. Fabiani the right of a compensation from the fact of the main point of the claim which he raises again before this new court. The decla- ration of want of jurisdiction of the arbitrator is clear, but it does not constitute in any way a patent of irresj^onsibility for Venezuela because of arbitrary acts of its government ])rejudicial to M. Fabiani, who remained free to demand reparation before a coiu't of which (he jurisdiction would not be limited, as that of the court of Berne, by (he terms of a n^strictive compromise. Such is (he case of (he court of arbitration instituted by (he protocol of the I9(h of r\'bnuiry, 1902, which regards in a geiuu'al way, of whatever nature they may be, all the demands for iud(>nmi(i(\s presented by Frenchmen and founded on acts anterior to May 23, 1899. OPINION OF frp:nch COMMISSIONKK. 95 Tliis time the Venezuelan Government can not maintain, as in 1S91, that only denials of justice of a special character can fix the responsi- bility upon Venezuela. Besides, a great number of claims presented to the courts of arbitration which sat last year at Caracas liad pre- cisely fora foundation, not denials of justice charo;eable to the judicial power, but to faits du prince analogous to those of which M. Fabiani has been the victim, and there resulted for the Venezuelan Govern- ment condemnations to very extensive pecuniary reparations. Besides, one can not allege a grievance against M. Fabiani for having waited to present his new claim until a court of arbitration shoidd have been formed to judge it. One knows, in fact, that the decision of the arbi- trator of Berne, on the on? hand, bears the date of the 30th of Decem- ber, 1896, and, on the other, from 1895 to 1903 all the claims of the French against the Venezuelan Government have remained in sus- pense, the diplomatic relations between these two countries being themselves suspended. I consider in consequence that the plea of res judicata can not reasonabh^ be invoked. The main points of the claim presented by M. Fabiani have not been adjudged by the arbitrator of Berne. He has not been able then to declare that ihej did not permit absolutely any demands for indemnity. M. Lachenal has not raised the facts by reason of w^hich M. Fabiani demands to-day some indemnities except as indications of the ill will of the executive power. He has thereby recognized their existence and established their injurious character. ^I. Fabiani then only uses a legitimate right in reclaiming before this new juris- diction with unlimited power in whatever concerns the French claims previous to the 23d of May, 1899, an equitable reparation for the large damages which these acts have caused him. In referring to the memoirs prepared by the interested party one is seized vrith astonishment at the multitude of arbitrary acts of every kind which M. Fabiani proves by his invincible arguments and authentic documents he has had to suffer since his establishment at Venezuela. During my sojourn in this country I have found, whether at Caracas or at Maracaibo, among established foreigners and the Venezuelans that no attachment with the Government pre- vents from being impartial, a unanimous agreement in recognizing that M. Fabiani had been pursued for long years by the hatred of the executive power of which the evident end was to strip him of his capi- tal and the fruits of his labors without anything in the conduct and attitude of this foreigner justifying or even explaining such animosit}". I have read with attention the memoir and the conclusions remitted by M. Fabiani. I have not found therein any inaccuracy nor any exaggeration. I have found to the contrary, as in the dossier of the proofs furnished in support, the constant care to be minutely precise. As moreover none of his demands have been contested in the founda- 96 FABIANI CASE. tion iind in tlie fibres by the respondent Government, it lias not appeared possiy)le to me to put them aside or to reduce the amount. I have consequently accorded to M. Fabiani the indemnity which he claims. Doctor Paúl has insisted on havinp; stated in the minutes of the meetincis of the commission that my decision had not been i)receth'd by any discussion between the arbitrators upon the amount of the claim which he rejected for an interlocutory reason. It is really because my colleacrue has not discussed the figures presented by M. Fabiani that I have been under the oblio;ation of accepting; them as a whole. They have not seemed to me exagjojerated, and the interested party has naturally not furnished me with the means of contest int; them. I am, moreover, far from believinij, if I may judjic by the defense remitted to the arbitrator of Berne, that the Venezuelan Government has not been sorry to intrench itself behind the plea of res judicata by means of an interpretation of the award which seems to me inad- missible. Conscientiously, then, I judge that the Venezuelan Gov- ernment ought to turn over to M. Fabiani as an indemnity a sum of 9,509,728.30 francs. In conclusion, I think I ought to submit two considerations to the particular attention of the umpire. First, one can notice in running through the memoir ])resentod l)y M. Fabiani to the arbitrator of Berne and the award of M. Lachenal that all the figures asked by the claimant and retained l)y the arbitra- tor as comprisetl in or receiving their source in the award of Marseilles have been recognized as exact and admitted by M. Lachenal without any reduction. This observation is not without value and ought to remain present in the mind while one examines the figures ])resented in course of this claim. It is honorable for M. Fabiani, whose exam- ple in this is very rarely followed by foreigners who enter complaint against Venezuela. Moreover, it is to be considered that according to the terms of tlie protocol indemnity ought to be paid in bonds of the di)ilomatic (lei)t and not in gold. Thanks to this concession, granted by the French Government to the Venezuelan Government in order to allow it to pay its debts with greater ease, the amount of the indenmity becomes singularly reduced in reality. The bonds issued by the (îovernnuMit of Caracas have a real value, which is always very much less than their nominal value. In May, 1903, they reached a depreciation of 30 per cent. In December, 1903, they sank to 70 per cent of their value. For some months their real v;.hie seems to have st(.)j)ped at 10 per cent of the nominal value. It woukl be, then, if the umi)ire should partake of the sentiment of the French arbitrator, a little less th> n 4,000,000 bolivars in gold \\hich Fabiani would leceive and llu'Go\- ernment of Venezuela would have to remit. August 2, 1004. ADDITIONAL OPINION OF VENEZUELAN COMMISSIONER. 97 ADDITIONAL OPINION OF THE VENEZUELAN COMMISSIONER. Before preparin<^ the opinion I submitted at the sitting of ^iay 30, 1903, which I submit herewith, translated into Enghsh, rejecting the claim filed by A. Fabiani against the Government of Venezuela for the amount of 9,509,728.30 francs, I made a complete investigation of the facts upon which the- claimant bases his contention. It was after becoming thorougldy ac([uainted with the peculiar circumstances of the case and based on the reason contained in my opinion as afore- said that I rendered the following decision : That because there existed a condition of res judicata covering each and every one of the points contained in the case decided by the Swiss arbitrator, originating in the claims of Antoine Fabiani against the Government of Venezuela, in accordance witli the convention, made between tiic latter Government and that of France on February 24, 1891, any new claim for indemnification made l)y Fabiani is inadmissible if referring to or containing the same contentions which originated said agreement and the subsequent hearing of the case and sentence passed by the Arbitration Court of Berne. The French commissioner, at the session above referred to, did not go beyond stating liis opinion that the Swiss commissioner had laid aside all the points originating the claim entered anew by Fabiani as not included in the arbitration agreement signed on February 24, 1891, by the two Governments, and that the President of the Swiss Confed- eration having declared himself disqualified to examine the several complaints on the same grounds above mentioned, such contentions were therefore a proper subject of investigation by the commission created by the Paris protocol. M. de Peretti ended by admitting Fabiani's claim, acknowledging its sound basis, and granting the full amount of the claim. In order to be able to fully understand the points relating to the convention made on February 24, 1891, between the French and the Venezuelan Governments, the object of said convention, the ends both Governments endeavored to attain, the extent of the arbitration agree- ment entered into, the claims that were to be properly admitted to the examination and decision of the umpire at Berne, and in order to prop- erly establish if M. Fabiani may or may not introduce before this com- mission a new claim embracing facts and circumstances antedating said convention, but included in the arbitration agreement and sub- mitted to examination and decision at Berne in compliance with the protocol of 1891, it becomes necessary to bring before us the precise language of said convention and the antecedents or official communi- cations passed through diplomatic channels preceding such convention and wliich sufficiently explain the causes originating the arbitration agreement, the nature and circumstances of the facts or claims entered by M. Fabiani, and the action the French Government deemed proper to enter against the Government of Venezuela m order to safeguard all a. Doc. 533, 59-1 7 98 FAHIANI CASK. tlie righta and all the intereHt.s of the French citizen wIkí had invoketl its protection. I beg to submit herewith Spanish and Knghah copies of the conven- tion made in Caracas on Febniarv 24, 1891, between the representa- tives of the French and tlie Vene/Aielan Governments, tlie iirst para- gra))h of wliicli contains the following language: Tlie Guvermm-nt of tlii' United States of \'enczuelti and tlie Government of tlie Frencli Kepuljlie have a<;reed to submit to an umpire the claimn of M. Antonio Fabiaiii against tlie Venezuelan Government. * It is not ])ossible to find in any convention of like nature a clearer ex])o.sition or a wider scope as regañís the object of the arbitration. The agreement was to submit to an um])ire the claims of M. Antonio Fabiani — that is, the claims of M. Fabiani against the Government of ^'enezuela u}) to the date of the convention — and no doubt whatever can exist as regards this conclusion, as otherwise the object for which the convention was made would be defeated. No limitation was placed upon any claims M. Fabiani migiit have had against tlie Venezuelan Government, nor can it be supposed that, the object of the convention being to finally close a long diplomatic process during wliich France had most energetically maintained the necessity of Venezuela su})mitting to arbitration Fabiani's claims, a protocol shoidd be concluded between both countries, the terms of wliich, while agreeing to arbitration proceedings, should except certain portions of claims which kept their friendly relations disturbed. A foreign office as important and enlightened as that of France can not father such absurdities. The first paragraph of the convention of February 24, 1S91, having determined the original object of the arbitration— i. e., lùihiani^s claims — Article I, which immeiliately follows, makes the ¡"ollowing stipulation : The umpire shall * * * determine if in conformity with the laws of \'enezuela, the general principles of the law of nations, and the convention in force between the two con- tracting powers, the Venezuelan Government is respon-sible for ihe damages which M. Fabiani alleges to have suffered because of denial of justice. The clear and precise language of this article shows how far did both Governments consider it necessary to impress upon the umpire's mind in uneijuivocal terms that the claims or damafjcs that is, those to be sid)mitted for his investigation — which M. Fabiani allajal to have suf- fered through denial of justice, were to be determined in conformity with the laws of Venezuela, the general ]u-inciplcs of tlu^ law of nations, and the convention in force between the two contracting |)owcrs, in order to iix the resj)onsibilitij of the Venezuelan Government according to such laws, principles, and convention. " The damages irhich M. Fabiani alleges to hare suffered." .Vccord- ing to such language, what is that which Fabiani alleges to have suf- ADDITIONAL OPINION OF VENEZUELAN COMMISSIONER. 99 fered? Common sense will say "the damages." For wiiat cause does Fabiani allege to have suiïered such damages Í Because of the denial of justice. How is the umpire to view the denials of justice which Fabiani alleges have originated the (himages sud'ered, now submitted to the iun])ire's decision? According to the laws of N'enezuela, the general principles of the law of nations, and the convention in force between the two powers. It is thus seen that the above-(|U()ted arti- cle clearly specifics the three elements which constitute the object of the arbitration — i. e., the damages suffered by Fabiani in ^'enezuela, submitted to the umpire in the shape of claims, the cause of such claims or damages which Fabiani made solely dependent upon the denials of justice, and the standard which the umpire nmst follow to find out whether or not there has been a denial of justice as the funda- mental and only basis of the claims or damages alleged by Fabiani at the time of the convention. Article II of the convention reads as follows : To fix, should such liabiUty be found, for the whole of the clabus in queation or an y ¡lortion thereof, the amount of the pecuniary indemnification that the Venezuelan Government must make to M. Fabiani, which shall be paid in 3 per cent bonds of the diplomatic debt. According to this article, the Berne umpire was to fix at a certain sum the amount of the pecuniary indemnification should it l)e found that Venezuela was liable for the whole of the claims or atLtj portion thereof entered by Fabiani. That portion of the claim for which the umpire found Venezuela to be responsible, fixing the amount at 4,346,656.57 francs, w^as delivered to M. Fabiani in com])liance with said Article II in 3 per cent bonds of the diplomatic debt. That por- tion of the claim for wliich the umpire found that ^\'nezuela was not liable was rejected; and he also adjudged that there was no denial of justice as alleged by Fabiani to be the cause of damages of that ])ortion of the claim rejected, and also declared that the amounts claimed for the justified damages were grossly exaggerated. lie so declar(>s in a conclusive maimer in final Paragraph C, Part VI, page 47 of the origi- nal award, which reads as follows : As regards the expenses in this appeal, the umpire, while declaring that the conrhifiionti in the case are admitted in principle, but that the eragijeration of the claims made has caused unnecessary expenses, estimates the liquidated expenses of the claimant Government against the respondent Government in the sum of 100,000 francs and divides between the two the arbitration expenses. Such declaration, which the Berne umpire found indispensable to make, irrevocably fixes the true condition of Fabiani's claims, which were the subject of arbitration, in respect to the Government of ^'en- ezuela. The conclusions in the case were admitted in principle, but there was exaggeration in the claims made. Fabiani won the case, obtained a gain de cause as regards the liability of ^'enezuela as found by the umpire growing out of denials of justice which constitutetl the 100 FABIANI CASE. main cause of the claims Fabiani endeavored to establish against Venezuela, but the claims made were found by the umpire to be exaggerated, so he reduced them to the amount given in the award. The claims Fabiani has again presented to have examined by this commission are the same as those submitted to the Berne tril)unal, the umpire then accepting in principle the conclusions in the case, but finding that the claims were exaggerated. My argument in regard to this issue is more fidly expressed in my opinion of May 30, 1903. I also beg to submit with this additional opmion copy of the diplomatic correspondence passed between the Governments signa- tory to the convention of February 24, 1891, in the years 1S89 ami 1890, preceding such convention, wherein it is showTi that both Gov- ernments were animated by the purpose of definitively settling Fabiani's claims by means of the arbitration agreement made in 1891 . I beg to call the honorable umpire's attention'to the following paragraphs: His excellency M. Blanchard de Farges, minister of France in Car- acas, to Mr. P. Casanova, minister of foreign relations, note of Decem- ber 31, 1889: To judge from the very particular interest taken in France to settle this matter (P^abiani's claim) and the regrettable turn wliich unhappily has been formerly given to your excellency's administration and my arrival in Caracas, I hold the certainty that my Government would see in the manifestation of more favorable dispositions as regards said claim the clearest evi- dence of the desire of the eminent President of the Republic of Venezuela and of yourself to establish between the two countries a cordiality toward which all my efforts are bent. Mr. P. Casanova, minister of foreign relations to his excellency M. Blanchard de Farges, note of January 14, 1890: After the consideration of your excellency's note of December 31, ultimo, wherein, while referring to the interviews we have held in regard to several pending matters between the two Governments, but without expressing the grounds the French Republic may have to insist upon the Fabiani claim, rejected from its origin by Venezuela, your excellency pro- poses to have it submitted to arbitration, the President, desirous of exhausting all ell'orts in behalf of the desired good harmony between both countries, has directed mo lo state to your excellency that he is willing to accept such in principle, providing the umpire cho.sen be .selected from the Presidents of the Latin-American Republics; that the (|uestion to be decided be "if this is the case provided for in article 5 of the French-\'eiiezuelan convention of November 26, 1885;" and that in case Venezuela should he condemned to jxtij any ¡ndem- nification, in view of the legal proofs adduced in favor of the claimant, such agreement to he submitted to the National Congress as provided by law, such indemnity to be paid in 3 per cent bonds of the diplomatic debt. M. Blanchard de Farges to M. Marco Antonio Saluzzo, miuist(M- of foreign relations, note of May 20, 1890: I have the honor to acknowledge receipt of your note dated on the 14th instant in reply tci the one I delivered to your excellency on the 1st, regarding Fabiani's claim. * * * As regards the second part of the communication 1 now have the pleasure to answer, I notice with pleasure that the Venezuelan Government does not further insist upon the con- dition that the election of the umpire to be ap|)ointed could not Ui made but in the poisson of the President of t)ne of the Latin-American Republics. ADDITIONAL OPINION OF VENEZUELAN COMMISSIONER 101 In the matter of your refusal to agree in flie condition wiiicli my (íovernnient now pro- poses through me asking tJinf the umpire's numrd shall deal onhj irilh the amount ofllic indem- nity to he fired for M . Fahiani, I can not hut earnestly deplore tliat you do not tliitik you can grant us this point, and that you should permit tliat in this manner tliere shoidd Im- per- petuated between tlie two countries an element of dissension to the obliteration of which I am satisfied I have done everytliing in my power. Dr. Modesto [Trbanoja, luinistor of Venezuela in Paris, to the min- ister of foreign relations of Venezuela, note of Jul}' 22, 1890: Consequently, for greater clarity and to prevent that M. Fabiani should misconstrue the agreement, thus creating new difTiculties, I told the minister (M. Ribot) that I was going to inform the Venezuelan (iovernment of the agreement precisely' in the following language: That the French Government is willing to accept ro- tocol of the 19th of February, 1902, of which M. Fabiani has been ADDITIONAL OPINION" OF FRENCH COMMISSIONER. 105 obliged, in the absence of diplomatic relations between France and Venezuela, to await the signing in order to present his new claim. In the second place, Doctor Paúl has thought ho ought, in order to make plain the sense of the protocol of the 24th of February, 1S91, to present the diplomatic correspondence exchanged before the signing by the two Governments. T receive a double impression from the reading of these documents: First, I should be much astonished to judge them by the interpretation which he has given to the protocol, that M. Lachenal knew about this correspondence which did not form a part of the dossier, since I had not read it myself, then I state that the only necessity of recourse to this correspondence, to make plain the text of the compromise, determines clearly that this text was not suffi- ciently plain, and that from its aml)iguous terms one could reasonably draw two different interpretations. I note, besides, anew that it is the Venezuelan Government which has not remained faithful to the spirit which presided over the negotiation, and that upon this ])oint it received an advantage with the Swiss arbitrator. The same Govern- ment is desirous of pushing aside now the natural consequences of tliis restrictive interpretation of the protocol. In the third place, my honorable colleague concluded with a quota- tion from the sentence of arbitration that, concerning the "exaggera- tion of the claims formulated," all the claims of M. Fabiani outside the main points recognized as admitting of indemnities have l)een definitely rejected by M. Lachenal. It suffices to read this phrase in order to notice that it concerns only the expenses of the proceeding. One could not rest himself upon an incidental expression, the sole end of which is to explain that useless expenses have been engaged in by demands arising from the framework of the protocol to try to reveal in the mind of the arbitrator intentions contrary to those which he has clearly expressed in the preamble of his award. Finally, Doctor Paúl thinks to find a last argument against the demand of M. Fabiani in the text of a letter written the 3d of August, 1887, three years and a half before the signing of the protocol by the legation of France at the ministry of foreign affairs of Venezuela. M. Fabiani has addressed to me on this subject a note, herewith attached, which I received at New York the 30th of last January, the conclusions of which I approve, and which I beg the umpire to kindly take into con- sideration. " The affair Fabiani, such as it now exists, rests entirely u|)on arbitrary acts, denials of justit e, and the fraudulent resolutions of the executive power of Venezuela which have caused injury to the plaintiff or created by the complete destruction of his only lien insurmountable obstacles to the collection of his enormous del)ts. The Swiss arbitrator, inter- preting the convention of arbitration of February 24, 1891 , has limited o Exhibit to memoir of the French commissioner. — IjOttcr from M. Fabiani. 106 FABiANi past:. his jurisdiction to the denials of justice imputable to the judicial authorities of Venezuela on account of the nonexecution by said au- thorities of the award rendered at Marseilles December 1.5, 18S0. He has conseiiuently eliminated from the pnxedure as bein*; outside the protocol and he has not admitted proof of the arbitrary faits du prince, as also all the acts foreio^n to the inexécution and to the effects of the inexécution of the sentence before mentioned, acts and deeds which the claimant government had considered as coming within the terms of the protocol above ( ited. This decision of the arbi- trator, rendered ( ontrary to the conclusions of the French Govern- ment and conformable to the conclusions of the United States of A\>nc7Aiela, is of a startling clearness as to everything leading to the determination of the object of the litigation and conse(juently of the object of the judgment. We have besides been able to observe the precautions taken by the judge in order to anticipate every e<|uivoca- tion and to reserve the rights of the claimant ])arty for all the matters and points subtracted from his cognizance by his interpretation of the terms of the protocol. The conclusions of Fabiani upon the plea of res judicata have su])erabundantly demonstrated that these matters and points, founded upon facts foreign to the judicial authorities of the respondent state and to the nonexecution by the said authorities of the arbitral award of Marseilles, form the only object of the present litigation, and that they all refer to arhïtrsiry faits du prince and to tlie losses and injuries which have been the c onsef|uen(e. But in the suj)- port of liis restrictive interpretation of the agreement the Swi.ss arbi- trator makes mention of a note from the French legation of August .3, 18S7, cited by the respondent state, anl that he has v.onsidered, right or wrong, as being able to give the measure of the points included by the protocol of 1891, although this may be anterior to this protocol by three and a half years. But this note of 1887, in reserving the .surplus of the claims of Fabiani, would suilice to have the exception of the plea res judicata rejected if the decisive conclusions of the j)laintitr could allow the least doubt in this regard to .subsist. In fa; t, not oidy has the Swi.ss arbitrator abstained from j)assing u})on the surphis reserved by the note of the 3d of August, 1887, and of which Fabiani, who attributed to the agreement of 1891 a much larger s. ope, had made the principal o])je(t of his memoir, but he has expre.ssly elimi- nated it from the procedure and not oil'ered ¡)ro<)f, for reason that the said agreement had submitted to arbitration oidy th(> denials of justice imputable to the judicial authorities of \'(Miczu(>la and the nonexecu- tion by these authorities of tlic arbitral sentcMicc of Marseilles. To appreciate all the value of the reserves (ontained in the note of the French legation of August 3, 1887, it is suITk lent to notice that these reserves concern \]w faits du prince and that at this time tlu» President of Venezuclii was still Oen. riuzínáti Blanco, tlu^ nvspon.sible ADDITIONAL OPINION OF FRENCH COMMISSIONER. 107 author of the ruin of Fabiani. If we add that his minister of foreign affairs was the too celebrated Diep:o Bautista Urbaneja, the advocate and accomplice of the adversaries of tlie jilaintifT, we sliall understand that, in taking care, in view of an amial)le agreement, to indicate the ensemble of the credits of Fabiani against the Roncayolos, the note of the 3d of August, 1S87, may have correctly reserved in the following terms the rights of the plaintili: As for the surplus of liisclaiuis (wliicli the (lictamoii translnlod thus : exceso de proten- siones, p. 106) a serious and analytical examinât ion will alone determine just on what points they arc founded. What were the claims? Here is the reply of Fabiani in his réplique. The Venezuelan arbitrator having omitted in his mutilated itation the essential passages of the said response, one may judge it useful to reproduce them as a whole, italicizing that which has been cut out — that is to say, almost all: What are these claims of Fabiani? The affair of the towage and that of the railroad. What was the cause of such a reserved formula? Why this reticence? One will (ind llie explanation of it in the last paragraph of page 527 of our memoir. The affairs of the tovxige and that of the railroad {that if) to say, all the arbitrary acts — the denials of justice and farts du prince which these two affairs have created) could not even be indicated, Guzman Blanco ruling. But our Government, anxious to reconcile the duty of protecting its nationals, with its eager desire to avoid a new rupture and grave complication, hcul forbidden, with our loyal assent, making allusion to denials of justice imputable to the chief of the executive power, reserving to us the free exercise of our rights if the propositions of an amiable settlement v:ere repulsed. These reserves result from the paragraph quoted as to the surplus of the claims, etc. All the passage italicized has been omitted in the dictamen of the Venezuelan arbitrator. This suppression has had for a result to con- ceal that it was a question of arbitrary acts or faits du prince and to allow to be ignored the serious motive, which, for facilitating an amiable settlement, had caused in 1887 the reserving of the surplus, of which the Swiss arbitrator has refused to take note, because he was deeply pos- sessed with the idea that the protocol of 1891 was affected by the same reservation. These elisions once indulged in the dictamen is restrained to repro- duce the phrase which begins thus : There is for the object of the litigation, etc. It is without any practical utility in the present affair, since, like all declarations relative to the losses and injuries of Fabiani, it expressed the opinion of the demandant Government on the sense and extent of the words denials of justice inserted in the agreement of February 24, 1891. But one is not ignorant that, upon the formal reply of Vene- zuela, these conclusions of the demand were put aside by the arbitrator of Berne, who, after having determined the object of the litigation and hxed the matter really submitted to his jurisdiction by the agreement cited, has eliminated from the procedure and has not admitted proof ;08 FABIANT CASE. of as being outside the terms of the protocol just this surplus of claims of Fahiani, which comprehended the arbitrary acts and the denials of justice or ''faits du prince" upon which the present examination is founded; that is to say, all the facts foreign to the judicial authorities of Venezuela and to the nonexecution b}- the said authorities of the arbitral award of Marseilles. The State of Venezuela had itself twice proclaimed in its answer that these main points of the claim did not constitute the matter of the litigation remitted to the decision of the Swiss arbitrator, and in its rejoinder, that these same points foreign to the protocol, might form the object of a later examination, whenever the two Governments would sign a more extended protocol, which was realized on February 19, 1902. It is this reasoning which has con- vinced the arbitrator of Berne and which has led him to pronounce upon the above-mentioned points a declaration of want of jurisdiction, by which the rights now under discussion were safeguarded. It is not without interest to fill in another gap in the dictamen and to call, respectfully, the attention of the arbitrators to the last paragraph of page 527 of the memoir, which the Venezuelan arbitrator has not deigned to reproduce, although page 5 of the replique has signalized it as being necessary to furnish explanation of the reserve made, as to the surplus of the claims of Fabiani. Here is the paragraph: Our exposé has made known our complaints; the questions aheath' so prravp and so clear of denials of justice, of the refusal of execution of award, of the violent acts of agents of all classes, turn pale beside the acts, perfidious, malevolent, interested and contrary to all the principles of international law, of which we make with good right the whole responsibility to rest upon Gen. Guzman Blanco, President of the United States of Venezuela. These numer- ous successive acts which did not spring from civil or penal justice and w'hich for this same reason remain without the provisions of article !\oi the convention of IKS-ô — these acts which constitute i)old denials of justice ought we to pass them by in silence at the risk of compro- mising the sacred interests which we have the mission of .safeguarding Í Who would have dared to counsel us thus? It was then necessary to speak, to .set forth the facts, to make them preci.se, above all to characterize them, to demonstrate the intention to injure. It was necessary to put in relief the interested passion, the blind hatred, the fmls du prince, the culpable reticence which ought, following the theory and practice of the retaliation of faults caused us, to allow some vindictive interest. Very well! But here one sees the Venezuelan delegate jump; wo see him compelled to squander the proofs of his loyalty for the name of the chief of state is Guzman Blanco, and his minister of foreign affairs, specially cliosen ad hoc, is no other than his famous uncle Diego Bautista lîrbaneja! This passage of the exposé explains clearly the surplus of claims of Fabiani. It has been explained since that the dictamen has pa.ssed it over in silence, because this siu'pius relative to the faits du prince was formally eliminated from the procedure by the Swiss arbitrator as foreign to the judicial autiiorities of the respondent State, and that the ensemble of the sentence of Berne, b}' the precautions taken in orí Km- to leave no doubt as to what was really judged, demonstrates thai the said sentence has considered this surj)his reserved as ca|)abl{' of form- ing and bound to form the object of a new litigation. The suri)his of ADDITIONAL OPINION OF FRENCH COMMISSIONER. 109 the claims of Fabiani, as page 527 of the iiienioir cleiiionstrates, has reference to the faits du priîice, and, more particularly, to the arbitrary acts which have so sadly marked the two grave affairs of the towage and the railroad. This surplus then included all the arbitrary acts, all the denials of justice, and the fTaudulent resolutions "du prince^' — that is to say, all that comprises the object of the present examination. Pages 49 to 67 of the conclusions of the plaintili j)r()ve this beyond perad venture. This long series of civil wrongs, intentionally injurious, has created insurmountable obstacles and of the nature of force majeure to the recovery of the credits of Fabiani. Independent of the arbitral award of Marseilles tliis unhappy work has been comi)leted by the fraudulent annihilation of the strong and only lien of the creditor, and by the withdrawal of the service of the towage, by this abuse of right, veritable act of reprisal of a venal and passionate chief of state against a mandate of justice. These unheard of and WTongful deeds call for a restitution proportionate to the gravity of all these infrac- tions. In these conditions, in presence of the demonstration that the main point of the demand, eliminated from the procedure of Berne, as out- side the terms of the protocol, concern the arbitrary acts, the denials of justice, lato sensu, or the faits du prince, which are the peculiar object of the present litigation; and, finally, in presence of the decision of the Swiss arbitrator, so clearly ordered to the manifest end of preventing every equivocation, as to the object of the litigation and as to what was really adjudged, one is led to recognize once more that the plea of res judicata is no less inadmissible than badly founded. Convinced, moreover, that in order to know what was really adjudged by the arbitrator of Berne, it is necessary, first of all, to possess one's self of the contestation, such as the plea of the defendant determined it, confirmed by the judgment, then to consult the judgment which has sustained the plea, and which, by the interpretation of the proto- col, has limited the object of the litigation and the jurisdiction of the judge, following the conclusions of the respondent State (denial of justice, committed since the 6th of June, 1882, by the judicial authori- ties of Venezuela) Fabiani can in all confidence rely upon his conclu- sions of the 24th of June, 1904, which have demonstrated indubitably that the object of the litigation determined by the arbitrator, con- formably to the conclusions of the defendant and contrary to the conclusions of the prosecutor, and the decisions so clear and so precise of the Berne award, touching the matter of litigation thus determined, have refuted, in advance, for all and for each of the leailing points of the present contest the plea of res judicata developed in the dictamen of the Venezuelan arbitrator. The arbitrator of Berne has passed judgment up'on the acts imput- able to the judicial authorities of Venezuela in the course of the pro- lio FABIANI CAS?:. cedure of execution of tlie arbiliul tlecisioii of Marseilles, and upon these acts only. It belongs, then, to the arbitrators to decide in their turn upon the arbitrary acts, the denials of justice, the faits du ¡prince, and upon the losses and damages which have resulted therefrom. OPINION OF THE UMPIRE. The case of Antoine Fabiani came to the umpire because of the inability of the honorable commissioners for France and \'enezu('la to agree, as hereinafter stated more in detail. His claim had been presented by the concerted action of these two Governments to the arbitrament and award of the honorable President of the Swiss Feileration by virtue of and according to the terms of a compromise had by and betw^een these hcjnorable Governments, which w^as concluded February 24, 1891, and is of the language following: Re Fabiani's claims: The Government of the United States of Vene7Aieki and tiie (jroveinment of the French Repuhlic have agreed to submit to an arbitrator ti)e ehiims of M. Antonio Fal)iani against the \'enezuelan Government. It will be the duty of the arbitrator: First, to decide whether, according to the laws of V'enezuehi, the general principles of the law of nations and the convention in force between the two contracting powers, the Vene- zuelan Government is responsible for the damages which M. Fabiani says to have sustained tlirough denial of justice. Second, to fix, in case such res[)onsibility is recognized, as to all or part of the claims in question, the amount of the pecuniary reparation that the Venezuelan Government must deliver to M. Fabiani, and whicli will be paid in bonds of the 3 per cent diplomatic del)t of Venezuela. Tlie two Governments have agieed to request the President of the .Swiss Confederation to kindly take charge of this arbitration. The present declaration will be submitted to the approval of the Congre.ss of Venezuela. Done in duplicate at Caracas, the 21th of February, one thousand eight hundred and ninety-one. The "convention in force between the two contracting powers" was the treaty of November 25, 1885, by and between these two Gov- ernments; and, so far as the same has bearing or value in aid of the compromise above set forth, is here set out as follows: CONVE.NTIOX. The Government of Venezuela and the Government of the Frcncii Rejiubhc, being desirous of reestablishing between the two countries the friendly relations interrupted sin ISSl, have appointed to be their respective plenipotentiaries I lie following.': The President of the United States of Venezuela, Cien. Guzman Bhmco, envoy extraordi- nary in Paris, etc. The President of the Frencli Kei)ulilic, the Count Tristan rí;i(T" imputabh» tu the administrative autlK)rities as tlu^ principal cause of his misfortunes in Wnezuela. Of the 505 j)unded denials of justice beginning from 1882. In Fabiani's réplique to the defense of Venezuela, from which the following cjuotations are taken, he vigorously opposed this claim of Venezuela, and again explained the sense which he attached to the words "denials of justice." Page 62 : Our voluminous memoir is occupied principally with Mr. Guzman Blanco, whose name finds itself repeated on each page several times. The denials of justice, the violences, excesses, by us denounced in the memoir, are attributed to this cause almost exclusively — the passionate and interested hostility of Mr. Guzman Blanco. The judges who receive the price of their venality, the officials who harass us wit liout ceas- ing, are represented by us as mere instruments of the chief of executive power. On almost every page our accusations are very preci.se. We explain the numerous and grievous facts. We make known the prime mover, his financial dickerings with our adver- saries, his acts of direct hostility,hisfraudulent manoHi veis to injure us,his odious out rages, his repeated denials of justice to conserve for his a.ssociatesand himself the profit:-^ of the railroad. Guzman Blanco (ex-Ceiba) and thecabinet of Caracas maintamsa religious silence. Sine in two citations, from our memoir it does not pronounce even once the name of Mr. Guzman Blanco. Page 63 : We understand the embarrassment of the (-abinct of Caracas. Ttie subject was rugged and the way very slippery. * * * We retain in this debate not certainly Mr. Guzman Blanco, whom international law defends against our investigations, but the chief of the executive power wlu>.se acts have engaged the responsibility of his country. 116 FABIANI CASE. Venezuela ought to take accoutit of the "faits du prince " and denials of justice imputab!e to its former master, as well as the denials of justice anticipated by the convention of November 26, 1885, in the afl'airs which are the resorts of the civil or penal justice. The personal acts of the chief of executive power are, moreover, grave as the denials of justice imputable to a district judge, and even to a court of cassation. The flagratit violation of the law of nations by the chief executive power of a country offers another interest for the peace of nations than the injury brought to the rules of inter- national law by the brutality or the venality of some graduates of the University of Caracas. Page 65: The faithful executor of the constitution was held to demand without delay the respect of the Federal compact, and his calculated inaction constituted a denial of justice. In refus- ing to intervene and in shifting upon the high Federal court the obligation which was strictly incumbent upon him the executive power committed knowingly and with premeditation a denial of justice, the consequences of which have been decisive, and this denial of justice has had for an end to safeguard the personal interests of the chief of state. Page 78: If the denial of justice which we impute to the chief of executive power of \'enezuela is established, the gravity of this infraction will occupy with good right the attention of the arbitrator. In fact more than half our memoir concerns the acts and deeds of Mr. Guzman Blanco. From these copious excerpts it is easily seen that the demaiuhint, Fabiani, came before the Mixed Commission, sitting at Caracas in 1903, under the convention of February 19, 1902, with the claim that the act of the honorable arbitrator of Berne in dismissing the greater part of his case, was solely a jurisdictional decision, leaving unaffected, as though never presented to him, the claims thus dismissed. The honorable commissioner for Venezuela rejected the case as presented in all and every part, for the reason that, in effect, the entire Fabiani controversy was submitted to the final and conclusive arbitrament and award of the honorable arbitrator of Berne by the high contracting parties in their protocol at Caracas of date Feb- ruary 24, 1891, and that when the controversy was submitted under said protocol and the honorable arbitrator of Berne had assumed and accomplished his important trust the entire Fabiani contention was at an end. Since the honorable commissioner for Venezuela had not consented to discuss the figures presented by M. Fabiani, the honorable commis- sioner for France has regarded himself as "under the obligation of accepting them as a whole." The honorable commissioner for France also states : As, moreover, none of his (Fabiani's) demands have i)een contested in the foundation and in the figures by the respondent Government, it has not appeared possible to me to put them aside or to reduce the amount. I have consequently accorded to M. Fabiani the indem- nity which he claims.o a Page 96. OPINION OP^ TTMPIRK. 117 The honorable commissioners, ñnding tlicniselvos hopelessly in dis- agreement, reserve this claim for the consideration and determination of the nmpire, to whom it has been submitted with the very helpful opinions rendered by each, setting forth very clearly the points for and against the claims of Fa])iani and his right thereon to be heard again before an arbitral tribunal. First to be determined is the issue whether there is or is not aught to be produced before this tribunal of the matters once submitted to the arbitrament and award of the honorable arbitrator of Berne under the protocol eflected by the two nations at Caracas, February 24, 1^91. An analysis of this treaty discloses, in its first paragraph, that — tlic Govormiu'iit of the United States of Venezuela and the Government of th(i French Republic have agreed to submit to an arbitrator the claims of M. Antonio Fabiani against the Venezuelan Government. It will be observed, then, that the matter to ])e submitted for arbitra- tion is the 'U-Jaims" of Fa})iani — not certain claims of Fabini, not a part of his claims, but his claims, which clearly and dcfmitely includes all Ms claims against the respondent Government. It would not be more sure, more precise, had it been written "all of the claims of M. Antonio Fabiani," etc. This is the position taken by M. Fabiani him- self, who presented all of his claims against the respondent Govern- ment to the honorable arbitrator of Berne, and urged upon him that it was his right and duty to consider, pass upon, and allow them as all coming within the terms of the ])rotocol; and who, consistent with his former position, but respectful to an adverse decision, still insists that such was its true scope and spirit. Had nothing posterior to this first paragraph been written, the way of the claimant would have been easy and the hearing unrestricted. Such, however, was not the agreement of the two honorable Governments. Restrictions are imposed and must be heeded. When understood they must be respected and obeyed, for they are to the honorable arbitrator of Berne and to all who come after him the supreme law of his tribunal. Two principal duties were presented to the arbitrator by the j^roto- col of February 24, 1891. He was, first, to decide under certain limitations, licreinaíter to be stated, whether the Venezuelan Government was responsible for the damages which Fabiani claims to have sustained at its hands. This was the logical course ol procedure had no direction been given, but it is made obligatory and imperative by the terms of the conven- tion. It is not permitted that the honorable arbitrator shall make his decision without the definitive aid of the high contracting powers. They do not consent that ho pursue his own course and use his own tests in arriving at his conclusions upon the question thus submitted; neither do they admit that the honorable arbitrator ma}' ciassi.V and designate the quality and character of the claims which are submitted 118 FABIANI TASK. to his decision; on the contrary, they assume ])<)sitively and linally to make for themselves and for him a definition whicli sliall cover and inchide the chiinis of Fabiani, which, by agreement of the two parties, had been and then were before them, and were by this protocol to be passed into the hands oí the honorable President of the Swiss Federa- tion as arbitrator, and the phrase thus used by them for his (guidance was neither obscure nor indefinite, but was one common to the tongues of nations, viz., "denials of justice." It did not comport with the wishes and purj^oses of these two Governments nor with the treaty relations then existing between them that this phrase should be inter- preted and applied unaided by the terms of the convention consti- tuting th? tribunal. The arbitrator was directed to call to his aid and submit liiniseL to the government and control of and was to render his decisions thereon according to — ^ tlic laws of Vcnoziiolii, tlic general principles (>r tlie law of nations, and the eonxcntion in force between the two contracting powers. Through these three sources of information the arbitrator was to determine» tho responsibility of the res])ondent Government in the Fabiani controversy. This compelled an interpretation by the arbi- trator of article 5 of the convention of November 26, 18S5, which was the treaty then in force between the two contracting powers. When thus interpreted it settled its meaning finally and conclusively, as ap])lied to the Fabiani controversy, and in that respect and to that extent, at least, it has conclusive and final force u])on the question pending before the umpire. This is true because he was expressly directed and empowered to make this interpretation b}^ the two powers whose treaty it was. His interpretation, thus made, deter- mined for this case the scope and depth, the spirit and purpose, the meaning and efFecît of tho limitations self-imposed by these two nations in their high compact regulating and defining the right of (li])lomatic intervention. It also effected a similar decision concerning the term "denials of justice," which term was employed in said treaty in con- nection with the limitation, by their own agreement, placed upon their future action in reference to the claims and claimants of each nation. This limitation upon diplomatic action was stated by the high contracting parties to be in tli(> interest of peace, harmony, and concord between them, evidently believing, on their part, that such injuries and damages as might befall their respective nationals in the land ():" th(> other, which wove not included in the terms of the conven- tion, were better ignored than pursued; that the general tind coiiunon web'are of the two uiitioiis \v:is of chief importance, and coidd not wisely be jeopardi/eil through international differences and diplo- matic contentious not rtvsting upon or growing out of the causes spe- cificidlv iissigued. i^'oi- th(>s(> lau(Iiil)le n^asons and motives this OPlNI()>r (>K FMPIRK. 119 restriction was solemnly (loclarod to ho tho sottlcd conviction, pur- pose, and tuture policy o: these two nations. The protocol of February 24, 1S91, was made not only in view of the existing treaty, hut that there might be no question in the mind of the honorable arbitrator as to their purpose scrupulously to regard and he governed by its provisions in its application to the case in hand, the compromise incorporated its terms and made them fast to his con- science and judgment. Examination of his award and a careful review of his reasons therefor indicate clearly his thorough apprecia- tion of tho language and spirit of the compromise and the scope and purview of his trust. Coincident with his interpretation of article 5 of the convention of November 26, 1SS.5, correlated thereto and commingled therewith, there came the duty to interpret the meaning of the protocol of February 24, 1891 , when it defined his limit of action to be within such circumscribed bounds as are contained in the laws of Venezuela and the general principles of the law of nations, as well as in the terms of article 5, above alluded to. He must determine whether the denials of justice, to be operative in the case before him, nuist be such as respond to each one of these tests; in other words, such as are not con- trary to any one of them, or if responsive to any one, although opposed to the others, it is sufficient. He must determine the breadth of the reference to the laws of Venezuela, and, giving the reference its proper significance and limitations, must seek out and apply to the case before him the Venezuelan laws which .he has held to be within the meaning of the reference, and he must summon before him and apply to the elucidation of the question so much of the law of nations as he deems applicable thereto. The second line of action assigned him necessarily followed, depended upon, and was limited b^^ his disposition of the first duty placed in his charge. If he. found no responsibility in Venezuela for the damages claimed b}' Fabiani because of denials of justice, then his duty was done and the arbitration Mas closed when he made his declaration of such finding. He can arrive at this conclusion In' one of two ways, or by the meet- ing of both. It is one way if he finds there have been in fact no denials of justice. It is the other way if he finds denials of justice, but also finds that they are not such as attached responsibility to Venezuela. Either finding absolves Venezuela. If he holds Vene- zuela responsible in any part, it must be upon the bases that in his sound judgment there are denials of justice and that they are of a character to fix responsibility upon Venezuela. A concurrence of these two conditions must exist or the award must always be for Venezuela, and to the extent that there is nonconcurrenre the nwnrd must he for Venezuela. 120 FABIANI CASE. Examination of the award of the honorable arbitrator of Berne, and a study of the reasons he sets forth to justify his findints^s, discloses that he entered upon the discharo;e of his hij^h duty with thorouo;h appre- ciation of the character and the importance of his trust. On page 22 of his award he said : In the very first place it is important exactly to determine the object of the controversy sub- mitted for arbitration. According; to the compromise of the 24th of February, 1891, the question at issue is that of knowing whether, according to the laws of Venezuela, the prin- ciples of the law of nations and the convention of the 2Gth of November, 18.S.5, in force between the two contracting powers, the Venezuelan Government is responsible for the damages which Fabiani says to have sustained for denials of justice. Even independently of the intention of the parties manifested during the negotiations to which the Franco- Venezuelan Convention of 188.5 gave rise it evidently appears from the very text of the compromise and from the union of the facts of the case that the respondent Government is proceeded against only on account of the nonexecution by the Venezuelan authorities of the award rendered at Marseilles on the 1.5th of December, 18S0, between Antonio Fabiani on the one hand and B. and A. Roncayolo on the other. The claimant Government even appears to acknowledge that the initial denial of justice is the decision of the lltli of Novem- ber, 1881 (réplique, p. 2); and, as will hereinafter be seen, it is useless to investigate whether one must consider the decision of the 11th of November, 1881, rather than that of the GLh of June, 1882, as the starting point of the eventual responsibilities incurred in the sense of the compromise. He decides that the act must be considered a denial of justice if it be such under the laws of Venezuela, the law of nations, or the con- vention of the 2r)t]i of Xovember, 1885. He holds that the "absolute concordance of these juridical sources" is not necessary. This isa liberal construction and is very favorable to the claimant Government. After a careful study and an assembling of the laws of Venezuela, which he considers in point, and as a result of his study of them he holds that there is no essential or even notable difference between any of the three juridical sources and the others on this subject. He fin-, ther holds that the convention of 1885 settles the right of diplomatic intervention between the two nations; that — in fact an international act substituted on this point a purely national law (see Article X of the Venezuelan Con.stitution of 1881) ; and although the compromise reserves the application of the Venezuelan laws it only refers to such of those laws as are opposable to the claimant Government; now that of 1873 was modified for the French citizens in its Article V, at least, by a posterior convention, binding for the two States that sign a compromise. His study of this branch of the case leads him to conclude and to hold that — the only definition which it is possible to take into consideration in the \'enczuclan law is that of articles 282 and 288 of the penal code of 1873, which assimilate with the denial of justice any act of a ]udicial «u/Aori «;/ const it utmg a refusal to execute a sentence rendered executory, an illegal delay in the dispatch of business, a default to render orders and .sentences within the terms established, an undue extension or reduction of the terms established by the law or any delay in the determination of a process. The refusals of execution, the inobst'rvance of peremptory terms, and the illegal delays witli which the judges may be reproached in the exercise of their duties are therefore the three orders of facts characterizing the denial of justice in the legislation of X'cneziiela. OPIKION OF UMPIRE. 121 He then proceeds to consider and define the meaning of the phrase "denials of justice" and in that connection employs the language and reaches the decision which appears in a quotation taken from page 24 of his printed award, viz: A direct definition of the denial of justice is not given by Article V of the French-Vene- zuelan convention. This text points it out only among the causes for diplomatic interven- tion, and one might even believe that it distinguishes it, in a certain way, from the other causes of intervention — delays, nonexecution of a definitive sentence, etc., or that it dis- tinctly separates it from them. But without anj' necessity for examining whether the parties employed in the compromise the expression "dénégation de justice" as the exact efiuivalcnt of the expression "déni de justice," which is generally adopted by legislation, jurisprudence, and doctrine, it is permitted to affirm that Article V above mentioned fully assimilates with the "déni de justice" as to their eíTects, the illegal delays of the proceed- ing, the nonexecution of definitive sentences, the flagrant violations of the law committed under the appearance of legality. In all these cases the diplomatic intervention is declared admissible, provided the question may be any añ"air falling within the "competence of the civil or penal justice." The condition established by the decree of 1873, of the exhaustion of the legal resources before the courts, is not recalled in the convention of 1885, and it would be excessive to .say that Article V in fine of this international act ("notwithstanding the compliance with all the legal formalities") refers to the actions for responsibility di- rected against the guilty authorities; these "legal formalities" mean those to the observa- tion of which is subjected the performance of the judicial act that may have determined a denial of justice or one of the other causes for the diplomatic intervention ; they are, there- fore, prior to the denial of justice itself. By reference to the general principles of the law of nations on the denial of justice, i. e., to the rales common to most legislations or taught by doctrines, one comes to decide the denial of justice comprises not only the refusal of a judicial authority to exercise its duties, and especially to render a decision on the petitions submitted to it, but also the obstinate delays on its part in rendering its sentences. After citing numerous authorities to sustain his position the hon- orable arbitrator proceeds to say further concerning this same subject- matter, as found on pages 24 and 25, as follows: In truth, the compromising powers appear to have desired to give the words " dénégations de justice" their widest extent {juMitia denegata vel protracta) and include therein all the acts of judicial authorities implying a direct or disguised refusal to administer justice. Instead of textually reproducing the terms of the convention of 1885, they chose a general formula comprismg within the limits of said convention the complaints for judicial griev- ances of Fabiani agamst Venezuela, which complaints, if they are valid, have, partially, at least, the extent of denials of justice, both according to Article V of this international act and according to the Venezuelan law and the law of nations. It was, in effect, the claims of Fabiani, communicated to his government, that must have inspired the wording of the compromise, and the duty of the arbitrator precisely consists in deciding whether Venezuela "is responsible for the damages which Fabiani says to have sustained for denials of justice." It IS not doubtful that at the time the compromise was signed the claims of Fabiani rested, i. e., both upon denials of justice sensu stricto and upon other facts, such as the denials of justice sensu lato, indicated in the convention of 1885. In all of these findings he accepts and adopts the broadest and most liberal construction permissible under either of the juridical sources given him for guidance. In all this his holdings are verv favorable to 122 FAHIANI CASE. the claimant government and give the controversy of Fabiani its widest possible application within the terms of the convention. On page 25 the honorable arbitrator discusses, determines, and set- tles once for all the origin and the object of the Fabiani controversy, and he bases his decision upon the fact found by him that the object and. origin were acknowledged ))y tlie parties — i. e., b}' "France and Venezuela" — to be as held by him. This is the finding referred to: Thus, the object of tlic controversy and its origin are acknowledged by the parties. It was on account of the refusal of the execution of the award of the 1.5tli of December, 1880, which Fabiani possessed against the two debtors domiciled in Venezuela, or on account of the default of execution owing to tlie admission of illegal means, that France took the inter- ests of her native into her liands. The Venezuelan Government contests the right of its adversary to proceed against it for responsibility, not because it did not regard the judicial facts alleged by Fabiani, if they were true, as implying denials of justice, but In-cause it s«es the absence of denials of justice in the inaccuracv of these facts or in the desertion of the proceeding before the exhaustion of the legal resources. The parties, supporting them- selves in the treaty of arbitration on the convention of 1885, have considered, although the}' only spoke, in the protocol, of "denials of justice," that the arbitrator could reserve as elements of the suit the facts falling within the scope of the above-mentioned convention and constituting denials of justice both according to the Venezuelan law and to the law of nations. In the judgment of the parties concerned, therefore, and according to the applicable texts, "denials of justice," in the sense of the protocol, mean all the direct or disguised refusals to judge, all illegal delays in the proceedings and nonexecutions of definitive sentences, provided the facts concern affairs of the civil or penal jusiire, are imput- able to judicial authorities of Venezuela, and have taken place in spite of the compliance with all the legal formalities b}' the prejudiced party. On page 26 of his award, he says: It is certainly the denials of justice, committed in the course of the proceeding for the execution of the award of the 15th of December, 1880, and the eventual appreciation of their pecuniary consequences that form the object of the present litigation. Tlio claimant contended before the honorable arl)itratt)r of Berne that Fal)iani might go back of the award of December 15, 1S80, to marshal his demands for indemnity, because, it was urged, he signed the compromise at Caracas under the dominion of force majeure ñnd that it did not cover the })rior denials of justice. But the honorable arbitrator considers this contention ill founded, holding, on page 26 of his award, that — Fabiani, who could have had the compromise annulled by the French courts, preferred to conserve the future of his commerce in Venezuela by exhausting all means of conciliation. Fa biam contented lumself with the state of things created by the acceptance of the arbitrator's jurisdiction, and, besides, Irom that moment, his judicial ellorts in Venezuela only tended to the execution of the judgment of the lôtli of December, ISSO. The motives drawn from the mfi major, which would have affected the compromise of ISSO, and would remove further hack the starting point of the denials of justice comprised in the present instance, can not he taken, therefore, into consideration. Denials of justice, in virtue of which it would lie possible to proceed against Venezuela for responsibility lx>fore the arbitrator, can not have taken place before the introduction of the proceeding for the execution of the award of the 15th of December, ISSO, or before the 7lh of June, 1881, the date of the petition for ejre- f/natiir, enlercd Iwforc the high fedcial cniirl. OPINION OF UMPIRE. 123 Similarly, the lu)noral)le arbitrator proceeds to dispose of the con- tention that there were denials of justice in reference to the award of December 15, 1880, and its execution from, substantially, June 18, 1881, and determines, after all, from the proper union of the facts and law, that there were no denials of justice until after June 6, 1882, the day on whicli such award was made executory in Venezuela by (he decision of the hij2;h federal court of that country. In regard to this he says : The series of denials of justice begins almost from the very moment Fabiani endeavored to obtain at Maracaibo the execution of the award provided thenceforward by an order of exequatur in due form. Notwithstandino; the terms of the convention of February 24, 1891, wherein and whereby the high contracting parties invoked as an aid to the ar})itrator the provisions of the convention then in force between them, the claimant Government raised before the honorable arbitrator of Berne the claim that Article V of said convention was not applicable to the Fabiani controversy^, because all of his claims for indemnity had arisen before November 26, 1885, and that to apply it in such a case would be to give it retroactive effect, which is contrary to fundamental principles in the administration of justice. This con- tention the honorable arbitrator held to be ineffective for the reasons stated b}' him on pages 23 and 24 of his award, viz: But in the present instance it is not Fabiani personally who is a party in the issue. The arbitration was concluded not between him, but between the French Republic and Vene- zuela. The claimant state is bound by the above-mentioned international act for all the international interventions to come. For the rest, it is expressly acknowledged that the convention is applicable to the present contestation by the compromi.se of the 24th of Febniary, 1891; it is a law as between the two countries. The nonresponsibility of Venezuela, as established by the honorable arbitrator of Berne, so far as and to the extent which he found sucli nonresponsibility, is clearly set forth by him on pages 25 and 26 of his award, viz: In return Venezuela does not incur any responsibility, according to the compromise, on account of facts strange to the judicial authorities of the respondent State. The claims that the petition bases on "faits du prince," which are either changes of legislation or arbitrary acts of the executive power, are absolutely subtracted from the decision of the arbitrator, who eliminates from the procedure all the allegations and means of proof relating thereto, as long as he can not reserve them to establish other concluding and connected facts relating to the denials of justice. In another place, on page 26, after having set the earliest limit when denials of justice could have place before him, as against the respond- ent Government, he says: The arbitrator has not, therefore, admitted, besides the ''fails du piirur," all of the facts strange to the nonexecution and to the eflects of nonext'cution leni- tude of jurisdiction" to determine all of these questions, lie also admits as truth that the responding Government, while insisting that the whole controversy" of Fabiani was before the arbitrator for his final disposition and while denying emphatically that there had been "any denial of justice or any cause of resort to diplomatic intervention," asserts affirmatively that denials of justice are limited to judicial pro- ceedings and do not at all include administrative, legislative, or execu- tive acts. It is thus the two Governments clash; it is thus they contend before the honorable arl)itrator of Berne. But it is not over the (luestion of jurisdiction; it is not over the question of his competency. Both admit his juiisdiction ; both adhere to his competency. The ccmtest is, first, over the I'ight of the claimant (iovernment to demand any sum in damages of the respondent Govern nuMit on behalf of Fabiani under the ])rotoc<)l which involved two intpiiries — first, the in(liisiv(Mu>.ss of the term "denial of justice" clu)sen concordantly to definí» the claims whicli are in dispute; second, the responsibility of the respondent Government. Wh(>n this (lucstion of right was decided then the measure of damages came to be allowed, if any. OPINION OF I'Ml'IKK. 127 When in the course of his decision the lionorahle arhitrutor of Berne sets aside a claim of P^al)iani or ehniinates it, it is hecause in j)rinci|)le and in law the arbitrator has first disallowed it and adjudi^ed a<íainst it, through his sovereign power to decide the basic question submitted to him and over which the contest has been made. When he decides this basic question he settles the fate of and effectually determines a large part of the claims of Fabiani. He did not extract them from the case, he did not subtract them; he decided against them and dis- posed of them adversely, not in detail, but as not beingclaims forwhich, in principle, Venezuela was res])onsible under the teruis of the pro- tocol. He eliminated them from his consideration only when he reached the question of damages, lip to that point they had been before him and had been passed upon b}' him. Examination of the arbitrator's award shows that nothing escaped his attention, that everything submitted was carefully considered and adjudged. He allowed some things and disallowed others, over all of which he liad rightful and exclusive dominion and sovereignty. He did just what Fabiani assured him he ought to do, and to the doing of which Fabiani, in advance of the arbitrator's action, bowed in assent. That he may do Fabiani no injustice by this statement, the umpire will present a few excerpts from the replique of Fabiani before the honorable arbitrator of Berne, and later from his exposé before the same person, and first from page 16 of his réplique: 111 our opinion the (¡ucstion can lie consideied under iUU)tlicr aspect, ilial oí liie terms of tlie protocol — general terms which autliorize the arbitrator to retain all denials of justice (hCly established , and wliich permit Fabiani to present all pecuniary claims relative to damages sustained for denial of justice. If Fabiani formulates claims rvhich have another cause than the denial of justice or the imputahilitij of vÂich to the denial of justice shotild not appear certain, the arbitrator irill reject them, purehj and simply as proceeding front the terms of the protocol, Üw same as if he recognizes the responsibility of Venezuela he will retain in the proportions wliich his con- science shall dictate to him, all the damages which lie shall judge to be a direct and imme- diate result of infractions committed by Venezuela. It will be permitted us to add that even if the protocol, instead of being conceived in general terms, had given the full detail of all the litigious points, it would not be necessary to conclude from it that the whole motive of the claim not expressly enumerated in the coin- promi.se ought to have been brushed aside without discussion as being found outside the terms of the protocol. If it is not a question of another dilference, or of a (lillcrcnce arising posteiioily between the parties; if the new motives of claim although thcN niay not l)c expressly specified in the protocol, Hnd themselves, nevertheless, virtually uuludeil in it, whether as an integral part of the litigious points designated, or, as a consequence, if some of these motives of demand are found in the protocol: if the demand is no other than that winch the pio- tocol has foreseen and has iuul for a purpose to settle, and, liiially, if the inolivo which one would wish to have .set aside should later give place to the same j of elimination or by way of reduction, considers that there is reason to restrain the measure of our damages esti- mated by him upon the usual but converted monetary basis, etc. On pages 616 and 617 of his exposé Fabiani sajs in part: And if he considered it equitable to make a reduction in any of our claims or if he considers that certain of them ought to he laid aside, he will find himself, in spite of the taking into con- sideration the course of the bonds in the presence of a certain lesion, unless he is led to dimin- ish in notable proportions the total amount of our claims. On page 622 of his exposé Fabiani says in part : The compromise confère upon him purely and simply the mission of lixing the amount of the indemnity if he considers Venezuela responsible. The arbitrator acts in the plenitude of his independence, having no other guide than his intelligence and his love for justice. He asks himself if such a prejudice or .such a damage has been the direct and necessar}' conse- quence of the infractions which have engaged the responsibility of the defendant party. On page 624 of his exposé Fabiani says : It may be, however, that the study of our affair and the detailed examination of the nume- rous items of our claims suggest to the arbitrator either the opinion that some of our claims have no direct and immediate connection with the infractions set forth or the opinion that cer- tain prejudices declared by us ought to be reduced to a lower figure. That is the right of the arbitrator, a right whose exercise is subordinate only to the inspirations of his con- science. We have not to prejudge his decision. We know that it will be conformable to justice and equity, but we are convinced that if some of our demands appear to him subject to a reduction the arbitrator, taking account both of the manner of [)ayment and of the cir- cumstances of the case, will accord to us by title of supplement ol indemnity exemplary damages. Fabiani urges the nonretroactivity of the treaty of 1885 through many pages of his exposé and claims that this date is thirty days after the last of the acts of violence upon which his claims rest. On page 522 of his exposé he declares that Article V of the convention of 1885 governs the future only; that Article III of the same convention is the one governing the past. In the course of this discussion F'abiani is aj)j)reciative of the magnitude and persistency with which X'cuc- zuela had opposed his claim, and of the possibility that if he hud ))rcs.sed his claim through the treaty of 1885 it might have been an insurmountable obstacle to the reestablishment of the good r(>lations between the two countries and that therefore no treaty could iiave been consummated. On page 526 of his exposé he begins a discussion of his claims in ref- erence to the mixed commission which was |)rovided for by the con- vention of November 26, 1885, to determine the liability of Venezuela for acts posterior to 1867-08 and anterior to the date of the conven- tion, and m this coinniunicatiou. he uses the following language: OPINION OF UMPIRE. 129 Our claim having reference to acts posterior to 1867-68 and anterior to November 26, 1885, we evidently had the right to appear before the mixed commission. Why did wo not do so? And, moreover, why did not the Venezuelan Government in tlio presence of the intervention of the minister of foreign alTairs of tlie Frencii Republic itself demand the send- ing to this mixed commission, whicli did not begin to do business until two years after? Let us examine the first and latter point. Venezuela, reprcsenteti by Guzman Bianco opposed an absolute non possumus. It denied formally llu! possibility of a claim on our part, and it Contested even the existence of our right, pushed it aside without examiiiati(;n and with the most remarkable bad faith. The mixed conunission, then, would not have been able to occupy itself with our aifair. There is then arbitracio, because tlie discussion bears upon the admissibility, the extent, or the reality of the damages. When the right is litigable, and, above all, when it is absolutely contested, there is arbitrium. It is a ca.se of arbitration, properly called, or of mediation. In the matter of damages the mediator generally takes upon himself to give his opinion upon the (juestion of right and leaves to the mixed conunission tiie care of deciding upon the extent of damage. The mi.ssion of the arbitrator is determined by the protocol, and more often he is charged with the pronouncing upon the right and upon the act. We do not suppose that these rules can be seriously contested. In discussino; on page 529 of his exposé the convention of Xovembcr 26, 1885, and in insisting upon the nonretroactivity of the terms of Article V, he says: If, finally, the words and the intention did not lend to each other a mutual a.ssistance for protesting against the idea of retroactivity, one would find himself in a .strange situation. On the one hand a Government which stipulates 'n good faith and which for causes which are useless to refer to ignores that, during the rupture of international relations one of its nation- als has been on a large scale the unfortunate victim of the hostility of the public powers of Venezuela, the Turk's head of an incensed chief of state, * * * is it necessary to recall that mental reservations ought to be energetically laid aside Í In that which concerns us we have suffered too much in Venezuela not to protest against this attempt to make an attack upon the principle of the nonretroactivity of the laws. We hold essentially to prove to Mr. Blanco that his last blow has not succeeded. He ha.s failed in di.scernment when he has not considered the convention of November 26, 1885, as his supreme work, destined to serve his anger and to create for us new difficulties. The conscientious study of our afTair leaves no doubt upon the intention; * * * personal interest made him lose all interest in truth and justice. His diplomatic instrument came thirty days too late. And, besides, even had he signed it earlier our sad and venal enemy would not have been able to get any profit out of it Our afTair entered into all the cases reserved, and there is not a single one of our grievances which is outside the provision of Article V, as one may be convinced bv the study of our exposé of facts. On page 559 Fabiani says : We believe that we have sufficiently demonstrated in our general exposé that whether by '^faits du prince" or by insurmountable obstacles opposed l\v the judges and the public power to the execution of our sentences or by the successive denials of justice or by the numerous acts contrary to the right of nations, the responsibility of Venezuela finds itself directly engaged. There can be no divergences upon the extent of the power of the arbi- trator in respect to all that which has reference to the appreciation of the cucumstances and of the facts which ought to determine his conviction in favor of one or the other party. In that which concerns us we recognize this .sovereign faculty, submitting ourselves without mental reservations to the intelligence, the prudence, and the conscience of our judge. We have full faith in the justice of our cause, in the reality and exactness of the facts which we have maintained, but we shall hold for true and just that wiiich the judge shall recognize as true and just. S. Doc. 533, 59-1 9 130 FAHIANl CASK. We leave, then, to the arbitrator to consider the facts which are submitted to him. accord- ing to the hght of reason and justice, aided by the knowledge of the right and general duties of administration which his long practice in puhhc or international affairs has given him. He knows that in virtue of principles admitted hy díKtrine and jurisprudence of all people bi^ must in such a matter move in the plenitude of the independence of the judge who conforms unly to his conscience. In anotlicr paTt he says: This part of our work being exclusively reserved for juridical development we are forbid- den (rom entering into a discus.sion oreven an indication of figures. We place the principles; if the arbitrator accepts them his experience and his proud intelligence in affairs will .suggest to him the application which he ought to make to the different points of our pecuniary claim. On page 575 of his exposé Fabiani says: It will belong to the arbitrator to extend his judgment upon what .shall appear to him legitimate or illegitimate, just or excessive, in the claims which we produce. * * * Hjs intelligence, his prudence, his conscience will be the most sure guide for him, a guide formally provided for and authorized by the legislation of the two countries. We know well that the part\- of which we demand the damages and interest will endeavor to diminish the amount of them. We see no inconvenience in accepting the discussion. We are, on the contrary, pursuaded that in going to the depths of things we shall win ground instead of losing it. The essential thing was to localize this discussion, to avoid theoretical controversies on the kind of damage, to prescribe in this affair at the beginning a distinction between direct and indirect damages, and to constrain the adverse party to confine itself exclusively to proving the exaggeration of our demand. It dt)es not enter into our intention to examine here the different points of our claim. We have made in this regard a .separate work, which will come before the eyes of the arbitrator. No figures ought to disturb a dis- cussion of right already too long and which we are in haste to terminate. It is evident that if the responsibility of Venezuela he retained no doubt could be raised as to the absolute legiti- macy of our claims in that which concerns the liquidation of our .sentences in (he sums of which the instance formed before the French tribunals ought to a.ssure the recovery. * * * The principle of the responsibility once admitted it will belong to the arbitrator to scrutinize, to analyze our claims upon these three points and to retain only the losses or the damages which shall appear to be justified. On page 794 of his exposé Fabiani says: The arbitrator has the right of sovereign appreciation. Wc do not suppose that this prin- ciple can be contested. Without doubt an impartial and intelligent judge admits only that which appears to him legitimate; he i ejects the damages which in his opinion have not a direct lien with the incriminating facts. The intervention of France on behalf of Fabiani began not long after the treaty of 1885, and the first reference which is of importance, per- haps, contains tlie following statement by tlu> French (íoveriimcnt in regard to its claims for indemnification on account of Fabiani, addressed by the French legation in Carneas to the \\Miezuelan (lovcrnnient . on August 3, 1SS7: It is the opmion of llic l-'iciicii (ioxciiinuMit tliiil llic iiie discus-sed, for the wrongs done to Fabiani in his crcdii and in liis i)usine.ss. OPINION OF UMPIRE. 131 As regards his other pretensions, a sc-arrliiiisi invest ifjat ¡on and discussion should determine how far tlifiv aro well founded. Perhaps the first oxj)!! it roforcnce thereto on the part of Venezuela is found in the letter of Gen. Guzman Blanco to liis Government, of date November 14, 1889, in which, after referrin provided for in Article V, then tlie umpire is to_^.r the fium that innst be paid to M . Fabiani in the 3 per cent bonds of the diplomatic debt. I liave discussed the matter with the director of the cabinet, who has told me that, although the French Government agrees to the substance of the two points mentioned, it is not desired that the}' .should be stated in such terms, because these would to a certain extent be little satisfactory to the French Government, V)hich has decidedly supported M . Fabiani's claim, entering it energeticalbf through diplomatic channels." t It will be especially noted that, according to this communication, France agreed in substance to the two propositions as stated, but opposed their being submitted in the language suggested. August 12, 1890, the minister of France at Caracas forwarded to the minister of foreign relations for Venezuela a draft of the protocol — to serve as the basis of the arbitration already agreed u|>on " in principle " between the Vene- zuelan and French Governments — which draft, in the language chosen by France, the umpire is assured by the honorable commissioner for Venezuela, is Articles I and II of the convention of February 24, 1891, as finally accepted by the two Governments. Having thus brought iii)on the record the matters essential to the (levelo])ment of this claim, it is now ready to be considered in all its bearings for the final determination of the umpire upon its merits. In the judgment of the umpire, the case may properly turn upon the answer to be given the in(|uiry. Was it the intent and piu'|)ose of the high contracting j)arties, in tlM'ir agreement of Fchriiary 24, 1S91, by and through its terms to submit to tiie honora hie arh trator of Uerne the ent:r(> Fabiani controversy^ When France interveiuMl in hchalf of l.(>r n.it Onal. t (> Liims ( f Fabiani were no longer iiin(> rejected by the board or by the arbitrator, or which, being : llowed by either, should \)i\ provided for by the s.id Government in the nuinner b(>fore mentioned, there was presented the claim of Manuel de Cala, growing out of his imprisonment and the confiscation of his vessel and cargo. The American coniiiii.ssioner of 1S39 allowed Só2,()()0, the Mexican commissioner nothing, the uMi|)ire $5,867. It w. s . lleged before the commission of 1849 thai this award was made solel\- on account of tl\e OPINION OF UMPIRE. 141 confiscation of the vessel and the imprisonment of de Cala, and that the value of the cargo was by some unaccountable oversight wholly overlooked by the umpire. The commission ruled against it, saying: This board has no means of knowing upon what grounds the decision of tiic umpire was made, nor has it any power of correcting iiis errors, mistakes, or omissions, even if there was clear evidence of the existence of such errors or omissions. The wliole claim of de Cala was submitted to the umpire, and in his decision he recapitulated minutely the several items allowed by the American commissioiiei-s, and immediately .states the amount for which, in his opinion, Mexico should bo held responsible. * * * The board is of opinion that the decision of the innpire was final and conclusive, and that, by the terms of the convention of 1839, Mexico was relea.sed from any further claim or liability growing out of the transaction» upon which it was founded. (Moore Int. Arb., 1274). See the Leggett (■.\se, Moore Int. Arb., 1276 et seq. In Moore Int. Arb., 1408, Sir Frederick Bruce says: In civil courts an appeal lies to a superior tribunal; in international courts, which recog- nize no superior judge, fresh negotiations are opened, and a fre.sh commission appointed, to which the disputed cases are referred. * * * I am of opinion that these claims must be submitted de novo to the actual commission, with a view to a fresh reexamination and decision on their merits. Under the United States and Venezuela Claims Commission of 1868 gross frauds were alleged to be perpetrated, and a protest of the Vene- zuelan Government was filed with the Secretary of State for the United States of America February 12, 1869, alleging irregularity of the umpire and fraud in the proceedings and findings. After careful inquiry by the United States Government it was found that there had been fraud. The decisions were rejected and a new commission was formed by the joint action of both countries to rehear all of the cases. Moore Int. Arb., 1660-1675. Where a party, with full knowledge of the facts on which he relies for the impeachment of the award, has nevertheless accepted and executed the award, it will not be set aside because of the objections made by him. (2 Am. and Eng. Encj'cl. of Law, 789.) A valid award creates a complete obligation, and need not be ratified by the parties in order to give it operative force. (Id., 806.) But where an award is voidable, either because the arbitrators have exceeded their authority or because all matters submitted have not been considered by them, or for any other reason, the parties may ratify it expressly or by implication arising from their acts, and after such ratification they will be estopped from objecting to it. (Id., 806.) The acceptance of the benefits of an award, as accepting the performance from the other party to the submission of the obligations imposed by the award, is a ratification and estopa the party so accepting from afterwards denying its validit}-. (Id., 807, note.) Acquiescence in an award has the effect of a ratification. (Id., 807.) In a case before the ^Supreme Court of the United States entitled United States ex rel. Lutzarda Angarica de la Rua, executrix of Joaquin Garcia de Angarica, deceased, plaintiiT in error v. Thomas F. Bayard, Secretary of State (127 U.S., 251 (L. R., 32, 150)), there appears, in the course of the decision, this quotation from the answer of the Secretary of State for the United States: 142 FABIANI CASE. And this respondent, further answering, saith that the said petition proceeds uprn a ground which wholly ignores certain grave international elements and considerations that entered into the claim of the petitioner's testator so soon as the Government of tlie United States began and assumed to urge and prosecute the same, and that thenceforth the said claim became, in contemplation of law, subject to the will of the Government of the United States and entirely beyond the control of the said petitioner's testator. On July 4, 1868, a convention wiiS concluded between the United States of America and Mexico for the adjudication of claims of citizens of either country upon the Government of the other. Article II of the treaty contains this clause: The President of the United States of America and the President of the Mexican Republic hereby solemnly and sincerely engage to consider the decision of the commissioners conjointly, or of the umpire, as the case may be, as absolutely final and conclusive upon each claim decided upon by them or him, respectively, and to give full eifect to such decisions without any objection, evasion, or delay whatsoever. (15 Stat. L., 682.) And also in Article V there appeared the followino;: The high contracting parties agree to consider the result of the proceedings of this com- mission as a full, perfect, and final settlement of every claim upon either Government arising out of any transaction of a date prior to the exchange of the ratifications of the present con- vention; and further engage that every such claim, whether or not the same may have been presented to the notice of, made, preferred, or laid before the said commission, shall from and after the conclusion of the proceedings of the said commission, be considered and treated as finally' settled, barred, and thenceforth inadmissible. (15 Stut. L. 684.) This was a case of petition for mandamus, entitled United States ex rel. Sylvanus C. Bojniton, plaintiff in error, v, James G. Blaine, Secre- tary of State. (U. S. Sup. Court Reports, 139, 306; L. R. 35, 183.) The payment of the sum awarded had been withheld by the Gov- ernment of the United States because that Mexico, while complying with the terms of the award and paying in accordance therewith, had solemnly protested to the Government of the United States that delib- erate fraud had been practiced upon the commission and that without it there would have been no award against Mexico and asking that the United States Government consent to reopen the case and to set aside the award. This petition wr.s brought to compel the Secretary of State to make payment of the sums due to the relator, notwith- st.,nding the situation suggested. President Ila3cs caused the charges of fraud to be investigated, and Mr. Evarts, then Secretary of State and a profound lawyer and emi- nent jurist, made a carefid examination of all the matters concerned r.nd submitted bis conclusions to the President, of which we ([Uote in p'lrt: That neither the principles of public law nor considerations of justice and e(|uity required or permitted, as between the United States and .Nhwico, that the award siiould l)e opened and the cases retried l>efore a new international tribunal, or under any new convention or negotiation respecting the same: ♦ * * tjiat the honor of the United States required that these two cases should Iw lurihcr investigated by the United States to as<'ertain whether this Govcniiiieiit had i)ecii made the means of enforcing against « friendly jniwer OPINION OK UMPIRE. 148 claims of our citizens based upon or exaj^iierulctl l)y fraud. (139 U. S. pp. 306-32G; L. R. vol. 35 p. 186.) In August, 1880, Secretary Evart.s — having been notified through the Mexican legation of the intention of the Mexican Govern- ment to commence suits to impeach and set aside the two awards, objected to such a pro- ceeding a.s in contradict 'wii to (he whole purpose of the convention, as well a.s of explicit provisions thereof; and accordingly no further steps were taken in that direction. ( Id. ibid.) Chief Justice Fuller delivered the {)pini()n of the court, and we (|Uote briefly therefrom : The Government assumed the responsibility of presenting his claim, and made it its own in seeking redress in respect to it. The Chief Justice makes reference to Frelinghuysen v. Key (110 U. S., 63), in the following language: In Frelinghuysen f. Key, while conceding the essential value of international arbitration to be dependent upon the ceriainlij and finality of the decision, the court adjudged that this Government need not lle.efore close its doors against an investigation into the question whether its influence had been lent in favor of a fraudulent claim. It was held that no appli- cable rule was so rigid as not to be sufficiently flexible to do justice, and that the extent and character of any obligation to individuals, growing out of a treaty, an award, and the receipt of money thereon, were necessarily subject to such modification as circumstances might require. Cornelius Comegys and Andrew Pettit, plaintiffs in error, v. Ambrose "\'asse, defendant in error, before the United States Supreme Court, and reported in volume 26, page 193 (L. R. 7, 108), was a case grow- ing out of the award of commissioners constituted under the treaty of the United States of America with Spain on the 22d of February', 1819. In the ninth article of the treaty it provides that the high contracting parties — reciprocally renounce all claims for damages or injuries which they, themselves, as well as their respective citizens and subjects, may have suffered until the time of signing of this treaty. (8 Stat. L. 258.) and they then proceed to enumerate in separate clauses the injuries to which the renunciation extends. The eleventh article provides that the United States, exonerating Spain from all demands in ftiture on account of the claims of their citi- zens to which these renunciations extended — and considering them entirely cancc/Zed, undertake to make satisfaction for the .same, to an amount not exceedmg five millions of dollars. (8 Stat. L. 260.) To ascertain the full amount and validity of these claims a commis- sion, to consist of three commissioners, was appointed, which within three years from the time of its first meeting should — receive, examine, and decide upon the amount and validity of all the chums iiukidcd within the descriptions above mentioned. (Id. ibid.) There seems to be no especial agreement or covenant concerning thf finality and conclusiveness of the awards, and they seem to stand upon 144 FABIANI CASE. the common basis ascribed to awards in general. Mr. Justice Ston* of the Supreme Court deHvered its opinion. Among other things decided by the court there appears this: The object of the treat}' wa.s to invest the oommi.ssioners with full power and authorif}- to receive, examine, and decide upon tlie amount and validity of the a.s.serted claims upon Spain, for damages and injuries. Their decision, within tiie scope of this authoritj-, is concbisife and final. If they pronounce the claim valid or invalid, if they a-scertain the amount, their avxird in the premi-ses is not reexaminable. The parties must abide by it, as the decree of a competent tribunal of exclusive jurisdiction. A rejected claim can not be brought again VTuler review, ni any judicial tribunal: an amount once fixed, is & final ascer- tainment of the damages or injury. Thi.s is the obvious purport of a language of the treaty. See the case familiarly <|uoto(i a.s F'reliñghuysen v. Key, found in the United States Supreme Court Reports 110, p. 63 (L. R. 2S, p. 71), where the Supreme Court decided the awards to be iinal and conclusive as between the Ignited States and Mexico imtil set aside by agreement between the two Governments, or otherwise, and that the Ignited States had right to treat with Mexico for a retrial for particidar awards because of the alleged fraudident character of the proof given in their support, and that the President of the Senate might concliule another treaty with Mexico in respect to any claims allowed by the commission. Mr. Chief Justice Waite delivered the opinion of the Supreme Court, in which opinion we find and cjuote the following: No nation treats with a citizen of another nation except through his government- The treaty, when made, represents a compact between the governments and each govern- ment holds the other responsible for everything done by their respective citizens under it. The citizens of the United States having claims against Mexico were not parties to this con- vention. They induced (he United States to a.ssume the responsibility of seeking redress for injuries they claim to l.ave .sustained by the conduct of Mexico, and as a means of obtaining such redress the convention was entered into, by which not only claims of citizens of the United States against Mexico were to be adjusted and paid, but those of citizens of Mexico against the United States as well. * * * Thus, while the claims of the individual citi- zens were to be considered by the commi.ssion in determining amounts, the whole purpose of the convention was to a.scertain how much was due from one Government to the other on account of the demands of their respective citizens. See also United States v. Throckmorton, 98 l^. S.Sup. Court Reports, 61 (L. R. 25: 9.3); U. S. Appt. v. Diekelman, 92 IT. S. Supreme Court Reports, 520 (L. R. 23: 742); Choctaw Nation, appellant, v. U. S., 119 U. S. Sup. Ct., 1 (L. R. 30: 306). Chapter IS, Book 2, of A'aftel on the Lmw of Nations, Chitty's Edi- tion, treats of the mode of terminating d!s])utes between natitms. and the entire chapter is referred to by tlu^ imii)ire as furnishing, in his judgment, a basis for this cas(\ The uin|>ire will (juote but limitedl}'. Section 326 says in part: If neither of the nations who are engaged in a dispute thinks proper l<> abandon her right or her pretensions, the contending parlies are, i)y the law of nature, which recomiii<>nds peace, concord, and charity, bound to try the gentlest methods of Icrniinaling their dilfeiences. * * * Let each party coolly and candidly examine the subject of the dispute, and do OPINION OF UMPIRE. 145 justice to the other; or let liim whose right is too inicertain, voluntarily renounce if. There are even occasions when it may be proper for him who has the clearer right , to renounce it, for the sake of preserving peace — occasions which it is the part of prudence to discover. Section 327 is entitled "Compromise," concorning which he says: Compromi.se is a second method of bringing disputes to a peaceable tennination. It is an agreement, by which, without precisely deciding on the justice of the jarring pretensions, the parties recede on both sides, and determine what share each .shall have of the thing in dispute, or agree to give it entirely to one of the claimants on condition of certain indemni- fications granted to the other. Section 329 is entitled "Arbitration." Concerning this he says, in part : When sovereigns cannot agree about their pretensions, and are nevertheless desirous of preserving or restoring peace, they sometimes submit the decision of their disputes to arbi- trators chosen by common agreement. When once the contending parties have entered into articles of arbitration, they are bound to abide by the sentence of the arbitrators. They have engaged to do this; and the faith of treaties should be religiously observed. * * * For if it were necessary that we should be convinced of the justice of a sentence before we would submit to it, it would be of very little use to appoint arbitrators. * * * In order to obviate all diíFiculty, and cut off every pretext of which fraud might make a handle, it is necessary that the arbitration articles should precisely specify the subject in dispute, the respective and opposite pretensions of the parties, the demands of the one, and the objections of the other. These constitute the whole of what is submitted to the decision of the arbitrator; and it is upon these points alone that the partiespromise to abide by their judgment. If, then, their sentence be confined within these precise bounds, the disputants must acquiesce in it. They can not say that it is manifestly unjust, since it is pronounced on a question which they have themselves rendered doubtful by the discordance of their claims, and which has been referred, as such, to the decision of the arbitrators. Before they can pretend to evade such a sentence, they should prove, by incontestable facts that it was the offspring of corruption or flagrant partiality. Mr. Bayard, Secretary of State for the United States of America, a very eminent and able lawyer, acting in his office aforesaid, gave this official opinion on May 12, 1886: Motions to open or set aside international awards are not entertained unless made promptly, and upon proof of fraudulent concoction or of strong after-discovered evidence. Wharton's Int. Law Digest, sec. 316, vol. 3, page 81. The award not having been vacated, opened, or set aside during the lifetime of the former commission, and the claimant having done nothing since to waive his rights thereunder, it was further ruled that such award should be treated by our Government as a valid and conclusive ascertainment of his claim against New Granada. Wharton's Int. Law Digest, sec. 328, vol. 2, page 672. Mr. Seward, Secretary of State for the United States, in correspond- ence July 17, 1868, referring to the Alabama claims and to an effort to adjust them which had been mad© by both Governments and review- ing the situation, says : In th« first place, Her Majesty's Government not only denied all national obligation to indemnify citizens of the United States for the.se claims, but even refused to entertain them for discussion. Subsequently Her Majesty's Government upon reconsideration pro- posed to entertain them for the purpose of referring them to arbitration, but insisted upon S. Doc. 533, 59-1 10 146 FABIANl CASE. making them subject of special reference, excluding from the arbitrators' consideration cer- tain grounds wliicli tlie United States deem material to a just and fair determination of the merits of the claims. The United States declined this spcdal exception and exclusion, and thus the proposed arbitration has failed. Id., sec. 221, vol. 2, p. 508. On patje 569 of the same volume there is a statement by Mr. Frehng- huysen, Secretary of State, to Mr. Kosecrans, October 17, 1883, as to the action of the United States concernint; arbitration, the ftnality of the decisions, and the solemnity of the agreement which authorizes the arbitration. Mt. Fish, Secretary of State for the United States, to Minister Rus- sell, of Venezuela, June 4, 1875, says in part: That if a State, after having submitted a controversy regarding claims and debts due to individuals, to arbitration, whether by another State or by a commission, refuses to pay the award, it lo.ses credit and leaves no alternative with other powers than that of refusing intercourse, or of an ultimate resort to war. Id., sec. 220, vol. 2, p. 550. Mr. Frelinghuysen, Secretary of State for the United States, Feb- ruary' 11, 1884, says in part: The claims presented to the French commission are not private claims but governmental claims, growing out of injuries to private citizens or their property, inflicted by the govern- ment against which they are presented. As between the United States and the citizen, the claim may in some sense be regarded as private, but when the claim is taken up and pressed diplomatically, it is as against the foreign government a national claim. Over such claims the prosecuting government has full control; if may, a.s a matter of pure right, refuse to present them at all; it may .surrender them or compromise tliem with- out consulting tlie claimants. Several instances where this has been done will occur to you, notably the ca.se of the so-called "French spoliation claims." The rights of the citizen for diplomatic redress are as against his owm not the foreign government. * * * The com- mission is not a judicial tribunal adjudging private rights, but an international tribunal adjudging national rights. Id., sec. 220, vol. 2, p. 558. Should the Government of the United States, either bj' its neglect in pressing a claim against the foreign government or by extinguishing it as an equivalent for concessions from such government, impair the claimant's rights, it is bound to duly compen-sate such claim- ant. Id., ser. 220, vol. 2, p. 560. On a careftd review of the history of this claim from its origin to this day, enlightened by study and reflection, fortilied in ]>rinci])lo, and controlled by reason, responsive to his conscientious conception of duty, the judgment of the umpire is clear and positive that the com- promise arranged between the lumorable Governments February 24, 1891, followed by the award of the honorable President of the Swiss Federation, December 15, 1896, were, "acting together." a complete, final, and conclusive di.sposition of the entire controversy on behalf of M. Antoine Fabiani. Therefore the claim presented before this tri- bunal, and, on disagreement of the honorable commis.sioners, coming to the umpire, and there entitled "Antoine Fabiani No. 4," is dis- allowed, and the award will be prepared accordingly. NoRTHFiELD, July 31, 1906. AWARD OF SWISS ARBITRATOR. 147 EXHIBIT IN FABIANI CASE— AWARD UNDER CONVEN- TION OF 1891.' l,e Président de la Confédération Suisse, arbitre designé pour trancher le différend existant ( Attaire Fabiani) entro Le Gouvernement de la Répu- blique Franvaise, partie demanderesse, et Le Gouvernement des Etats-Unis du Venezuela, partie défenderesse. Vu les exposés et les conclusions des parties, ainsi que les preuves admini-strées. Considérant qu'il en resuite; A.— En fait. I. Les Gouvernements de la Ré])ublique Française et des Etats-Unis du Venezuela sont convenus, p:ir compromis sij;né à Caracas le 24 février 1801, (le soumettre à l'arbitrage du Président de la (îoufédération Suisse, la ({uestion de savoir si, "d'après les lois du Venezuela, les jiriucipes généraux du droit des gens et la Convention (du 20 novembre 1885) en vigueur entre les deux Puissances contractantes, le (Jouvernement véné- zuélien est responsable des dommages que Fabiani dit avoir éprouvés pour dénégations de justice," et ar les Gouvernements intéressés. II. Les faits allégués dans la demande sont les suivants: M. Antoine Fabiani épousa, en avril 18Ü7, la fille de M. Benoit Roncayolo, chef d'une maison d'armement de voiliers, à Marseille. Roncayolo suspen- dit ses paiements, le 31 août juin 1882, la haute cour fédérale, dont la composition avait partiellement changé d;ins l'intervalle, "déclarait exi'cntoire au Venezuela la sentence de la cour d'app;l d'Aix." Fabiani, sur le conseil d'nn ami, communiqua ce résultat à M. Blanco, qui, au lieu de respecter les décisions judiciaires intervenues, conunenva par mander à sou ministre des finances de verser à B. Roncayolo nue somme de 28,000 l'r. due à Fabiani pour emploi récent du vapeur rauliite dans l'intérêt de l'Etat. Fabiani no s'empressa i)as moins, malgré l'hostilité du pouvoir, de re(iuérir l'exécution efl'ective du jugement arbitral. 11 s'em- barqua pour Maraca'.bo; unii inscription hypothécaire fut jirise, di s le 11 juin 1882, contre I?. et A. Roncayolo sur tous les droits lenr appartenant dans le chemin de fer et sur la douane de la Ce'.'ba, et une autre inscri])- tion, de 120,000 fr.. sur la section Trujillo du chenun de fer. Mais les Ron- cayolo, soutenus au reste jjar le président de l'Etat de Trujillo, venaient, par un contrat frauduleux, de céder tous leurs droits à un tiers. Le juge de première instance, à Maracaïbo, ordonna l'exécution de la sentence au bénéfice de laquelle se trouvait Fabiani; les Roncayolo demandèrent alors sa récusation. Il se récusa d'abord, puis se ravisant, débouta les opposants de leurs conclusions formulées contre sa dernière décision et décréta l'envoi eu possession des na> ires, le 14 juillet 1882. Sur ces entrefaites, Fabiani tomba malade de la fiLvre jaune. La pro- cédure d'exécution fut suspendue sans raisons plausibles; en particulier, le juge, qui n'aurait dû admettre aucun pourvoi contre le mandat d'exécu- tion par lui décerné, accueillit, avec etfet dévolutif seulement, il est vrai, l'appel interjeté contre son décret. Les adversaires de Fabiani recou- rurent au juge supérieur, qui attribua à l'appel un double effet, d.-volutif et suspensif. Tout acte de procédure était interdit jusqu'à ce qu'il eût été prononcé en instance d'appel. L'admission de l'appel à deux eft'ets violait la loi, ainsi que la haute cour fédérale le reconnut, dans son arnt du 8 décembre 1883, en déclarant (lue l'exécution avait été interrompue par " des recours ill. gaux lorsqu'il s'agit do l'exécution d'une sentence.'' Aux yeux de Fabiaui, le juge-prési- dent de la cour supérieure était l'instrument des Roncayolo. Fabiani souleva le recours de fait devant la cour supérieure contre la décision de ce magistrat et le récusa du même coup. Il rentra bientôt après en Europe, eu couliant la garde de ses intérêts à ses amis et représentants. Trois motifs de récusation avaient été invoqués. Les ennemis de Fabiani, désireux d'en finir, parvinrent à faire modifier la constitution de l'ICtat de Falcon-Zulia, dans le sens que, " pour les cas de récusation du juge supé- rieur, son supph'aut n'aurait plus besoin d'être docteur en jurisprudence," et que, pour connaître de la récusation, la cour suprême formerait une liste d'avoi ats et do citoyens, parmi lesquels le gouverneur — qui était le frère d'un des avocats des Roncayolo — choisirait le suppléant. Le juge-suppléant désigné pour statuer sur le jirwmier motif de récusa- Iñ2 ^ABIANI CASE. tion, l'ócarta, et se retira ái'S qu'il eut à se prononcer snr le denzième. Il fut remplacé par une créature des Roncayoloet de leurs alliés, qui débouta Fabiaiii. Tne troisième récusaticuiayaut été proposée pour manifestation d'opinion le magistrat la déclara irrecevable, parce (|u'nne formalité d<' proCfdur»; Ut' fut pas remplie ensuite d'uu oubli. La décision fut aussitôt frappée d'appel ; il refusa d'admettre le pourvoi et la cour suprême fut saisie. Entre temps, les autorités, à en croire les lettres des fondés de pou- Vdirs de Fabiani, considéraient les vapeurs de celui-ci ( omuio leur bien. Ou escomptait l'annulation du mandat d'exécution et l'on se promettait d'écraser Fabiani en exigeant de lui le remboursement immédiat des recettes du remorquage, les frais judiciaires et les honoraires des avocats poursuivants. 11 y avait un moyen encore de conjurer les etl'orts des Roncayolo: provoquer l'intervention de l'exécutif fédéral, qui, d'apr. s le sec. 17 de l'art. 13 de la constitution, devait veiller à l'exécution "des «lécrets et ordres" que les "tribunaux de la fédération rendraient dans l'exercice de leurs attributions et de leurs facultés légales." Le ministre de l'Intérieur, invité à agir, le 2 juillet 1S83. r. i)Ondit, le 9 même mois, que '• l'Exécutif national a décidé que c'est à la haute cour fédérale qu'il api);irtient de faire observer ses dispositions et que c'est à elle (¡ne doit s'adresser l'intéressé." Fa'iani revint devant la haute cour. Mais,' dans l'iuterv;ille, pour détruire par anticipation l'ert'et d'une décision nouvelle, le l'n sideut de la Ri publi([uc, M. (iuzman Blanco, par une résolution du 21 août 1883, approuva la cession frauduleuse du contrat de chemin de fer de la Ceiba consentie par B. Roncayolo, soustrayant ainsi les biens d'un débiteur à l'action d'un créancier. Enfin, le 8 décembre 1883, la haute cour décida que le juge de première instance devait continuer une exécution illégale- ment arrêtée depuis ie 14 juillet 1882. Le 28 janvier 1884 le juge compétent d< cerna un mandat d'e?vécMtion, qui visait sjiecialement les droits et actions de B. Roncayolo dans le cliemin de fer et sur la douane de la Ceiba. Cette décision du juge de Maracaibo devait jjn'cipiter les événements. La Gaceta OJivial, du 21 février 1884, notifia (jue, par un contrat daté de la veille, le service u obtenir, à Cara- cas and Maracaïbo l'exécution de jugements inattaquables. Plus tard, B. Roucayolo réussit à se faire octroyer une autre cojicession de chemin de fer, qui a représenté, pour lui, un bénétice annuel de 225,000 fr. eu 1892 La demande rappelle encore que, le 21 novembre 1885, la France et Vene- zuela signèrent une convention pour la reprise des négociations diplo- matiques et que Fabiani fut, quelque temps après déclaré en état de faillite au Venezuela, pour défaut de paiement immédiat d'un montant inférieur au tiers des sommes induement retenues ¡lar le Governement défendeur. Elle cherche à prouver que la convention de 1885 est inap- plicable au difî'éreud Fabiani et conclut à la réparation du dommage causé, pour faits du ])rince et dénis de justice, i)ar les autoriti's admini- stratives et judiciaires de l'Eltat du Venezuela, dommage dont l'Etat est responsable, et qui comprend : 1°. La rt'paration du tort éprouvé; 2". Le gain manqué; 3°. Les intérêts calculés dès la date des actes dommageables; 4°. Les intérêts composés ; 16'4 KA HI A XI ("A8K. 5". Les sacrifices faits par la partie leaf's pour le luaintien de son industrie; 6'. Le préjudice résultant des dépenses laites et du temps perdu pour arriver à l'exécution des sentences; 7". Les doiniiiages à considérer comme la suite nécessaire des délits; 8". Le dommage causée par la ])rivation du travail à l'avenir; 9". La réparation du préjudice moral. L'état des réclamations Fabianuest spécifié comme suit dans le demande en capital et intérêts capitalisés : Etat A. lÂffuidation des sen fences. Francs. 1". Solde créditeur au 31 août 1879, réduit à 509, 183. 10 Intérêts 630, 966. 0-' 2'. Annuités totales en vertu du contrat de mariage du 20 avril 1867, du 24 avril 1877 à pareille date de 1892, la transaction de 1878 aj'ant liquidé la situation anté- rieure, en capital 150, 000. Od Intérêts 96, 701. 00 3°. Perte éprouvée sur la vente de la moitié des marchandises qui restaient ù liquider à Marseille — poste dfi, d'après la transaction du 31 .janvier 1878 24, 296. 72 Iutérêt.s 33. 926. 58 4 '. Kecettes du pilotage, suivant sentence arbitrale: (a) du 1^' décembre 1877 au 30 novembre 1878 16,000.(0 Intérêts 21,428.58 (b) du l*^"- décembre 1878 au 30 novembre 1879 16, 000. 00 Intérêts 19, 310. 00 (c) du l"^-- décembre 1879 au 30 novembre 1880 16, 000. 00 Intérêts 17,311.32 (d) du 1" décembre 1880 au 30 novembre 1881 12, 500. 00 Intérêts 12, 051. 38 («) du 1"- décembre 1881 au 15 juillet 1882 7,812.4? Intérêts 6, 981. 23 r>'. Indemnité pour emploi du vapeur Pauline, solde (abus de confiance B. Roncayolo), année 1879 25, 000. 00 Int.'rêts 31,517.50 6". Indemnité pour services rendus parles vapeurs deFabiani (abus de confiance B. Roncayolo), année 1879 45, 385. 00 Intérêts 56,239.80 7". Rémunération duo pour vapeur Pauline, ensuite du sauve- tage du navire anglais Angel (abus do confiance B, Roncayolo), année 1879 47, 653. 32 Intérêts 59, 563. 63 8'. Somme payée i)oiir le compte de I?. Roncayolo et comprise dans le montant des condamnations pécuuiairen pro- noncées par le tribunal de commerce de Marseille, mais ne faisant pas double em]iloi avec des sommes dues en vertue de la transaction de 1878— année 1879 8, 363. 84 Intérêts 10, 724. 38 AWARD OF SWISS ARBlïRAtOR. 155 Francs. 9°. Détournement d'une somme payée par l'Etat, pour vapeur Pauline (voyage de mai 1879 á La Guayra) 10, 000. 00 Intérêts 12,176.38 10". Détournement d'une somme payée par l'Etat de Zulia pour vapeur l'auUne (voyage à Coru), année 1879 9, 100. 00 Intérêts 11, 080. 4!» 11". Frais (lu vapeur Pauline employé à la répression du l'in- surrection de Pio-Kebollo (détournement B. Konca- yolo), année 1880 28,000.00 Intérêts 31, 716. 67 12". Intérêts 1% par mois du 1'"". juillet 1879 au 31 octobre 18S0, per ;us sur les 30,000 fr. de titres détournés par B. Koncayolo (p. 639 et 647 de la demande) 4,800.00 Intérêts 5, 242. 14 13". Assurances du vapeur Pauline du l*^^"^ janvier 1880 au 15 juillet 1882, pendant la spoliation 19, 333. 33 Intérêts 19, 238. 4.5 14». Produi t net du remorquage en 1880 100, 000. 00 Intérêts 107.180.33 15". Produit net du remorquage eu 1881 100, 000. 00 Intérêts 94, 453. 13 16'. Produit net du !"■ auvier jau 15 juillet 1882 54, 166.51 Intérêts 48,403.73 17^. Somme détournée par les Eoncayolo pour service des vapeurs, eu 1879 42,550.00 Intérêts 38, 023. 10 18 '^ Somme allome pour services du vapeur Pauline pendant l'insurrection d'avril et mai 1882 28,000.00 Intérêts , 25, 485. 07 19". Solde restant dû sur les 17,880 fr. alloués par l'Etat pour le N-apeur Pauline, année 1880 9, 780. 00 Intérêts 10,084.94 20". Frais judiciaires jusqu'au 30 juin 1882, réduits à 100,000.00 Int-rêts 89,712.96 Total de l'Etat A 2, 877, 129. 10 Déductions i\ faire avec intérêts, et comprenant, entre autres, une somme de 79,536 fr. 12 relative au poste No. 1 ci-dessus. 204, 954. 96 Montant du compte des sentences 2, 672, 174. 14 Eta^ B. Cet état forme, plus ou moins, un supplément du précédent; il se réfère aussi eu partie à des décisions judiciaires non connexes avec la sentence arbitrale, mais demeurées sans eil'et par la faute des pouvoirs publics du Venezuela. Francs. 1". Versement du capitaine Santi non entré en caisse, année 1878 8, 000. 00 Intérêts 11, 385. 58 2". Montant de traites fournies de Maracaïbo et Caracas sous la signature de Fabiani et non versé à la caisse de l'agence, année 1878 90, 701. 64 Intérêts 128,867.36 156 FAÜIANI CASK. Francs. 3°. Débours détourués par B. Koucayolo, aunóe 1879 ........ 31, 009. 24 IntiTtts 38, 545. 56 4". Débit personnel de B. Roncayolo envers l'agence Fabiani, ann '»- 1879 24, 985. 80 Intrn-ts 30. 154. 74 5". Déticit de caisse imputable à A. Koucayolo, 31 janvier 1879 29, 610. 44 Intérêts 39,198.47 6". Prélèvements avoués et illicites de A. Roncayolo 31 mars 1880 35. 136. 44 Intérêts 43, 161. 83 7° Surprimes payés à la caisse générale des familles, 1 ■■ oc- tobre 1879 et l"-"" mai 1881, de 4,000 fr. l'une, pour les risques résultant des voyages de Fabiani au Venezuela . 8. 000. 00 Intérêts 9. 038. 28 8". 5 novembre 1880, frais de séjour à Caracas, avec famille. . 11, 2.')0. 00 Intérêts 12. 2»i7. 78 9 ". Même date, frais de voyage et retour avec famille 18, 000. 00 Intérêts 19. 629. 38 10". 31 août 1880, frais de voyage et séjour à Caracas, avec M.Tedeschi, en juillet et août 1880 4.800.00 Intérêts 5. 339. 63 11". 7 novembre 1882, frais de séjour à Caracas avec famille pendant 14 mois 37,000.00 Intérêts 35, 317. 65 12". Frais de voyage aller et retour avec famille, 5 novembre 1882 18,500.00 • Intérêts 17,658.80 13". Crédits réels ou supposés faits indnements par A. Kou- cayolo et dont le recouvrement a été impossible, année 1880 120, 000. 00 Intérêts 139. 657. 79 14". Staries et surestaries de Matlticii-Oretu/a, du 24 mai au 15 août 1880, sur 166 tonnes de jauge, suivant tarif légal . 12, 948. 00 Intérêts 14,535. 18 15". Staries et surestaries du César- Etienne, 318 tonnes, du 24 juin au 1'^ octobre 1880 29,910.00 Intérêts 32, 968. 96 16". Staries et surestaries des Deux- Amia, 24 juillet au 9 oc- tobre 1880, 1X6 tonnes 13, 734. 00 Intérêts 15. 105. 91 17". Staries et surestaries des />e«x-JínÍ8, 1"" avril au 15 juillet 1882, 186 tonnes 18, 786. (X) Intérêts Itî. 706. 92 18". Kemise à A. Roncayolo, 5 novembre 1880 4. 800. 00 Intérêts 5, 185. 24 19". Complément de frais judiciaires de 1883 :\ 1886 160, 000. 00 Intérêts 135,023.56 20". l'erte des capitaux détenus par Roche iV. C" <'t montant des traites d'iuiuiigration (assignations 2,3 mai 1877).. . 347. 814.32 Intérêts, y compris ceux du poste u " 21 ci-dessous. . . 583, 716. 68 AWAUU Ol" SWISS AUHlTKATOli. 157 Francs. 21°. Frais judiciaires, etc. (les intérêts sont portí^s au nunií^ro procèdent) 28, 000. 0<) Total de l'P:tat H 2, 386, 451. 18 Déductions consenties (avec intérêts) 234, 304. 96 Montant du compte H 2,152,146.22 L'Etat C concerne le service du remorquage; il se monte, valeur au 30 juin 1893, à la somme de 1, 916, 948. 35 Le retrait du service du remorquage équivaut à une dénégation de jus- tice, puisque le Gouvernement restituait, par l'intermédiaire d'un prête- nom, aux Roncayolo, une source de revenus annuels considérables que le jugement arbitral avait attribués à Fabiani. Lé contrat de remorquage du 7 décembre 1874 avait été conclu pour une durée de dix ans; le non- renouvellement du contrat, en 1884, ne fut qu'un acte de représailles dirigé par les pouvoirs publics contre l'adversaire des Koncayoîo. Francs. p. , r^ S En capital 4,200,00(1.00 i.tat JJ... ^ j^^ intóréts 3,-544,369.12 Les dommages et intérêts compris dans cet état correspondent aux sacri- fices faits pour le maintien de l'industrie do Fabiani et au gain dont il a été frustré. Les frais gihiéraux de la maison de Maracaïbo étaient de 52,720 fr. par an, soit plus de 350,000 fr. pour sept années, A cela il faut ajouter, par 172,571 fr. 93, les frais généraux de la maison de Marseille, par 102,660 fr. 18, les dépenses personnelles du ménage Fabiani, par 589,425 fr. 39, le compte d'agios et intérêts, plus le fret de plusieurs milliers de tonnes perdu par suite du mauvais vouloir des autorités, soit 100,(X)0 fr. au mini- mum, le déficit de 100,000 fr. sur le produit de la vente des navires, le maintien de l'industrie huilière exploitée par Fabiani (au moins 100,000 fr.), et d'autres pertes et sacrifices pécuniaires représentant un capital de plus d'un million et demi et de pri's de 2,800,000 fr. avec les intérêts calculés dès le 1" janvier 1883. D'un autre crtté, Fabiani aurait pu, dans des conditions ordinaires, réaliser un bénéfice net de 200,000 fr. par au, si sou commerce d'importation n'avait pas été arrêté par l'acte délictueux du 7 décembre 1874 jusqu'à la transaction de 1878 et repris ensuite dans des circonstances particiiliirement difficiles. L'industrie huilière aurait rapporté, en outre, près de 200,000 fr. par an. Francs. p , , -,-. S En capital 5, 500, 000. 00 d En intérêts 2, 847,,995. 01 Ce poste se réfère à la réparation du préjudice immédiat et direct, causé depuis le 30 avril 1886, époque à laquelle Fabiani était prêt à réduire amiablement ses réclamations aux pertes éprouvées, en éliminant tous les dommages et intérêts qui dérivaient des actes de M. Blanco. Celui-ci refusa d'entrer en matière. La faillite de Fabiani fut déclarée pour non-paiement d'une somme de 70,000 fr. au plus, alors qu'on lui devait des millions au Venezuela, et les juges de Maracaïbo allèrent même jusqu'à solliciter les présidents des tribunaux de première instance de Paris et de Marseille de faire publier l'avis de faillite dans les journaux les plus répandus de ces deux villes. Cette faillite a en de désastreuses consi l'aflairi' du chemin do fer de la Ceiba; l'exécution des sentences aura i tpernii» à Fabiani de se substituer, dí'S 1881, à ses débiteurs, en exervant tous lcur> droits et actions (concession de la ligne, exploitation de la douane, etc.). Cette entreprise, i[x\e Fabiani eût menée à bien, a produit, dans les condi tious les plus défavorables, un bénéfice net supérieur à 250,0(X) fr. par au; li; revenu net a été de 389, 164 fr. 87 pour l'exercice 1890 à 1891 et il doit être aujourd'hui de plus d'un million. Or la concession était accordée ])our une période de près d'un siècle. La partie demanderesse récapitule ses états de dommages et intérêts et arrive aux totaux suivants, valeur au 30 Juin 1893: Francs. 1". Préjudices commerciaux 22, 944, 563. 17 2». Affaire de la ligne de la Ceiba 24,000,000.00 Total général 46,944,563.17 III. Dans sa défense, le Gouvernement vénézuélien relève d'abord le fait que l'objet du litige est "le déni de justice alli'gué par Fabiani, pour non- exécution, selon lui, de la sentence arbitrale remlu en sa faveur à Marseille, le 15 décembre 1880, homologuée par le tribunal civil de première instance et confirmée par la cour d'appel d'Aix; et le point de départ ne peut être autre que l'arrêt par lequel, à la date du 6 juin 1882, la haute cour fédérale du Venezuela à donné force exécutoire dans le pays à la sentence de la cour d'appel d'Aix." Or la sentence arbitrale décidait: 1", que l'entreprise du remorquage devait être mise sous le nom de Fabiani ; 2", que les vapeurs Eclair, Mara, et Pauline et tout l'outillage de l'entreprise du remorquage apparte- naient à Fabiani; 3", que, pour règlement décompte, André Koncayolo restait débiteur de Fabiani de la somme de 538,539 fr. 07 cent. Les faits antérieurs à la décision de la haute cour fédérale du 6 juin 1882 ne rentrent point dans l'objet du litige actuel, en sorte que toute la (luestion à trancher tient, eu somme, dans ces mots: la sentence arbitrale a-telle été exécutée conformément aux lois vénézuéliennes, et la suspension de la procédure d'exécution est-elle imputable aux autorités de l'Etat défen- deur, ou à Fabiani? En particulier, Fabiani a tort de considérer comme un déni de Justice l'arrêt du 11 novembre 1881, émané de la haute cour fédérale. La juris prudence française elle-même reconnaît que l'arbitre volontaire étant un mandataire et non nu magistrat, cette cinoustance enlève à sa sentence le caract're d'un jugement proprement dit. Et si cet arrêt reposait sur de fausses appréciations juridiques, il ne faut pas oublier, qu'à la date du 6 juin 1882, la haute cour déclara les sentences françaises exécutoires, lorsque Fabiani eut déposé en forme authentique la décision de la cour d'appel d'Aix (art. 558 C. proc. uóraux du droit, car aucun Etat ne renonce, en faveur des institutions d'un autre Ktat ou de conventions entre parties, aux règles fondamentales de sa l.jiislation. h'exeqiiniiir doit t'tre ordonné, des lors, suivant la procédure fixée par la loi du pays dans leiinel il est requis. La cour avait Tobligatiou de citer l'adversaire de Fabiani, <'t, s'il l'exigeait, de l'enlendrc. Quant aux dénis de justice rentrant dans les termes du compromis, ils n'existent i)as. L'arrêt du 6 juin 1882 a été ex.'cuté; les tribunaux véné- zuéliens ont accordé à Fabiani tout ce qu'il a réclamé; s'il y a eu des retards, c'est qu'il s'en produit dans toute exécution entravée par un défeudenr qui chercbe à faire valoir ses droits ou à gagner du temps, et que Fabiani les a provoqués lui-même, soit par des récusations intempes- tives, soit par son ignorance des lois applicables en l'espce; et enfin, la sentence arbitrale e été exécutée en conformité du droit vénézuélien, jus- qu'au moment où Fabiani déserta la procédure. Efi'eclivcment, le 6 juillet 1882, le juge Méndez ordonne l'exécution à Maracaïbo, sur re(iuêto de Fabiani. Les Koncayolo forment opposition, mais ils sont déboutés dès le 11 juillet, et le magistrat dispose: "Ce jour étant le quatri> me depuis ([ue l'ordonnance d'exécution a été rendue (art. 301 C. proc. civ.), un mandement sera adressé au jugedu mnnicipede Sau-Rapbai'i en désignant les immeubles et autres objets que Roncayolo p re et tils doivent remettre à Fabiani .... jiour qu'il le mette en possession des dits objets, faisant usage de la force en cas de nécessité." Le 12 juillet, le tribunal dumiini- cipe de San-Kaphai-1 met Fabiani en possession des vapeurs Edair, Mara et Pauline; le 14 même mois, l'entreprise du remor([uage jiasse entre ses mains. Si le juge de première instance admit l'appel d'André Roncayolo avec effet seulement d.-volutif, si le juge supérieur l'accueillit, lui, à deux efi'ets, et si l'exécution demeura naturellement suspendue jusqu au juge- ment sur l'incident, il n'y a là rien d'illégal. Ce sont les récusations non motivées de Fabiani qni ont entraîné des retards, en arr. tant toute la procédure pendant pri s d'une année. Après avoir tenté, par trois fois, de récuser le juge supérieur, ilr-cusait encore le président de la cour suprême qui venait d'autoriser son appel à l'égard de la sentence prononcée sur la troisième récusation. En somme, Fabiani envisagea qu'il avait tout gain à interrompre la pro- cédure et il n'exerça contre les juges dont il tiétrit après coup les actes prétenduement illégaux et criminels, aucun des recours donnés par les lois nationales. Les erreurs qu'il a pu commettre n'engagent pas non plus la responsabilité de l'Etat défendeur; l'art. 2 du Code civil vénézuélien porte que "l'ignorance des lois ne dispense pas de l'obligation de les observer." Fabiani afiSrme bien, sans preuves sérieuses, que le ¡¡ouvoir exécutif fédéral intervenait abusivement dans la procédure d'exécution. Mais c'est lui-même qui sollicita l'intervention du Gouvernement, eu se fondant sur une interprétation erronée du sec. 17 de l'art. 13 de la constitution. La séparation des pouvoirs existe au Venezuela comme en Suisse et ail- leurs. Fabiani a été mal eonseilli^ ou mal inspiré. Le 10 juillet 1883, le fondé de pouvoirs de Fabiani s'adresse de nou- veau à la haute cour fédérale pour qu'elle enjoigne au juge d exécuter IfiO B^ABIANI CASE. l'arrôt du ti juin 1882; le 8 décembre, la cour lait droit à ces conclusions, ("('•tait, au dire de Tabiani, la condamnation du systi-me de tergiversa- tions inauguré par le jnjije supérieur; s'il en «;st ainsi, il devait procéder contre ce dernier en ajiplication de l'art. 341 du Code i)éual vénézuélien, sous peine de perdre son recours. Les étrangers ne sauraient se réclamer de privileges (jne les nationaux Ji'ont point. D'ailleurs, le 19 janvier 18S4, le tribunal de Maracaïbo ordonne l'exécution des sentences franvaises; le 8 février, le représentant de Fabiani reciuiert l'eiub irjio sur les «Iroits et actions de Roncayolo dans la douane et le chemin de fer de la Ce.lia ; le lendemain, le mandataire d'André Roncayolo forme opposition, en allé- •iuant (lue la haute cour fédérale n'était pas compétente; le 13 février, le tribunal de première instance écarte la demande de l'opposant; le 23 eependiint, sur requête d'André Roncayolo, la cour suprême de justice de l'Etat rend son arrêt de conflit, et, en se basant sur l'art. 50 C. proc. civ. venez., le tribunal suspend l'exécution. Au lieu de faire trancher le conflit de compétence par le tribunal extraordinaire lns, rt^servé dans le «ornpittniis du 24 f. \ ricr 1891, et, s'il n'ttuit pas applicable à l'af- faire l'abiani, toutes les rdcliiniatioiisde ce dernier seraient, aux termes du décret du 14 fivrier \8T.), Jnsticialiles île la haute cour IVdrrale. Le G.ouv ernenient d.léndi-nr criti(|ue ensuite Tctat de dommages et intérêts de la p .rtie «leuianderesse. La ¡dupart des indemnités réclamées sont exclues par les termes m mes du compromis. Faltiani n'est, aa demeurant, créancier, (|ue des lioncayolo. Lii faute des antoiit«8 véné- zuéluMUifS n'est i»as mieux établie qtie la res¡)onsabilit<'' «le l'Ktat. Tonte la demiU'Ie repose sur des aÛirniatious de Fabiani qui u'ontaucnne valeur, ni en l'ait ui eu droit. La déleuse c très graves; les motifs de cet arrêt sont inadmissibles. 11 y a eu violation des art. 5Ô6 à 558 C. proc. civ. véut'Z. et refus d exécution dune sentence définitive as rendre une ordonnance d'exécution, (|ui devait être prononcée séance tenante. Il u't tait pas possible de rechercher, au ])réalable, en responsabilité le juge supérieur de Maracaïbo et la cour suprême de l'Etat de Falcon, puisque, depuis pr^ s de quatre an», Fabiani réclamait vainement Vexequa- tiir d'un jugement inattar( sence des jtarties, par les soins «le M. le rejjrésen- tant des Etats-l nis d'Amérique à Caracas; il a fallu pris d'une année pour recueillir ces t 'nioignages. Des ([uatre auties témoins, l'un est décédé au cours du proei s, deux n'ont pu être atteints et le quatrième a refnsi' de répondre aux questions (jui lui étaient posées, vu sa «lualité d'ancien Prési- dent de l'uu des deux Etats en cause. Une partie des documents et renseignements complémentaires reijuis i)ar l'ordonnance de juillet 1895 ont été Iburnis. 11 n'a pas été pris de conclu- sious contre l'authenticité des pièces produites depart et d'autre: l'arbitre appréciera librement, en couséciuence, leur valeur ])robaute et leur force obligatoire. Les «lithcultés soulevées ]iar l'apport même des preuves littérales ont été écartées, aiusi que cela resort des déclarations des (iou- veruements intéressés. VII. La procédure a été déclarée close par l'arbitre le 21 octobre 1896. B. — En droit. I. 11 importe, en toute premiere ligne, de détenu ner exactement l'objet du différend soumis à l'arbitrage. Aux termes du compromis du 24 février 1891, la question litigieuse est de savoir si, "d'après les hds du Venezuela, les principes généraux du droit des gens et la conventiou (du 26 novembre 1885) en vigueur entre les deux puissances contractantes, le (iouvernemeut vénézuélien est resi)onsable des dommages que Fabiaui dit avoir éj)rouvé8 pour dénégations de justice." Indé-pendamuient même de l'intention des parties manifestée durant les négociatious auxciuellcs a doum^ lieu la convention franco-vénézuélienne de 1885, il résulte à l'évidence du texte mèmedu compromiset de l'ensemble des faitsde la cause, (|in' lelJouverne- meut dé'fendeur est actionin'' uuiiiuemcut à raison d»; la non-c^xécutiou, pur les autorités vénézuéliennes, du jugement arbitr.il rendu à Mar- seille, en date du 15 dt'cembre 1880, entre .\ntoine l'aliiani, d'une ]iart. Benoit et André- Koncayolo, d autre jtart. L'Etat «lemanileur as la concordance absolue de ces trois sources Juridifjues ut des difl'íírences essentielles, ou nu"nie notables, n'existant d'ailleurs pas entre elles sur la matière. La législation vt'uczuclienue ne fournit pas une définition diiecte de la dénégation de justice. Cependant le décret du 1-1 février 1873, sur les droits et devoirs des étrangers, dispose :\ cet égard, dans son art, 5, que les étrangers ont le droit de recourir à l'iutervrntion diplomatique "lorsipie, ayant épuisé les recours li'gaux devant les tribunaux citmi)éteu8, il apparaît clairement qu'il y a eu déni de justice ou injustice notoire." Et les art. 282 et 288 du C. peu. venez., du 27 avril 1873, sont ainsi conçus: "Tout juge exécuteur d'une sentence rendue exécutoire, qui refusera ouvertement «le l'aciomulir, sera punido lámeme peine édiiti'e par l'article j)r(''cédei)t (amende ou détention), sans préjudice des })oursM¡tes aux(|uelles il y aura lieu de procéler de ce lait (282). Les magistrats d'un tribunal agrégé et autres juges qui n'expédieront pas les alï'aires avec la célérité presciiie par les lois, qui ne dicteront point les ordonnances et sentences dans les délais imi)artis par ces nuuiies lois, qui ¡jrorogerout ou alirégeront induement les délais accordés aux parties, ou qui, d'une mani re quel- comiue, retarderont la solution des proc^8 civils ou criminels, seront punis de la suspension de l'emploi pendant une durée de un à six mois"(288). On peut prétondre (¡ue le décret de 1873 ne saurait être invoqué dans ce cas, attendu, qu'entre la France et le Venezuela, la rjuestion du droit à l'intervention diplomatiíjue a été réglée par la convention précitée de 1885. En vérité, nu acte international a été substitué, sur ce i)oint, à une loi purenu'ut nationale (crf. art. 10 de hj, Const, venez, de 1881), et, bien que le comiirouiis n^serve l'appliitation des lois vénézuéliennes, il ne vise que celles de ces lois opposables au Gouvernement demaiuleur; or, celle de 1873 a été moditiée, pour les ressortissants fran.ais, dans sou art. 5 du moins, par une convention jtostérieure, obligatoire pour les deux Etats signataires du compromis S'il en est ainsi, la seule détinition dont il est possible de tenir compte, eu droit vénézuélien, est celle des art. 282 et 288 lis^ement do tontes les formalités légales'" ) se rapporte aux actions en responsabilité dirigées contre les autorités fau- tives; ces "formalités légales" s'entendent de celles à l'observation desquelles est subordonné l'accomplissement de l'acte judiciaire qui i>eut avoir déterminé nu déni de justice, ou l'une des antres causes de l'inter- vention diplomatique; elles sont, par conséijuent, autt-rieures au déni de justice lui-même. En consultant les principes généraux du droit des gens sur le déni de justice, c'est-à-dire les règles communes à la ])lnpart des législations ou enseignées i)ar la doctrine, on arrive à décider que le di-ni de justice corn- l)reud non seulement le refus d'une autorité juar les art. 557 et 558 C. proc. civ. venez., et en particulier, par l'art. 5.^8, ainsi conçu: "Pour que la sentence soit déclarée exécutoire, il faut citer le dixième .¡our la personne contre laquelle la sentence a été prononcée, et (lue les j)arties soient admises à discuter verbalement, en audience ])nbli(]ne, ce ([u'elles croient (;onvenable i)our la défense de leurs droits. La ])artie (jui introduit l'affaire doit présenter la sentence en forme authentique.'' C'est à tort (jue la demande criti:(rti contre l"al»iani,et «jue cette attitude pouvait inciter ou encoiirafîer l'autorité judiciaire, du moins dans des ]>ro\ inces i ]oi;:u< ts de la capitale et soustraites au contrôle d'une oiiinion ])ubii(|ne vigilante, ;i m< couuaitre les droits d'un demandeur t'trangei :ini|uel des personnes inliuentes de l'Ktat ne méuageaient point leur hostilité. Telle est 1 a)>pro- batiou ollicielle du 21 août 1883 donnée à la cession, consentie i»ar B. Koncayolo, du contrat de chemin de fer de la Ceiba, bien qu'il fût notoire au Venezuela que cette cession avait pour but de diminuer ou d'anéantir les gages d'un créancier; telle parait être encore la modification adoptée par la législation de l'Etat Falcon aux art. ñ et 7 de la loi organi<|ue du pouvoir judiciaire, en Janvier ISSSj tel sera aussi le retrait du service du remoriiuage qui, dans les circonstances et à l'époque où il fut décidé, devait être interprété comme un acte de représailles dirigé contre Fabiani. Une nouvelle dénégation de justice, du caractère le jdus grave, allait se produire. Le juge de première instance de Maracaïlto, se conformant ;\ l'arrêt de la haute cour fédérale du 8 décembre 1883, avait ordonné la continuation de le procédure d'exécution, lors(|ue. le 9 février 1884, André Roneayolo demande que le dossier fût transmis à la cour sujjrême de l'Etat Falcon, qui, seule, était investie légalement de la. juridiction en la matii re. Cette re<)uète fut repoussée, mais Koncayolo saisit directement la lour suprême; celle-ci, par arrêt du 23 du m¡ me mois, et d'oiBce, "décida, en représentation du pouvoir judiciaire de l'Etat Falcon, de contester, comme elle le fait dès à présent, à la haute cour, par devant la cour de cassation, constituée en la forme susmentionnée, la compétence deconnaitie dans l'attaire de l'exécution de la sentence de la cour d'api)el d'Aix, rendue exécutoire au Venezuela, dans la cause poursuivie par Antoine Fabiani contre André et Benoit Koncayolo." Cet arrêt de conflit suspentlait, une fois de i)lns, le cours de la procédure. Il se tondait sur l'art. 88 de la Constitution du 27 avril 1^81, disposant que "tontee qui n'est pas expressément attribué à la l'Administration générale de la Nation, par cette constitution, est de la compétence des Etats." L'autonomie judiciaire des Etats qui fout partie de la Fédération vénézuélienne n'existe toutefois, d'ajjrès ce texte, qu'autant qu'elle n'est pas restreinte par la Charte du pays. Mais elle est limitée, notamment, par le '^ 17 déjà cite de l'art. 13 de la Constitution, par les art. 5.")6 et suiv. du code de procédure civile, qui, bien (|ue promulgués antérieurement, n'ont été abroges — le gouvernement défendeur le reconnaît d'une luauière implicite — ni foiniellem»int, ni virtuellement, par celle-ci, et ])ar la loi con- stitutiiumelle du 2 juin 1882 relative à l'organisation de la haute cour fédérale (cfr. Const, du 27 avril 1881, art. 80, chilfre 11). C'est bien aussi la doctiine consacre e ¡«ar la haute cour, dans ses deux arrêtsdut) juin 1882 et du 8 décembre 18S3, ainsi (¡ne |iar le (iouverne- ment dans sa résolution du 9 juillet de cette dernière anui e. .\ssur< ment, une minorité des membres de la hante cour oi)ina, et la (léfense a lejiris son argumentation, (pie la compétence de ce tribunal cessait dès le mo- ment oîi il avait accordé Yexetinatnr aux sentences franvaises. Cette théo- rie, cependant, est contredite ^ar la loi organii^ue du 2 juin 1882, qui AWARD OF SWISS ARBITRATOR. 171 porte en son art. 8, olnlVre 11, que la haute coiir a iiiissiou de "provo(|n( r la plus ])r()iiii)tt; administration de la jnstice — sans doiito anssi do la jus- tice (¡n'elle est apiiellée à ])ií)noncer— aliti ([u'ello soit strictement rendue pai- les .jiifîeset les tribunaux nationaux iiiierieurs " (cfr. ladite loi. art. IH, cliilVres 4 et ï>, art. ñ, chillre 9, eomlñnés avec les art. 55(> et sniv. C. l)roc civ. veinez.). Et le ministre de l'intérieur, par sa résolution du !) Juillet 1883, a expressément déclaré (juc "c'est il la haute cour fédérale qu'il ap])artient de l'aire observer ses dispositions." Au surplus, le ^S 17 de l'art 13 de la Constitution existe; comme les autorités judiciaires supé- rieures, le pouvoir exécutif était averti des illégalités commi.ses et il n'a rien fait pour les empêcher, ni alors, ni plus tard, quoiqu'il eût le devoir d'iissurer l'exécution des " décrets et ordres" émanés des "tribunaux de la Fédération." La partie défenderesse prétend bien que, raisonner ainsi, c'est confondre Verei/iialur, matière fédérale, avec l'exécution, matière de la jurisiliction «le l'Etat re(iuis. L'exécution est déférée, à la vérité, aux autorit('>s Judi- ciaires des divers Etats ères ensuite de décisions de la haute cour, elles se trouvent ])lacée8 sous le contrôle de ce tribunal et elles en apparaissent comnieles organes d'exécution. Accepter une thise ditféreute éiinivaudrait à convertir en décrets illu.soires les ordonnances d'escqiiatitr de la haute cour, qui n'aurait aucun moyen dé leur prêter un effet quel- conque et ijui remplirait à cet égard des fonctions de pure forme. Il est plus logique, et il est dans l'esprit «le la législation vénézui>lienue, de con- si«lérer connue des Juges et des tribunaux de la nation, placés sous la surveillance de la haute cour et agissant sur ses odres (loi organique de 1882, art. 8, chiffre 11), les autoriti s judiciaires auxijuellcs est déléguée, dans les Etats, l'exécution des jugements étrangers {ibid. art. 18, chiffres 4 et 5). La cour suprême de l'Etat Falcon, eu soulevant un conflit de compétence dans une i)rocédure dont la partie adverse de Fabiani entravait le cours, pour un motif que l'Etat défen«leur (jnaliiie «le '"certainement absurd,'' a connnis une di'négation do justice dans le sens du compromis; en encou- ragement l'opijosition mal fondée d'un débiteur, elle a, sinon déteruiiné un refus «le statuei-, du moins piovofjue un retard injustifié, et après tant autres faits «le même nature, la décision qu'elle a prise a dû fortifier en Fabiani la conviction que l'évidence de son «lr«>it ne le protégeait pas con- tre l'arbitraire des juges. Fabiani, dit la défense, dè.serta la procédure; elle ajoute qu'il ne pouvait se plaindre de «léuégations de justice aussi longtemps qu'il n'avait pas < ])nisê ses moyens d'action ju«liciaire au Venezuela, et provoqrn^ en par- ticulier, une S(dution du c«)nHit de c«)mpétence, î)U iuvo(|ué les disi)o- sitions légales «jne i)eruiettent de faire contlamner his magistrats fautifs a '•'rembi)urs«;r les douinnges et ]iréjudiees caus.'s." Mais, d'ahonl, si Fabiani s't tait prévalu de ces «lispositions légales, il se serait heurté à lobjectiou que le tribunal extra()r«iinaire, autiiud est attribuée la coii- naissance des conllits «le compétence et qui doit les trancher d'ofliee, n avait pas rentlu sa décision ; ce tribunal ne s'est d'ailleurs jamais riMini. Ensuite, Fabiani avait des raisons de croire «[ue, s'il ne pouvait ol)tenir justice au Venezuela contre des débiteurs étrangers an pays, il l'obtien- drait moins encore contre des autorités Judiciaires mêmes de l'Etat. 172 FAEIANI CASE. L'art. 16 de la loi oríjanique de la cour de cassation, du 16 mai, 188-, rèiçle la composition du Tribunal extraordinaire (cour de cassation et haute cour fdd<^rale sit^jjjeant ensemble) (|ni avait à licjuider le coullit de compétence. Les art. 54 et suiv. du Code de jirocédure civile prescrivent que "l'autorité supérieure que cela concerne procédera aussitñt ([u'elle aura reçu les actes úvs ju;/e8, à la détermination de la compétence dans les vinîi(jue, p. 50), d'apri s le<|uel les art. 54 et 55 du Code do proc. dure civile ne seraient pas applicables, la procédure étant tracée par l'art. 16 de la loi organiíjue de la haute cour fédérale, elle est réfi.'ée par l'arrêt même du 23 féxrier 1884 ; et le dit art. 16 ne corrobore pas davantage cet argument que h-s dispositions tran itoires lique: le tribunal extraordinaire dont il a été question n'au- rait eu l'obligation de juger, qu'une l'ois que les parties auraient fourni " le papier timbré n^'cessaire" {ihid. p. 50), La formalité du timbre exigée par l'art. 16 de la loi organique du 2 juin 1882, se rapporte uniquement aux atiaires traitées devant la haute cour fédérale; elle di rive d'un prescriji- tion légale (jui ne peut être étendue, par analogie, aux coullits de compi - tence défi rés au Tiibnnal extraordinaire souvent mentionui', car l'analo- gie, exclue en i)rincii>e dans une pareille materière, l'est forniellemeut jmr la nature même de la procudnre déterminée aux art. 54 et suiv. du Code de procédure civile; on ne concevrait point, à défaut de disposition contraire expresse, que les parties eussent :ï supporter, en ac(|uiitenient de droits de tinil)re, les frais d'une instance qui est ouverte d'ollice, à raison du fait de juges qui se sera eut déclarés faussement compétents ou dont la compt- tence aurait étt' contestée à tort par d'autres juges, et qui se déroule en d hors de toute participation des plaideurs, Fabiaui, qui n'a pas été cité devant la cour sujireme de l'Etat Falcon, qui ne pouvait ni ne devait être assigné devant le tribunal extraordinaire, était absolument étranger au conflit de comp. tence; ce tribunal avait l'obligation «le st-atuer tl'ollice. dans les vingt-(iuatre heures, sans (jue les parties eussent à accomplir quelque diligence ou formalité que ce fût. AWARD OF SWISS ARBITRATOR. 178 En somme, Fabiani a été victime de plusieurs dí^négations de .iustice, consommées par celle qu'implicine l'inaction illégale de la cour de cassa- tion et do la haute cour fédérale; cotte dürni^ro dénégation do .justice saule sul'tisait à créer, au protit di' l'abiaiii, le droit à rintervoutiou di¡)lo- matiquo ot à lui assurer un recours en domuingeset inti rets contre le<;ou- verneniont défenilcur, s'il doit être reconnu ro- cédure à suivre, comme en l'espice, ou ]»ent envisager que. dans l'intention même des i)arties, une grande liberté- lui est laissée (inant au choix des élé- ments d(uit il formera sa conviction. Cette conviction, dictée déjà jtarles résultats de ladministration de la preuve, a étt^ renforcée, dans le sens mar(|ué plus haut, par l'étude de documents (jue l'Arbitre s'est fait un de- voir par ses agents, et spcu-ialcrneut i>ar ses autorités Judiciaires, à raison d'actes rentrant dans l'exercice de leurs fonctions. En France, la doctrine et la.jurispnnjence sont divisi'es. I^a .jurispru- dence elle-même n'est i)as unanime dans 1 Opinion, g('néralemeut consacrée toutefois, (]ueles lautcs commises par des fonctionnaires, dans les limites de leurs attributions légales, n'engagent pas la responsabilité de l'Etat, du moins d'une nuinière absolue et en l'absence de lois positives sur ^e point (cfr. Fuzier- Herman, ('ode civil annoté, Vol. Ill, ad. art. 1)382 et 1383, n"* 7G7 et suiv.); mais la cour de cassation, par exemple, a reconnu, dans un arret du 1^'' avril 1845 (cfr. arrêts des .30 juillet et 16 août 1877, ainsi «lue Pandevies fraiiçaisex, année 1896, IV""' partie, p. 8, note 1, et Lau- rent, A'ol. XX, n"592), que l'Etat, représenté par les différentes branches de l'administration publi2; Demolombe, Vol. XXXI, n"63; Bandry- Lacanlinerie, Vol. III, n" 1352), que l'Etat, représenté par les divers minis- tères et administrations publiques, doit, à l'égal de tout commett int, ré- pondre du ])réjudice occasionné par ses employés ou agents dans l'exercice de leurs fonctions ou services, indépendamment de l'existence d'une loi spéciale, ou encore (cfr. Laurent, vol. XX, n'"* 419 et s., 444, 591 et s.), que la responsabilité de l'Etat est exclue, lorsque le fonctionnaire agit, non comme l)répüsé et instrument de l'Etat, mais comme accomplissant la mission so- ciale ([ui lui est délégui-e. S'il règne, en France, une assez fnande incertitude, notamment en ce qui concerne la responsabilité de l'Etat pour les dommages causés par ces fonctionnaires de l'ordre judiciaire, et si cette responsabilité parait plutôt devoir être déniée en thise générale, il n'en est pas autrement en Allemagne. La ((uestiou y est résolue négativement par Loeniiig (Die Hujtnng des Staates, etc., 92 et s.), affirmativement par H. -A. Zachariae {Zeilsvlirift fur die (jesammte Staatfnvissenschaft, année 1863, p. 582 et s.), par Stobbe {/Jand- buch des denischen Privatrechts, vol. III, v^ 201, N". 6), par G'îrber (firundziifje des deutschen Staatarechts, 2""= éd., p. 207 et s. ), ])ar Bluntschli Cop. cit., n" 467), par Wiudscbeid {Pandeclten,vo\. II, v> 470, note 4; cfr. les auteurs cités dans cette note\ avec cette réserve que Wiudscbiùd, dans la sixiinie édition de son traité, expose, en modifiant son opinion premiere, que la responsabilité de l'Elat, ensuite de préjudices imputables à ses fonctionnaires, n'est pas un principe de droit commun en Allemagne, et que, d'après Holtzentloiff {Encijklopiidic der UecUt'Uvisxeiiseliafl, p. 1113), cette res])<>nsabilité n'est admissible (¡ne dans certains cas. Mais la jurisprudence allenuinde, (|ui était plutôt favorable à la solution affirmative jus(ju'en 1884, applique 176 FABIANI CASE. aajourcVbai la th<^orie da tribunal de l'Empire, selon laquelle l'Etat n'est rc.s[ion8able qu'en vertu d'une disposition lój^ale expresse ( llntatheldungeu des Udchsgerichts in CivUsachen, \o\. W, \\.'2Wi] clr. JViudsihtid, op. cit.. vol. II, \\ 470, note 4). Cette dernitre th«M)rie est adoptée par la jnrispnidence et la doetiinc suisses (cfr. Bliiiuer-Morel, Handbnvh den xcliweizrriaclien liundexstaaturechts, 2 '"^ éd., Vol. m. p. 230 et s. ; Hafncr, Dus acliinizeriarlie Ohliiiatiiincurtvhi, 2'"^' éd., ad art. 64, note 4, ainsi que les arrets du Tril)nnal fédéral cit s dans ces deux ouvrages), tandis, qu'en Italie, la doctrine eentraire semble prévaloir (cfr. Ftizier Uirmaii, op. cit., Vol. III. ail, art l;;8_' et 13HH, n"786). On peut ajouter que les auteurs, qui ont fait du droit international leur spécialité, reconnaissent qne l'Ktat est re8|tonsable des di uis de Justice commis par ses autorités Judiciaires, à tout le moins lo sque, duement informé ou averti, il n'aura rien entrepris, ni pouf eu euip;cliei les effets, ni pour eu suspendre le cours (C. ]k lloltzendorlf, Ilaiulbuth des nHherrechlH, Vol. II. ]). 74; Fiore, Droit international codijir, n"* 3.30 et 340; voir aussi, Ca/ro, op. cit., Vol. I. n" 348 in fine; Pradier Fodéré, Traité de droit inter- national public, Vol. I. n»* 402 et s. ; Bhintsclili, op. cit., n" 340). En dioit vénézuélien, la question est résolue par la loi; elle l'est égale- ment, entre les parties eu cause, par la Convention de 188.5. Le décret du 14 Février 1873, sur les indemniti's à allouer aux ('trangers, n'a pas été abrogé par l'acte international précité, en ce qui touche les con- ditions générales de la responsabilité de l'Etat pour dea dommages occa- sionnés par ses fonctionnaires; il dispose, en son art. 1"^: ''Tous les individus, soit nationaux ou étrangers, (jui intenteront contre la Nation des actions en douuuages et intérêts ou exproi»riatious, provenant d' actes d'employés de la Sation ou des Etats . . . devront s'en tenir aux formalités établies par la présente loi" — formalit's qui, entre la France et le V-^n zuéla, sont réglées aujourd'hui, en ce qui concerne notamment les ]>ri'judices dérivant de dénis de Justice, par la Convention de 1885. L'art. 7 prévoit que "la Nation aura le droit de se faire rembourser par l'employé responsable, ou par l'Etat du(|uel relèverait le dit employé au moment de la faute, la sonnue que le Trésor national débounserait par suite de l'arrêt condamnatoire." 11 ressort de ces textes que le Venezuela ri'connait expressément, en principe, sa re8i)f>usabilité, pour des dommages imputables, soit à des fonctionnaires naticuiaux, soit à des fonctionnaires de l'un ou l'autre des Etats de la Fédération; cette res])onsabilité est causés par des aiduritcs l(';/itimes affinsavt en rertn de leur caractire jinhlic." Cette interprétation est conlirmée, en outre, par le Code ])énal du 27 Avril 1873, (¡ni, après avoir tiaité, en st^s art. 2r>8 et 2.")!), des infractions dont les /»/î/<» peuvent se rendre coupables, ajoute, en .son article 260: "Les emplois publies d'nne autre administration qneleonrin- cijie, la responsabiliti' de 1 Etat d fondeur pour los actes de ses fVniction- nairos. Il li rcconua.t ni'ine express, nient, à raison des faits illicites des antorifi's judiciaires, en résolvant, dans son art. 5, la voie diplomali(|iie pour les cas de "(l'»i de Jiislice on injustice notoire;" et la condition de ré])nisenieut préalable de toutes les voies 1 gales de recours a été sup- prini' e i)ar la Convention de 1885 à l'i'gard des Français. Cette responsabilité directe de l'Etat, «dictée ]»ar la 1 gislation vén'zué- lienue, n'e.st pas contraire au droit des gens; elle est, de jilus, atïirmée dans la Convention dn 2H Novembre 1S85, qui permet l'intervention rolit ]ionr celui qui les obtient (ctr. Fucier- Herman, op. cit., vol. Ill, ad. art. 138J et 13X3, n"* 1065et8uiv. ; Jubryet Rait, vol. IV, ^ 440 et 446; Dololombe, vol. XXXI, u"685 et suiv. ; Laurent, vol. XX, n" 529; Zachariae, Handbudi des franzoaischen Citilrechls, T'"" edit., ^44S et 445; Windsvheid, op. cit.. G'"» éd., vol. II, H51, n" 1. '^•^■"'. ^'" 5, 258, notes 10 et suiv. ; Stobbc, op. cit., vol. Ill, ^S 200. n° &; Holtzendortl" TîecAisZfj-iVo», article " Scliadeuscrsatz;'' Holtzeudorlî", Handbuch des ViilkerrevUta, vol. II, p. 74, 75; Motire du projet du Code civil allemand, vol. II, p. 721 et suiv.; Schneider et Fick. Das srhuHzerischf Obligationenrecht, 3"" éd., notes ad. art. 50 et 51 C. lYd. des obi. : Hafner, op. cit,, 2""^ éd., notos ad. art. 50 et 51 C. fed. des obi. ; Rossel, Maniui du droit federal des oblif/atlons, p. 88 et suiv.) Ence(|ui rcjiîude spécialement les fonctionaircs de l'ordre judiciaire, leur responsabiliti- embrasse, en droit commun allemand, tout le dommage résultant de leur dol ou d'uue faute lourde de leur part : le point de savoir si cette responsabilité existe éj^alement dans les cas de faute légère est controversé, mais la solution affirmative prévaut (cfr. Windsvheid, op. cit., vol. II, 470; Dernburg, Pandekten, 3"«'ed., vol. II, ^S 135; WetzeU. op. cit., il 36, note 14). La responsabilité du pouvior judiciare est aussi admise en France (C. proc. civ. fr., art. 505; cfr. Garsonnet, op. cit., vol. I, 6 54; Laurent, op. cit., vol. XX, n" 447), mais, comme il a été expliqué plus haut, elle n'est pas entraînée par une laute légère. Au Venezuela, ce sont les art. 341, 255 à 259, 282, 288, 297 et 339 du Code pénal du 27 avril 1873 (|ui règlent, d'uue manière spéciale, la matière de la responsabilité civile d'une autorité Judiciaire. Les Juges i)euveut être actiouni'a eu dommages et iutérêts, non seulement ensuite de leur dol ou de leurs fautes lourdes, mais encore pour des fautes légères, et le texte de l'art. 341 semble indiquer (jue la réparation doit être complète dans tous les cas. Il n'est pas besoin, au reste, d'ai)puyer sur cette dernière question, attendu que les dénégations de Justice dont se plaint Fabiaui procèdent, à tout le moins, de fautes lourdes et que, dans ces circonstances, le préjudice à réparer s'entend, et du damnum emergens, et du lucrum cessans; il com- porte, en outre, le tort moral comme le dommage matériel {Laurent, vol. XX, W" 393, 395 et suiv. ; Aubry et Rau, vol. IV, \N 445; Hue, op. cit., VIII, n«413; Demolombe, vol. XXXI, n" 672; Code féd. des oblig., art. 55 et les ouvrages cités de Schneider et Fick, Hafner et liossel; C. civ. autr. art. 1329, 1330). Relativement au dommage indirect cependant et à la nécessité d'établir un rai)port de cause à eti'et entre le fait illicite et le dommage prétendu, le demandeur prouvera que, soit en consultant le cours ordinaire des choses, soit en s'attachaiit aux atlaires de la partie lésée ou aux dispo- sitions prises par elle, il est probable— non pas seu'ement possible— que celle-ci aurait réalisé tel ou tel profit si le fait illicite ne s'était pas pro- duit, la preuve étant d'ailleurs soumise à des conditions moins strictes en cas de faute lourde ou de dol et le Juge conservant une entière liberté' d'appréciation. Si l'on doit décider qne le goavernement défendeur est responsable des conséquences des dénégations de Justice imputables aux autorités Judici- ares vénézuélienntis envers Fabiaui, il reste i\ di'-termiuer l'étendue de ces conséquences en ap]>lication des ))riucipes exposés ]diis haut. Le dommage matériel direct subi par Fabiaui comprend les valeurs non AWARD OV SWISS ARBITRATOR. 179 recouvrîmes et les biens perdus dont il serait rentró en possession, si la sen- tence arbitrale du 15 dt'-ccnibre LSSO avait ])u être exécutre contro les Kon- caj'olo; il comiirend ('galeuicut. en principe, les frais de la i)roccdure(rex6- cution (voir sub. VI., litt. a, chiliVeeS). Fabiani n'cût-il pasóte victime de dénis de justice, et l'exc'cution de la dite sentence n'eût-elle pas Hé eutravóe, puis, rendue illusoire, il aurait pu obtenir paicMuent de toutes les condamnations prououci'es contre ses débiteura. Effectivement, B. et A. Koncayolo ctaicnt solvables jusqu'à concurrence au moins des restitu- tions diverses ordonnc'es par le juj;emont dn 15 décembre 1880. Ce fait découle déjà de ce que le CJouvernment Vt'nézuélien n'a jamais allégué même que les r '('lamations de Fabiani fussent irrécouvrables contre les Roncayolo, et (¡u'il s'est borné à contester l'existence des dénégations de justice, ainsi que la resjionsabilitc^ de l'Ktat. Kn outre, H. Roncayido, de la vue de la partie d<'ienderisse, a ét('^ agrée par les pouvoirs publics du Venezuela, connue concessionnaire d'importantes entreprises, et il était fermier de la douane de laCeïba. André Roncayolo a pu, lui, pendant plus de trois ans, tant eu en sou nom persouuel (|ue connue fcndé de procuration de son piie, faire les frais de nombreuses et coûteuses oppositions à l'exé- cutiou de la sentence arbitrale, cboisir ses avocats parmi les juriconsultes notoirement les plus renommés du pays, sans compter qu'il s'était enrichi d'une somme de plus d'un demi-million de francs an détriment de Fabiani. Et c'est vraisemblablement pour mettre à l'abri des poursuites de leur créancier, les droits et intérêts cousidi râbles qu'ils avaient au Venezuela, que les adversaires do Fabiani ont empêché avec tant d'a( harnement l'exé- cution de la sentence du 1.5 décembre 1880. La solvabiliti' de B. et A. R(m- cayolo, partant, la recouvrabilit.' des valeurs au remboursement destiuelles ils avaient été condamnés, ne sauraient être sérieusement mises en doute, d'autant plus que, comme on vient de le dire, le ^'énózuéla ne les a point déniées. En dehors du dommage matériel direct, Fabiani a éprouvé un tort ma- tériel et surtout moral très grave, en ce que les diMiégations de justice ont porté à tous égards une profonde atteinteà sa situation personnelle et ont même été la cause de la faillite prononcée contre lui au Venezuela (voir sub. VI, litt. a, chiffre 6 ci-après). Le dommage indirect enfin a sa source dans le fait que les sommes pay- ables par les Koncayolo en vertu de la sentence arbitrale, ont été soustrai- tes au créancier pendant un grand nombre d'années et qu'il n'a pu ni les employer dans sou commerce, ni le-s faire fructitier d'une manière quelcon- que; il ne s'agit pas ici de bénéfices ou de ]tertes purement hy])0thi'tique.s, dans lesquels certains publicistes {Calvo, op. cit., IV, 477) se reiuseut à voir " la matière d'une action pr'cuniaire de gouvernement à gouverne- ment," mais d'un manque à gagner dont les éléments re]>osent sur des faits concluants, et il serait souverainement contraire à Tt-quité et à la justice de n'en i)oint tenir compte dans le présent procès (voir sub. VI, litt. ft). Et nuiintenaut, deux ('ventualités pouvaient se présenter; ou bien, les débiteurs de Fabiani s'ac(|uittaient envers lui, ou bien, soit à l'amiable, soit p.ir voie d'exécution, il se substituait à tous les droits de concessions, de douanes et autres (|u'ils possédaient au Venezuela. Entre ces deux hypotheses, plausibles l'une et l'autre, il faut néeessairement choisir celle qui est la moins défavorable à l'Etat défendeur et qui est aussi la plus 180 FABIANI CASK. admissible d'après le cours ordinaire des choses, c'est-h-dire riijiiotbise da paiement. Ce i d'autant jdns (luil n'a f'tó ni oHert, ni acîministr '• ani-ane preuve tendant à établir que cette hypotbi-sede la solution la plus normale dudifîV'reud Fabiani-Iioncayolo ne se serait jtoint ri^alist'e; il n'snitem me de l'exposó du gouvernement demandeur que les débiteurs do F.ibiani avaient un intérêt majeur, s'ils étaient contraints d'exécuter la sentence arbitrale, à se libérer jiurement et simplement entre ses m:iins, ]ilnt>t {|n':\ se laisser enlever des droits d une valmir bien supérieure à celle di-s con- damnations ]trononct'es — sans parler luému des olistailes auxquels se s.rait beurté sans doute le transfert tie tout ou partie de ces droits à Fabiaui. et sans appr 'cicr 1 eflicacité des sûretés réelles obtenues au cours de la pro- cédure d'exécution. La qnestiiin du modi de paiement de lindcninité a été discutée dans la demande, mais elle n'est point litigieuse; le compromis l'a réglée d'une manière obligatoire pur les |)arties et p )ur l'Arliitri'. VI. La li(iuidation, d'apr.s les principes ci-dessua, de l'état de dom- mages et intérêts présenté par le Gouvernement demandeur fournit les résultats suivants: a. Dommage direct et tort moral. (1) La sentence arbitrale fixait i\ la somme de 538,3.59 fr. .07, valeur au 31 janvier 1878, le débit de André Koneayolo envers Fabiaui. Ce poste est réduit, en capital, d'après la Fmnca. demande à 429, Gii8. 10 Il y a lieu de tenir comte d'un versement de 5. 4!iO. 5.5 Reste 424, 177. 55 (2) Outer cette somme, due par A. Roncayolo, la sentence arbitrale con- fère à Fabiani le droit de réclamer " tons les produits, sans aucune exeep- tion et sans aucune réserve, donnés par l'entre])rise du remorquage rivant de la sentence du 15 décembre 1880, ont été exécutées, au moins dans une certaine mesure, ])uis(|ue Fabi- aui a repris, dès le mois de Juillet 1882, soit avant le debut des denégaticuis de Justice, 1(î service du pilotage et ilu remorquage, et que des preuves positives concernant les efiets de l'inexécution de ces autres condamna- tions font défaut dans la ])rocédure. Du cbef du dispositif ])récité do la sentence arl)itra]e, la demande porte au compte de " liijuidation des sentences," en cai)ital : Francs. Recettes du pilotage du 1" décembre 1877 au 30 décembre 1878. . lli, 000. 00 Recettes du jtilotaue du 1'' décemlire 1878 au 30 décembre 1879. . lu, 000. 00 Recettes du i)il()tage du 1" déeembre 1879 au 30 as leur source dans lailite sentence, ni, par conséquent, dans son défaut d execution ensuite de diuégaiions de justice imi)utables aux tribunaux du Vém'zuéla; il est superUu, dans ces conditions, de s'occuper des déductions consenties dans l'état B., attendu qu'elles ont trait à des jiostes éliminés par l'Arbitre. (5) L'état C. se réfère au service du remorquage, et les dommages et intérêts qu'il comporte out leur origine dans le retrait de ce service en 182 FABIANI CASE. 1884 Cette question a 6t6 tranchi5e à propos de colle des " faits du prince;" sans discuter niôuie le point de savoir si le (Gouvernement défen- deur n'était pas en droit de dénoncer le contrat du 7 décembre 1874, il est évident que les gains dont Fabiani prétend avoir été frustré par cet acte, ne lui ont pas été enlevés à raison de dénégations de justice qui, seules, peuvent engager la responsabilité du Vénézui'la dans l'instance actuelle. Il s'agit ici ])récisément d'un de ces " faits du prince," sur la légitimité et les efiets du()ue] l'Arbitre n'a pas à se j>r(iu()ucer; il ne lui itait ¡lermis de l'apprécier (jue comme un indice des rcs, d'autres bénélîces pur l'exploitation d'autres sources de revenus; par la faute des autorités judiciales du Venezuela, il a perdu tout ensemble ses biens et son honneur, et il a traversé de tri s pénibles épreuves. Ce sont là des circonstances excei»tiounelles, dont il serait injuste de mécon- naître la gravité et d ('carter les conséquem esdoiuuiagealdes, en iiivoiiuant le caractère international de la contestation actuelle. Des renseiguemeuts pri'cis fout nécessainiuent défaut, sur certains points, pour établir avec une exactitude absolue le montant de la répara- tion (jui est b'giteuiement due à Fabiani, dans les limites de l'état F de la demande. L'Arbitre, ai)préeiant librement les faits de la cause, évalue à tr. 1,800,000 le chil'lre des dommages et intérêts représentant le préjudice éprouvé, indépendameut de celui reconnu sous litt. b. b. Dommane indirect. (1) Les dommages et intérêts réclamés dans l'état F) correspondent auK sacrifices j'aits pour le maintien de l'industrie de I abi;ini et au gain dont il a été frustré. La uon-exi'cution de la sentence ail)itrale, nou-execntion provoi^uée par des denisde justice, a causé il Fabiani un i>réjiidiee indirect íixó dans la demande à la some tie l,l.'0(),(IOO francs; mais il importe de ne AWARD OP^ SWISS ARBITRATOR. 183 pas confondre ce dommage avec celui dont il vient d'etre apl<5r, sous litt. a, chiffre 6. Aussi bien, il y a lieu d'admettre ici, à titre de corapeusation, uniquement l'éiinivalent du domtnai^e qui peut être cousi(l(>r<^ coiuiue une suite de rim])()8sil)ilit(' dans laqiiellci s'est trouvé Fabiaui, à raison es en principe, mais que l'exagération des réclamations firinulées a entramé des di i)ens inutiles, met les frais du Gouvernement deinanileiir, li()uidé8 à la somme de Fr. 100,000 — à la charge du (Jouveruement défendeur et compense entre les parties les dépens de l'arbitrage. VII. De ce (jui précède, il résulte qiae le chiffre intégral de l'indemnité allouée s'établit comme suit: Francs. 1. Débit A. Roncayolo 424, 177. 5.5 2. Recettes du pilota,ge 68, 312. 45 3. Recettes du remorquage 254, IGti. 51 4. Frais d'exécution 200. 000. 00 5. Dommage causé par la faillite 1, 800, (0 ». 00 6. Domniiige indirect î , 500, ( )00. 00 7. Frais du demandeur 100, OdO. 00 En tout 4, 346, 656. 51 Par ces motifs. Prononce : Le Gonvernement des Etnts-lTnis du Venezuela paiera à Fabiani, à titre d'indemnité, on us before the lamentable interruption of (lie diplomatic relations i)etween Venezuela and ou?- beloved native land. We make this protest because we believe that num must, in ail I he acts of his life, profess fealty to truth and justice. On the same date jinother manifestation wa.s ptiblislied, signed l)y the same French citizens, together with some Venezuelans (Annex No. 57) in which it is stated : The undersigned, French and Vene/Aielan citizens, believe it to be their duty (o make it to appear that wc are satisfied with the actions and conduct of Gen. Froilán Caliman, OPINION OF VENEZUELAN COMMISSIONER. 189 the collector of customs, in the maritime custom oilice at this poit, who, witliout depart- ing from the route of the law, makes efforts to contrive the means of facilitating our opera- tions with said office, for which reason we recognize in this official a good servant, who tries to maintain the national Government the confidence of which lie enjoys, in high repute ; and we are persuaded that his presence at the post he liolds constitutes a guaranty for our interests and a security for the honest merchants of the East. The aforesaid protest and manifestation are signed by, besides other respectable members of the French cohinv, Messrs. Francesclii & Co., Joucla & Co., R: Llh Hernuinos, Augustin Lucca & Co., A. VicentelH O., VicentelH & Sintelli, Federico Benedetti, Andres Pietri, and Juan A. Auberon, and it is to be observed, as a very especi.J circumstance, that Messrs. Franceschi & Co. were at the time partners of Pietri Dominique & Co. in the enterprise of the Tramway of Carúpano, It appears proved by the investigation made by the consular agent of France at Cariipino, by order of the vice-consul of the s.ime nation in Caracas, and by the answers given to s.ád consular agent by Messrs. F. Benedetti, Dr. B. Bermiidez, J. Bl scini, F. Massiani, Santos Ermini, J. Yicentclli O., and Joaquin Hiqacs (Annex D No. 7) : . First. That a mob penetrated the house where Pieri's printing press was and threw ill the utensils of the printing press into the streets. Second. That the enterprise of the Tramway suffered nothing by that event, it being untrue that a part of the tramway station was destroyed. , Third. That what happened to Pieri's printing press was due to an insulting and degrading editori.il article of the paper edited at said printing office and directed against the local and national authorities and the citizens. Fourth. That it was the people who, in a moment of indignation against those who injured it, exercised thut vengeance. Fifth. Th:it it is untrue that the mob went to and entered the private house of Pieri Dominique. Sixth. Th..t no superior ofRci.l of the custom-house, no member of the municip.l council, no local authority was among the ass.tilants of the printmg press. Seventh. That the police only arrived too late at the place where the event took place and th:.t it did not know how to show the energy or the activity necessary to prevent the disorder. Eighth. That Pieri and Nasica were hidden for two or three days in a j)riv¿.te house and then abandoned the coimtry, going by land via Rio Caribe and Y; guaraparo. Ninth. That there was no arrest and no investigation made by the local authorities; and Tenth. That, in view of the condition of the printing press, that was worked by the hands and the long time it had been in use those who knew it only give it a value of 4,000 francs. 190 DOMINIQUE ¿¿ CO. CASE. For the best appreciation of these events the Veneznelan arbitrator considers the definition given by the vice-consul of France in Caracas in an oííicial note dated the ôth of May, 1896, addressed to his excel- lency Mr. llanotaux, the minister of foreign affairs of France, of the character of the two parties interested in the claim, Messrs. Fieri and Nasica, in the following words: Mr. Piori has a pretty great natural intelligence, ver^' little iiistruetioii, an iron temper, and an obstinacy e(jual to his temper, lie posses,ses a most inveterate .sentiment of prop- ert}-, and openly resists whom.soever violates his rights, and that with very little patience, for his violent temper is not guided hy learning or prudence. Mr. Xasica is little recommcndable a personage, who puts his intelligence and learning to the service of all his vices. Wherever he has been he has left victims. And further on the same note says: As Mr. Fieri had a printing press, Nasica, who has an easy pen, advised Pieri to establi.sh a newspaper to defend his interests and those of the colony. No member of the colony approved this idea, but Mr. Pieri, mastered by Nasica and feeling aggrieved in his interests, accepted the proposal, and El Eco del Oriente was established. The terms of its articles are veiy violent and could only be permitted to the natives. The opinion expressed by the vice consul of France regarding Nasica is ratified in more vivid colors in the statement made by Mr. Jean Toussaint Santi, a proprietor at Ajaccio (Corsica), before -the minister of foreign affairs of Venezuela on the 18th of August, 1895, a copy of which is inserted in these records. Santi states therein — that he knew Nasica as being a man capable of all the acts of meanness that a perverse mintl might perform, and that he knew, moreovei', that he belongs to a family of outlaws and criminals. It does not appear in the records that Nasica took any other step after he presented, in company with ^Ir. Fieri, to the governor of Martini{|ue his claim for a part of the indemnity, amounting to 1,500,000 francs, in which he entered as pertaining to him the same printing press pertaining to Pieri and valued it at the sum of (300.000 francs. After having taken into consideration all the foregoing state- ments, which are proved by the records, the Venezuelan arbitrator is oí opinion that the destruction of the printing press of Mr. Pieri Dominique was the deed of a popular vengeance against those appear- ing responsible for the injurious writings of the newspaper which was edited in said printing-press; that the enterprise of the tramway did not sustain any damage through those occurrences, and it appears from the records that the service of the enterpri.se was not interrupted; that the damage done to Pieri by the destruction of the printing press does not exceed 4,000 bolivars, and that for said damage only the authors of or accomplices in the aggression were responsible; that (his resj)onsil)ility ought to have been alleged in plea(hng by (he oiwner of the printing press against those condenmed as authors of or accom- plices in the facts occurred on the 21st of June, 1895; (hat the want of OPINION OF VENEZUELAN COMMISSIONER. 1',>1 energy, of which the poHce gave proofs, to stop or prevent the aggres- sion of the mob, and the omission on the part of the competent authorities to have the preparatory proceedings instituted in order to prosecute the respective criminal suit against those appearing to be guiUy, render them hable to responsibility for noncompliance with their duties; that it must also be taken into consideration that the conduct of Fieri and Nasica renders them largely responsible for the provocation that gave rise to the popular mol). Appreciating in a spirit of justice all these circumstances, the Vene- zuelan arbitrator is therefore of opinion that the largest indemnity to be allowed to Fieri Domini(|ue for the destruction of his printing press and the tlamages wliich were the consecpience thereof is the sum of 20,000 bolivars, and he hereby allows it for this respect. In regard to the other facts and consequences alleged by the claim- ant relative to the enterprise of the tramway, to the abandonment thereof, the forcible antl diilicult disposal of the houses pertaining to him, and to moral sufferings ])roceeding from his being far from his family, they are destitute of all ground and proof and are inconsistent to serve as the basis of the claim he pretends. Far from proving that Fieri Dominic|ue abandoned his enterprise on account of the events of the 21st of June, 1895, the documents produced show that the tramway continued to run without interrup- tion immediately after those events and that the exploitation of the business was continued for several years; that Fieri Dominique returned to Cariipano in March, 1S96, and resumed the management of his enterprise without any menace or aggression against his person ; that according to the avowal made by Fieri before this tribunal, as appears from the records of the proceedings of the sitting of the 9th instant. Fieri bought five or six years ago — that is to say, after the occurrences of the 21st of June, 1895 — from the firm of Franceschi & Co., which was associated in the enterprise of the tramway, the interest of the latter in the business for the sum of 24,000 francs, which fact evidently proves that the assertion is gromifUess that Fieri was com- pelled to give up the enterprise, for the abandonment of wliich he claims the sum of 3,000,000 francs. The (|uestions arisen between the municipal council of Cariipano and the enterprise of the tramway on account of the drawing of the line, of the construction of the waterworks and the breaking of a bridge by the rains, which have been alleged to show the animosity of the author- ities against the enterprise, do not absolutely prove that attitude. These questions are those that ordinarily occur between mimicipal corporations and the enterprises directly connected with the traille and |)ublic works in the streets of a town. The local laws and the con- tracts provide the manner in which they are to be determined, the interested parties applying in due time to the competent judicial 192 DOMINIQUE óí CO. CASE. officials. It appears from the records that Fieri Dominique abstaine»! from following the procedure established by the laws and by his con- tract and accepted the facts, coniinuing the exploitation of the tram- way under tlie conditions and circumstances that were the result of the report of the commission of surveyors and of the orders of the municipal council of Canlpano. As regards the construction of the waterworks, if they temporarily prejudiced the interests of the tram- way company, it had an action against the joint stock compan}' "Acueducto de Canlpano," of which Mr. Vicente Giuliani F'ranceschi, a member of the firm P^ranceschi &. Co., associated in the enterjiri.se of the tramway, was the president. (Annex 50.) For all the reasons aforesaid the Venezuelan arbitrator considers entirely groundless the claim for indemnity entered by Fieri Domini(|ue against the Government of Venezuela, as far as it concerns the enter- prise of the tramway of Cariipano up to the 23d of May, 1899, amount- ing to the sum of 3,600,000 bolivars. Fosterior to that date it appears proved that ft'om March. 1902, on account of the several attacks that the town of Cariipano has suiTered on the part of revolutionary troops and of the National Government the enterprise of the tramway has sustained damages, its traffic having been completely interrupted; that at several points the rails have been forced out and the line cut by barricades; that the draft aninuds of the tramway were taken by the military forces commanded by Gen. Calixto Escalante; that the wagons and carts have sustained deterior- ations and are unserviceable on account of the occupation of the sta- tion and depot buildings by troops of the government quartered therein. It also appears proved that Fieri Domini(iue is compelled to abandon, as he did, the exploitation of his contract l)V the circum- stances narrated and that in virtue of that abandonment he has offered before the legation of France to leave the depot building, the rails, wagons, and all the materials and implements used in the e\i)loitatit)n to the benefit of the municipal council of Cariipano, putting an em! to the concession and waiving any claim that might derive therefrom in his behalf. Appreciating in their just value the damages sustained by the enterprise /rom the interruption of the traffic in March, 1902, and the seizure of its animals vp to the last occurences the ciiuitable and proved value of the materials, deposit, and of all that constituted its working capital, which, as appears from the records, cost for Fieri the sum of 62,000 bolivars, as well as of the other circumstances which represent for Fieri the gain frustrated of his enterprise, aiul in view of the circumstances under which the town of Cariipano had been placed, on account very es|)ecially of the contimied revolutions which frt)in four years ago have rendered that kind of enterprise almost unproductive, even in towns like Caracas, which have not been the tlieater of deeds of arnls, the arbitrator is of opinion that the largest indemnity that OPINION OF FRENCH COMMISSIONER. 193 may be allowed to Fieri Domini((ue for all those reasons is the sum of 150,000 bolivars. As to the claim of L. Nasica for the sum of 1 ,500,000 francs, Nasica having no right to the printing press destroyed, no share pertains to him in the indemnity allowed for said destruction; and as the other particulars on which he bases his claim for indemnity are entirely groundless and show by themselves the indecorous condition of this claim, it is absolutely disallowed. In short, the Venezuelan ar])itrator is of opinion that as full indem- nification the sum of 170,000 bolivars should be allowed to Fieri, with the declaration of his abandoning in favor of the municipal council of Carúpano the concession of the tramway, the depot, the stock in hand, and all the material of exploitation. Caracas, May 12, 1903. NOTE BY THE VENEZUELAN COMMISSIONER. Francs. This claim, in its part concerning Picri Dominique & Co. and Pieri Dominique, for the sums of 3, 730, 000 and 280, 400 Total 4, 010, 400 was accepted by the French arbitrator for the sum of 600,000 bolivars, rejecting the claim of Nasica for 1,500,000 francs. The part relative to Pieri was, therefore, referred to the decision of the umpire. Caracas, the date above written. OPINION OF THE FRENCH COMMISSIONER. As is shown by the minutes of the session of the mixed commission of May 12, 1903, the Venezuelan and French arbitrators have both considered that Mr. Fieri had presented a well-founded claim and that he was entitled to an indemnity. But Doctor Faiil and myself have differed in opinion upon the amount of this indemnity. While I have reduced to 600,000 bolivars the sum of 4,010,400 bolivars claimed by the party interested, my colleague has reduced it to 170,000 bolivars. It is to be noted that the Venezuelan arbitrator, in conformit}^ with the opinion of the French arbitrator, has pronounced, like him, the rescis- sion of the contract which bound the contractor to the municipality of Carúpano to abandon to this latter in exchange for an indemnity "the concession of the tramway, the depot, and the material which consti- tutes the exploitation of the line." Doctor Faúl is then convinced that Mr. Fieri finds himself, not through his own fault, but because of a position he has been compelled to assume, unable to recommence work in his concession, and this inability, in my opinion, is not due to a state of war. It is solely based upon the malevolence of the munici- pality of Carúpano and the determination of the authorities of the S. Doc. 533, 59—1 13 194 DOMINIQUE & CO. CASE. State and the city to deprive Mr. Fieri of a concession thoy wish to operate themselves. At the time of my visit to Carúpano I was able to prove de iñsu that the last war had completely arrested the exploitation; the rails had been torn up and in several ])laces had been cut in two by four barricades. The depot, which had been u.sed for a military hospital, was partly demoli.shed by shells, and the cars had nearly all been put out of service, but all these damages were reparable. Since March, 1903, Carúpano has been cleared of revolutionary bands. Since the month of July last the present Government has finally triumphed over the revolution and caused peace to reign throughout the Venezuelan territory. Dossier No. 8, prepared after May 12, 1903, proves that Mr. Fieri was not able to take up the exploitation of his enterprise because of the hostility of a part of the population, hostility which has the same causes as the malevolence of the State and municipal authorities, if indeed the latter does not explain and has not created the former. Why, then, after having recognized implicitly the impossibility of Mr. Fieri's renewing the exploitation, does Doctor Faill refuse "to acknowledge for the interested party the right to an indemnity, from the fact of his dispute with the municipal authorities," when the said "disputes" (démeles) have truly caused this impossibility? More- over, does not this refusal, following the payment of the indemnity of 170,000 bolivars for damages caused by the incident of 1895 and the civil war, show clearly that even in the mind of the Venezuelan arbi- trator the 170,000 bolivars do not represent an indemnity suilicient for all the damages of every nature to which Mr. Fieri was subjected, including the loss of the concession? In fixing at 600,000 bolivars the indemnity to be accorded to Mr. Fieri, who claimed 4,010,400 l)olivars, I have desired to accord him a sum which might represent exactly the material damage which has been caused him. I have not wished to increase it by a special indemnity which would be of a penal character for the State and municipal authorities. The latter, however, would have merited it because of the stubbornness with which they have unjustly pursued and tor- mented a citizen stranger, the possessor of a perfectly regular con- tract. It seems from numerous authentic ])ieces of evidence contained in the dossier and from information that I have gathered on the spot that the enterprise of the tramway of Carúpano has brought in and can bring in for the future to the concessionary' from 30,000 to 40,000 bolivars a year. If one does not take into account the high return of money in Venezuela, more than a million of cajiital should be allowed to Mr. Fieri. On tlie other hand, it is well to remark that according to the common opinion of the two arbitrators Mr. Fieri ought to abandon the concession to the nniiucipality. The latter will be anxious to exploit it, and the beneiits which it will receiv will rep- ADDITIONAL OPINION OF VENEZUELAN COMMISSIONER. 195 resent almost exactly in capital the indemnity accorded to Mr. Fieri. Venezuela would thus withdraw without (lisadvanta<;ofrom the unfor- tunate position in which the actions of the local authorities of Cariipano have thrust her. Finally, it is to be considered that according to the terms of the protocol tliis indemnity must be paid in bonds of the diplomatic debt and not in gold. From the fact of this concession consented to by the French Government to permit the Venezuelan Government to settle its debts with greater ease the amount of the indemnity is found to be really reduced. The real amount of these bonds is far, at this time, from reaching half their nominal value. The granting to Mr. Fieri of an indemnity of 600, OOO bolivars would then permit the Venezuelan Government to free itself for 240,000 or 250,000 bolivars from a claim the settlement of which would assure to the Venezuelan nflministra- tion an annual income of 30,000 to 40,000 bolivars, March 25, 1904. ADDITIONAL OPINION OF THE VENEZUELAN COMMISSIONER. I must call the honorable umpire's attention to the fact that when I agreed in the opinion of the French commissioner declaring the rescission of the contract binding the claimant to the municipality of Carúpano, and the abandonment to the latter, for an indemnification of the concession, such as it is, the deposit made and the materials destroyed or damaged, for which in my opinion I stated that Mr. Fieri should also be indemnified, I was not prompted by the fact, as the French commissioner avers, that I was convinced — that Mr. Pieri finds liimself, not through his own fault, but because of a position lie has been compelled to assume, unable to recommence work in his concession, and — that inability is not due to a state oi war, adds my colleague, but is solely based upon the malevolence of the municipality of Cariipano, and the determination of the authorities of the State and the city to deprive Mr. Pieri of a concession they wished to operate themselves. In my written opinion read at the meeting of Ma}'' 12, 1903, which, translated into. English, I submit herewitli to the honorable umpire, there is nothing whatever to show the conviction ascribed to me by my learned colleague, and I can not let such statements go unchal- lenged, as such motives are entirely foreign to the reasons I had to form my opinion in this case. I have declared the rescission of the contract between Mr. Fieri and the municipalit}^ of Cariipano, because from the statements made by Mr. Fieri in his claim, his decided will to discontinue the operation of the Cariipano tramway is clearly shown, and because about the time the claim was entered (Fe})ruary, 1903) and at the time we — -the two commissioners — rendered our decision (May 13, 1903), Carúpano was 196 DOMINIQUE cV CO. CASE. in a state of sietje because of the continuation of the revolutionary movement led by General Rolando, whidi ended in July, after the attack and capture of Ciudad Bolívar. These facts are universally known. 1 have endeavored, in my opinion, since Mr. Fieri showed liis |)ur- pose to abandon the operation of the tramway and in \new of tlie fact that the circumstances at the time did not permit the immediate renewal of the operation of the line because of the seÍ7Aire and destruc- tion of the materials, to conciliate the private interests of the claimant and his manifest will to abandon the business, with the interests of the community, which could not be left at the mere 3^ of a person who, durino: his intercourse with the local authorities, had shown himself not to be animated by a conciliatory spirit, but, on the contrary, by the earnest desire to constantly j)rovoke disafîreements and scandals. To estimate the amount of a just indemnification, I have used the data furnished by the documents submitted on the real cost of the business, the value of the building or depot and that of the rollino; stock, cars in use, and animals. I have not estimated anj^ exaj;- gerated, imaginary, or eventual profits, because the determination of Mr. Fieri to discontinue the operation of the tramwa}" line plainly showed that the business does not yield profits, but losses, because of the decline of business in Venezuela by reason of continued revolu- tions and the considerable falling off in price of the principal export product of the country. In proof of this, there is the fact that the two tramway lines existing in Caracas, where there has been no fighting and where there is a poi)ulation of resent, as tlie real value of said bonds is not one- half of their nominal value. The honorable umpire will fmd on page 499, W'uczuelan Arbitrations of 1903, Ralston's Keport, in the case of the Decaiiville Company before this same commission," my opinion as the Venezuelan commissioner, altogether rejecting the claimant's con- tention that an allowance should be made to compensate for the lowest cash value the bonds of the iliplomatic debt might obtain. The Frene h commissioner, in his decision, concurred in my o])inion, by which it was acknowledged that the commission had no jurisdiction to alter or change the method of payment establi.shed by the ])rotocol, by advanc- ing theories which might ail'ect the nominal value of the bonds of the diplomatic debt, as such method of settlement on the ])art of A'ene- zuela of the sums awarded by the commission was a matter exclusively concerning the two contracting parties and in no wise suliject to the jurisdiction of the arbitration commission, called upon to examine only the proofs of the facts and the justice and sound foundation of the claims for indemnification, estimating the measure of danuiges by the established proof of such damages and not by the kind of money, whether cash or bonds, in which Venezuela is to discharge the awarded liabilit}^. In regard to the other points covering my estimation of the damages which I deem justified in the claim of Mr. Fieri, the liability affecting the Venezuelan Government by reason of certain established facts ami the amount of indemnitj^ I have granted for the abandonment or rescis- sion of the tramway contract, taking into consideration the value, as appearing from the proofs, of such business and the fair compensation for the price of the concession as an industrial investment, I hereby ratify in all its parts niy opinion of May 12, 1903, whereby I allow for all indenmilication the sum of 170,000 bolivars. NoRTHFiELD, Vt., februavyS, 1905. ADDITIONAL OPINION OF FRENCH COMMISSIONER. After having read the additional opinion of my honorable colleague, I can only maintain the conclusions of my memoir. T think T ougiit, moreover, to make the following observations: My honorable colleague declares that in his opinion one can not raise anything which indicates his conviction that Mr. Fieri finds himscdf, not by his own fault, but from the fact of the situation which is thrust u])on him, unable to renew the exploitation of his concession. It is, however, it seems to me, the logical conclusion which can be lirawn o Appendix herein, p. 45G. ADDITIONAL OPINION OF FRENCH COMMISSIONER. 199 from the decision rendered by Doctor Paúl. If he does not have this conviction, why has he accepted the rescission of the contract which I have judged equitable and necessary ? It is not, I imagine, merely to be agreeable to Mr. Fieri. It is really because my honorable colleague has thought, as I have, that the position of the claimant was such that circumstances infle pendent of his will prevented him absolutely from renewing the exploitation of his concession. Only Doctor Paúl is of the oi)inion that the ruin of Mr. Fieri is due merely to the hin(h-ances which the revolution has placed in the way of the exploitation, while I consider that to these hindrances ha? come to be added the open and declared hostility of tlie Vene'"''ue'an .uth^rities which was manifested repeatedly several years before the commencement o'^ i-he revolutions. If one refers to the text of the minutes of the sitting ot May 12, 1903, he may read there the phrase whicii I have cited. Doctor Paúl "re- fuses to acknowledge for the interested party the right to an indemnity from the fact of liis dispute with the municipal authorities." I have the right to conclude from tins that the indemnity accorded by J3octor Paúl represents merely the damages caused by the revolution and is not a sufficient compensation for the losses sustained by, Mr. Fieri. It is suilicient to review the dossier to note the fact thatfrom 1895 to 1899 — that is to say, during a period previous to the revolution — Mr. Fieri was the butt of continual persecutions from the Venezuelan authorities. At every moment they stopped liis tramways under (Ufferent pretexts, they created difíiculties for him at pleasure, they chose as if by chance the place where the tracks were established to pass canals which they might have placed farther away, etc. The umpire mil be able to convince himself of these facts by perus- ing the dossier. It is these repeated manifestations of the municipal- ity of Carúpano wlúch have convinced me that the latter wished to exploit itself the line of tramways, and that it was trying by all possible means to dispossess the concessionary. I have nowise been brought to this opinion, as my colleague tliinks, by the fact that General Rolando offered to purchase the concession for a sum of 35,000 bolivars. This offer is but one proof the more in support of my opinion, but it has not been the determining proof. Doctor Paúl concludes, moreover, from this amount that the concession was not worth more. But it is well to remark that the proposition of General Rolando was not followed by any result, Mr. Fieri having without doubt judged the offer to be derisory: it is clearly seen that according to the documents contained in the dossier tliis sum of 35,000 bolivars represents the income which the enterprise of the tramway might yield annually. The documents presented after May 12, 1903, have no other end than to demonstrate that there exists in fact a declared hostility against Mr. Fieri, since peace has now reigned in A'enezuela for long months. Tliis unfortunate concessionary is prevented from gaining 200 DOMINIQUE & CO. CASE. his livelihood b}' taking up again the management of his concession. They also donionstrate that the concession has no such low value as my colleague would like to have believed, since without the j)('rsistent ill will of the municipality and of the population Mr. Fieri would find an advantage in again taking up the exploitation of his iine. What- ever Doctor Paúl may say about it, Mr. Fieri was perfectly right, according to the protocol, in submitting these documents to the um- pire. I searched in vain in section 2 of ^ticle 2, quoted by my col- league, the provision which would prevent Mr. Fieri from presenting the documents because they are posterior to May 12, 1903. On the contrary, I find that section 3 of the same article formally authorized him to do so. I would particularly call the attention of the umpire to the enor- mous reduction which I have made in my decision from the amount of indemnity demanded, and I persist in thinking that the sum of 600,000 bolivars is the minimum which can be given to Mr. Fieri in compensa- tion for vexations and losses wdiich he has suffered and in exchange for his concession and his material. This reduction appears still more considerable if we take into account the depreciated currency with which the Venezuelan Government is to pay its indemnity. In regard to this I ought to bring up the manner in which my honorable colleague looks at this public debt. I should prefer not to be obliged to say that the Venezuelan Government washed to profit from the condescen- sion, which alone among all the foreign governments the French Gov- ernment has shown toward it, to allow it to free itself from its debts at a reduced rate and not to pay them integrally. In consenting to this concession of not being paid in gold the French Government has in no way wished to place its nationals, the victims of pillage or of denials of justice, in a position inferior as compared to the nationals of other countries placed under the same circumstances; it has wished only to permit Venezuela to acquit itself more easily in giving to the claimants in place of gold these bonds redeemable after a long time. Can we conclude from this fact that it is forbidden the arbitrators in the fixing of an indemnity in e(|uity to take into account the de|)re- ciation of the money which is to be given in payment? Can we say that this changes the mode of payment established by the |)r()toc()r? The arbitrât ors have, to the contrary, a strict duty, and they can not fail without Wijunding e(|ually (>(|uity and good sense to take account of the manner in which their award will be executed in such fashion that the sum which they have awarded shall be in fact j)aid. Otherwise their awards would be only deceptive. When my Government invested me with the duties of ¡ubitrator it remitted entirely to my conscience in all that which considers fundamentally the claims which I might have to examine; it has only remarked that c([uity conunanded me to take OPINION OF THE UMPIRE. 201 account in the fixing of indemnities of the clepreciation of the bonds of the diplomatic debt. The protocol would in fact be vitiated if the arbitrators did not take acct)unt of this article 8, which declares that the indenuiitics will be paid in bonds of the diplomatic debt. In reading this article the arbi- trators are informed that the indemnities will be paid in a certain money; they ought to take notice of this to conform to the letter of the protocol and also to its spirit, which is a spirit of equity. So I can not help express my profound astonishment to read in the additional memoir of my honorable colleague the phrase which begins thus : "The French commissioner in his decision (Decauville affair) concurred in my opinion," etc. In the matter of the Decauville affair I have given no other opinion than that wliicli is laconically expressed in the min- utes of the sitting of June 15, 1903, which is as follows: The examination of the claim of Mr. Decauville is then taken up. in favor of which i.s recog- nized by connnon agreement a sum of 41 ,400 bolivars. On the contrary, my colleague will kindly remember that I have in every affair which has been submitted to us each time demanded that account must be taken of the depreciation of the diplomatic debt. And at every time, to arrive at an agreement, he has consented to raise slightly the amount of the indemnit}^, declaring that this should not be mentioned either in the minutes or in the report wliich he would pre- sent to his Government. I hold, in principle, that this correction should l)e made, and I should consider myself as having failed in my duty and having been forgetful of equit}^ if I had neglected a single time to take account of the manner of payment of indemnities and tolerated that the Venezuelan Government should thus receive an unjust benefit, to the detriment of the victims of the abuses of power, of pillages, and of denials of justice. NoRTiiFiELD, February 11, 1905. OPINION OF THE UMPIRE. On the 2d of May, 1882, a lawful contract of concession was made by and between the president of the State of Bermúdez, of the United States of Venezuela, and José Gabriel Nunez Romberg, of the city of Cumaná, of said State, for the purpose of promoting and encouraging the means of comnmnication in that section, which contract, among other things, provided that the government of the State granted per- mission to the concessionary to construct tramways or railways in the cities of Cumaná, Carúpano, and Maturín of that State, and also to establish ways of communication under the system named between different points of the sections referred to, the works to be the property of the enterprise, but with the obligation to devote them to the trans- 202 DOMINKiFK & CO. CASE. portation of passenfjers and mercliandisc at prices lower tlian those then existing; between those sections and in those cities and in accord- ance witli tariffs to be approved by the government of the State of Bermúdez. The concessionary was authorized to transfer to others, in whole or in part, the rights passing to him under the contract; also to use for the railways aforesaid the necessary streets or public walks, but in a way not to cause injury or obstruction to traffic. The enterprise was exempted from all State and national taxation, with the privilege of obtaining like exemption from municipal taxation through the action of the respective municipal councils. This concession was to continue for the term of fifty years, to be reckoned from the date of the inau- guration of the first line of tramways or railways created under tliis contract, and when said fifty years had terminated, the enterprise, with all its ])roperty, was to pass to and become the property of the State of Bermúdez. On the 20th of the same month the enterprise was duly exempted from municipal taxation by the city of Cariipano. Thereafter the anonymous company of "Tramways of Cariipano" was duly organized, the privileges herein named were duly ceded to the said company, and the enterprise of the tramways was inaugu- rated and installed in the city of Cariipano. At a date not material tliis company, the "Tramways of Carúpano," went into liquidation, and its liquidator, on the 8th day of ^hly, lSi)l, sold at auction to Fieri Dominique the said enterprise, including the privileges contained in the concession aforesaid, so far as the same referred to the city of Carúpano. The ])rice paid therefor was 38,500 bolivars. It became the property of Fieri Dominique & Co., the other member being the house of Franchessi & Co., of the city of Carúpano, Fieri's interest in the company being much the larger part. Under the management of Fieri Dominique & Co. the enterprise was extended and enlarged, and for some four years proved quite successful. The income for the year 1891-92 was 30,232 bolivars, ¡ind there was a steady increase to 1894-95, when it had reached 47,200 bolivars. It was in the year 1895 that difficulties began," culminating in the very serious affair of June 21, 1895, which continued through the inter- vening years up to the sitting of this mixed connnission in Caracas in 1903, of a degree more or less troublesome each year, to the great det- riment and loss of the company. Before the sitting of this mixed connnission at Caracas in 1903 Fieri Dominique had become the sole owner of the tramways and of the cijncession, paying for the share of Franchessi it Co. the sum of 24,000 bolivars. The claim of A. L. Nasica was dismissed by (he lionoiable eomniis- sioners of France and of Venezuela at their sitting in Caracas, and OPINION OF thí: umpikk. 203 there was reserved for tlie umpire only the ( laiiii oi" l^ieri Dominique for liimself and for Fieri Dominique & Co., he beinji the only person interested at the time this claim was presented Ijefore the mixed com- mission and the only person interested at the present time in the claim. The award is to be for his sole benefit. The nationality of the claimant is unquestionably French, and there is a tliiference of opinion between the honoral)le commissioners only as to the amount wliich should be awarded the claimant for the dam- ao;es and indenniities to which he is entitled. The {io;o:reo;ate claim submitted l)y Fieri Dominique in Ids own behalf and as the successor of Fieri Dominique & Co. is 4,010,400 francs, coverinti: injuries ;,l]eo;ed to have been committed on his person and ])ro])erty commencint; June 21, 1895, and continuing from time to time u]) to the conclusion of ])eace in 1903. After submitting; this claim, and while the mixed commission was sittinji at Caracas in 1903, Fieri Dominique appeared before the commission and suggested and consented that the award be made on the basis that he surrender the enterprise, including all the privileges of the concession, to the munici- pal council of Carúp-ino. When the case came on for hearing before the honorable mixed commission it was the opinion of the honorable commissioner for Venezuela that the sum of 20,000 francs was a sufficient indemnity for the damages suft'ered in the person and in the property of the claimant on account of the events of June 21, 1895, and those which are prior or subsequent, but immediately connected therewith or naturally flowing into or therefrom. For so much of the damages suffered by the claim- ant during the revolution of 1901-1903 as he regarded to be properly chargeable to the respondent Government and for the enterprise itself, including the privileges of the concession, he allowed the sum of 150,000 francs, making in all the sum of 170,000 francs. He finds no occasion to allow any indenuiity for the action of the customs author- ities at Carúpano and later on for the action of the city council in pro- hibiting and preventing the carrying on of the tramway freight traffic, for the forced mterruption by the municipal council of Carúpano of the entire traffic for a period of three months in 1896 during the installa- tion of the aqueduct system in that city; for the defects and faidts of certain portions of the streets on wliich was laid the tramway of the claimant through the inefficient use and management of the same by said aqueduct company while making its house connections, whereby was ruined one of the horses of the tramway system belonging to the claimant; for the forcible suspension of the passenger traffic by order of the municipal council at another time; for the arrest and imprison- ment for twenty-four hours of the claimant, without warrant or any subsequent charge or trial, on the oral order only of the civil chief of the district of Bermúdez; for the delay and fmal neglect of the munici- 204 DOMINIQUE & CO, CASE. pality of Carupano to rebiiiltl a ])ri(lge carried away by a freshet, upon which rightftill}' rested the railway of the claimant, inducing serious loss in receipts tb.roiigli inability to conduct the enterprise and entail- ing upon the claimant the expense of rel)uil(ling the bridge; or for tlie losses resulting, as claimed, in the allege award. To ])ut iho nuini(i|)ality of Carúpano in pos- session of this enterprise as sole owner ihci'eof to the entire» (>.\( lusion of the claimant while the municipality is uiKjuest ioiuibly tlic (h'htor of the claimant for its acts ¡md neglects in coimcction with t!iis enter- prise would l)e so manifesth' unjust and ineipiitable as not to permit a o Page 459, post. OPINION OF THE UMPIRE. 207 moment's favorable consideration. Whatever may be the usual rela- tion of the nation to and with its municipal subordinate divisions, it is certain that in this case it can and will bo so related to the niuniri- pality of C'arilpano as to exact and re<[uire full repayment to itself for all it shall undertake and expend in behalf of that municipality in con- nection with this enterprise of the tramways, ^^^latever hesitancy, if any, there mif^ht be ordinarily in makin<î such acts and nef;locts of the municipality a matter of international award is dissipated by the peculiar facts incident to this claim, as above stated. So nnich of the award as corrects the wront^ done the claimant by his arbitrary arrest and imprisonment stands solely upon the recog- nized and rightful responsibility of the nation, internationally, for the unlawful and injurious acts of its subordinate officials and is on all fours with the case of Davey first above cited. Concernino: the alleviation of prejudice on the part of the nationals of the respondent Government toward foreigners, and especiallv the French, and also the allegation that there was a studied attempt of the President of the State of Bermiidez and of certain officers of the city of Cari'ipant) to compel abandonment of his tramway enterprise by the claimant, it is sufficient to say that these allegations are not material to the inquiry, since there is no claim for punitive or exemplary dam- ages and since all essential facts bearing upon the cjuestion of the actual damages suffered are found without involving tlie consideration of these questions. The honorable commissioner for France again urges upon the umpire the proprietj' and duty of increasing the sum which he otherwise would award the claimant by an amount equal to the diminished value of the diplomatic debt of 3 per cent as compared with gold, and in this opin- ion he gives especial prominence to the claimed inequality of the plan accepted by the high contracting parties in the protocol providing for this commission with the plan ado])ted by the claimant Governments and the respondent Government m the several protocols of 1903. This particidar reason was not passed upon by the umpire in his opinion given in the claim of Jules Brun,<^if it were, in fact, then pressed upon his consideration by the honorable commissioner for the claimant Government. In the motion for allowance of interest on awards from their date until payment, which was made in the British-"WMiezuelan Commission of 1903 and wliich on the disagreement of the honorable commissioners came to the umpire for his decision, a careful and painstaking study was made by him of the basic principles underlAnng this question, and while the exact proposition now before him is not identical with that, yet the principles which govern him in his decision are in large part the same. a Page 5. 208 DOMINIQUE & CO. CASE. Here, as there, the warrant for such action must be found, if found, in the protocol which ( onstitutes this tribunal and defines its duties, its powers, and its limitations. There, as here, the protocol determined the manner and means of payment, and over that matter «rave the tril)unal no jurisdiction. llore, as there, the functions of this tribunal end when it has determined the damaojes sustained by the claimant. The reasons stated })v the umpire in that case are applicable here, and the attention of the honorable commissioners is res})ectñilly invited to it as found in Ralston and Doyle's Venezuelan Arbitrations of 1903, pm^o 413. It will be observed that there, as here, the allefjed f^round for the requested award was a claimed equit3\ The lono; delay in payment which seemed probable was urged as the reason for the allowance of interest ; here, by the terms of the treaty, the award draws interest, l)ut its value in the market is below par, and hence the opinion of the honorable commissioner for France that the umpire should increase the sum awarded to meet this lessened value. It will be noted especially that the very terms of pa^mient provided for in the protocols of 1903, and which are considered by the honorable com- missioner of the claimant Government to be so much more favorable for the claimants than the plan evoked by the convention controlling this tribunal as to work injustice and inecjuit}^ to the claimants before this commission by the inequality which it produces, were regarded by the British Government so onerous as to recjuire the effi- cient aid of the umpire to maintain justice and ec^uity through an allowance of interest. In the one case a certain method of assured pa3nnent without interest was devised and preferred by the high con- tracting parties; in the other the high contracting parties preferred a certain method of payment with interest in bonds circulating in the markets of the world. In the one case the award is not rated at par berause of the necessary delay attached to its payment; in the other it is not rated at par for reasons satisfactory to the world of finance. The inequality produced by the two methods of payment is there- fore not very striking, nor is the inequity resulting therefrom very pro- nounced, and taken together they are insufficient to move the umpire to accord with the opinion of the honorable commissioner for France, even if the umpire were competent under the terms of the protocol to make such an award, and concerning that (piostion the review which he has just made confirms his judgment as expressed by him in the claim of Jules Brun. In order to compensate the claimant for his material damage suf- fered in all of the wa}s herein referred to, including interest at 3 })er cent where interest is proper, there should be added to 170,000 francs allowed by the honorable conunissioner for Venezuela the .'^um of 180,000 francs, which makes in all the sum of 300,000 francs, for wliich amount the award will be drawn. ADDENDUM. 209 ADDENDUM. After this opinion was ^^Titten, but before the award had been made, it was brought to the attention of the umpire that coniHtions had materially changed in Carúpano since the sitting of the honorable commission at Caracas. At the time named the revolution was still rampant in that part of the respondent Government, with the latter in possession of Carúpano, holding it under martial law, and with its troops occupying for military purposes the station of the tramways and for barricades portions of the tramway itself. The Government of Venezuela was then, in fact, in occupancy of the tramway system to the exclusion of the owner. There seemed to both commissioners no better way to dispose of the claim than, on the one hand, finally to sur- render what was lost and, on the other, fully to accept what had been taken. They did not agree upon the terms, however, and the claim had to come before the umpire. It transpired in the meanwhile that the revolution was (juelled, peace was restored, and the claimant had entered into undisturbed possession of his franchise and such of his properties as he chose to make use of; had occiipied the station house, regained a part of the movable property of the enterprise, and had begun again its exploita- tion. By the terms of the contract the tramway system was eventu- ally to become the property of the municipality and was at all times under its civil control. Hence it had seemed to the honorable com- missioner for Venezuela very unwise and, in a sense, not within its competency, for the respondent Government to interfere with either the ownership of the claimant or the present civic control and the ultimate municipal ownership of the city of Carúpano, and for these reasons he declined to accede to the proposition of abandonment on the part of the claimant and on the part of the respondent Government of acceptance and payment of his franchises and properties. The whole question was thoroughly and ably presented to the umpire at a sitting of this honorable commission, held on the 12tli da}' of August, instant, the honorable commissioner for France believing and urging that the plan adopted at Caracas was the better and should be adhered to in the dis- position of the claim. The honorable commissioner for Venezuela held and insisted that the arbitral tribunal constituted at Paris Feb- ruary 19, 1902, had no authority to do other than to award indemni- ties for damages suñered by Frenchmen in Venezuela and that it could not compel abandonment of property by its owner or acceptance of it by the respondent Government. To this position the honorable commissioner for France demurred and urged that it had authority to so award. To-day, having careñdly considered the ({uestions involved and having reflected upon the opinions respectivel}' held and ably ileclared to him by his able and learned associates, the umpire has concluded, S. Doc. 533, 59—1 14 '210 Do:MTxrQUK «fe co. case. and hence holds, that the safe, sane, and wise course for this tril)unal to pursue is to pay scrupulous regard to the terms of the protocol which constituted it and to place the entire responsibility in that behalf upon the high contracting powers which arranged and settled those terms. He is confident that the language of that compact does not permit the use of any such powers as will be involved in a com- pulsory award of the character* proposed by the honorable commis- sioner for France, holding that, in tliis respect, the claim under con- sideration is identical in that regard with the claim of the French Company of Verezuelan Railroads, and the reasons there given ^ by the umpire are here referred to for an elaboration of his opinion. He therefore decides that it is only for damages suffereil in Venezuela that the claimant has recourse to this tribunal, and for those the umpire will award the sum of 300,000 francs. NORTHFIELD, AuÇUSt 14, 1905. «Page 367. CLAIM OF THE HEIRS OF MASSIANI.— No. 6." HEAD NOTES. An indebtedness of the respondent (tovernnient to tlie late Tlionias Massiani in his lifetime is a part of the patrimony which descends to his widow and children, to he distril)uted in accordance with the laws of Venezuela. The widow of Thomas Massiani was born in Venezuela, accjuired French nationality by the laws of both countries by her marriage to Thomas Massiani, by the laws of France retained that nationality after his decease, but by the laws of "Wnezuela was restored l)y his death to her quality of a Venezuelan citizen. During tlieir marriage and since his death she has been domiciled in ^'cnezuel!l. The law of her domicile prevails in this conflict and her nationality before this tril)unal is Vene- zuelan. The children were all l)ürn in Venezuela and it has always been their domicile. While by the laws of France tiiey are Frenchmen, being the children of a Frenchman, tiiey are by the laws of Venezuela citizens of that country. .\s in the case of the widow, the law of the domicile prevails, and before this tribimal they are Venezuelans. Thomas Massiani deceased prior to the convention of February 19, 19()2; therefore neither of tlie liigh contracting parties could have had liim in mind as a possibles claimant at the time of said convention. His widow and children being Venezuelans in the contemplation of the respondent Govern- ment, their right to the intervention of France was not agreed to by Venezuela in said protocol. «EXTRACT FROM THE MINUTES OF THE SITTING OF AUGUST 28, 1903. The commission then proceeded to the examination of the Massiani claim. Doctor Paúl rejects it, and bases his opinion upon the following considerations: The heirs of Thomas Massiani are all Venezuelans by Venezuelan law. The mixed commission of 1890 has airead}' rejected the claim in question, and the present commission would not be able to revise a judgment of the former commission. Finally, the very documents upon which the Massiani heirs base their right to the payment of the sum which they claim does not seem .sufficient to prove the existence of the debt in a decisive manner. M. dePeretti repliesthat M. Massiani (Thomas) enjoyed exclusively French nationality, and that his heirs, if they are Venezuelans according to Venezuelan law, are considered as French- men by French law; that if the connnission of 1890 has rejected the claim in c|uestion, it is because the Venezuelan Government did not give an acknowledgment to a document of which M. Philippe Massiani has been able to obtain an authentic copy only in 1903: that the present commission .seems to him competent to revise a judgment of the earlier commission if a new fact has been presented, which is the ca.se in the Ma.ssiani claim; finally, that the credit seems well established by the document delivered to M. Philippe Massiani by the Venezuelan administrât ion. He is, then, in favor of granting to the Massiani heirs a sum of 270,813. .'íü bolivars, rei)re- senting the capital of the debt, and not according inteicst bcrause of tlie negligence dui'ing long years by the claimants in the defense of their rights. The arbitrators not being able to agree, the claim of the Massiani heirs will be submitted to the examination of the umpire. 211 212 HEIRR OF MASSIAXI CASE. The iudebtednpss of Vcnozucla to the estate of Thoma.s Massiani may still remain, hut the fonim is certainly changed. The present forum is the one constituted for Vene.;uelans. This forum is the result of the selection of tlieir paternal ancestor and their own selection after attaining majority. Having Frencli paternity, and tlierehv having French nationality in France, tliey needed only to l)e domiciled therein to iiave a nationality whidi all tlie world nuist maintain to be French. They have preferred to remain in Venezuela; its laws and its courts are theirs; these they may invoke; with them they must be content. To be sovereign and independent, each country must be master of its internal policy and sub- ject neither to advice nor control by any other country. The laws of Venezuela concerning citizenshij) are not peculiar or offensive, but are in accord with the law of nations in general. OPINION OF THE VENEZUELAN COMMISSIONER. Tills claim has l)eoii })resentecl In the name of Mrs. Carmen Silva de Massiani, widow of Tomás Massiani, of Felipe A. Massiani, Ascención Massiani de Phelan. Niincia Massiani de Orsini, Luis A. Massiani, cliildren of Tomás Massiani, and Isabel Paván de Massiani, acting in behalf of her minor cliildren, Antonio José, Tomás María, Mercedes, Luis Enri(|ue, Carmen de Lourdes, and Gloria. i.ssue of her marriage with Mr. Antonio Massiani, now deceased, son of Tomás Mas.siani, and therefore those minors being grandchildren of the latter. The claim proceeds from debts which, the claimants sustain, were contracted by the Government of Venezuela, in favor of liini from whom they derive their rights, Mr. Tomás Massiani, by the years 1864 to 1869. The documents ])resented prove that Tomás ^lassiani died in the city of Carúpano on the 9th of October, 1901, leaving as his law'ful heirs his wdfe, Carmen Silva de Massiani, and his children Felipe A. Massiani, Antonio A. Massiani, Ascension Massiani, Nuncia Massiani, and Luis A. Massiani; that these children have married as follows: Ascension Massiani to a Mr. Phelan, Nuncia Massiani to Agustin Orsini, and Antonio J. Massiani to Isabel Paván, of which latter mar- riage there arc under the parental C(mtrol of Isabel Paván de Massiani, her husband l)eing dead, six minor children. From the certiiicates of birth presented of Mrs. Carmen Silva de Massiani, widow of Tomás Massiani, and of her children, Felipe A. Massiani, Antonio Jose, Ascensión, Nuncia, and Luis, it appears that all of them are of Vene/Aielan nationality, they having i)een born in the city of Carúpano, State of Sucre, Ignited States of Venezuela, and that the same circumstance exists respecting the minor children of Antonio José Massiani, represented by their mother, Isabel Paván de Ma.ssiani. With reference to Mrs, Carmen Silva de Massiani, while by articles 19 of the ^^enezuelan civil code and 12 of the French civil code the woman maiTied to ji foreigner folloAvs the condition of her husband, the linal OPINION OK VENEZUELAN COMMISSIONER. 213 provision of tlie Venezuelan civil codo, which establishes that that change only subsists during the marriage, is conclusive. Mrs. Carmen Silva de Massiani, having become a widow, has recov- ered, according to the Venezuelan law^, which governs her personal status, her Venezuelan nationality; and, even if it might be sustained that, according to the French law, she continues to be French, this commission, in determining the conflict of nationality arising from the two laws, nuist take into consich'ration the especial circumstances and the facts showing the real condition in wdiich Mrs. Carmen Silva de Massiani has maintained herself with reference to her nationality, as well as with respect to the nationality of her children. It is not proved, nor has it been attempted to prove, that Mrs. Silva de Massiani, after she became a wádow, or her children of full age, have ever pretended, by acts proving such circumstance, to obtain and pre- serve a nationality diflerent from that which the ^'enezuelan law attributes to them, under which law they have performed all the most important acts of life connected with the i)ersonal statute, status civi- tatis, ami governed by the especial laws of that statute, such as those relating to successions, inheritances, guardianships, and marriage. It is not proved either that the male children of Tomás Massiani have rendered France the militar}' service obligatory for every Frenchman, or in any way contributed to the satisfaction of other charges that would procure the protection due to those who do not abstain in an unjustifiable way from the compliance with their dut}^ to their native land. On the contrary, all the especial circumstances and precedents con- nected with the persons of the claimants show that they have tluring all their life remained in the territory of Venezuela; that there they have had for three generations the business and the principal and only seat of their interests, and they have contracted in the same teiTÍ- tory marriages with persons of different nationalities, enjoying under the protection of the Venezuelan laws the security they grant and the services which the authorities of their residences were called upon to render to them in order to safeguard their persons and interests. From those facts it is deduced that the permanent settlement of the widow and children of Tomás Massiani, in the territor}' of ^'enezuela, of which they are all natives, is the result of a reasoned and persisting will and the manifestation of a free and spontaneous purp(^so which makes the law of domicile j)revail over any other law when determining the question of nationalitv. Mrs. Carmen Silva de Massiani, her children, who have been born and, one of them, died in Venezuela, and her grandcliildren, all l)orn in Venezuela, are Venezuelans, not only l)y the law of Venezuela, but in virtue of all the especial personal circumstances of continued resi- 214 HEIRS OF MASSIANI CASE. deuce, business ties witli the Venezuelan soil, which has t;iven them everything, inehulino; their national character. Tt is doubtless that when a {jroup of men are considered, and the aptitudes, liabits, and attributes of each individual are studied, it is found that eacli perstjii pertaining to a group poasesses certain common characters that are like a common property of all the memlxM-s belonging to the same group. Hence it results that, if attention is paid to the common attributes pertaining to all tlie individuals of each group, it may rightly be said that these individuals belong to this or that nation.^ In view of the aforesaid circumstances, the arbitrator for Venezuela is of opinion that this tribunal has no jurisdiction to take cognizance of and decide the claim in Cjuestion, and that there is, besides, with respect to it a precedent that renders it equally inadmissible. Said precedent consists in the fact that the same claim was presented bv Tomás Massiani, from whom the present claimants derive their rights, against the Government of Venezuela, before the mixed com- mission sitting at Caracas from 1888 to 1890, instituted in accordance with the Venezuelan- French convention of 1885. Tomás Massiani claimed from the Government of Venezuela, l)efore the said commission, the sum of 351 ,449.80 bolivars. As appears from the certificate issued by the citizen minister of foreign affairs on the 20th of the present month, annexed to this opinion, the members of said commission in the sitting of the 7th of July. 1890, gave the follow- ing award with reference to the claim in question: The first part of the claim of Mr. Massiani, of which mention is made in the record of the proceedings of the 19th of May of the present year for -49,666.84 Ijolivars, was accepted by the commission, the (juestion being a credit already recognized by the Government of \'ene- zuela, and the present commissioner being authorized by a note addres.sed to him by the minister of foreign adairs on the 18th of July last, \o. 643, to examine the claims that b.ad been presented to the commission of 1879, and the second part of the same claim amounting to 301 ,784.96 bolivars was disallowed, because the interested party did not produce a suffi- cient document in support of his claim. The reason on which was based the disallowance of the claim, in the part above determined, which is tantamount to its having been denied or rejected, was, as expressed in the same award, the want of sullicient proof to justify it. The successors to Tomás Massiani now i^retend that this connnission should examine and decide again what was already the object of the decision of the mixed commission of 1888 to 1890, and base their jire- tention on a certificate from the centralization board of the geneial a 687. II est hors de doute, lorsque l'on considère une réunion d'hommes et qu'on étudie les aptitudes, les habitudes et les attributs de chaque individu, on trouve que chaque per- sonne, que appartient à cette réunion, u certains caract^res individuels et certains carac- tères communs, qui sont comme la propriété conunune et de tous les membres qui appartieiment au même groupe. De là il résulte que, si on porte son attention sur les attributs communs qui sont propres à tous les individus de cluique groupe, ou peut dire avec rai.son que ces individus appartiennent à telle ou telle nation. (Kiore, Nouveau Droit Intematiomil Puljlic, sec. 687.) OPINION OF VENEZUELAN COMMISSIONER. 215 auditor's office, bearing the date of the 12th of August, 1890, posterior, as may be seen, to the date of the award of the mixed commission; in which certificate the movement in the books of the custom-house of Carúpano is partly detailed, and ending by a note signed by the auditor- general, in which it is declared that, according to said books, Tomás Massiani appeared to be the creditor of the Government of Venezuela up to the 23d of June, 1890, for the sum of 270,813.56 bolivars. The claimants give that certificate the force of a decisive document in favor of the creditor, and sustaining that that document was retained by the debtor, or that, at least, this prevented its presentation in due time before the award of the mixed commission of 1890, they pretend that the commission, in virtue of those reasons, should invalidate the award of the preceding commission of the 7th of July, 1890, and again decide in favor of their claims. In law the invalidation of a sentence is admissible when founded on several causes, as: The omission of the summons for the reply of the defendant ; the falsity of the ilocument in virtue of which the sen- tence was rendered, and the retention in the possession of the adverse party of a decisive document in favor of the action or the exception of the claimant, or any act on the part of the adverse party preventing the presentation in due time of said decisive document. To admit that this commission is called upon to decide the invali- dation of the sentence rendered by the preceding commission it would first be necessar}^, as provided b}^ the Venezuelan Civil Code of Pro- cedure, w^hich establishes that the suit for invalidation must be brought before the same tribunal that rendered the sentence, to declare that this commission is the same commission sitting in Caracas in 1888 in virtue of the Venezuelan-French convention of 1885. This similitude or identity can not be deduced onh^ from the inter- national character of both commissions, but would require to be the result of an express convention of the two high contracting parties vesting this commission with the power of revising and finding the decisions of the preceding commission in the same way as the iiational law gives its ordinary tribunals the express power of invalidating their own sentences in such cases as the law determines. No suit for invalidation has either been brought before this com- mission, in which the debate should be confined to examine the deci- sive force of the document presented in favor of the creditor, whether it was or not in the possession of the debtor when the sentence was rendered, or whether said debtor did or did not perform any acts that might prevent the presentation thereof. The commissioner for Vene- zuela does not consider that he nuist give an especial decision on these points which constitute a suit for the invalidation of a sentence pre- viously rendered, because such has not been the subject of examination by this commission; but he is of opinion that the document j)resented 216 HEIRS OF MASSIANI CASE. is destitute of decisive force in favor of the creditor, for it is nothing but a certificate issued by the general auditor's office to the effect that according to the books of the custoni-liouso at Carúpano it appeared that on the 23d of June, 1869, tliere was a balance in favor of Tomás Massiani, without determining in a decisive manner that he was cred- itor for that sum on the date of the certificate, the I'ith of August, 1890, or twenty-two years thereafter. No data have been furnished with reference to the fluctuation of that account in the intervening twenty- two years, during which Mr. T. Massiani continued liis importations through the custom-house at Carúpano, and transfers were made decreed by special laws for the conversion of the balances against the States into bonds of national debt. The apparent abandonment in which, according to the pretention itself of Mr. Massiani, his credit was left during twenty-one years with- out any explanation; the lack of steps to obtain its payment or at least to procure proofs that miglit safeguard his rights, constitute so strong a presumption against the subsistence of that credit that it suffices to strengthen the opinion expressed that the certificate pro- duced is an inefficient document and is destitute of the decisive force that the law and common sense re(|uire for the invalidation of a sen- tence that was rendered, because the claimant did not produce a suffi- cient document in support of Ins claim. The decisions of tribunals of the nature of these commissions are conclusive and final, and such tril)unals are constituted in order i)re- cisel}^ that their decisions have that force with the purpose of putting an end to long-pending and vexing questions which generally disturb the progress of international relations. When a court of arbitration rejei ts, for lack of j)roof8, a claim, or when it admits it in ¡ts entirety or in part, its decision is a law which binds t' e two contracting nations. In the same case of the ( laim of Tomás Massiani, that of being admitted in part and in part rejected, were many others submitted to the examination of the commission of 1888 to 1890, and that com- mission was given the power of fixing or appreciating according only to the documents produced in each case, the just value of each recla- mation. In exec ution of that ])ower it examined and decided more than one hundred and forty ■ laims, rejecting many of tl.eni for lack of proofs, so that of the sum of 1 1 ,284,582.37 bolivars to which the claims having a ('etermined value amounted the commission only admitted as lawful and proved the sum of 1,109,615.50 bolivars. For the reasons stated I am of opinion that this commi.ssion nuist declare itself incompetent to take cognizance of the claim enteretl, because the claimants are Venezuelans, and, besides, that it must declare said claim to be inadmissible, as far as the sum of 301,784.76 OPINION OF FRENCH COMMISSIONER. 217 bolivars and the interest thereon are concerned, because respecting that part of the claim there is a sentence passed and ailirnied. As to the new promissory notes presented as a complement of the said claim, they are not covered by this opinion, because as they are not authenticated the}'' do not meet the re(|uisito indispensable for their being taken into consideration according to the rules of procedure established by this commission. The French arbitrator was of opinion that the claim was to be admitted for the sum of 270,813. 5ü bolivars without interest, and an agreement not having been arrived at, the claim was referred to the umpire. Caracas, August ■¿8, 1903. OPINION OF THE FRENCH COMMISSIONER. According to the exposition made in his letters of April 6 and May 13, 1903, by M. Philippe Massiani, son of i\I. Thomas Massiani, French citizen, who lived in Cariipano and died there October 9, 1901, the Venezuelan Government would have been answerable to the latter for a sum of 728,476.48 bolivars. This amount is made up as follows: First, 341,737.36 bolivars loaned from 1863 to 1869 to the adminis- tration of the custom-house of Cariipano and to General Acosta, chief of the Constitutional arm}^ of the east, this administrator and this general being duly authorized by the national Government to contract loans in its name. Second, 351,003.12 bolivars representing the interest on the sum loaned from the date of the obligation to June 30, 1903. Third, 3,200 bolivars handed over in 1885 upon the requisition of Generals Urdaneta, Pietri, and Rojas. Fourth, 14,136 bolivars loaned to the Legalista revolution of 1892. Fifth, 18,400 bolivars furniijhed the Restaurador revolution in 1899. The amount, which appears under No. 5, formed the object of the demand for indemnity presented to the mixed commission estab- lished by the protocol signed at Washington Februar}^ 27, 1903. This commission allowed to the Massiani heirs, taking account of interest, an indemnity of 19,900 bolivars, as results from the extract below from the minutes of the sitting of September 10, 1903: Doctor Paúl declaies that M. Masgiani (Thomas) hcing to-day deceased and having left as heirs his wife horn in Venezuela, of Venezuelan parents and four children horn in Vene- zuela, he sees himself ohliged to refuse consideration of the claim presented hy this French- man because his heirs are all Venezuelans according to Venezuelan law, and the advantage of the arbitral tribunal is reserved by the protocol for Frenchmen. M. de Peretti replies that M. Massiani (Thomas) who has himself addressed before his death his letter of claim to the legation of France enjoyed exclusively French nationality, and that consequently the commission is competent to examine this claim without its being necessary to look into the question of knowing if the heirs who are all considered as Frenchmen by the 218 hí:ijis of massiani case. French law and enjoy in reality two nationalities, have manifested in the course of their life the intention of remaining French. The connnissioners not being of accord remit the dossier to the umpire and ask him to decide if the claim in question, and of which they do not discuss the amount , enters into the category of those which are included by the terms of the protocol. Mr. Filtz pronounced the following .sentence: The umpire, the commissioners l)eing heard and after the examination of the dos.sier of the claim of Massiani (Thoma.s) and son, considering that tl\e character of Frenchman is not denied to Ma.ssiani .senior, that tlie claim was presented by him and not by his heirs and that there was no occasion to examine, consequently if the said heirs who enjoy in fact two nationalities have evidenced in the course of flieir life their preference for one of the two, decides that the claim in question certainly enters into the categorA' of those which are pro- vided for b}' the protocol and consequently accords to Massiani (Thomas) and son the indemnity of 19,900 bolivars. The credit which is set forth in number four enters into the category of claims provided for by article 1 of the protocol of February 19, 1902, in that the Venezuelan Government has accorded a round sum of 1,000,000 bolivars.' The commission which met at Paris to make a division of this sum, considering that the claim had been formulated by M. Thomas Massiani, who enjoyed incontestubly French niiti(m;.lity, accorded to his heirs the indemnity demanded. The credit which appears in No. 3 is established by a "vale" dated June 28, 1885, and signed l)y the three generals who made the requisition, ^ly colleague concludes to reject tliis demand, because asi(k> from tlie reasons which caused him to refuse all the claims presented in the name of Massiani thought the latter ought to have been jjresented to the mixed commission wliich s;it from 1888 to 1890 and was competent to examine the claims arising between 1869 to 1886, and again that the ''vale" presented no authentic character, the signatures not being legalized. I partook in these latter points of the opinion of Doctor Paul and we rejected this demand. The credits which appear under Nos. 3, 4, and 5 are then out of the cause. There remains the credit wliich appears under Nos. 1 and 2 and which amounts to 692,740.48 bolivars. When this claim was pre- sented to the mixed commi.ssion in the course of the sitting of May 14, 1903, M. Massiani (Philippe) had not yet obtained from the Venezue- lan Government the documents wliich seemed to establish in an incon- testable manner the credit of his father. The dossier did not then establish the credit until after the taking up of the accounts of the Massiani house. Doctor Paúl asked Philipj)e Massiani, who was heard by the commission at its meeting of May 23, 1903, to show that after the decease of his father he had acquired lU the rights ol" tlw (inn Massiani & Co., and that his mother, his broth(M-s, mikI his sisteis h;ul executed regida i' warrants of attorney. M. Pliilip|)e later remitted a dossier which satisfied this r(>(piest . OPINION OF FRENCH COMMISSIONER. 219 Of a common accord m}^ colleague and myself postponed the examination of this affair to a later date, M. Massiani havinne- zuelan Government. Messrs. Massiani, father and son. a])pei.r in eifect to have taken no steps before the Venezuelan administration to obtain from it the reimbursement of their credit. They have both waited before filing their claim for the meeting of the mixed commis- sions. They have then waited of their own free will ¡Mid h vc thus lost the chance to see themselves rewarded by a judge basing liimself OPINION OF FRENCH COMMISSIONER. 221 upon equity alone for the interest which in right they ought not to have counted upon. I have already explained why I could not share the opinion of my honorable colleague upon the value of the document remitted to M. Philippe Massiani May 27, 1903, a document which, in my opin- ion, proves superabundantly the credit of the Mi.ssianis. Besides the fact the document does not seem to him "sufficient to prove the existence, of the debt in a decisive manner," Doctor Paúl justifies the rejection of this claim by considerations drawn from the nation- ality of the Massiani heirs and by the fact that the mixed commission of 1888-1890 has already rejected the demand in question. M. Thomas Massiani, born in France of French parents, enjoyed incontestably and exclusively French nationality. His title of French citizen has been certified by the legation of France at Caracas and recognised by the Venezuelan commissioner at the mixed commission of 1888- 1890. The claim was born during the life of Thomas Massiani. It is the right of a French citizen who has been injured, and conse- quently the mixed commission appointed by the protocol of Paris, wliich includes "the demands for indemnities presented by French- men," is indeed competent to consider this claim. One might insist upon that, as the mixed commission appointed by the protocol of Washington has done successive!}^ for the same inter- ested party for part No. 5 of their claim and the commission of repartition appointed by the French Government for No. 4. One would place then out of the case as the umpire, Mr. Filtz, has done in his award, the nationality of the heirs. But I consider that even if one takes this latter into consideration the arbitral commission created by the protocol of Paris has jurisdiction. The widow of Thomas Massiani, bom in Venezuela, of Venezuela parents, but mar- ried to a Frenchman, and her children, born in Venezuela of French parents, all enjoy incontestably two nationalities. They are French according to French law and Venezuelans according to Venezuelan law. It results that when the protocol speaks of ''demands for indem- nities presented by Frenchmen" it has in mind claims presented by individuals to wliich the French Government assures its protection because the French law recognizes them as Frenchmen. It is in no way specified in the protocol that the Venezuelan law will be obliged also to recognize these individuals as Frenchmen. On the contrary, all the protocols signed last year at Washington between Venezuelan and foreign powers to regidate analogous tliíRculties have declared expressly that local legislation ought not to be taken into account. Then, even if the heirs of Mr. Thomas Massiani had presented a claim in their personal name, the arbitral commission would have been quali- fied to examine it. It is so with nmcli greater reason, since this claim concerns a credit of Mr. Thomas Massiani himself. 222 HEIRS OF MASSIANI CASE. On the other hand, it is tnie that the mixed commission of 1888-1890 rendered, at its sitting of Jidy 7, 1890, the following award: Tiie second part of the same claim (claim Thomas Massiani), amounting to 301,784.96 bolivars, is definitely rejected, the interested party not supporting his demand by a suffi- cient document. But it is necessary to know that this "sufficient document" was in the hands of the Venezuelan Government, which, being reciuested by the interested party, did not make it out until the 12th of August, 1890, after the close of the labors of the commission, and did not deliver a copy to Mr. Philippe Massiani until May 27, 1903. One can tlien dis- cuss in what case and by what tribunal may an award rendered by the mixed commission of 1888-1890 be revised. One could, however, remark that, this commission having rendered irrevocable decisions, these decisions could not be submitted to a revision unless a new fact unknown to the arbitrators has appeared to modif}" the appearance of the affair in such a manner that the decision may have been entirely different if the arbitrators had knowledge of it. One might establish then that this is precisely the case of the Massiani claim. Finalh", one might maintain, with reason, that no tribunal would be better ((ualified than the present arbitral commission to examine anew an affair already submitted to the mixed commission of 1888-1890, and that even the protocol giving it competency to regu- late all the claims of Frenchmen, whether they were directed against a former award or caused by an entirely different motive, this arbitral commission is alone in position to decide if there is room to revise such or such decision of the preceding commission. In equity, the document sent May 27, 1903, to M. Philippe Massiani establishing incontestably the existence of his credit, and the arbi- trators of 1890 having only rejected the Massiani claim for lack of probative document retained by the Venezuelan administration, an arbitrator can but condemn the Venezuelan Government to reimburse the Massiani heirs for the sum which it has recognized itself as due him. In the course of our discussions relative to this claim Doctor Paúl declared to me that he would have been disposed to accord an indem- nity equal to the sum included in the liquidation of 1890 if the inter- ested party had filed a new claim bearing upon the refusal of the Government to deliver the document which was demanded of it. I replied that this was a simple (juestion of form, that the ex])o>é made in the letters of M. Massiani of his numerous proceedings take the place of the formal claim, and that one could not, in order to reject his proven claim, base his acticm upon the moderation the claimant had displayed in not asking, besides the sum due, a special indenmity for the veritable denial of justice which this refusal in <|Uestion con- stituted. In according to the heirs of Ma.ssiani only 270,81 3. oti boli- vars of the 692,740.48 bolivars demanded, I have sought to restore ADDITIONAL OPINION OF VENEZUELAN COMMISSIONER. 223 them possession of that which is incontestably tkic them. I have laid aside all the demands which, not being, perhaps, without some founda- tion, are, however, not established by sufTicient proofs. We ought to consider that, according to the terms of the protocol, this indemnity must be paid in bonds of diplomatic debt and not in gold. From the fact of this concession, graciously granted to the Venezuelan Government by the French Government, to allow it to settle its debts with more facility the amount of the indemnity finds itself in reality reduced. At this time the true value of these bonds is half their nominal value. The payment of the Massiani heirs of the indemnity of 270,813.56 bolivars would then permit the Vene/Aielan Government to free itself by 125,000 bolivars of a debt amounting in reality to 270,813.56 bolivars. ^Iarch 12, 1904. ADDITIONAL OPINION OF THE VENEZUELAN COMMISSIONER. From the extract of the oral proceedings at the sitting held in Caracas on August 28, 1903, when the commissioners for France and Venezuela heard the claim entered by Felipe A. Massiani for the sum of 692,740.80 bolivars, it appears that the French commissioner held that the sum of 270,813.56 bolivars, representing the principal, should be awarded without interest, because of the negligence for many years shown by the claimants in defense of their rights. The same commis- sioner also rejected other specifications contained in the claim, as he did not consider them sufficiently established. The undersigned, as the commissioner for Venezuela, then and there rejected the claim in its entirety, basing my contention as shown in the opinion which, translated into English, I submit herewith, in these three main points, to wit: First. Incapacity for want of proper jurisdiction of tliis arbitration commission to hear the claim in (juestion, ])ecause Felipe A. Massiani and the rest of the claimants represented by him are Venezuelans, hav- ing been born within Venezuelan territory. Second. Because there exists a condition of res judicata as regards the object of the claim in that portion dealing with the capital of 270,813.56 bolivars as submitted by the French commissioner; and Third. Because the document produced by Felipe A. Massiani to prove the existence of the debt lacks sufficient force to establish beyond dispute the validity of the claim, such document being insufii- cient to overrule the award of the French- Venezuelan mixed com- mission of 1888-1890, decreed in the matter of the claim enteretl before said commission by the father of Felipe A. Massiani, demanding the same amount. The Venezuelan citizenship by birtli of the claimants, Carmen Silva de Massiani, the widow of Tomás Massiani; Felipe A. ^|assiani. Aseen- 224 HEIRS OF MASSIANI CASE. ción Massiani de Phelan, Xuncia Massiaiii a Art. 19. La venezolana que se casare con un extranjero se reputará como extranjera respecto de los dereclios propios do los vene/.olanos, sicmpio (|ue por el liecho del matri- monio adquiera la nacionalidad del mai ido y mientras pcrmanezi'a casiuia. í> Certaines personnes ou familles peuvent exceptionnellement t^tre ressortissants de deux ilats différents ou même d'un plus grand noml)re d'états. En cas de conflit, la piéférence sera accordée à l'étal dans le(|uei la personne on la famille (^n (juestion ont leur domicile; leur droits dans les états où elles ne résident pas seront considérés comme suspendus. ADDITIONAL OPINION OF VENEZUELAN COMMISSIONER. 225 The same opinion is held by Twiss, "Law of Nations," pages 231- 232. Moore, Int. Arbit., vol. 3, page 2454, in the cases of Lucien Lavigne, No. 11, and Felix Bister, No. 20; decision of Arbitrators, wSpanish Commission, (1871), April 27, 1878, says: The act of Congress of Febi-uaiy 10, 1855 (10 U. S. Stat. L., (Jul), wliicli provides that persons lieretofore bom, or hereafter to be born, out of the limits and jurisdiction of the United States, whose fathers were or shall be at the time of their birth citizens of the United States, sliall be deemed and considered and are hereby declared to be citizv'ns of the United States, can not operate so as to interfere with the ullo(¡ciance whicli such children may owe to the country of their birth while they continue within its territory. Supposing, finally, that one individual united in his person several nationahties, it would be necessary to apply the law best agreeing with his actual position, otherwise the question would be insoluble. (Heffter, Paris, 1866, p. 74.) a. It was under circiunstances similar to those of the present claimants that the mixed American and Venezuelan commission, acting under the protocol of December 5, 1885, settled the question of double nationality in the case of Narcissa de Hammer and Amelia de Brissot, both born in Venezuela, both widows of United States citizens, and both having resided in Venezuela during their married lives, both having had children born in the same country, both claiming in behalf of their respective children, and both having continued to reside in Venezuela after the death of their respective husbands. The unani- mous decision of the commission was that they had no jurisdiction to hear and decide the claim. (See Moore, Int. Arbit., vol. 3, pp. 2456- 2461.) Many other analogous cases could be cited to corroborate the prin- ciple involved in this question of jurisdiction, but they are well known to the honorable umpire, who has quoted them in enlightened awards that in his capacity of umpire he had occasion to render in the claims of Mathison against the Venezuelan Government before the British- Venezuelan commission, created by the protocol of Washington on February 13, 1903, and in his award in the case of Stevenson against that Government before the same commission. (Venezuelan Arbi- trations of 1903, Ralston's Report, pp. 433-438 and 442-455.) The Hon. Jackson II. Ralston, umpire in the Italian- Venezuelan Commis- sion under the Washington protocol of February 13, 1903, rendered similar decisions in the claims of Miliani, Brignone, and Poggioli, (Ralston's Report, pp. 715-720, 759-762, 866.) The learned commissioner for France makes an issue of the French nationality of Tomás Massiani, who was the husband of Carmen Silva de Massiani and the father of Felipe A. Massiani and his brothers and sisters, to maintain that the claim entered by the latter before this a Supposé enfin qu' un individu réunît en sa personne plusieurs nationalités distinctes, il faudrait appliquer les lois qui s'accorderaient le mieux avec sa position actuelle; autre- ment la question serait insoluble. S. Doc. 533, 59—1 15 226 HEIRS OF MASSIANI CASE, commission orifjinated durino; the life of thoir father; that tlie injured rights are those of a P>ench citizen, and tlie mixed ( ommission created by the Paris protocol deaHng; with the chiims for indemnification entered by French citizens "is quahfied to liear the present yt)nd our commission. Between such a statement made during our discus- sion and to admit as established the allegations of the claimants and to be willing to allow an indenmity there is a remarkable dille reuce. ADDITIONAL OPINION OF FRENCH COMMISSIONER. 233 I therefore maintain in all its ])()ints my opinion that this commis- sion has no jurisdiction to hear the claim of Felipe A. Massiani entered in his own behalf and as the rcjiresentative of his brothers and sisters, because they are all Venezuelan citizens, and, in the second place, because there is a condition of res judicata as regards the object of the claim in that portion admitted by the French commissioner, and that the document on which the claim is based lacks the necessary force to establish a decisive proof, and for this reason it must be rejected on its merits. NoRTHFiELD, Vt., February 9, 1905. ADDITIONAL OPINION OF THE FRENCH COMMISSIONER. After having read the additional memoir presented by my honorable colleague I can only maintain the conclusions of the prior memoir. To reply, it would be necessary for me to reproduce the explanation which I have already given superabundantly. I will confine myself, then, to a few observations. This commission seems to me competent to pronounce upon the Massiani afl'air for the very reason of the French nationality of all the members of the Massiani family. All the Massianis are incontestably French; it would be then contrary to the protocol of February 19, 1902, which speaks of all the claims presented by Frenchmen, to refuse them the benefit of this exceptional jurisdiction opened by the very protocol to all those who are French, without there being need of examining if they enjoyed concurrently another nationality. My colleague tries to combat my opinion, based upon the strict text of the protocol by a great number of citations of authors and of precedents. I wall content myself by remarking to the umpire that the precedents of international law have no value except in so far as has been demonstrated by a parallel exposé of the facts that the cases are identical. I have, then, judged it useless to refer to treatises of international law with a view of looking for precedents favorable to my argument, which I should have been able without doubt to find in as large numbers as has my colleague. I have considered it suilicient to produce one precedent, the value of which is singular and incom- parable, since the persons considered are exactly the same, and I call the attention of the honorable Mr. Plumley to the grave inconven- iences which would result from varying the jurisprudence in like con- ditions. There would be reason to deprive the arbitral decisions, which one might tax with a lack of seriousness and inconsistency, of all their authority. This precedent has consequently disturbed my honorable colleague, since he has thought he ought to declare, to lessen its value, that the awards rendered by Mr. Filtz had not the same value as the awards by the other arbitrators. I think I ought 234 HKIRS i)V MASSIANI CASE. to protest against this allegation. Mr. Filtz, a magistrate Avho has grown gray in the service, has shown himself a perfect arbitrator, having, as he claims, for the only rules of conduct good sense, ec|uity, and the protocol. The awards rendered by him are unattackable and have the same authority as every otlior arbitral sentence: they have a greater author- ity, perhaps, here since they have been rendered in favor of the same persons with whom we are concerned. But since Doctor Paúl attaches a particular importance to precedents and thinks that one just cause does not defend itself sulliciently b}' its exposé alone, I pre- sent another, whose authority I think he will not contest, since it has been established by himself. In the course of the sitting of August ft. 1903, of the commission of which we both had the honor to join, and of which the present commission is but the natural conclusion, we ren- dered the following sentence : There is accorded Mr. Charles Daniel Piton, and to the Misses Emilie Alexandrine and Isabelle Eugénie Piton, the sum of 228,714.64 bolivars. But I will remark to the umpire that Mr. and Mrs. Piton claimed this svun on the part of their maternal grandfather because of a con- tract of the date of July 28, 1856, and a ministerial decision of January 7, 1868. This grandfather, Mr. Lemoine, a Frenchman by birth, had been dead for many years when his grandchildren, in 1903, presented their claim as heirs, but these three grandchildren — all three born in Venezuela of a Venezuelan mother — like the Massiani heirs, were all three Venezuelans by the Venezuelan law. Why then refuse to the Massianis that which has been accorded to the Pitons? The umpire will kindly note, also, that not only from the point of view of nationality, but also from the point of view of the date, the Piton claim is like the Massiani claim. So far as concerns the plea t)f res judicata raised by my honorable colleague, I am content to recall to the umpire that the arbitrators of 1890 were not able to take it into consideration, since the interested parties were imable to obtain until thirteen years afterward, by surprise, without doubt, the docu- ment which permitted them to make their claim of value. They had no appeal from the mixed commission of 1890 to the ^Vnezuelan tribunals, wliicli would not have had jurisdiction, but to this commis- sion, appointed to examine all the claims of Frenchmen, of whatever nature they might be. It is not ])()ssiblc to forget that tlu^ \'enezuelan Government had been put upon notice by the interested parties to submit at the right time the said document and that it has not doiu» so. Is not this j)<)int a denial of justice of the first classa Finally, I consider that it is superfluous to discuss the \;due of the dorcument which constitutes the acknowledgment of th(> (l(>bt. It is suilicient to read it to be convinced. NoRTiiFiELD, Fehruari/ 11, í¡)OÍ). OPINION OF THE UMPIRE. 235 OPINION OF THE UMPIRE. Thomas Massiani and Benito Massiani. l)oth Frenchmen, married, and residing in Carúpano, State of Sucre, in the United States of Venezuela, formed a copartnership in trade at said Carúpano under the name and style of Massiani Brothers, on the 14th day of June, 1864, which continued until its dissolution by mutual consent on the 17th of May, 1868, which dissolution of partnership was by lawful procedure. Thomas Massiani remained in charge of the business, assuming all partnership liabilities and enjoying all partnership assets, agreeing to pay to Benito Massiani for liis share of the company assets 82,000 pesos, to be paid in the city of Paris witliin the term of five years in five annual equal parts, with interest annually at 5 per cent. Prior to the year 1870 Benito Massiani died. His widow and chil- dren, resident in Paris, received of Thomas ^lassiani the sum of 230,000 francs, being the sum due for the remaining interest of the estate of the deceased Benito in the aforesaid assets'. This payment is shown by a receipt signed by the widow, Mercedes Cova, at Paris, in France, on September 21, 1871; also signed by Emilio Massiani, son of Benito, who had attained his majority. During the years 1863 to 1869, both inclusive, and as well in the years 1870, 1871, 1872, 1879, 1885, 1892, and 1899, the Government of Venezuela enjoyed loans and payments on requisition or otherwise from the said Massiani Brothers, the said Thomas ^lassiani, and the Thomas Massiani Company, wliich latter existed part of the period covered by the years aforesaid. The principal sum in issue, and in fact the only sum, by the hold- ing of the honorable commissioner for France, now in issue, accrued between the years 1863 and 1869, both inclusive, and amounted to the sum of 270,813.56 bolivars, this sum being for supplies and cash furnished to the maritime custom-house of Carúpano and to certain chiefs of the national forces, both having authority to pledge the credit of the Government. Doctor Urbaneja, attorney for Thomas Massiani, in 1890, July 19, stated to the honorable mixed commission of France and Venezuela, then sitting in Caracas, that the sum due to Thomas Massiani at that time was 301,784.96 bolivars. The sum presented, in fact, to the mixed commission of 1888-1890 was 351,449.80 bolivars, and on the 7th of July, 1890, the said com- mission awarded to Thomas Massiani 49,666.84 bolivars, and at the same sitting the said commission disallowed the claim for 301,784.96 bolivars for the reason that the claimant had not produced a sufficient document in support of his claim. The sum allowed by the commis- sion was one recognized as existing b}' the Government of ^'enezuela, and there was then pending with the minister of hacienda that por- tion of the claim which was disallowed bv that commission. The 236 HEIRS OF MASSIANI CASE, minister of hacienda was asked for the dossier containing: the necessary proofs and for his authentication thereof, Init on a too casual exami- nation, he had reported to that commission that there were no such papers in his olhce. It was on receiving this information that the commission dismissed the case. Doctor Urbaneja, attorney aforesaid, learninano. Up to that date Massiani had been receiving pay in small amounts from time to time. When the society of Massiani & Co. was organized at Carúi)ano the umpire has not learned, but on May 8, 189.3, this company, com- posed of Thomas Massiani and his three sons, Luis Antonio, Antonio José, anil Felipe Antonio, was dissolved by mutual consent uniler OPINIOlSr OF THE UxMPIRE. 237 lawful proceedings had, and the Inisinoss continued under the mer- cantile name of Thomas Massiani. On Octo})er 9, 1901, the said Thomas Massiani deceased at Carii- pano, leaving a widow. Carmen de Silva, the two sons, Felipe A. and Luis A., his two married daughters, Ascension N. Phelan and Nuncia de Orsini, and the widow and children of Antonio José. Antonio José died March 12, 1900. On the 30th day of May, 1903, Luis Antonio, in his own right, Augustine Orsini, in representation of his wife. Señora Nuncia Mas- siani, Isabel Paván de Massiani, widow of Antonio José, proceeding in representation of her minor cliildren, Thomas, Maria, Mercedes, Antonio José, Gloria Margarita, Luis Enri(|ue, and Carmen de Lourdes, acting with Señora Carmen de Silva Massiani, widow of the late Thomas Massiani, and Felipe Antonio ^lassiani, gave full power of attorney to D-r. Carlos F. Grisanti against the respondent Govern- ment in the matter of the claim. The widow of Thomas, Carmen de Silva Massiani, at this time resitled in Port of Spain, Trinidad. The amount claimed of the respondent Government was 301,7s in the matter of citizenship is not important to the determination of this question. To the position of the honorable commissioner for Venezuela that one commission has not authority to revise the proceedings of another, he introduces the new fact, unknown to the arbitrators of 1890, which is the fact that in the archives of the Venezuelan ministry there was then an approved dossier fully supporting the claim of Thomas Massiani, the existence of which the Venezuelan Government had denied, and upon which denial the commission had dismissed the claim. lie also urges that this commission has especial power to examine anew the affair submitted to the mixed commission of 1888-1890, because the protocol gives it jurisdiction to pass upon all the claims of Frenchmen, and since the sentence anterior was caused by a reason entirely dif- ferent from what in fact existed ; and that in equity there being incon- testable evidence that the credit in fact existed at the time of its rejection, which fact was retained from the consideration of the previous commission through the action or nonac tion of the Venezue- lan Government, the heirs of Massiani should receive the sum which the Government of Venezuela has recognized to be due. The honorable commissioners having disagreed as hereinbefore stated and having failed to reconcile their disagreements, they join to send the claim to the umpire for his determination and award. An indebtedness of the respondent Government to the late Thomas Massiani in his lifetime is, without doubt, a part of the patrimcmy which descends to his widow and children to be distributed in accord- ance with the laws of Venezuela. But the important question to be determined is, has this tribunal jurisdiction over this claim? Neither the widow nor the children are of French nationality as recognized by the laws of Venezuela. The widow was born in Venezuela, achieved French nationality by the laws of both countries when she married Thomas Massiani, but by the laws of Venezuela was restored to her quality of a Venezuelan citizen at his death. During their married life they remained in Venezuela; they were there domiciled when he died. It always has been her domicile. It is therefore her nationality, since such is the law of her domicile, S. Doc. 533, 59—1 16 242 HEIRS OF MASSIANI CASE, which law prevails when there is a conflict as held by the umpire in the claim of Maninat heirs" before this same tri])unal. Tlu- children of this marriage were all born in Venezuela. By the voluntary action of the father this was their birthi)la(e. It has always been their domi- cile, first through the paternal selection and later through their own choice. Hence, governed by the laws of their domicile, they are Venezuelans. Thomas Massiani deceased prior to the convention of February 19, 1902. Therefore he could not have been considered as a possible claimant bv either of the high contracting j)arties at the time of tliat convention. His widow and children being ^>nezuelans in the con- templation of the respondent Government, their right to the interven- tion of France was not agreed to by Venezuela under the terms of the protocol as held by the umpire in the claim of the Maninat heirs. His reasons for his opinion in that regard and the autliorities sustaining him in his reasoning and in his opinion having been therein stated and adduced, they need no further amplification here. This case is on all fours with that of the estate of Stevenson, decided by the umpire in the British-Venezuelan mixed commission of 1 903, and reported in Ralston and Doyle's Venezuelan Arbitrations of 1903, page 438. The reasons there given and the authorities there accumulated are directly in point in this case, and he respectfully refers tlie ])arties interested for further elucidation of these points to the opinion tliere found. His opinion then expressed is only confirmed and established by his subsequent study, and his reasons there given are to him as convincing and controlling now as then. The indebtedness may indeed remain, but the form of action and the forum are changed. The forum to which they nuist now repair is the forum of the country Thomas Massiani chose for his domicile, for his marriage, and for the birthplace of his children ; there death over- took him and liis ashes are there. He voluntarily selected Venezuela as the country in which tt) make his fortune and to gain the properties for which the respondent Gov- ernment is now the alleged lawful debtor to his estate. His life in that country was voluntary, free, a matter of choice. After weighing probabilities and anticipating results he remained. His children have attained full age and have also remained. The ties of race on the paternal side have been to them less strong than the ties which bound them to the country of their birth and the land of their maternal nationality. They have for their recourse the forum constituted for Venezuelans. They have all the rights, opportimities, and privileges common to their brethren of that nation. They easily could have been P>ench had they preferred life in France to life in Venezuela. Having F'rench paternity, and thereby having French nationality in « Page 44. OPINION OF THE UMPIRE. 243 France, they needed onlj^ to be domiciled therein to have a nationahty which all the world must maintain to be French. For reasons domi- nant with them they lun^e preferred to remain in Venezuela. Its laws and its courts are theirs. These they may invoke; with them they must be content. The umpire recof^nizes the position of the honorable connnissioner for France that the laws of Venezuela upon the question of nationality of its own inhabitants may be ij?nored and the laws of France be made paramount. He is also not unmindful of the reference made by the same honorable commissioner to the provisions of the protocols drawn up at Washington in 1903 in their allusion to the effect of local legis- lation. The definition of that i);:rticular provision in those protocols is not germane to tiny inquiry under the protocol of February 19, 1902, which hi; s no such restrictive clause and which in no way and in no part suggests that each coinitry is not entitled in every particular to equal place before the international tribunal thus constituted. The umpire has already held, in effect, in the Maninat case," that to be sover- eign and independent each country must be master of its internal policy and subject neither to advice nor control by any other country nor by all other countries in respect to such matters. France would not brook that Venezuela should name to her who are her citizens within her domain; she nuist be content to ascribe equal privilege of ■selection to her sister Republic, certainly while Venezuela in this regard has no peculiar or offensive laws, but rather has those which accord with the laws of nations in general. A large number of questions naturally arising out of the facts which are grou])ed together in this case do not become important matters of consideration, since in the opinion of the umpire the claim does not come within the provisions of the protocol. This claim is to be therefore entered dismissed for want of jurisdic- tion, but clearly and distinctly without prejudice to the rights of the claimants elsewhere, to whom is especially reserved every right which would have ])een theirs had this claim not been presented before this mixed commission. NoRTiiFiELD, July 31, 1905. «Page 44. COMPANY GENERAL OF THE ORINOCO.— No. 7." HEAD NOTES. If there were irregularities in the procedure of the respondent government in its suit for rescission in the matter of notice to the defendant company therein, these weie all cured bj' the subsequent appearance of its attomej' in said court and by its participa- tion in the subsequent proceedings. «EXTRACT FROM THE MINUTES OF THE SESSION OF MAY 5, 1903. The examination of tlie claim of the General Company of the Orinoco wa.s then entered upon. Doctor Paúl read the memoir which he drew up after having gained a knowledge of the dossier. His conclusion is that the claim of the company is not well founded, and he rejects it absolutely. M. de Peretti a.sks his colleague to let him take tlie memoir to .study it l)ef<>re giving his opinion. Doctor Paúl agrees, and it i.s understood that the French arbitrator will give his opinion during the next meeting. EXTRACT FRO.M THE MIXITES OF THE SESSIO.N OF .M.W 7, 1903. M. de Peretti returns to his colleague the memoir which Doctor Paúl kindly let him take at the last meeting. He declares that, after ha%-ing read it witii the interest whidi a remark- able ai-gument demands, he pei-sists in the opinion which he had formed in studying the dossier of the claim of the Company General of the Orinoco, namely, that there ought to he accorded to the latter an indemnity of 7,000.000 Iwlivare. He bases his judgment upon tlie fact that the Venezuelan Government has brought in its defense no document, no proof of a nature to weaken what is said by the company. The amount claimed by the company amounted to 7,610,098.02 bt)livai-s, of whitli 5,616,098.62 Ijolivars represent money expended and 2,(XK),(MX) l)()livars benelits not realized. The French arbitrator does not accord at all the second of these sums, and of the iii-st lie takes out 540,000 bolivars. The company claiming upon this capital an interest of 6 per cent, while the commission has decided that it would reckon interest at tlu» rate of 3 p?r cjnt, it is to be remarked that the company having paid interest at 6 per cent to its lenders and holders of obligation, there is no reason for a reduction on the amount which it chiims under this head. Tliere remains, then, a sum of 5,076,098.62 bolivars, of whidi M. de Peretti demands the increase to tlie amount of 7,000,000 bolivars, that account may be taken, fii-st, of the use of the interest from July 1, 1902, to the day of the award, and .second, of tiie depreciation of bonds with which the payment of the indemnity is to be effected. Doctor Paúl expresses to his colleague the desire that he present, as he himsi^lf lias ing measured in money. 246 COMPANY GENERAL OB^ THE ORINOCX) CASE. (b) The respondent government could not have sustained its position that it was without fault in the premises. The opinion gives in detail the instances falling under fa
  • y of which alteration was handed to him. Mr. Fiat was to give a leceipl for tliis copy and he was to ])resent in court his answer to tlie suit ten days after this date. This writ was carried into execution on the same day, and Mr. Fiat gave a receipt on the 2()th of fliine, which receipt is filed in court. On the 2d of July, which was the day a])pointe(l for answering the suit, there appeared in court the fiscal nacional d(> hacienda and Mr. Fiat, accompanied b}' his counsel, 1). Ji. Urhaneja and K. F. Feo, and then and there all the parties agreed to defer the answering of the suit to a date fixed »it eight days ¡ifler the yjresentalioii of ihc docu- OPINION OF VENEZUELAN COMMISSIONER. 251 ments to which reference is made in the suit l)y the plaintiff, in order that the com/pany should have time to examine these documents. On tlie 22(1 of July, Mr. Fiat, accompanied by his two counsel, Doctors Urbaneja and Feo, appeared in court and filed their answer to the suit, petitioning the court at the same time for an extraterritorial term in. order to obtain evidence from Fr¿nce r.nd Rome. The suit then followed its ordinary legal course, during which the parties were to produce their respective evidence, and the court reserved its right to decide on Mr. Fiat's petition regarding an extra territorial period of time. Later on the president of the court granted one hundred days to obtain the extraterritorial evidence, and Mr. Fiat hr.ving appealed from tliis decision, considering that the term granted was too short, the court then extended it to one hundred and thirtj'- days. On the 5th of September Mr. Fiat was notified that the fisc; 1 had petitioned the court that the suit be registered in Ciudad Bolívar, in order to avoid any transfer intended by the compan}^. Mr. Fiat duly received this notice, at the foot of which he set his signature, and on the 8th of September he appeared in court, accomp.uiied by his counsel. Doctors Urbaneja and Feo, and s.iid — that lie did not believe tliat he could make any legal opposition to the Government, which is a party in this suit, for the recording of the suit with the alterations which were made to it afterwards. On the same daj^ order was issued by the court that a copy of the suit be sent to the judge of first inst:ince of Ciudad Bolívar for its being recorded in the registrj^ office in that city, and said order was carried into effect on the same 15th day of September. In the course of the suit Mr. Fiat presented the court a petition dated August 7, 1900, in order that such evidence might be advanced as he thought convenient to the case of the company. Among this evidence were declarations to be made by witnesses resident in Paris, Rome, Port of Spain, Rio Chico, Barcelona, San Fernando de Apure, and Caracas. The president of the court issued a writ, dated August 12, admitting the presentation of such evidence, as far as the law per- mitted, and commissioned the several civil judges of first instance of the localities of the respective witnesses to hear their declarations, and petitioned and issued rogatory commissions to the competent judges of Paris, Rome, and Port of Spain for the same purpose. On the 11th of October of the same year Mr. Fiat appeared in court and stated — that by virtue of the authority conferred on him l)y power of attorney from the company, he conferred special power to Dr. Ramón Feo and Dr. Martin F. Feo, so that both together or any one of them separately may intervene in tiie collecting of evidence that is to be made by the fiscal in this capital city; that he also conferred special power to Mr. Armando F. Larrouget, of Porto Rico, for the collecting of evidence on behalf of the company in that district and to inten-ene in the collecting of evidence by the plaintiff; that he conferred special power on Mr. Julio Philipe, of Barcelona, for all the evidence that is to be collected in 252 COMPANY OENERAL (►F THE ORINOCO CASE. that city; that lie conferred special power on Dr. lirigido Xatera. of Ciudad Bolívar, for the collection of the evidence in Ciudad Bolivar and the Territorio Orintxo: that he conferred special power on Mr. Casto RodrijîueZjof San Ke ruando de Apure, for all the evidence to Ix" collected in that city; that he conferred .special power on Mr. E. K. Ma.son, of Port of Spain, Trinidad, for all the evidence to be collected in that city, and that he conferred .special power to Mr. Andrés Lenel Gutierrez for all the evidence that is to \>c collected in the Territories Orinoco and Amazonas. By order of the 11th of October, 1890, the president of the court ordered that commissions and petitions be issued to the (Hfferent parties resithno; in the different h^caliti'es where the evicUmce was to be collected, and that in said petitions and commis.sions the insertion of the powers conferred on them be made, as requested by Mr. Fiat. The said order was carried into execution on the 13th of October, as it is proved in the records b\' a note signed b}' the secretary of the court to the effect that all the commissions and petitions issued had been handed to the defendant. All these connnissions and ¡petitions were duly returned, after having been carried into operation, and exist in the records of the court, with the exception of those addressed to the judges of Paris and Trinidad and to Tlis Excellency Cardinal ]Jnieoni, of Kome, wliicli were not returned by the representative of the company, although he received them. In page No. 56 of the document containing the evidence presented by the attorney of the compan}' there is a note signed ])y the secretar} of the court on the 24th of March, 1891, in which it is stated that after due computation both the ordinary and the extraordinary period of time granted for the collecting of evidence expires on that same 24th of March, 1891. On the same day the president of the court ordered that, the probatory period having expired that day, the papers and records of the suit were to be sent to the full court, which was duly effected. On the 29th of April the fiscal stated that, this being the time for the court to study the papers and records of the suit, order be issued for the same to be effected. On the 21st of May the fiscal reiterated his petition, and on the 23d order was i.ssued to begin the study of the papers and records on the 3()th. The study of the ])apers and evi- dence commenced on the 16th of June and proceeded on the 2lth of June, as the court did not meet on the 17th, 18th, 19th, 2()tli. 21st, 22(1, and 23d. On the 1st, 4th, and 7th of August the court called suppletory judges to lili tbe vacancies of Dr. Chuecos Miranda and Mr. Carlos TIcrnaiz, who were absent, and that of Dr. J. P. Rojas Paúl anrs and records was connuenced on the following day. The same i)ro- OPINION OF VENEZTTELAN COMMISSIONER. 253 ceeded on the 21st of September and followinji days until the 2r)th, and the 29th day of the same month was appointed to hear the reports or plea(Hn<;s of the phiintiff and defenchmt. On this 29th (hiy of váeptend)er the fiscal nacional de hacienda appeared in court, but no representative or counsel on behalf of the defendant, the court then proceeding to sit in conference. According to notes set in the records by the secretar}^ of the court in chronological order, it is evidenced that from Septend)er 30 to October 13 only one sitting of the court took place, on the 3d of October, during which the judges conferred on the judgment to be passed and agreed as to the same. On the 14th of October the sentence was drawn and signed by the mend)ers of the court on the same day. From the foregoing it is clearly evidenced that the Compagnie Générale de l'Orénocpie was dnly summoned, through their representa- tive in Caracas, Mr. A. Fiat, to appear in court to answer the suit entere.l against them before the high Federal court by the financial representative of Venezuela (Fiscal de la Nación) ; that Mr. Fiat did appear in court, accompanied by his counsel, Drs. D. B. Urbaneja and llamón F. Feo; that he made such contenticms as he deemed con- venient on behalf of the defendant company; that he petitioned for an extraterritorial term in order to collect evidence in various foreign localities, and the same was granted to him; that he appointe 1 special attorneys for the collection of such evidence within and without the territory of Venezuela; that the commissions and petitions issued by the court to the different judges and public officials of the various localities where the evidence was to be collected were handed to him in due time; that he forwarded to their destinations these petitions and commissions, which were all returned to the court, after a part of the evidence had been collected; that another part of the evidence was not collected, either throngh negligence of the company or because it desisted voluntarily of doing so, as there is no proof in the record that this was due to any cause beyond the control of the representative of the company; that after the expiration of the extra term granted by court for the collection of evidence, on the 24th of March, 1891, the fiscal de hacienda immediately petitioned that the court proceed to the examination and study of the ])apers and record of the suit in order that judgment be passed, for which purpose he continually applied to court, both plaintiff and defendant being present as according to law and there being no necessity of their being newly summoned for the complementary acts of the suit required to arrive to its final stage of being sentenced. The sentence was thus pronounced by the high Federal court , after complying rigorously with the legal prescriptions and with all the formalities of the proceedings as established by law on behalf of both parties interested for the defense of their res{)ective rights. 254 COMPANY GENERAL OF THE ORINOCO CASE. In the iiioinorial or report presented by the hquulators of the com- pany to the minister of foreign affairs of Paris, on tlie 3d of December, 1895, they pretend that on the 25th of September, 1S91 , the high Federal court issued an order that the contending parties be advised that the 29th September had been appointed as the date on which they {plaintiff and defendant) were to present their respective reports or pleadings, and that neither the representative of the company nor his counsel were sum- moned or advised, which lack of notice was in violation of articles 109 and 162 of the Code of Civil Procedure of Venezuela, and sufficient cause to invalidate the sentence. This is inaccurate, as there was no such decree of the court ordering that the contending parties be notified; nor is there any violation of articles 109 and 162 of the Code of Civil Procetlure as alleged for the nullity of the sentence. In the papers and record no decree of the court exists under date of 25th of September, ordering the parties to be notified, there being sim- ply a note sent by the secretar^^ of the court, which reads thus: C.4RACAS, 25th September, 1891. In the sitting of this day the study and examination of tlie papers and record by the court was completed and the sitting of the 29th current is appointed for plaintiff and defendant to present their respective reports or pleadings. Let the parties be notified. O. BiRuos. As may be seen from the draft of the foregomg note and from the phrase ''let the parties be notified," which may be seen, at first sight, was forcibly inserted between the last line and the signature of the secretary, the said note was a fabrication of said secretary, conforming to no legal prescription, and in no way was it an order or decree of the judges of the court, who are the only parties authorized by law to issue such orders. Article 287 of the Code of Civil Procedure in force at that time (chapter fourth, on the study and sentences of suits) directs the following: iVfter the completion by the judges of the study and examination of all tiie papei-s and record of the suit they will hear the reports which the contending parties may atldre.ss to the court verbally or through their representatives and counsels, and they will also read sucii reports as said parties maj- addreas in writing which will be filed in the record." It may be gathered from this that, once the study and examination of the papers and records has been completed, there is no neecl of sum- moning the parties for them to present their reports. Article 89 of the same code reads thus: The summons to tiu^ defendant for answering th(> said (demand) having Ix-en .served there is no need for serving any further summons for any act during the coui"s»> of the litis, nor a Art. 287. Concluida esa relación .se oirán los informes que de i)alubra dirijan las partes, sus apoderados ó patrocinantes y se leerán los (jue presenten por escrito, los cuales se agregarán á los autos. OPINION OF VENEZUELAN COMMISSIONER. 255 an}^ summons whicli may need to be served will suspend tlic i)ioc'eedings, unless tlu-re l)e a special legal prescription to the contrary." The words of this article are so conchisive that they exckule any possibihty that the court mií^ht have considered it necessary, after studying and examining the papers and records, to sumniou tlie con- tending parties to present their reports on the process, whicli had not been in suspense at any time. Article No. 109, quoted by the liquidators of the company, reads thus : When a litis be in a state of suspense, owing to nxitives caused i)y the contending parties, it will remain in this state until any one of the interested parties petitions for its continua- tion. In this case the other party or his representative will be summoned, but the pro- ceedings can not follow their couise until this sun>mons be effected. '> The process to which I am now referring was never in this case and far from its ever having been in suspense owing to motives caused by the contending parties, it appears from the records that on the same day that the probatory term expired the fiscal petitioned for the active continuation of the case and several orders (sefialamientos) were then and there issued for the study and examination of the papers and records and in order to complete the court by the appointment of adjunct judges, all of which is evidenced by the respective notes set in the records by the secretary of the court. The other article quoted as having been violated is No. 162 of the same code, anil it reads thus: When the tribunal be so taken up with Ijusiness as not to be able to commence the process on the day appointed, or on any of the following eight days or b\' any other cause and the process be thus delayed indefinite]}', the contending paities or their representa- tives shall be notified of the new date appointed for commencing the same, in the manner established by article 109, but the temi fixed by this article being liable to be reduced.c It is evidenced from the notes set in the records that the first act of examining and studying the papers and records took place on the 16th of June ; that the same followed its course on the 24th of June, before eight sittings of the court had transpired, an adjunct judge was ap- pointed on the 1st of August to fiJl the vacancy caused by the absence of Dr. Chuecos Miranda ; that Mr. Carlos Hemaiz, who had been ap- pointed as adjunct, being away from the city, Dr. J. P. Rojas Paúl was a Art. 89. Hecha la citación para la litis-contestación, no habrá necesidad de practicarla de nuevo para ningún acto del juicio, ni la que se mande verificar suspenderá el procedi- miento á menos que resulte lo contrario de alguna disposición especial. 6 Art. 109. La causa, cuyo curso esté en suspenso por motivos imputable:* á la-s partes, permanecerá en el mismo estado hasta que algunos de los interesados en ella pida su con- tinuación. En este caso se citará á la otra, ó á su apoderado sin que corra ningún término mientras no conste haberse practicado estas diligencias. cArt. 162. Cuando por ocupación del ribunal ú otro motivo no principiare á verse la c.iusa el día designado ni en ninguno de los ocho siguientes, y tenga que sufrir una demora indefinida, se avisarán las partes ó sus representantes el luievamente señalado para prin- cipiar su vista, de la manera establecida en el artículo 109, pero pudiendo reducirse el término que éste fija. 256 COMPANY GENERAL OF THE ORINOCO CASE. appointed to replace him on the 4th of August ; that Dr. Rojas Paúl having tendered his resignation, another appointment was made on the 7th of August in the person of Gen. J. A. Velutini, who was notified of same, and that the 1 6th tlay of September had been íLxed for the study of the process. It is to be noted that the sitting of court of the 16th of September ])roximo was the first sitting after the vacation of the tril)unals which runs ñ'om the 15th of August to 15th of September, and that from the 7th to the 15th of August no sittings transpired. On the 16th of September the trilnuial met and took cognizance of a communication from General Velutini, in wliich he stated that he could not accept, as he had to leave the city, and the court then appointed Dr. Carlos Grisant i, who was duly notified, and the 19th of the same month was appointed for the examining and stud^-ing of the case, three days after Doctor Grisanti's aj)pointment. On the appointed date Doctor Grisanti took his seat in court and the process began and followed its course on the 21st and 25th, on which last-mentioned day it terminated. It is thus evident that the process was never under indefinite delay, and that the court acted on the case at intervals of from two to three days, appointing adjuncts to fill the vacancy of some of the judges, the interested parties being in the obliiration of calling on the secret arv of the court in order to take knowledge of the acts of same. In the notes contained in the memorial presented by the li(|uidators of the company to the minister of foreign aifairs at Paris, referring to the evidence to be collected ])y the representative of the company regarding the process before the liigh Federal court, it is stated: Mr. Fiat was taken unaware by the suit entered at court by the fiscal against the com- pany for rescission of its concessions and had no time to ask for orders or to collect informa- tion, and as no memorial had ever been communicated to him and it was impossible to foresee that sucii action would be entered against the company, he had received no instruc- tions from Paris. Mr. Fiat, being verj- mucii perplexed, presented a list containing tlie names of all the employees of the company to l)e examined by the court, but not knowing their whereabouts he set them all as residing in Paris. The petition of Mr. Fiat was inspired by the report which the administration of thó company had just fonvarded to the ministrj- of fomento. The tribunal accepted Mr. Fiat's petition, but instead of forwarding the com- missions to Paris, as was done with those to Rome, by the diplomatic channel, according to international rules, they were handed directly to Mr. Fiat for transmission to Mr. Delort. Nothing could be more strange, and side by side to a proceeding whicii apju-ai-s to In» regular at iii-st sigi)t there arc irregularities which nullify the defense, and, finally, the judgment was pa.s.sed without .sunmioning the defendant, as has l)een seen l)y the document No. 1. Mr. Delort delivered the commi.ssions i.ssued by the court to the i)()ard of direct oi-s of the com- pany, who were unable to do anything with them and returned them to their counsel in Caracas, Dr. D. B. Urbaneja, and, following the advice of their coun.sel. the lionrd had ulii- davits made by such witncs.ses as could U> found, on th(> .sul)ject of the conunis-sion issueiqufls l'intervention du juge étranger serait indispensable ou utile. .">. lycjuge à qui l'on demande de délivrer une Commission rogatoire déiide: (a) de sa propre compi'-- tence; (b) de la légalité de la requête; (c) de son opportunité lorsqu'il s'agit d'un acte (pii légalement peut aussi .se faire devant le juge de procès, p. ex. d'entendre des ti'moins, de faire prêter serment à l'une des parties, etc. 11. La commission rogatoire sera adressée directement au tribunal étranger, .sauf intervention nlté'- rieure des gouvernements intéressés, s'il y a lieu. 7. Le tribunal il ([ui la commission est adressée sera obligé d'y .satisfaire apn'-s s'être assuré: 1" de l'authenticité du «loeument, '.'" de su propre compétence rntionr iiiiittri:r d'après les lois du jiays où il siège. .S. Eneas d'incompétence matérielle, le tribunal reciuis transmettra la commission rogatoire au tri- bunal compétent, après en avoir informé le retiuérant. y. Le tribunal qui procède i\ un acte judiciaire en vertu d'une c(unmission rogatoire applique les lois . \M); Itevue de l>roit International, etc. _^ Vol.ix,p. 308.) OPINION OF VENEZUELAN COMMISSIONER. 259 ance. If the C'Ompagnio Générale de rüréno(|ue did not in due time see that its representatives in Paris, Rome, and Port of Spain attended to the execution of the commissions and allowed them to keep the documents in their ])()ssession for an indefinite ])eriod, it is an act for the conscfiuences of which the company is solely and exclusively respon- sible. To pretend that the other party in the litis shall bear any responsibility on the matter is entirely contrary to common sense and to ecjuity. As has been shown, besides the absolute lack of legal basis of the charges preferred by tlie li(|uidators of the Compagnie Générale» de rOréno([ue against the proceedings of the court and the judgment passed by that high tribunal on the 14th of October, 1891, there is the remarkable circumstance that neither the company nor its legal repre- sentatives denounced the sentence as null and void wdthin the period and in the form established in Part XVII of the Code of Civil Proce- dure then in force. Article 538 of said code says: Suits may be invalidated by the following causes: First, when one of the contending parties has not had a hearing in the suit whose invalidation is intended or by the want of summons in cases where such summons is necessary for the continuation or for the decision of the suit and whenever this fault has not been remedied by the party alleging the same.» Article 549 says: The claim of invahdation by any of the parties shall not interfei-e with tlie execution of the sentence. i> Article 550 says: The claim of invalidation can not be made six months after the party has had knowledge of the suit in which he has not obtained a hearing or of the sentence or order issued in the suit when it was in suspense. c And article 551 runs thus : When an invalidation is pronounced, the trial shall commence again from the begiiming in case there may have been a lack of hearing of the claiming party, and from the moment that a lack of summons took place in case this lack of summons be the cause of the invalidation, d «Art. 538. Son causas para la invalidación de los juicios: la. La falta de audiencia en el juicio cuya invalidación se pretende, ó la falta d(^ cita- ción cuando ésta sea necesaria para continuarlo ó decidirlo, si no lia sido cul)iert a la falta por la parte cjue la alega. í'Art. 549. El reclamo de invalidación no impide la ejecución de la sentencia. cArt. 550. Tampoco puede intentarse trascurridos seis meses desde c^ue se descubriii la falsedad del documento, ó se tuvo prueba de la retención ó del hacho de la parte contra- ria, ó desde el día en que se pronunció la sentencia en caso de pronunciamiento sobre cosa no demandada ú omisión respecto de lo demandado, ó desde que llegó á noticia del reda- mante el juicio en que no fué oído, ó la sentencia ó auto que se dictó en el juicio que estaba paralizado, ó desde que se tuvo conocimiento de la sentencia anterior que está en colisión con la pronunciada. dArt. 551. Declarada la invalidación, el juicio se repone al estado de demanda cuando ha habido falta de audiencia del reclamante, y el estado en que se cometió la falta de cita- ción, cuando es ésta la fundamento do la invalidación. En el caso de colisión de senten- cias, quedará con su fuerza la primera. En los demás casos, se repondrá al estado de sentencia. 260 COMPANY GENERAL OF THE ORINOCO CASE. In the memorial presented by the Hquidators of the company to the minister of foreign affairs of France on the 3any to the minister of foreign affairs of France, when reference is made in both documents to the boundary question with Colombia, the acts of the representatives of the company may be appreciated in their true meaning and value; but in spite of all, the plain and steailfast avowal made by the representative of the company remains unaltered, viz — that the company knows that the boundaries between C\)lombia and Venezuela are sub lite submitted to the arbitration of tiic King of Spain, and tliat tlie company, therefore, lays no claim on tliis heading and is well aware that siio lias to conform to the l)oun(iarics wliich ma}' be definitely fixed. Nor could the company be ignorant of this, as she had been iinaliy constituted on the I'Jth of March of that same vear and .^he had been OPINION OF VENEZUELAN COMMISSIONER. 2Ctï) formed according to the articles of association piil)lishe(l in Paris with the ¡)roj)erty of the concession hclonging to Mr. Tejera, a Venezuelan citizen, who had acquired it ft'oni Gen. Guzman Blanco, an interest on 40 per cent of the profits having been adjudged to Mr. Tejera, according to articles 6 and 9 of said articles of association. Could it bo likely that Mr. Tejera, a Venezuelan engineer and ex-minister of public works, during one of the terms of power of Gen. Guzman Blanco, from whom he had obtained the said concession, would not be well aware of all the details referring to the boundary (juestion with Colombia which had been submitted since 1881 by Gen. (Juzmán Blanco to the arhitrio juris of the King of Spain? The author of the report addressed to the minister of foreign affairs of Venezuela on the 12th of November, 1894, asserts, on page 25 — that the Goveinincnt of Dr. Anduoza Palacio bhindered in like manner to liis predecessors, that nothing had heen communicated to the companij with the intention of hee ping from her all hfiowledge of the claim of Colombia, and that it was evident that the Venezuelan Government knew they were wrong on this point toward the company and toward Colombia. But it was necessary to give some reply to Colombia, whose protests and claims were daily growing more pressing, and a means was devised for withdrawing from the embarrassing position caused by the con- tract of 1885. These assertions were repeated later on in December, 1895, in the memorial presented in Paris by the liquidators of the company to the minister of foreign affairs of France and were complemented with the following statements : Equity and ju.stice, as well as the honor of Venezuela, impose on the government of Caracas the obligation to pay an indemnity to those parties who in good faith have invested their capital in the Compagnie Générale de l'Oréncque and wliohave been deceived from beginning to end. The grave nature of these charges preferred against the Govern- ment of Venezuela, in order to base on them the right to a pecuniary indemnity in favor of certain parties pretending to have been the victims of deceit from beginning to end, imposes on the Venezuelan commissioner the task of throwing ñdl light on the truth of this matter as to what refers to the claim of Colombia, which the company alleges was kept in concealment by the governments preceding that of Dr. Andueza Palacio. It is altogether inaccurate that the governments preceding that of Dr. Andueza Palacio had communicated nothing to the Orinoco Comi)any witli the purpose of Jceeping from her knowledge the claim of Colombia. Shortly after the formation in Paris of the syndicate which was to be the basis for the constitution of a limited company in favor of which the concession of Mr. Tejera was to be transferred, a report of fifteen pages w^as published in the city of Paris on the concessions of the 206 COMPANY GENERAL OF THE OlilNUCO CASE. Compagnie Générale de VOrénoque under formation, and annexed to it was an abstract of the articles of association of said company, together with a map com¿jrising the navigable waterways within the terntury granted. Tliis report on the territory granted was draAvn, as stated, b)' ^fr. Delort in his reply to the minister of fomento of Venezuela, under date of 25th of September, 1888, soleh" for the use of the share- holders of the company which they had the intention of forming, and the geographical chart was annexed to it with the purpose that said shareholders should know where the territorj' granted to the com- pany was located. In a dispatch dated m Bogota on the 28th of October, 1887, the minister of Colombia called the attention of the minister of foreign affairs of Venezuela — to a report published in Paris by a French company on the subject of certain concessions which were said to have l)een granted I)y the Government of Venezuela on the territories of the upper Orinoco and Amazonas belonging to the Kepublic of Venezuela and to a chart annexed to that report, in which the western boundaries of said territories were fixed in such a manner as to comprise within them the large zone which was sub litis between Venezuela and Colombia, the real ownership of which was yet to be decided by the sentence of the Spanish Government according to the terms of the treaty of arbitration juris of the 14th of December, 1881. This dispatch ends as follows: It is clear that neither of the two Governments can grant any valid concession on these lands, and it is likewise evident that the error of the Compagnie Générale de l'Orénoque is due to their having made reference to geographical or statistical data previous to the treat}' of 1881 aforesaid, by virtue of which that zone is not only made debatable, but is to be defined by a special arbitration in exclusive manner. The importance of these observations from the minister of Colombia could not escape our then minister of foreign affairs. Dr. Diego Bau- tista Urbaneja, who had been counsel to the company from the very beginning, as evidenced from the payments made to him by the mint of Caracas on the 28th of February, 1888, 28th of April, and 30th of May, and at the end of each successive month for professional services, (account of the Compau}^ " La Monnaie " with the Compagnie Générale de l'Orénoque, voucher 3), and consequently a dispatch, dated the 25th of November, 1887, was addressed to the minister of fomento requesting the necessary information and report aforesaid for replying to the minister of Colombia. The minister of fomento replied to the minister of foreign affairs that the aforesaid re])ort had never been sent to his dei)artmenl. (Secretary's record of the ministry of fonuMito referring to the contract Guzmán-Tejera, transmitted to the higii fed- eral court to be annexe»! to the i-ecord of (he suit against the Com- pagnie (iénérale de l'Orénoiiue.) Mr. Delort, who was director in Venezuela of the works started by the syndicate and the only i'ej)resentiitive of the (■oiiij)imy with whom the Government of A'enezuela had had any dealing up to the present, OPINION OF venezup:lan commissioner. 267 was in Paris at the time these events were taking phice. AVhen he returned to Caracas in Deceml)er, 18S7 (memorial of the 3(1 of Decem- ber, 1895, p. 24), where he remained a few days, he proceeded to ( 'indad Bohvar, there to attend to the work of orelwcen the two liigh con- tracting parties; OPINION OF VENEZUELAN COMMISSIONER. 269 Considering that the terms of the aforesaid real cédula are not as clear and precise as nec- essary in this class of documents so as to base exclusively on same a decision juris; Considering therefore that the arbitrator is confronted with the case foreseen by the decla- ration of Paris before mentioned; Considering that the United States of Venezuela ¡Hissess in good faith territories to the west of the Orinoco, the Casiquiare and the Rio Negro, which rivers form the boundaries assigned on that side to the province of Guayana, by the said real cédula of 1768; Considering (hat in said territories there exist very important V eneziielnn settlements which have been fostered in the bona fide belief that they were located xiñthin the dominions of the united States of Venezuela, and lastly, Considering that the rivers Atabapo and Rio Negro form a natural, clear, and precise fron- tier, with the only interruption of a few kilometers from Yavita to Pimichin thus to keep clear of the respective boundaries of these two villages; I have to come to declare that the boundary line debated between (he Republic of Colom- bia and the United States of Venezuela is now deiincd in (he following manner: * * * Section 6, Part I. From the mouth of the river Meta in the Orinoco down the stream of this last to the rapids of Maipures, but always having consideration to the fact that the village of Atures from the time of its foundation has made use of a road ivhich is on the left bank of the Orinoco for the purpose of turning the rapids from the said village of Atures to the harbor or port situated to the south of Maipures, opposite to the hill called Macuriana, toward the north of the mouth of river Vichada; the aforesaid incumbrance or right of way is here expressly assigned in favor of Venezuela, the same incumbrance to cease twenty-five years after the publi- cation of this award or as soon as a road be made in Venezuelan territory which may render unnecessary the traffic along the Colombian road, the two interested parties having the right to regulate by common consent the use of this incumbrance. (From the Official Gazette of Madrid, 7th of March, 1891.) As may be seen from the preceding award, the arbitrator expressly acknowledged that Venezuela had possessed in good faith a portion of the territory adjudged to CVilombia, and in consequence he established in favor of Venezuela the use of way between Atures and Maipures along the left bank of the Orinoco for a period of twenty-five years, to be counted from the publication of the award. This decision would have given full security of the Compagnie Générale de TOrénoque, had it at the time carried out her obligation to construct a railway line which was to divert the hindrance of the rapids of Atures and Maipures and to facilitate the steam navigation of the Orinoco, Having demonstrated that the charges preferred against the Vene- zuelan Governments and their proceedings toward the Compagnie Générale de l'Orénoque with reference to the Colombian boundary question are devoid of all bases, and having also demonstrated that the judgment passed by the high Federal court in the suit entered for rescission of the contracts granted to said company for the exploitation of the natural products of the territories of Upper Orinoco and Amazo- nas and for the exploitation of the tonca beans (sarrapia) on the terri- tories conterminous with Brazil and British Guiana, was a sentence pronounced b^^ that tribunal after having complied with all the legal prescriptions of the code of procedure then in force, and in every way in accordance with the fundamental laws then in force in Venezuela, the Venezuelan commissioner considers that said sentence is valid and 270 COMPANY GENERAL OF THE ORINOCO CASE. affirmed, and that it has been acknowledired and accepted b}' the Com- pagnie Générale do l'Orénoque, since this company did not in due time. according to the law, make use of her right to appeal in order to invali- date same. After due examination of the fundamental part of this sentence, and after analyzing all the evidence produced by the contending parties, it is evident that the verdict of the high Federal court, in administering justice on behalf of the Republic and b}' authority of the law, was entirely adjusted to the prescriptions of the civil code on rescission of contracts, the Compagnie Générale de l'Orénocpie not having complied with any of the obligations under Nos. 1, 2, 3, 4, 5, 6, 7, and 9 of article 2 of the contract of the 17th of December, 1885, nor with any of the stipulations 3d, 4th, and 5th of the contract of the 1st of April, 1887, and as a consecjuence of which rescission the tribunal condemned the Compagnie Générale de l'Orénoque to pay to the Venezuelan Govern- ment the sum of 40,048.62 francs for damages, besides the costs of the suit. Two days after the financial representative of the Government (fiscal nacional de hacienda) entered before the high Federal court the suit against the Compagnie Générale de rOrénocpie a general meeting of shareholders of said company was taking place in Paris, on the 30th of iSIay, 1890, in which a resolution was passed for the purpose of con- verting the Compagnie Générale de rOrénocpie into an English com- pany, under the name of "Orinoco Exploration and Trading Com- pany," w^hich meeting likewise resolved to dissolve and irind up the company and appointed liquidators. In the memorial presented by the liquidators of the company on the 5th of December, 1895, reference is made to the aforesaid dissolution, after the following statements: The board of directors had manj^ debtors and they hesitated therefore to collect the har- vest of 1890, but yielding to the representations of their agents they furnished the necessary funds in agreement with a Liverpool firm who sent out their special agent, Mr. Staedelli. The position of the company in I'aris was very ¡xiinful, as its credit had been totallij exhausted. All efforts made in France proved to be of no avail, while in England confidence was not lost and it was possible to go on there with the business. Tiie board of directoi-s therefore willingly considered a proposition from P'ngland for the constitution of a comj)any in London, to which all the assets, contracts, material, works, etc., of the Compagnie Gémi- ralc de l'Orénoque would be transferred. No mention is made in this memorial of the liabilities of the com- pany, although it may be inferred from their own statements that they must have been considerable, as the credit of the company was exhausted in Paris and all e forts in France seemed of no avail. In the accounts annexed to the petition presented by the li(|uidators of the company on the 10th of July, 1902, to the minister of foreign affairs of France, which fixes their claim agaiiist the A'enezuelaii Gov- ernment in the sum of 7,010,098.02 francs, will he I'ound the following OPINION OF VENEZUELAN COMMISSIONER. 27l items referring to the liabilities of the company on the 30th of May, 1890: Francs. 1. To the shareholders 1 , ,500, 0(X). 00 2. To tlie Société de la Monnaie 722, 851 . 56 3. La Banque de Consignations 236, .35(5. 00 4. Mr. Alfred Chauvelot 191, 176. (K) 5. Mr. Eugene Ferminac 63, (XK). fX) 6. Mr. Louis Roux 13, 059. 55 7. Mr. Theodor Delort 14, 641. 26 Total 2, 741, 084. 37 In this amount interest on the different credit balances is not included. The company had, therefore, on the 30th of May, 1890, debits amounting in total to almost as much as the capital of the com- pany, equal to 1,500,000 francs. Out of this capital, 600,000 francs had been allotted to Mr. Chauve- lot, in 1,200 shares (fully paid) of 500 francs each, which were deducted from the 3.000 shares which formed the capital of the company. Mr. Bricard, who had been appointed auditor in the first general meeting of the 9th of March, 1888, presented a report dated in Paris the 10th of jNIarch, 1888, in wliich he emits his opinion in reference to the valuation given to the contributions brought to the company by Messrs. Miguel Tejera, Chauvelot, and Th. Delort. The contribution of Messrs. Tejera and Delort consisted in the concesisons granted by the Government of Venezuela for the exploita- tion of the natural productions of the Territories of the Upper Ori- noco and Amazonas, and for the exclusive purchase and sale of all the tonca beans (sarrapia) of the territory between the Orinoco, Brazil, and British Guiana. In consideration of these contributions Messrs. Tejera and Delort had an interest of 40 per cent and 20 per cent, res- pectively, on the dividends to be distributed. The contribution of Mr. Alfred Chauvelot consisted in the following : First. The plant belonging to him, and principally the steam launches and boats of other kind, the rolling stock, etc., in short, all the goods bought by him for the intended exploitation. Second. All the works already completed, such as houses, stores, offices, shops, etc., erected on the different agencies, and the actual organization of the exploitation, which included the contracts and agreements with the various agents and employees. Tliird. The assets and liabilities of the company, including all goods on deposit or in transit, as well as the ingress and egress necessary for the purchase or sale of goods, or effects, etc.. for the upkeep of the personnel. Fourth. The agreement signed with several commercial agents for the purchase and sale of goods in Europe and America. 272 COMPANY GENERAL OF THE ORINOCO CASE. The opinion of the auditor with reference to the contribution of Mr. Chauvelot, in consideration of which he was allotted 1,200 shares of 500 francs each, is expressed in the following words: A sum of 3i)0,000 francs witliout any interest and witliout any sniaranty was placed at the disposal of the explorers, and in consideration of this loan and of the penalties and priva- tions suffered by Mr. Chauvelot and his friends (who had derived from this enterprise no bene- fit whatever, either direct or indirect, and who reliiuiuished in favor of the company any benefits accruing from the sale of products exported up to date) 1,200 shares were allotted to him. I must add that the expenses incurred up to date far exceed the said sum of 300,000 francs, but said expenses are already incurred and they are repre- sented by the plant and the work performed. These expenses had to be made and they will be beneficial to the compau}', who would have been obliged to incur the same after she had been constituted. It is therefore only right that the company liquidate these supple- mentary expenses at her own risk and peril and take them over. The amount of these expenses, which were represented by plant anil work performed, is said far to exceed the sum of 300,000 francs loaned by Mr. Chauvelot, but the exact figure is not given. From the exami- nation of the accounts presented by the Société de la Monnaie it appears that on the 10th of March, 1888, when the auditor presented his report, the syndicate of the Haut Orénoque was raising the sum of 491,846 francs, not counting interest from the 1st of January of same year ; that on that date the accoimt was commenced with a debit balance of 499,523.09 francs; that theaccountof theBan(|ue des Consignations commenced on the 1st of January, 1890, with a debit balance of 285,900.70 francs and was increased with interest to the 31st of March, 1890, amounting to 3,849.59 francs, and with 31.75 francs, Mr. Brumeaux's fees for a summons, and with 13 francs for dispatches to London and to New York. The foregoing shows that when the Compagnie Générale de l' Oréno- que was constituted with a capital of 1,500,000 francs, a sum of 600,000 francs in fully paid up shares was allotted to Mr. Chauvelot in consideration of his loan of 300,000 francs, which was represented in plant, steam launches, and })reliminary work for establishing the navigation of the Orinoco, whicli really constituted the working capital of the company; that this working capital had really cost a sum in excess of the 300,000 francs loaned by Mr. Chauvelot and that the company undertook to liquidate the same and to take it over at her own risk and peril; that according to the abstract of account oí the Société de lu Monnaie, the syndicate was owing to that society the sum of 491,486 francs, which was partially paid oil' during the course of that year with bills of exchange and cash, and that said account was thus reduced on the 31st of December, 1888, to the sum of 284,()73.29 francs, inclusive of interest amounting to 28,427.85 francs. The sum of 900,000 francs paid in by the shareholders, besides the 600,000 francs allotted to Mr. Chauvelot, wore absorbed by the liiiuiilution of the OPINION OF VENEZUELAN COMMISSIONER. 273 debts of the syndicate and by the requirements of the trading of the society in buying and selHng goods, exporting products, employees, and general expenses; and no evidence exists to show that any part of that sum of money had been invested as contracted by the company in the construction of two railway lines, in the sending out of a scientific com- mission for the study of the natural products and minerals existing in the territories, nor in the introduction of immigrants, or the building of chapels and schools in every village that the company was boimd to found, nor in the construction of barracks, nor the introduction of Catholic missionaries, nor in the hospitals and drug shops for the attendance of natives and innnigrants, nor in colonizing the tonca- bean teri'itories, nor in establishing navigation in the principal affluents of the Orinoco. This sum of 900,000 francs, paid into the treasury of the company, as well as the sum of 1,241,000 francs, which she was owing to several parties two years after starting her operations, after having exhausted her credit and being unable to proceed, appear to have been all spent without any other apparent result than the exportation during the same lapse of time of 73,992.20 kilograms of rubber and 44,569.70 kilograms of tonca beans, according to the official figures mentioned in page 68 of the memorial of the liquidators. The explanation of the result of the commercial operations of the compan}" is ñirnished by the very figures taken from her books and reproduced in the memorial so often quoted. (See p. 66.) This demonstration or abstract is headed thus : General account of expenses of the Compagnie Générale de l'Orénoque, from the original syndicate, September, 1886, to the 14th of October 1891 (on which day judgment was passed by the high Federal court), after deducting the moneys received for sale of products by the companj\ Items referring to expenses: Expenses of first establishment, viz; Francs. Expenses of syndicate 290, 995. 88 Cindad Bolivar: F,xpcnscsoî administrât ion, agencies, employees, navigation expends , trav- eling expenses, etc 487, 263. 09 Furniture and naval stores, shop ami transport stores, sawmill, utensils, etc 425, 040. 66 Atures and Maipures : WorJc on boats ami transportation of same over the rapids, mounting, re- mounting, repairing and maintaining same, railroad for the carrying over of the boats. Surveys of both banks of the river for the constnic- tion of a final line, roads, bridges, rafts, buildings, etc 629, 080. 87 Punta Brava: Expenses of agency and of installation. Imrljor, road, and other work 117, 7()S. 01 San Fernando and San Carlos: Expenses of agency and installation, buildings, watch posts, etc 360, 521 . 80 Cattle ranch on the Vichada. . 62, 708. 08 S. Doc. 533, 59-1 18 274 COMPANY GENERAL OF THE ORINOCO CASE. Paris: General expenses of administration, board of directors, employees, traveling Francs. expenses, etc 118, 628. 19 Stamps and registration 6, 821 . 80 Total 2,498,767.88 Considering the amounts of these items and all that is revealed by them, and taking into account the capital with which the company was founded and the colossal magnitude of the enterprise it entereil u])on miaware of the difficulties of same, as has been repeatedly acknowledged by her principal directors, it must be admitted that what happened was only natural and inevitable, viz: That the company exliausted its credit; that it was unable to proceed with its operations or to comply Avith its engagements and to pay its debts; that the general meeting of shareholders of the .30th of May, 1890, resolved to dissolve and wind up the company before they had any knowledge of the action suit entered by the representative of the Government of Venezuela, and, lastly, its attempts, twice baffled, to convert itself, fu-st, into an English company with the name of "The Orinoco Exploration and Trading Company," and later on into a Belgian limited company .under the name of "Compagnie Internationale des Caoutchoucs," both attempts having been made with the object of obtaining an increase of cash capital to pay off debts and proceed uñth the business. The declarations of several parties who had held important posts in the employ of the company can be made good as further evidence of the real situation of the company in ^lay, 1890, which, bemg in want of funds and having totally exhausted its credit in Paris, was unable to comply with its engagement toward the Government of ^'enezuela and to continue the exploitation of the concessions transferred to it by Messrs. Tejera and Delort, by reason of which the general meeting of shareholders resolved on the dissolution and winding up of same. These declarations are: First, the declaration made l)ofore the judge of first instance of San Fernando de Apure by ]\Ir. Enricjue Ligeron, submanager of the company in the Upper Orinoco, which declaration is a part of the evidence procured and presented by the representative of the company before the high Federal court in the action entered by the fiscal de la hacienda pública (financial representative of the Gov- ernment); and, second, the report j^resented by the li(|uidators of the company to the meeting of shareholders held in Paris on the 27th of December, 1890, as well as the minutes of said general meeting. Mr. Enriijue Ligeron's declaration of the 13th of November, 1890, before the said judge is as follows : I wa.s subnianagcr of tlio company in San Fornaudo do Atal)apo moro (lian four years, honcc when 1 wont to that placo tiio .steam launches whicii (iio comi)any had taken there for navigatin»; tlie river above the rapids liad i)oen carried above these rapids. Tficsc sttain launches had been transported on rails prorisionalhj laid, and when I arrived there uo riiHirai/ Une existí il and the rails had been scattered in different parts. In tlic [¡resent condition of OPINION ov venezup:lan commissioner. 275 tlu; river above the rapids no steamboat can navigate on those waters, as the obstacles offered by the rapids are insurmountable. The more convenient way of covering that space would be the construction of railway lines over grouml, which offers no great difficulties, tlie most difficult part of which being the construction of bridges on the affluents of the Orinoco, which nm across these lands. It is evident to nie tliat the company made all efl'orts in order to .comply with the engagements of its concessions, but in my opinion, it could not do more than what it performed, owing to the in,mfflciency of its capital for carrying out the different enterprises of its contmct. The abstract of the iniiuites of the o;eneral mooting of shareholders of the 29th of December, 1890, contains the following: i The meeting having been regularly constituted, the liquidators read the following report : " In our meeting of the 23d of June last you were accjuainted with the agreement signed with the Gold Trust and Investment Company for converting the Compagnie Générale de l'Oré- noque into an English company called 'Orinoco Exploration and Trading Company.' This agreement having been approved by the general meeting, the dissolution and winding up of the company was resolved and I had the honor to be appointed liquidator." The agreement with the Gold Trust having been definitely sanctioned by the shareholders, the new company was formed and registered in England; but political differences having in the meantime ari.sen between England and Venezuela, this last power has absolutely refused to acknowledge the new company and to transfer to same the rights and concessions of ('he French company. It was but very late that I was made acquainted with the causes which were opposed to the formation of the English company, and this delay was the cause of my losing very valuable time; but the moment I knew of these causes I took steps conducive to a result xohich might save our company. I have appealed for assistance to the former direc- tors of the company who ar^ now negotiating with the Government of Venezuela and have looked toward another solution of the problem, which is the only means of insuring ihefutwe of the company, viz, the reconstruction of the present company with an increase of fresh capital in cash. These gentlemen will now submit their views to you and will luring to your knowl- edge the result of their negotiations. The chairman then said that owing to the facts which had just been mentioned by the lic[uidator the board of directors had sent to Caracas Mr. Berthier, who had been a former agent of the company, with the following mission :'io obtain from the Government the revision, of the old concessions, which evidently contained clauses which were embarrassing to the Govem- iiient as well as to the company. Mr. Berthier was, besides, to make sure that the Govern- ment would make no difficulties /or the transfer to a new company (provided this be not an English compan\^) of all the rights and concessions accruing from the new contract. The double purpose of Mr. Berthier's mission has been obtained, the tenns of the new contrairt proposed have been accepted, and one of its clauses will allow the transfer to a new companv. The new company will bo French-Belgian, formed ivith the assistance of a powerful Belgian group. The chairman then read the draft of the Articles of Association of the Frencli-Belgian Company in formation. The Compagnie Générale de l'Orénoque having ceased to exist in Ma}', 1890, by virtue of the dissolution voted b}-^ the sharoholdors, the administrators had no longer power to transact any business, and the authority of the liquidators was reduced to the collection of moneys owing to the company, to wipe off former debts and liabilities, and to conclude whatever operations were pendmg at the time of the dissolu- tion. The liquidators had also to appear in court in whatever actions existed against the company, as the limited company called "Com- pagnie (lénéralo do TUrenoipio" had ceased to exist by virtue of hor 27G COMPANY GENERAL OF THE ORINOCO CASE. dissolution, and there had likewise ceased to exist, from the moment that the liquidators had been appointed, all the powers and authority of the board of directors, as well as all the powers that might have been conferred by said directors. From the minute examination of all the papers and documents referring to this matter, made by the Venezuelan commissioner it is eviilent that at no time whatever was the knowledge of the dissolution and liquidation of the Compagnie Générale de l'Orénoque conveyed to the high Federal court, and that the li(iuidators never took any steps for the purpose of being represented in the action, neither at the time when the suit entered by the representative of the Government of Venezuela was to be answered (on the 22(1 July, 1890), nor on the 7th of August, 1890, when Mr. Fiat entered his petition for the collection of evidence, nor in any other circumstance whatever during the whole course of the process. It is likewise evident from said examination that the dissolution of the company was never officially communicatetl to the Government of Venezuela, and it is natural to infer that the cause of this omission was to keep this fact ft-om the knowledge of the Venezuelan authorities, a fact which in itself was sufficient for the complete success of the action entered by the representative of Vene- zuela in the liigh court for the rescission of the contracts upon which the company was formed, since the dissolution 'and liquidation of the company frustrated the object to be obtained by the working of the concessions granted and made it materially impossible for the con- cessionaries to comply with their obligations, which was the legal basis of the suit. It is equally evident from the avowals of the liquidators, in their memorial to the minister of foreign affairs of France, and Mr. Alfred de Berthier's correspondence annexed to same, that Mr. Fiat, who liad been representing the company before the court up to the 11th of October, 1890, had sent Ms resignation to Paris, and that Mr. Bernabé Planas was then appointed as attorney, but this gentleman having declined the appointment, it was decided, on the advise of ^^r. Deh)rt, to send out a special agent. Mi\ Berthier was appointed for this mis- sion, as he was acquainted with all the details of the matter. Mr. Berthier, who was at the time in Martiniijue, was notified to]>n)('eed to Caracas, where he arrived on the 25th of October, 1S9(). (Page 47 of the memorial.) Mr. Berthier remained in Caracas from the end of October, 1890, to the month of July, 1901, and the action taken by him tended s(dely to the obtaining oj an extra judicial und< rstanding vdth the fiscal de hacienda (the representative of the (iovernment) //; the suit pending before the high Federal court — in order t") put a stop to the process and the relinquishment on tht part of the Ooirinment /<« ilemand on indemnity, and tlio company, on tlio otiicr Iitind, to renounce to its concession, in |)lac(' of wliicli anotlicr would Ix' i;ran(cd wliicli would l)c inmu'iliatfiy IransForretl to llie new ci>iiij)un3'. OPINION OF VENEZUELAN COMMISSIONER. 277 Mr. Berthier, in a letter dated the 16th of December, transmits to Count de Ker Daniel, the liquidator of the company, the following: I am not yet sure of this result, which has not so far been agreed to, but it is useless to deceive ourselves on it , as after all it does not amount to much . What we would really gain ix the cessation of the action entered af/ain^t vs. All else is a ciiimera (leurre). I do not, however, believe that I can obtain anythiufi l)etter, ami I consider it ¡iicl'ij if we obtain this. According to the scheme proposed to the Govornnicnt of Venezuela for a new contract — the company was to relinquish her former concessions and the Government was to desist from the action entered before the high court, each party to pay their own costs, and the Govern- ment was to grant to the company for a period of twenty-five years the exclusive rigiit for steam navigation on the waterways of the Federal Territories Upper Orinoco and Amazonas, and on the rivers Caura and Ciichivero, during which period the Government would not grant a similar concession to any other party or company. The steamers of the company were to navigate imder the Venezue- lan flag. (Annexed document No. 92.) It is to be observed that this scheme commences in this way: The Compagnie Générale de l'Orénoque, represented by her legal attorney, as per an- nexed power, which will be certified. No mention whatever is made that the company was in liquidation, and all along this document she is simply called the ''Compagnie Générale de l'Orénoque." Article 10 of this scheme is worded thus: This contract can be transferred to any other party or company with the previous con.sent of the Federal Government, without which formality the transfer can not be effected; liow- ever, as an exception this contract can be transferred in part or in whole to the Belgian company called "Compagnie Internationale des Caoutchoucs et Produits Naturels au Bassin de l'Orénoque." According to article 3 of said scheme the company had the right to construct within the territories mentioned the railway and telegraph lines which it might think convenient. Mr. Berthier went on with his extra judicial negotiations until May, 1891. On the 17th of the same month this gentleman (as confirmed by his letter of 28th of May to the liquidators) transmitted to the said liquidators the following cablegram: Contract accepted on best terras, navigation included; no special commission. I await instructions to proceed. Don't you wait longer, as time is very limited. If you can not remit one hundred thousand, send by cable whatever you can with authority to draw on you for the balance. He again telegraphed on the 2 2d of May as follows: On receipt of my letter of the 7th of May (which has not been presented), reply by cable. The tenth word of my telegram should have been "pullcinetto" (£600,000). Give your approval to contract, which comprises the free navigation. I have sent you a copy. I will not weary of pressing you, as there is no time to be lost. 278 COMPANY OENEKAL OF TÍIK ORINOCO CASE. Again, a third cablegram of the 2.5th of May reads thus: As 3'OU have not telegraphed to me, the negotiation has collapsed. It is useless to pro- ceed, there l)eing no prohahiiity of doing any business for some time. I am unable to do anything for the present. I will leave on the filh June. I ran not remain here any lonL'er. Congress dissolves shortly. Mr. Berthier's letter continues in this way: I have received your last telegram one day after I had transmitted to you mine of the 2.')th. This is equivalent to telling you that said telegram an-ived too late. I therefi)re confirm the contents of said telegram, but I shall, however, await for tlie arrival of Doctor Moris.'^e. a'^ per your advice. I considered, by the contents of the letters jou have written to me, that you were in a position to reply inunediately on receipt of my first telegram. The deciphering you made of same was nearly correct, and it should have given you to understand the danger incurred by waiting. In truth I was careful to tell you that the Government maintained the nullity of the former contract to be replaced by a new one. You ought to have known, in con.se- fjuencc, that this entirely new decision required a certain time and that by means of the rail- road we evaded the trouble of having to wait for Congress. I am .still going to make a last attempt in order to prevent that the 7}ew conipajuj be annulled in con.^equence of the nonfulf li- ment of the contracts 6;/ the old company. There will be an extraordinary .session of Congress which lasts for some weeks. I will try to obtain a solution of the process, whichever it may be. * * * If I fiiil in in}' last attempt, there will be no other way i)ut to lodge a claim against the Government. It follows, of course, that a counteraction (cross demand) may be entered. Two facts has'e now taken place on the Orinoco which will give us considerable power later on. The first is that the steamer Meta was put out of service without any cause by order of the governor of the territory, an action which constitutes an outrage against private property. The second is an armed aggression against the steamer A7 Lihertail, which was nearly captured. All this may serve as a basis /or demandin{i a lareje indemnitii, but when would such a cause come to an issue? Before I leave I will settle this matter no as to tjire to my successor the startiny pointfor a claim. It would likewise be the official verification of tho.se deeds which may be considered as worthy of a savage country. Resuming what precedes I am going to try to obtain a solution which will countenance the existence (la raiso7i d'être) of the new company. In case I fail, I shall make preparations for obtaining the required matter (elements) for the process which we must necessarily enter into. I will a.ssociate with Maiz, by private agreement, for obtaining the concession on the rapids and sell out the same. In this way we shall heep our hands on the business. I will conclude by saying that I rely on the sincerity of the promises made to me and that tlie political situation has been the only cause of our failure. It is probable that a satisfactory result may l)e obtained, pro- vided you can wait and spend some money at the proper moment : but as I can see no issue for the present, and I must necessarily return to France, I re(|uest you to relievo me from this post. In pi'ge 4i) of the memorial addressed to the minister oï foreign affairs of Fmnce the liquidators express themselves as folK)\vs: When Mr. Berthier saw that he could obtain nothing, he looked to a solution of the mat ter by means of contract for a railroad on the right bank; l)ut we did not understand bis < Reply. The agent of tiie company in that place was the French citizen Mr. Eduardo Marie, but he had been ol)liged to leave on importuiit business and lie had commissioned to put me in charge the Belgian .sulijcit, OPINION OF VENEZUELAN COMMISSIONER. 281 Eugenio Halvcich, from whom I reocivcd all the proporty under inventory, .Mr. Ramóu Orosco being present and signing the same as witness Question. To whom does the house called " Casa Amarilla" belong? Kcply. The house belongs to me conditionally. I will explain this to you. The liquidator of the company, called Mr. Roux, who resided in Paris, wrote to me in August, 1891, to .say "that I was to consider all the bonos (promissory notes) which T held from the company as hard ca,sh." I then took the house in guarantee with the intention of turning over the .same to the company in case she might need it, and provided I was paid the sum of C),W2 francs, which the com- pany was owing me. Question. What goods are there now in the Casa Amarilla í Reply. There are some pieces of furniture and some goods. Pages 18, 19, and 20 contain the declaration of Juan Figarella, a French citizen in the employ of Mr. Chiarelli, who had been intrusted with the liquidation of the property of the company by Mr. Edmundo Knots. This declaration is in every way identical to that of Braulio Valiente with reference to the cattle. Pages 21, 22, 23, and 24 contain the inventory of the goods in the Casa Amarilla, which was an erection in pretty good condition, built of earth with a thatch roof. These goods consisted of woven stuffs, haberdashery, and ironmongery, and the inventory of same was made in the presence of G. Aubey, Pedro Nicco, R. Orosco, and Nieves AiTabache. Page 26 contains the declaration of Horacio Luzard, similar to that of Braulio Valiente, in what refers to the number of cattle. Page 29 contains a receipt from Luis A. Ortega in favor of Gen. Juan Anselmo, governor of the Territory, for the amount of $131.43 on account of work as caretaker of the property of the company. Page 30 contains a receipt from Braulio Valiente for $108.63 in favor of same governor for salaries as caretaker of the cattle of the company. Page 31 contains a petition addressed to the judge by the aforesaid governor, requesting the payment of expenses incurred in taking the inventory of the property of the company, as per vouchers of Luis A. Ortega and Braulio Valiente for the sum of 959.24 bolivars and requesting that orders be issued for the sale of part of the property to cover said expenses. Then follows the record of the sale of the goods of the Casa Amarilla, as per inventory of 12th of April last, efl'ected in public auction on the 22d of May, at which sale bids were made by the Vinciquina for 360 bolivars, by Nieves Arrabache for 400 bolivars, by Ramón Orosco for.800 bolivars, and by Juan Anselmo for 900 bolivars; and no higher bid being obtainable the goods were allotted to Gen. Juan Anselmo. It is, therefore, inaccurate, as asserted in the aforesaid memorial, that the governor, Juan Anselmo, had declared, on his owti authority, that he had a right to an indemnity in consideration of his labors, nor that all the property of the Compagnie Générale de VOrénoque was sold and adjudged to Gov. Juan Anselmo for the sum of 900 bolivars. 282 COMPANY UENEKAL OF 'J'HK ORINOCO CASE. In appreciating the true and real situation in which the property ol the Compagnie Générale de l'Orénoque had been left after and by virtue of the dissolution of the company, and in consequence of the al)andon in which the saitl property appears to have remained fc^r years exposed to the inclemenc}^ of the weather in localities the natural conditions of which cause very serious damage to buildings, goods, utensils, tools, steamboats, and others, it is the conviction of the Venezuelan arbitrator that all this property did not represent at the end of the period elapsed a value sufficient to cover the sum of 40,048.02 francs, which the company had been condennied to pay hir damages by the sentenoe of the high Federal court, and the further sum which the company was likewise to pay to the Government for costs of the suit, which have not as yet been liipiidated. By virtue of this and of the reasons set forth in this opinion the Venezuelan arbitrator considers that the claim lodged by the liquida- tors of the company against the Government of A'enezuela for the amount of 7,616,098.62 francs is totally devoid of basis and disallows it absolutely. NoRTHFiELD, February ,9. 190Ó. Note by the Veneziei.ax Commissioner. The foregoing is a faithful translation of nij' opinion rendered at Caracas in session of the Venezuelan-French Commission of ^la}" 5, 1903, as it appears from the report called " Comisión Mixta Venezolana-Francesa, protocolo de 19 de Febrero de 1902. Dictámeneíi del Arbitro Venezolano." OPINION OF THE FRENCH COMMISSIONER. The Company General of the Orinoco claims on the date of July 10. 1902, a sum of 7,616,090.62 bolivars, which is made up as follows: One million five hundred thousand bolivars for its capital. 1,701,680.17 bolivars for the debts contracted in view of the service of the concession, 2,414,410.45 bolivars for interest at 6 per cent on these two sums for twelve years, and finally 2,000,000 bolivars for the eventual profits which it has lost. After having examined the dossier and studied the memoir presented by Doctor Paúl, I have judged that the Venezuelan Government ought to pay to the company an indem- nity of 7,000,000 bolivars. In failing in the obligations which it had assumed, in deceiving the company by its dissimulation which changed the substance of its agreements, and in interfering with the manage- ment of the concession by its vexations and abu.ses of power the Venezuelan State has brought about the ruin of the compiiny. Its responsibility is then involved, in my o|iinion,to the anunmt of sums disbursed by the comi)!iny. These .sums including the cnpitnl, the debts, and obligations contracted for the service, and the interest, amount to a total of 5,616,098.62 bolivars. OPINION OF FRENCH COMMISSION P:R. 283 To arrive at this ainoiint the company has reckoned the interest at the rate of 6 per cent. Wliile this rate may be moderate considering the nature of the enterprise and tlie vahie of money in ^'^enezuela, a rate of 3 per cent must be allowed in the calculation of interest to be granted to the capital. Tn fact my colleague and myself have agreed that interest given by the commission should be calculated at a rate of 3 per cent, this rate being fixed by the Venezuelan code as a legal rate tlie contract being silent, and being accepted for the already existing French diplomatic debt. There is then reason to diminish the sum claimed by the difference o])tained in reckoning interest at 3 per cent instead of 6 per cent, or 5-1:0,000 bolivars. This decrease, on the other hand, ought only to relate to the interest on the capital ; in fact the company being obliged to pay an interest of 6 per cent to its lenders and holders of obligations it would be unjust to make a reduction on the sum claimed imder this head and which enters entirely into the disbursements of the company. I have not thought at all that I ought to accord to the company the indemnity of 2,000,000 bolivars which it claims for the eventual profits which it has lost. It has not been in business long enough to arrive at a time of profit, and no one can know if it would ever have reached a point greater than the normal interest on the capital invested, the interest of which I take into account in the reckoning of the indemnity. That remains very doubtful if we consider the burden- some obligations which the com[)any allowed to be imposed upon it in the contract. It would not be equitable that it owed to the situation of claimant the advantage of taking from Venezuela benefits u])on wliich it could not have counted truly, considering the conditions of its management, if the latter had been developed without interference. It is, then, a sum of 5,078,098.62 bolivars that in ec(uity the Venezuelan Government ought to pay to the company for losses sufl"ere(l. But T have had to take account on the one hand of the use of the interest since Jvdy 1, 1902, the day on which the calculation prepared by the c(mipany stopped; and, on the other hand, of the depreciation of the bonds of the diplomatic debt. Twenty-seven months have already passed since the first of July, 1902. and this lapse of time increases the amount claimed b}' the company more than 800,000 i)olivars, which will continue to accrue until the day of the final award. Up to to-day this will be a sum of at least 6,000.000 bolivars, which ought to be |)aid to the company for reimbursement of its expenses. Finally, the indemnity, according to the terms of the protocol, hav- ing to be paid in bonds of the diplomatic debt, and not in gold, in virtue of the concession consented to by the French Government in favor of the Venezuelan Government, to allow it to pay its debts wàth greater facility, and the depreciation of these bonds being at the present moment about 60 per cent, I have judged it equitable to increase this 284 COMPANY GENERAL <>F THE oKINOfO CASE. indemnity of 6,000,000 bolivars by 1,000,000 bolivars, which thus reaches the sum of 7,000,000 bolivars in bonds of diplomatic debt. These 7,000,000 bolivars represent merely 2,800.000 bolivars in goUl. This is the sum which the company ought to receive and the Venezue- lan Government pay if the umpire should share the opinion of the i>cnch arbitrator. This sum represents only a little more than half of the disbursements of the company. The Venezuelan arbitrator, playing the part of a lawyer rather than that of an impartial arbitrator in the V)rief submitted to me, undertakes to dispute the arguments of the company, and to demonstrate that the Venezuelan Government, far from having anything to be censured for, was, to the contrary, in a position to bring suit against the com- pany for not having fulfilled its obligations. The minutes of the session of the commission of May 7, 1903, mentions that — Doctor Paúl expresses to his colleague the desire that he present, as he himself has done, an exposition of arguments upon which he bases his judgment and by which, at the same time, he would reply to the arguments presented by the Venezuelan arbitrator. Doctor Paul would be able to take these into consideration and to see if it would be possible to reach an agreement. I have refused to follow my colleague into this field, believing that in my capacity of an arbitrator I am not called upon to present any arguments in favor of or against one of the two parties, but only to examine their statements and decide in favor of the one or the other. One of the lawyers of the Paris bar, Maître Poincaré, has undertaken to defend the company in the field of law, answering Doctor Paul's arguments. ^ The reading of the brief prepared by Mr. Poincaré has but strength- ened me in the opinion which I had formed after having studied the dossier and the plea of my colleague. Doctor Paul was so convinced that he was taking the part of the lawyer rather than that of an arbitrator, that he made the statement to me at the session, as shown by the minutes, that he would take my arguments into consideration if I was willing to submit them and " see if it would be possible to reach an agreement." Has not my colleague confessed by these words that an agreement is possible and that consequently the company has a right to an indemnity? Ido not see, in fact, how we would have been able to arrive at an agreement unless he recognized the principle of an indem- nity, contrary to his decision to reject the claim entirely. I am still persuaded that my colleague would have changed his absolute opinion if I had consented to diminish in notable proportions the indenmity which I havefixed. But conscientiously I have not been able tt) decitle to do it. It is not my intention to censure Doctor Paul, because his patriotism may have led him to become a lawyer representing his country instead of the man who vvas called upon to pass judgment. I OPINION OF FRENCH COMMISSIONER. 285 am contented to make mention of it, and to the contrary I seize this occasion with pleasure to render homage to the courtesy and the breadth of mind ho has shown in the course of the numerous sittings of the commission (hiring which we have examineass judgment * * * M. de Peretti de la Rocca, called upon to pass judgment on the claims of his countrymen, believes himself to be authorized under the Paris pro- tocol to pass judgment upon the manner in which I have performeil my work on the commission. I do not think that the protocol gives his authority so wide a scope, but I believe that I am obliged to stat(« that his opinions as to the method I have deemed best to follow in the discharge of my duties and functions as an arbitrator, are entirely foreign to the impersonal character which discussions between arbi- trators must have when a difference of opinion divides them wliile investigating and deciding upon a case. The work I have helped to perforin as the conuni.ssioner (arbitrator) for Venezuela on the two French-Wnezuelan Connni.^sions, in connec- tion with the severe judge of my country, is well demonstrated by the facts that out of 332 French claims submitted to our decision, amount- ADDITIONAL OPINION OF VENEZUELAN COMMISSIONER. 287 ing to the sum of 77,477,409.47 bolivars, 306 were definitively settled or decided by mutual agreement, reducing the sum claimed from 34,127,226.10 bolivars to 3,950,731.14 bolivars, or about ono-iiinth part of the sum claimed ; 10 claims were submitted, because of disagree- ment, to the final decision of the umpire, Mr. Filtz, who awarded the sum of 153,369.38 bolivars, and the other S claims, representing the sum of 42,988,047.50 bolivars, are subject to the investigation of the honorable umpire, Mr. Frank Plumlcy, in this city of Northfield. If through the bandage covering the eyes of justice, as she is always represented, the' French commissioner has been able to discover that in the claims of his countrymen, as submitted to our joint examination, the amount had been inflated in the proportion of 9 to 1 , what could the Venezuelan commissioner not have discovered, animated, as it is justly surmised, by his patriotic sentiments, which had been submitted to the hardship, as my colleague justly remarks of — discussion [which] must have been grievous many times to his Venezuelan sentiments from those 332 claims which offer, as shown, the plainest evidence that it has been pretended that A^'enezuela should pay for indemnity for damages an amount tenfold greater than the value of the actual damages sustained ? If, because in order to succeed in preventing that such gross injustice be done by the mixed commissions to which I have been a party, my colleague considers that I have played the part of a lawyer in defense of my country, instead of that of an impar- tial judge, then I have done my duty, and I do not think I deserve on that score the censure of those who have no reason to desire that I should not have defended my country. As regards the method adopted by the French commissioner of not supporting his decisions and opinions by arguments in order to dis- tinguish his system of defense from mine, I have nothing to say. It is enough for me to be satisfied that I have fulfilled my duties to the utmost, and that I have in my opinions endeavored to follow the standard set by eminent jurists who have discharged these same duties of arbitrators and who did not think that they were to pass their sen- tences as imperial ukases, but that such sentences were to be based upon the exposition of the principles involved and upon a line of argu- ment growing out of the examination of such principles, laws, and precedents. Such arguments have come to be a source of light to those who, like myself, desirous of learning how not to err, have gone thither to dispel shadows of darkness in their intellectual labors. Among other authorities, see the six large volumes of Moore's Inter- national Arbitrations; the volume containing the enlightened opin- ions of the commissioners in the Ignited States and Venezuelan Claims Commi.ssions, 1889-1890, and Ralston's Report. Wnezuelan Arbi- trations of 1903. 288 COMPANY GENERAL OF THE ORINOCO CASE. I must express at this point surprise to see how my colleague has construed the statements I made to him at the sitting of May 7, 1903, that I would — take these [arguments] into consideration and see if it would be possible to reach an agreement . To deduce from such statement, inspired mily by my desire to become acquainted with the arguments of my colleague, to see — if I was con- vinced b}^ them— whether we could reach an agreement or find out whether it was established that the General Company of the Orinoco was entitled to an indemnification, is equivalent to deri^^ng from the (question put by one person to another, "\V'hat reasons have you to demand from me the payment of that bill?" that such question estab- lishes the fact that the debt has been acknowledged. That my learned colleague should appeal to such a line of circum- locutory arguments in support of his opinion in favor of the General Compam^ of the Orinoco plainly shows that in the store of arguments used b}' the compan}^, and which my learned colleague produces as his own, there are not many weighty enough to bring conviction to the , honorable umpire's mind of the sound foundation of the claim. The French commissioner reafiirms his determination in the brief under discussion, when he avers that he abstains from following me into the field of argument, believing that in his capacity as an arbitrator he is not called upon to present arguments in favor or against one of the two parties, but only to examine their statements and to decide in favor of the one or the other. My learned colleague adds: One of the lawyers of the Paris bar, Maître Poincaré, has undertaken to defend the com- pany in the field of law, answering Doctor Paul's argimients. The penisal of the brief (plaidoiñe) prepared by M. Poincaré has but strengthened me in the opinion which I had formed after having studied the dossier and the plea of my colleague. Consequently, M. de Peretti, in his brief, limits himself to explaining his reasons for granting the company any indemnification for eventual profits; for reducing the rate of interest claimed to 3 per cent until July 1, 1902, when the estimate made by the comi)any ends; and for granting besides a supplementary indemnification for interest from that date until the day of the final decision, fixed at 1 ,000,000 bolivars, and another million because of the depreciation of the bonds of the diplomatic debt, making a total of 7,000,000 l)olivars. I deny, as it is my bounden duty to do, most emphatically, the unfounded conjecture my learned colleague has made in his brief, when he states that I would not be the only one among my enlightened countrymen who would have consented to acknowledge my country's liability in this case, and conse<|Ucntly admitted that an ¡ndonininca- tion is due the company. Tt is also indispensable, since the honorable ADDITIONAL OPINION OF VENEZUELAN COMMISSIONER. 289 French commissioner is willing to use it in support of his opinion, that I should take into consideration the incident of the Pietri-IIanotaux protocol and the draft of an ajireenient signed in Paris by M. Juan Pietri, which M. de Peretti has submitted as a part of his brief. Tlie incident in question, as it appears in the opinion of my learned colleague is as follows : " In 1897 the President of the United States of Vcnezeula sent to Paris a semiofficial pleni- potentiary, General Pietri, to endeavor to renew tlie diplomatic relations intcrmpted between the two countries since the departure, in 1895, of the Marquis de Mondar, French minister, because of an incident which to reopen here is unnecessary. Mr. Pietri opened negotiations with the Quai d'Orsay and such negotiations resulted in the signing of a pro- tocol by virtue whereof normal relations between France and Venezuela were to be reestab- lished, provided such diplomatic act was ratified by the Congress of Venezuela. Annexed to said protocol there was a convention concluded on June 24, 1897, between the plenipotentiary of Venezuela and the liquidators of the General Company of the Orinoco, the text of said convention being attached to the papers (dossier) in the claim. Itwius stipu- lated by the convention that said company by way of a compromise agree to relin((uish any further claims upon payment by the Venezuelan Government of an indemnity of ;3,(i(X),000 bolivars. The Venezuelan Congress did not ratify said protocol, the convention remaining therefore null and void. However, it may be inferred from such fruitless endeavors to come to an agreement that there has been a Venezuelan plenipotentiary who eight years ago recognized the right to a considerable indemnity on the part of the General Company of the Orinoco. The Venezuelan Congress having met in secret session to examine the protocol signed by Messrs. Hanotaux and Pietri, I have been unable to learn the reasons of its rejection by said assembly. It is possible that the convention subscribed to by the company may have had sometliing to do with such rejection. But, even admitting that the existence of said con- vention had been the only cause of the refusal of Congress to ratify the protocol, .said conven- tion does not lose by that fact its character as a document of great value. * * * . So much for the history of the incident of the Pietri-Hanotaux protocol. The other portion of the document, replaced by the dots, with which my colleague ends the paragraph, I shall not reproduce in this answer. They belong to that class of arguments called "'ah homine," so generally used in French parliamentary orator}^, but which are misplaced in abstract and severe debates before a court like this one. "VVliatever be the opinion the French commissioner may have formed of the administration and public opinion in Vene- zuela, will surely not have the slightest weight in the mind of the honorable umpire when he shall render his decision in the case. M. de Peretti is in the right when he states that the convention con- cluded between Mr. Pietri and the liquidators of the General Com- pany of the Orinoco acknowledging to the latter, by way of a com- promise, 3,600,000 bolivars, had something to do with the refusal of the Congress of Venezuela to ratify the Pietri-Hanotaux protocol, the object of which was the renewal of diplomatic relations between the two countries. It not only had something to do with the refusal, but was the sole cause thereof. Even if Venezuela had solicited the a Page 285. S. Doc. 533, 59—1 19 290 COMPANY GENERAL OF THE ORINOCO CASE. renewal of the relations, for which Mr. Pietri had received instructions, Congress was compelled to refuse to ratify the protocol tending to such renewal, because the convention annexed as a condition to the end in ^^ew represented for Venezuela a sacrifice of such magnitude and so unjustified, that Congress preferred to continue depriving the country of friendly relations with France to subjecting it to a cen- surable negotiation. General Pietri lacked the necessary authority and instructions to negotiate with the General Companj^ of the Ori- noco, and even the officious negotiations which were intrusted to liim in France for the renewal of diplomatic relations were ad referendum, because, such relations being interrupted, he could not have been invested with the character of minister plenipotentiarj^ to the Quai d'Orsay. If from the officious capacity of Mr. Pietri to treat with the Quai d'Orsa}" of the renewal of the diplomatic relations between Venezuela and France and from the character, as minister plenipotentiary, which was vested in Mr. Pietri by the administration of 1897 to represent Venezuela in other States of Europe, the French commissioner draws a favorable conclusion when he says: It may be inferred from such fruitless endeavors to come to an agreement, that there has been a Venezuelan plenipotentiarj', who eight years ago, recognized the right on the part of the General Company of the Orinoco to a considerable indemnity. what may I not deduce, as the Venezuelan commissioner, against the justice of such indemnification, following the same style of argument, upon considering that it has not been a Venezuelan plenipotentiary, but the National Congress, consisting of eighty plenipotentiaries rep- resenting the will of three millions of inliabitants, who disapproved the convention signed by Mr. Pietri, because the}^ believed it to be unlawful ? M. de Peretti states in his brief that the perusal of the j)leadings {plaidoirie) of Maître Poincaré, counsel for the company, who dis- cusses m}'^ arguments, has come to confirm him in his opinion. I have read the brief of the eminent member of the French bar and lawyer of the court of appeals, and since his opinion has been sought for by the claimant company to impugn my opinion, I must examine it and reply to its allegations. The first part of the brief and opinion of Maître Poincaré, called "Exposition of Facts," contains a relation based upon the documents and notes produced by the claimant company, making a l)etter pres- entation of the same papers, statements, and letters found in the case (dossier) of the company. Of such exposition of facts the hon- orable umpire can only take into consideration for his decision such facts upon which both parties have agreed or the accuracy of which has been duly established, based on trustworthy documents showing the facts to be true. ADDITIONAL OPINION OF VENEZUELAN COMMISSIONER 291 The second part of the brief under consideration is called ''Dis- cussion" and is divided by Maître Poincaré into several chapters and sections dealino; with the different (grounds upon which the company has based its claim for indemnification, classified as follows: First. Lejial and decisive efficacy of the judgment rendered by the high Federal court against which the ( ompany opposes denial of justice, based upon the following facts: Irregularities in tlie summons, irregu- larities in the letters rogatory, irregularity in the pleadings {plai- dories). Second. Good grounds for the claim for indemnification, based upon substantial error vitiating the consent, failure to execute its obliga- tions on the part of Venezuela, and ñilfillment of its obligations on the part of the company. Third. Conclusions: The amounts of the claims have been duly established by means of documentary e\adence. The existing dip- lomatic debt is now worth from 40 to 42 })er cent. That which is to be created for the indemnifications resulting from the j)rotocol of 1902 shall be worth even less. • For the sake of brevity, in this additional opinion I shall examine only such points of the opiniqn of Maître Poincaré as are indispensa- ble to strengthen the arguments in ni}^ first opinion and shall also point out whatever may be conducive to a clearer exposition of the juridical doctrine or international principles invoked, as well as to the first estimation of the facts. The question advanced as the fundamental grounds for this case is in the first place whether the sentence of the Venezuelan Federal court, declaring the rescission of the contracts under which the Gen- eral Company of the Orinoco operated and condemning said companv to tlie pajmient of a certain sum and judicial costs, is a final or decisive sentence having the force of the res judicata and therefore binding and subjecting the company to all its consequences. The General Company of the Orinoco, four years after such sentence has been passed, invoked the action of the French Government in order to enter a protest against said judgment, claiming, as Mr. Poin- caré states — that it has been the victim of an actual denial of justice, because, in the first place, all remedies against administrative and governmental action Iwing withheld from it, mainly bv reason of the decree of August 8, 1890, issued under pressure by Colombia, and the arbitrary seizure of 1893, and in the second place because of the violations of both public and private law ejfecuted not only during the proceedings but also oustide of anj' judicial action. The company produces no proof whatever to show that all legal remedies against administrative and governmental action have been \vithheld from it. The decree of August 8, 1890, as evidenced by its o\ni. terms, was issued in behalf of the large interests of the inhabitants of the region where the tonca bean is gathered and because the com- 292 COMPANY GENERAL OF THE ORINOCO CASE. pany liad suspended' the purchase of the bean for want of resources, and the Government could not permit the destruction of the interests and means of subsistence of that territory already threatened with abandonment on the part of the company' and an absolute busuiess stagnation. In regard to the seizure of 1893, subsequent to the judg- ment, the copies subjoined to the presejit additional opinion in sup¡)ort of the arguments of ni}' first opinion will shed sufficient light to bring conviction to the mind that the propert}' the company had abandoned on the banks of the Orinoco River because the company had gone into liquidation and was unable to even take care of and tr}' to preserve said property has not sufficed, because of its state of deterioration and ruin to pay for the debts contracted in the locality, let alone those for which the company was liable to the nation by virtue of the sentence of the Federal court. Against the argument I have put forth in my opinion that, according to the Venezuelan Code of Procedure, the General Company of the Orinoco had six months after date of sentence within which to demand that it be invalidated, «if the compan}^ had or believed itself to have sufficient grounds to ask for such reversal, Mr. Poincaré advances the argument that the sentence of the court was in itself indisputably a sovereign decision, not open to any remedy or appeal whatever before a liigher court. It is true that such decision was not subject to appeal before a higher court, because the high Federal court is the highest judicial tribunal; but such decision was open to the remedy of invali- dation before the same court, according to Case I, article 538 of the Code of Civil Procedure then in force, or, in other words, the failure to issue such summons when they are necessary to continue the case, if the failure has not been remedied by the party invoking the same. Article 539, quoted in his opinion, clearly stipulates that — such caso shall be tried in the same manner as the case upon which the sentence whose invali- dation is sought was tried before the court lohich has decided the case in the last resort {instance).^ M. Poincaré adds: There was nothing to be gained therefore in asking the invalidation, as this could not be granted except for a special cause, and the most important grounds of complaint could not contribute to justify such a step. One of these grounds, as will be hereafter .sho^^Tl, was failure to notify the company's attorney to make his pleadings. The learned and expert counsel for France has already stated that such failure, which is a most important ground for complaint iigainst the judgment , as believed by the claimant party, does not constitute one of the sjx'ciiil causes to demand the invalidation of the sentence, according to (he a Art. 539. Este juicio se promoverá, del mismo modo que la demanda sobre que recayó la sentencia cuya invalidación se pide, ante el tribunal (pío la dictó en última instancia. ADDITIONAL OPINION OF VENEZUELAN COMMISSIONER. 293 provisions of article 538 of the Code of Civil Procedure.* Notwith- standing that such notification is unnecessary and not required by the Vene/Aiehni law of procedure, the ('oni])any uses it as the basis u])on which rests its main arfens(> and that c()nse([uently the sentence is invalid. The lirst cjiuse of invalidation invoked by Maître Poincaré in his brief as vitiating the form or proceedings is the irregularity of the sunmions to answer the complaint. The counsel for the defense of the company's rights bases his contention to that effect on the testimony of Mr. Fiat, a former employee of the company, who affirms that when the State's attorney for the treasury (fscal nacional de hacienda) entered his action before the high Federal coiu't for the rescission of certain con- tracts and the payment of an indemnification he received no sunmions or order requiring him to appear. It is true that in the records of the high court — the brief avers — mention is made of the letter of the secretary of tliat juiisdietion, dated on May 30, 1890, addressed to Messrs. Fiat and I'lanas, informino; tiiem tliat tlie eoin])any liad been sued before the high court. But Messrs. Fiat and Planas iiave always declaied that they had not received such letter and Mr. Fiat has added that it was only while reading a Caracas newspaper that he became aware that the company had been sununoned to appear before the Federal court. It was then that he, of his own accord and without any previous summons, went to the secretary's office. It can not be doubted, that if a regular summons had been issued to Mr. Fiat or Mr. Planas or if any notice by letter had been given to them of the action entered by the "fiscal," a receipt should have been demanded, as was done in the ca.se of all subsequent summonses. It is thus shown that the proceedings were irregularly conunenced. What appears from the minutes in the case which may offer reason- able grounds for the deductions of the attorney presenting the brief under consideration ? At the end of the complaint entered by the fiscal the following reso- lution appears: Presidency of the High Federal Court, Caracas, May .30, 1S90. [27 and 32. Entered.] Summon the General Company of the Orinoco, defendant, whose domicile is outside of the Republic, and serve a copy of the foregoing complaint, to appear before this court at the sitting of the tenth working day after .summoned to answer the action, which, in the name of the national Govermnent, the State's attorne}' for the treasury (fiscal nacional de haciemla) has entered. And whereas it appears from the documents produced that Messrs. Andrés Fiat and Bernabé Planas have held powers of attorney from said company, let them be notified, that they may state wliether they still exercise such duties, and if not, a counsel for the defense {defensor de ausentes) shall be appointed as requested. (Signed) Carlos Ukrutl-v. Manuel Rendón Sarmiento. o For text of Art. 538 see p. 259, note. 294 COMPANY GENERAL OF THE ORINOCO CASE. On tlic same day and date the siinimonse»were issued to Messrs. Fiat and J'ianas to appear at the first sitting of tiie court after being sunnnoned for llic piirpos*' aforesaid, tlie siiin- inonse,s being delivered to tiie l)ailiir of tiiis liigii court. (Signed) Kendún Sarmiento. Secretary. At the session of tliis daj', June 2 (two days after tlie suniinoiise.s weie issued), there appeared Messrs. Andrés Fiat and Bernabé Planas and stated that Mr. Andjés Fiat is now the representative of the General Company of the Orinoco and offers to produce the power of attorney at the session of next Wednesday', the fourth da}- of the present month. Subscribed to — (Signed) Cári-Os Ukrltia. AxDRKs Fiat. B. Pl-ANAS. Rendón Sarmiextí), Secretary. These are followed by others referring to the filing of the power of attorney' in the French language; appointment of an interpreter to translate the same; his acceptance and oath; the translation of the power of attorney, and the order of the presidency of the high Federal court directing that the original power of attorney be returned to Mr. Fiat, and that he be duly summoned to appear as the attorney for the company. Then follows an entry of the secretary, whereby it appears thtit a certified copy of the complaint was made and delivered to the bailiff to execute the summonses issued to the defendants. As a part of the record, the following entry appears: I have received the complaint in the action entered by the national Government against the General Company of the Orinoco, of which I am the representative. Caracas, June 19, 1890. (Signed) Andrés Fiat. (Minutes of the proceedings had before the high Federal court, a certified cop}' of which I submit to the honorable umpire, in Spanish and English, consisting of G exhibits, numbered 1, 2, and 3, respectively.) The testimony furnished by the minutes of the proceeilings shows that due regularity in conformity with the legal precepts was observed in summoning Mr. A. Fiat as the representative of the General Com- pany of the Orinoco, and also establishes the fact that there is no iruth in the declaration of Mr. Fiat, serving as a basis to the company's counsel to aver that the proceedings were irregularly commenced. In regard to the statement which, it is aiiirmed, Mr. Bernabé Planas made to the same effect, it is not fv und among the numerous docu- ments submitted ])y the company, so that no other conclusion can be drawn except that the writer of the brief was induced to ailirm a most serious fact affecting an old friend of the company, which is contrary to actual events. The line of argument contained in the rest of this cha})lcr of the brief dealing with the delay in summoning Mr. Fiat and answering the com"|)laint because of the preliminary proceedings of giving notic(\ the filing and translating of the power of attorney, and lh(> amendment of a part of the case by fixing the amount of the indenmificalion asked ADDITIONAL OPINION OF VENEZUELAN COMMISSIONER. 295 for is so inadequate to arrive at the conclusion that Mr. Fiat found himself deprived of all means of defense, and that such condition of inability permeated the whole proceedings, that I do not deem it my dut}' to undertake its discussion, such assertions clearly revealing the fact that Maître Poincaré is not familiar with the method of pro- cedure in contentious cases before our Venezuelan courts, and that his learning and talents can not bridge over his deficient knowledge in the matter of our adjective legislation. All the proceedings of the high court from the origin of the case in all matters pertaining to the sum- mons of Mr. Fiat, the representative of the company, are strictly in accordance with the provisions of the Code of Civil Procedure in force at the time, as the honorable umpire may see by an examination of the legal provisions referred to in conjunction with the proceedings in the case, a copy of which I subjoin hereto. The next section of the brief in cjuestion deals with the irregularity of the letters rogatory issued by the president of the high Federal court to the civil judge of the first instance of the city of Paris and to his eminence the Cardinal, chief of the propaganda in Rome, which letters rogatory were delivered to the representative of the company, Mr. Fiat, personally to obtain the extraterritorial evidence he had requested, consisting of affidavits of witnesses residing in Paris, and a statement of facts recpested from his eminence the Cardinal. Maître Poincaré maintains that diplomatic channels should have been used to forward to their respective destinations the letters roga- tor}^, and, as the Government of Caracas loiows what is the regular way to be followed to obtain the desired ends, both such Government and the high Federal court are to blame if the interrogatories were not made in Paris and Rome; that such conduct could not have been prompted but by the desire to prevent that the requested evidence be obtained, and so it follows that the General Company of the Orinoco was deprived of its most essential means of defense, and that the taking of the evidence for which the high court had fixed a time — which was insufficient — was then incomplete of necessity. The counsel defending such theory adduces in its support the prin- ciples laid down by the Institute of International Law in its session at Zurich in 1877, which I have already had the opportunity to quote in my former opinion, to wit: As the opinion of the Institute was that letters rogatory should be sent directly to the for- eign court hj- the court issuing the same. a The learnetl counsel also chotes the opinion of Mr. Carlos Calvo, who makes the following statement in his Treatise on International Law, Volume II. section 889: ^ a Page 2.58. b II résulte (le principe de l'indépendance des nations que le juge étranger n'est pas obligé d'accepter la commission rogatoire; mais l'usage des nations a introduit la règle 296 COMPANY GENERAL OF THE ORINOCO CASE. From the principle of the independence of nations it follows that the foreign court is not obliged to accept letters rogatory, but usage among nations has introduced the rule that foreign courts accept such request and proceed to take the necessar}- steps in the matter, except in such casos where such acts may impair the sovereignty- of the country or the rights of its citizens. This is why letters rogatory, as a general rule are not sent to the courts directly but througli diplomatic channels, so that the Government may examine the same before directing their execution, in order to become satisfied that they do not contain anything contrary to the laws of the State. In case letters rogatory should be .sent directly from abroad to a court they must be forwarded immediately to the minister of justice. M. Poincaré adds: And let us remark tliat Mr. Calvo's opinion is later than that of the Institute of Inter- national Law, becau.se Mr. Calvo in section 894 makes reference to that authority errone- ousl}?^ quoted by Venezuela. The learned counsel also invokes the opinion of Dalloz, Répertoire Général, Instruction Civile, No. 83, as follows: Our courts are frequently called upon by foreign courts. An order of the minister of justice {Garde des Sceaux) contains the following rules to be okserved in similar cases: Courts must not comply with any letters rogatory in civil matters coming frotn abroad unless they are transmitted to them through the ministry of justice, who in turn leceives f liem from the minister of foreign ailairs with the translation, as the ca.se may be, after examina- tion. * * * Letters rogatory in civil matter must be executed by the court without necessary intervention of the parties concerned. Notwithstanding this su(;h parties are free to intervene and in order to foster the proceedings may ask the clerk to issue letters rogatory. Beyond such cases of spontaneous intervention of the parties or one of them the letters rogatoiy are executed upon request of the proper judicial authorities. The acts performed in the execution of the letters rogatory are .sent by the court to the minister of justice with a cer- tified memorandum of the costs, and the documents are forthwith transmitted to the minister of foreign affairs." M. Poincaré concludes — Thus the parties are not called upon to transmit the request. They have only power of intervention during the execution of the letters rogatory. que les juges étrangers acceptent cette mission et procèdent aux actes d'instruction qu'elle a pour objet, excepté dans le cas où ces actes porteraient atteinte aux droits de souveraineté du pays ou aux droits des nationaux. C'est pom quoi les commissions roga- toires, en général, ne se transmettent pas aux tribunaux ou aux magistrats étrangei-s directement, mais par la voie diplomatique, de manière que le gouvernement puisse les examiner avant d'en autoriser l'exécution pour s'a.ssurer qu'elles ne contiennent rien de contraire aux lois de l'Etat. Dans le cas où une commission rogatoire .serait tran.smise directement de l'étranger à un magistrat, celui-ci doit l'envoyer immédiatement au ministre de la justice. (Calvo, Le Droit International Théorique et Pratique, 5*' édition, sec. 889. ) «Nos tiibunaux sont .souvent délégués par les juges étrangers; une instruction de M. le garde des sceaux contient les règles à suivre en pareil cas. Elle est ain.^i connue: Les magistrats ne doivent (ISSO) " had been violated. 1 have not foinul " See p. 'JM, note. ADDITIONAL OPINION OF VENEZUELAN COMMISSIONER. 301 among the documents and papers produced by the company any writ- ten opinion prepared or signed by said jurists to which cre(Ut might be given. The company has pretended in several documents that said lawyers had rendered a favorable opinion on this and other important matters, but such opinions duly signed and verified have not been produced. The fact is worthy of consideration that Dr. llamón F. Feo being still in Caracas, and it being an easy matter for the company to obtain a statement from him during the sittings of the commission in that city and his testimony on the facts relating to the action before the high Federal court, such steps have not been taken. It can not, there- fore, be accepted that the authority and learning of such lawyers be invoked when no proofs are oñ'ered that they are or have been of the opinion ascribed to them in this matter. The writer of the brief states that the sentence passed was not notified either to the representative of the company, Mr. Fiat, who remained in Caracas for over a year after the sentence was passed, or to the lawyers of the company, who lived in that city, nor even to the liquidators. This requisite of notification is not prescribed by our law of procedure, except in criminal cases. In civil actions, as it has been shown, the parties are deemed to be present at the trial from the time they are first summoned to answer the complaint and must be aware either personally or through their attorneys of all the stages of the proceedings. It should be noticed that at the date of the sentence, October 14, 1891, Mr. Fiat, although still residing in Caracas, was not the representative of the General (Vmipany of the Orinoco, in liquidation, as he had resigned since October 11, 1890; that the company appointed Mr. Bernal)é Planas its representative, and that, tliis gentleman having refused to accept such commission, the company then decided to send Mr. Bertliier, who arrived at Cara- cas about the end of October, ,1890, leaving some time in July, 1891. Messrs. Urbaneja and Feo do not appear as being representatives of the company during the proceedings before the high Federal court, but simply the counsel for Mr. Fiat at the beginning of the action. (See complaint to the minister for foreign afi'airs in France by the li(|iii- dators of the company, folio 47, and the minutes of the proceedings.) As regards the notice to the liquidators residing in Paris, the Fed- eral court must have been ignorant of the fact that such liciuitlators existed, as it does not appear that the court was informed that the company had gone into liquidation, notwithstanding the fact that such steps were taken on May 30, 1890, two days after the filing of the complaint before the liigh court. The company' kept the Vene- zuelan authorities and especially the high Federal court ignorant of the fact that it had gone into li(iuidation — a grave omission which sufficiently explains the abandonment of its representation during 302 COMPANY GENERAL OF THE ORINOCO CASE. the proceedings, the want of unity and cohesion in the acts for the defense, the cHliicuUies liad with the letters rogatory, and the non- appearance of the new attorney, Mr. Bertliier, at the hearing, as he was then exclusively engaged in eifecting an extra-judicial compro- mise whicli would put an end to the legal action and insure a new contract to the company in liquidation. In the second chapter of the brief under consideration, under the head of 'Bien fondé de la demande,'' the author directs all his efforts in support of the following claims: First. That the agreements entered into by the Government of Venezuela and the company are vitiated from their origin, because of dissimulations wliich have substantially altered the convention and which permitted the Venezuelan Government to impose upon the consent of the General Company of the Orinoco. Second. That in the execution of the contract the Government has not kept the contracted obligations. By wa}' of introduction, the author of the brief lays down the fol- lowing premises : It is upon the basis of equit}'^ that the arbitration commission must pass sentence. It has been admitted that such should be the nde controlling mattei-s pending Wtween Venezuela and other States, and the protocol relating to those of the United States has estabhshed in this connection a rule applicable in this instance by assimilation: "The com- missioners, or in case of their disagreement, the umpire, shall decide all claims upon a basis of absolute equity, without regard to objections of a technical nature or of the provisions of local legislation." It is not possible to admit the principle of assimilation advanced by Maître Poincaré in regard to the claims submitted to the decision of the umpire, according to the terms of the Paris j^rotocol of February 19, 1902. The terms of such agreement and those of the Washington protocol of 1903 have no similarity whatever; on the contrary, the contracting parties were very careful to declare in the final paragraph of article 2 of the Paris protocol controlling the present commission, that the procedure adopted for the examination and settlement of the claims referred to in articles 1 and 2, were not instituted but as an exception, and did not invalidate the convention of 1885 : and that by article 5 of this convention the high contracting parties agreed that : — leurs représentants diplomatiques n'interviendront point au sujet des réclamations ou plaintes des particuliers concernant les affaires qui sont du ressort de la justice civile ou pénale, d'après les lois locales, à moins qu'il ne s'agisse de thnis de justiee ou de retards en justice, contraires à l'usage ou il la loi, de l'ine.xécution d'un jugement délinitif.ou en lin, des cas où, malgré l'épuisement des moyens légaux, il y a violation ésidente ties traités t)u des régies du droit des gens.o aTheir diplomatie agents shall not interfere in the claims or complaints of private parties relating to such mattera as come under the jurisdiction of the civil or i>enal laws, according to local legislation, unless in cases of denial «/"justice or delay in the a fact that all legal means have been exhausteil, there is an evident viola- tion of the treaties or of the rules of the law of nations. ADDITIONAL OPINION OF VENEZUELAN COMMISSIONER. 303 If the declaration that the procedure adopted to submit to the examination of a mixed commission tlie claims of French citizens as an exceptional method, which ivas not to invalidate the convention of 1885, means anything, then it is as plain as daylight that this commission is bound to respect the sentences or decisions passed by the "S'enezuelan courts in accordance with local legislation in such matters as come under the jurisdiction of the civil or penal laws, and only in such cases in which there is a denial of justice or delay in the administration of jus- tice, contrary to usage or law, or failure to execute a final judgment, or, in fine, in such cases where, notwithstanding the fact that all legal means have been exhausted, there should exist an evident violation of the treaties or rules of the law of nations, that this commission may approve of diplomatic interference and so fix the liability of the Government of Venezuela, if any. In the claim entered b}' the General C'ompan}' of the Orinoco there has been submitted to this commission a matter which comes under the jurisdiction of the Venezuelan civil courts, as the rescission of the con- tracts obtained b}" the General Company of the Orinoco for the exploi- tation of all mineral and vegetable products of the alto (upper) Orinoco and the Amazonas for a term of thirty-five years and that of the tonca bean for a term of twenty-five 3"ears upon the vacant lands lying between the eastern boundaries of the Federal territories Alto Orinoco and Amazonas, and between the Orinoco and the l^oundaries of Vene- zuela and Brazil, because it is thus established b}-^ the constitution, the laws of the Republic, and the fourteenth clause of the contract of December 17, 1885, reproduced in that of April 1, 1887, reading as follows: -Vn}' doubts or controversies that may arise in the execution of the contract shall bo decided by the proper courts in the Republic in confonnity with the laws thereof. The sentence passed by the high court, as coming under its civil jurisdiction, in conformity with local legislation and in compliance with the solemn agreement entered into by the contracting parties, which is the supreme law controlling bilateral contracts, can not give rise to diplomatic intervention nor impose upon the ^"enezuelan Gov- ernment any liability growing out of said sentence, unless it is estab- lished hei/ond doubt that there has existed a denial of justice or delays in the administration of justice, contrary to usage or a law, or that a final judgment has not been executed, or that there exists an evident viola- tion of the treaties or rules of the law of nations. In order to enter the action the only plea that it has been possible to advance is that of denial of justice, as regards the form of proceedings and the substance of the action. In regard to the first contention, i, e. — irregularity in the form of the proceedings, it has been sufficiently shown that the grounds advanced by the claimant company are wholly without foundation. In refer- 304 COMPANY GENERAL OF THE ORINOCO CASE. ence to the second contention, i. e. — the decision on the substance of the action for rescission of tlie contracts entered by tlie fiscal de hacicn(hi before the liifçh Federal court, it suihces to transcribe the ver}' same terms employed by the author of the brief to come to the conclusion that the hiojh Federal court in adjud<;in.i!; the rescission of the contracts did so by virtue of legal provisions f^overning such conventions as con- tain reciprocal obligations, in Anew of and upon investigation of the proofs produced by the claimant in case the defendant fails to show proof in support of the exception taken at the hearing of the case. Maître Poincaré says, page 78 of his brief: Elle (la Compagnie Céndrale de TOrénoque) n'a pu prouver quelle avait remplie ses obligations, sauf cas de force majeure, elle n'a pu montrer que c'était le Gouvernement qui avait manqué à ses devoirs; elle n'a pu présenter les très nombreuses et très intéressantes attestations écrites qu'à défaut d'enquête régulièrement ouverte en France, elle avait réunies, qu'elle était prête á fournir, que nous résumerons ou citerons plus loin et qui ont été totale- ment ignorées de la Haute Cour.» Whose fault was it and whose the liability for the consequences if the General Company of the Orinoco did not know how or did not wish to defend its case and prove its exceptions when it had at its dis- posal all the legal means oflered hj the A enezuelan codes, so that such proofs and testimony would not be wholly ignored? If she had Mr. Fiat as her representative and Drs. Diego B. Urbaneja and Ramón F. Feo as her legal counsel, wh}^ did she not make use of her means of defense ? If the representative or the counsel did find any difficulty, any obstacle having the color of denial of justice or of delay in its administration, why is it that they did not enter such complaint before the same court or did not file a protest showing such irregular method of procedure? Is it possible that at the end of four years after the sentence was passed such experienced lawyers should iintl omission in the proceedings and denials of justice which they did not detect during the hearing of the case? On the other hand, the Government of Venezuela established with sundry proofs, not objected to, the truth of its statements, antl the high court of justice, by means of personal inspection of the territory which is the ()l)ject of the controversy, investigates and weighs such proofs which are found sufficient to adjudge by virtue of its legal authority has not fidfiUed the obligations created by the contracts; and in conformity with article 1110 of the civil code, which deals with the resolutory conditions of contracts, and articles 1256 and 11 63, does declare that there are great grounds for an action; that the contracts of May 24, 1886, and May 31, 1887, made between the national Gov- alt (the General Company of the Orinoco) has been unable to prove that it had ful- filled its obligations except in case oí force niajciire. It has not been al)le to show that it was the Goverimient which failed to do its duty. It could not jiroduce the inuncnse amount of most interesting written evidence which in the absi'uce of depositions regularly made in Franco it had gathered and wius ready to furnish, and which wo will quote later or epitomize further, evideuco which was totally ujnored by the high court. ADDITIONAL OPINION OF VENEZUELAN COMMISSIONER. 305 eminent, on the one part, and Miguel Tejera and Th. Delort on tlie other, of which the compan}'' was the assignee, shoidd be dissolved, and condemns said company to pay the national Government the sum of 40,048.62 bolivars for damages to the State, because of the company's failure to execute the aforesaid contracts, besides the costs of the action. Such judgment, rendered by the highest court of the Republic and for fourteen years having had the weight of res judicata, can not be reviewed, except to the grave detriment of the sovereignt}' of the nation, by any court of arbitration unless such judgment contains an essential denial of justice fully established. The honorable umpire has at his disposal abundant material to arrive at a conclusion in regard to such denial of justice. The honorable umpire well knows what such phrase means when dealing with a sentence rendered by a court having ftill powers to pass final judgment on a matter submitted by positive law and by the will of the parties to investigation and decision. The honorable umpire is well aware that neither sophisms nor far- fetching arguments nor yet more or less specious pretexts can annul the action of the res judicata and brand those who b}^ fundamental laws have been intrusted with the highest offices and powers to admin- ister justice to have been guilty of denial of justice. There are proofs — there are documents and memoranda — to show that the company, at the time of the filing of the suit for resolution of the contract, was in a state of bankruptcy; that it was powerless to con- tinue the attempts at development and steam navigation undertaken four j^ears before ; the oAvn confession of the company to the effect that it had engaged in a venture without knowing either its extent or its difficulties; the balance sheet presented at the meeting of the share- holders on May 30, 1890, showing liabilities three times as large as the assets; the necessity to go into liquidation, which in all languages means a complete paralyzation of business operations; the company's schemes of becoming first an English, then a Belgian association, in search of new capital, the loan of which it was impossible to obtain in France; the sending to Caracas of Mr. Berthier, eager to obtain a new contract releasing the company in liquidation of the former contractual obligations, freeing the company of the suit then pending before the high Federal court and saving it from the wreck; there are, in fine, the last letters of Agent Berthier, in which, after losing all hope of making a new contract with the Government of Venezuela, he prepares the ground for a large claim, giving out as its main foundation, not denials of justice, which was an afterthought, but two facts which had just taken place on the Orinoco River and which in time would give them considerable grounds. The first was that the governor of the territory placed out of commission the steamer Meta by the dismounting of certain valves to prevent their capture by the revolutionists; and the second event was an armed attack against the sm'^11 steamer, icJiich was on the point ofheing captured. All this will be examined by the honor- S. Doc. 533, 59-1 20 306 COMPANY GENERAL OF THE ORINOCO CASE. able umpire, who is to decide whether the sentence of the high Federal court of Venezuela ordering the resolution of the contracts and con- demning the companj" to the payment of an indemnity, ver^^ small, however, to the Government of Veno/Aiola, has no value, as claimed by the liquidators of the company, because it involves a denial of justice. In connection ^^^th said sentence it only remains for me to analyze the facts which constitute the first of the causes of the good grounds for the indemnity claim before mentioned, which the author of the brief bases upon the dissimulations which altered the substance of the contract and permitted the Government of Venezuela to obtain the consent of the General Company of the Orinoco, Maître Poincaré devotes this section to the boundary question between Venezuela and Colombia, which the King of Spain decided, as lunpire, by the award published in the Gaceta de Madrid, March 17, 1891. Tliis event has come to be the main stronghold of the General Company of the Orinoco, which has gone so far as to charge Venezuela with fraud in the contracts made with ^Miguel Tejera and Th. Delort, which were subsequently conveyed ])y them to the company. In my former brief I dealt with these singular pretensions, and I believe I have fully confuted all the assumptions and charges that Mr. Delort in the first place, and then the li(|uidators of the company, and finally Maître Poincaré, have pretended and still pretend to maintain against the different administrations of Venezuela, from Guzman Blanco to Andueza Palacio alleging that the company was kept in ignorance of the question with Colombia involving a portion of the vast expanse of territory subject to the concession. From the extensive discussion of the subject by Maître Poincaré I will note the following points: The Venezuelan Government says now (It is not the Venezuelan Government that says it, but the commis- sioner for Venezuela in his opinion, page 31 — Opinion of the Vene- zuelan commissioner and supported by indisputable proof) — the good faith in which Venezuela was possessing a certain belt of her territory, which was afterwards adjudicated by the umpire to the Republic of Colombia, relieves its Govern- ment of all responsibility in the concession under discussion, the object of which never was a definitive conveyance but the development of natural products in places wliore Venezuelan interests had already been created and the authorities of the country discharged their respec- tive duties. • The following is from Maître Poincaré: Entendons nous. 11 est possible que vis-à-vis de la Colombie le VéntV.ucla ait i^té posses- seur de bonne foi, en co sens qu'il espérait obtenir gain de cause devant rarl)itre. Nous croyons volontiers que c'est là la raison du silence gardé par M. lo Docteur l'rl)ancja, j^ar .M. Tejera et par le Général Guzman Blanco.» oliCt us come to an understanding. It may bo possible, that as far as Colombia is con- cerned, Venezuela has been a honafuh pos.sessor in the sense, that Venezuela expected to gain her point before the umpire. We are willing to believe that such is the reason of the silence of Doctor Urbaneja, Mr. Tejera, and General Guzman Blanco. ADDITIONAL OPINION OF VENEZUELAN COMMISSIONER. 307 It is not only before Colombia that \'enezuela has been a bona fide possessor, nor that it has been such because she expected to gain the point l)ofore the umpire. This last circunistanco we do not find adoptetl in an}^ positive legislation nor by any connnentator on civil law as a determining condition of the possessor in good faith against the opposing party. Let us see the award of the IVng of Spain as the arbiter juris: Whereas the United States of Venezuela are the possessors in good faith of territories lying west of the Orinoco, Casiqviiaro, and tlie Rio Negro rivers, forming the boundaries on tliis side as assigned bytlie aforesaid "real e(5diila" of 17G8 to tlie /province fj/'í/uíafta,andwliereas there exist m said lands numerous Venezuelan properties developed in the loyal hela f that they lie in the domain of the United States of Venezuela, * * * it is expressly assigned to Venezuela the right of way over the aforesaid road, it being understood that such easement shall cease twenty-five years after tlie publication of this award. How does civil law define the bona fide possession ? The possessor in good faith is he who possesses as an owner 1)}^ virtue of a just title — that is to say, a title capable of conveying ownership even if the title is vitiated, provided such vitiation is unknown to the possessor. As a complement to such definition, civil law has established the following principles, wliich are a part of the substantive legislation of both France and Venezuela, to wit: Good faith is always presumed and whoever alleges bad faith must prove that such exists. It suffices that good faith existed at the time of the acquisition. The de facto possession, when it is continued, uninterrupted, peace- ful, public, unequivocal, and with the purpose to hold the thing as one's own, is also established by both civil and natural laws as a title of possession capable of conveyance, thirty years being sufficient between private individuals even in cases where there is no title. If Venezuela, who possessed in good faith the territories west of the Orinoco, Casiquiare, and Rio Negro, and there developed numerous ¡yroperties in the loyal belief that they lie within its domain, as formally alleged by the award of the King of Spain, at least since the date of the ''real cédula" of May 5, 1768, establishing as the boundaries of the province of Guiana the rivers Orinoco, Casiquiare, and Kio Xegro, could not gain the point, notwithstanding the fact of interrupted possession in good faith for over one hundred years of the disputed territories Venezuela has at least remained in the enjo3nnent coram gentihus et nationibus by the just award of the umpire the title of bona fide possessor of said territory, because she had established therein valuable properties and developed them in the loyal belief that she exercised over them immanent sovereignity. After the preceding demonstration of facts, based upon indisputable documents, what is the weight of the following conclusion of Maître Poincaré ? Venezuela could not guarantee the company the peaceful ixjsse.ssion of a territory under dispute. Thus she granted a thing whicli was tainted with a concealed vice, since it was doubtful whether it belonged to Venezuela, and she knew it. 308 COMPANY GENERAL OF THE ORINOCO CASE. By all those reasons which belong both to the realm of natural as well as jMsitive law, Vene- zuela is liable to the General Company of the Orinoco. The latter must obtain the annul- ment of the contract of concession l)ecause of sul)stantial errors and vice in the conf;ent, and therefore is entitled to an indemnity for all the damages caused by such nullit}'. Let US comparo this conclusion with tlie statement made by Mr. Th. Delort, the company's representative, on September 20, 1SS8, in a letter addressed to the minister of fomento of Venezuela, who had asked him certain explanations, transcribing the following communi- cation of the department of foreign relations of Venezuela: Sik: The envoy extraordinary of the Republic of Colombia has lodged a complaint against the publication of a geographical chart and a report of the company of the upper Orinoco and Amazonas in wiiich, while describing tlic boundaries oí such possessions, a vast expanse of the territory in dispute between the two countries has been included as having l)een granted. In consequence thereof and in view of the necessity of examining the chart and report in reference, I beg to request that you send them to this office, if you have them in your depart- ment, and if not, I beg that you request from the representative of the company a report on whatever has been done in this matter, as well as the chart and report in question. (Signed) Ysti'riz. The statement of Mr. Delort in answer to said note and in reference to the concealed vice and error in the consent to which M. Poincaré refers, is as follows: The company is not vjnorant of the fact that the frontier between Venezuela and Colombia is in dispute, and submitted to the decision of the Government of Spain. In consequence the company has no claim whatever to make in this respect and as the concession oriyinatrd from the Venezuelan Government it {the company) is icell aware that it must abide by the définitive boundaries that may be fixed for this Republic. Up to the present the com- pany has not extended its operations but to such points as are occupied by Venezuelan authorities; and the offices, warehouses, and dependencies are in Atures, Maipures, San Fer- nando, San Carlos, and the Brazilian frontier and the steamers have only navigated on the Orinoco, Casiquiare, and Guainia. (Signed) Tn. Delort. Verla volant, scripta manent. Maître Poincaré claims that that evidently important portion of the letter, as he states, was not spontaneously introduced in Mr. Delort's answer. So we have now that it is not the alleged ignorance in which the company was kept of the existence of the question between Colombia and Venezuela, as Mr. Delort declares that the company was not ignorant of such fact; it is not the concealed vice in the substance of the contract, since Mr. Delort himself states that the company has no claims to make in this regard, and finally, it is not error in the consent, because Mr. Delort avers that the company is well aware that it must accept the frontier which shall be defi- nitively awarded to the Republic. The lack of spontaneity of such statements can not rob them of their intrinsic value. Is it perchance spontaneously that the man caught in the very act of putting his hand into some one else's trunk — as in the case of the company, which in the map and report offered to the stockhoklers, when about to ADDITIONAL OPINION OF VENEZUELAN COMMISSIONER. 309 form the company, shows as her own definitive grant of land defining its boundaries a territory disputed by Venezuela and Colombia — con- fosses, when compelled to apologize, that appearances may be against liim, but that he sim])ly wanted to find out whether the trunk was empty? Whether spontaneous or not, the statements of M. Delort, in reference to his knowledge of the arbitration proceedings the igno- rance of which was alleged and in regard to the fact that they had to abide by the consequences of the award and had 710 claim on this score, are decisive and cut short the handy boundary question between Venezuela and Colombia, on which the General Company of the Ori- noco finds the grounds to pretend a large indemnity from the Vene- zuelan Government. As a final statement on this point and not to leave unanswered a question of law to which M. Poincaré refers in his brief, that of the indemnification the vendor owes the vendee, the concessions being comparable from the standpoint of the obligations of the assignor to the sale of incorporeal rights, I will only say, admitting the com- mon principle that the assignor is liable to the assignee, in assign- ments for a consideration for any indemnification growing out of concealed defects or faults in the thing assigned and for the peaceful possession of the thing sold or conveyed, which is a princiriC estab- lished in the Venezuelan Civil Code, that in the concession.' made by the Government of Venezuela to Messrs. Miguel Tejera and Th. Delort, there are no concealed defects or vitiations, because, as such grants only dealt with the exploitation of mines and development of the natural products which laj^ within a certain belt of land, such operations have not offered nor could they offer any concealed defects or vice for which the grantor is responsible. And as regards the peaceful possession of the grant made with reference to the boundary question with Colombia, the grants do not fix any particular bound- aries, but simply mention the territories of Upper (Alto) Orinoco and Amazonas in the first contract and the vacant lands lying between the eastern boundaries of the Federal territories Alto Ormoco, and Amazonas, and British Guiana, and between the Orinoco and the limits of Venezuela and Brazil. The good faith declared in favor of Venezuela by the umpire, who decided the boundary dispute, in regard to that portion of the terri- tory^ Venezuela was occupying with animus domini and the award fixing the boundary between both countries, establish as regards the extent of territory the development of which was the subject of the contracts, the condition juris between Venezuela and the grantees in the matter of the boundaries of the territories granted to be devel- oped, which are only designated by their known names, without specifying their extent or their precise boundaries in the contracts under review. 310 COMPANY GENERAL OF THE ORINOCO CASE. On the other hand, the question of indemnification Hes between the grantor or assignor and the grantee or assignee, and in the (k'vel- opment contracts under discussion the assignors to tlie General Com- pany of the Orinoco were Messrs. Miguel Tejera (a Venezuelan) and Th. Delort, who in turn had obtained such contracts from tlie Vene- zuelan Government. All questions relating to the concealed defects of the thing which was the subject of the contract or the lack of title of the vendor or assignor which may invalidate it grow out of the contract itself and at the very moment when such contract was made. The Government of Venezuela never discussed with the General Company of the Orinoco the question of the development of the ter- ritories of Alto Orinoco and Amazonas. The stipulations to that effect in the respective contracts were agreed upon ])y the Venezuelan Government and Messrs. Tejera and Delort, and it is from said sti])U- lations that the question dealing with the responsibility of the con- tracting parties may originate. The General Company of the Orinoco could only claim from Messrs. Tejera and Delort, the assignors who made the transfer in favor of the s}Tidicate, for a 40 and 20 per cent, respectively, of the amounts that might be paid out as dividends. It is also wortlw of notice that notwithstanding the knowledge the General Company of the Orinoco had of the boundary question before September 28, 1888, as evidenced by the above-mentioned letter from the company's representative, Mr. Delort, the comi)an3' did not enter before the high Federal court in the proceedings had two years later for the rescission of the contracts any exceptions whatever grow- ing out of the boundary question, nor advanced any claim against the grantors or assignors for a guarantee or liability. The case ended with the final judgment awarding the rescission of the contracts on October 14, 1891 — that is, seven montlis after the award of the King of Spain — and such declaration of rescission for failure of the assignee company to carry out the contracted obligations destroys or invali- dates any importance the liability question ma}' claim as affecting the Government of Venezuela. Section II, Chapter II, of Maître Poincaré's brief deals with the fail- ure on the part of Venezuela to execute her contractual obligations, a question which was examined in the action before the high Federal court of Venezuela, as it was one of the excej)tions filed by Mr. Fiat, the company's representative, who answered the action for rescission. The company could establish nothing in favor of its claims, as shown by the minutes of the proceedings, and, (piite to the contrary, the sen- tence passed adjudged that it appeared from the proceedings that the Government of Venezuela had fulfilled on its side all the obligations devolving upon thcGovermnent by virtue of the contracts in reference. The charges the counsel for the company accumulates in his brief ADDITIONAL OPINION OF VENEZUELAN COMMISSIONER. 311 against the Venezuelan Government are in their largo majority foreign to the obligations entered upon by the Government as regards the grantees or concessionaries to allow them to carry out the devolo])- ment of the natural products and the mines lying within the territories in the contract mentioned by their names. Such exploitation and development operations were carried on by the assignee company, as far as their limited resources would allow, as shown by the documents submitted, and, if such operations were not favorable to the ends of the company, it was not the fault of the Venezuelan Government, but of the company, which accepted the execution of the obligations and agreements contained in the contracts, which absorbed, nobody knows how, considerable sums for administration and installation expenses, and expensive and ineilicient attempts to establish navigation on the upper Orinoco. The colossal scheme, as confessed in several docu- ments by the representatives of the company, was undertaken without knowledge of its immense diilicultics nor of the territor}^ and river network which were to be the object of the improvements to be made in compensation for the development of the natural products and the monopoly of steam navigation on the river Orinoco and some of its affluents. The representatives of the company have tried to cast the blame for such want of knowledge and for the castles in the air built by the promoters of the company, Messrs. Miguel Tejera and Guzman Blanco, because the}^ did not show them in due" time all the diihculties to be met later on in the execution of the contracted obli- gations. Such charges, however, do not affect in the least the respon- sibility of the Venezuelan Government, which had no dealings with the General Companj^ of the Orinoco, nor was bound to make for the com- pau}^ the previous survey necessary to find out exactly which were the obligations contracted, or whether it was possible or not with the lim- ited capital the company had to undertake and carry to a successful issue the vast plan of improvements which represented for the com- pany, as compensation, the right to develop the natural products, and to enjoy the monopoly of steam navigation through the network of the Orinoco rivers, when such was established in conformity with the con- tract. To such considerations we must add the fact that Mr. Miguel Tejera and M. Th. Delort were the promoters of the syndicate of the General Company of the Orinoco, setting aside for themselves 40 and 20 per cent, respectively, on the profits of the company as a compensa- tion for their concessions. Jjet us see how Maître Poincaré describes the combination: The beneficiary in the contract of December 17, 1885, Mr. Miguel Tejera, had close rela- tions with General Guzman Blanco. He had been connected with the general in several important business ti insactions, principally in the Carenero and the coinage deals, and without wishing to offend the memory of these gentlemen (both having died), it might be added that lie (Tejera) passed as the figurehead (prête-nom) of General Guzman Blanco. He could not under circumstances take personal charge of the Alto Orinoco scheme, so he 812 COMPANY GENERAL OF THE ORINOCO CASE. immediately formed the means, if not to convej' it to another grantee, at least to trust it keeping to himself certain advantages in the hands of a French syndicate. It was tlius that the s\Tidicate of the Alto Orinoco was established in Paris in Septem- ber, 1886. Su'Ji candid confession plainly reveals the origin of the General Company of the Orinoco. It was the outcome of tacit understandings between the two grantors of the contract of December 17, 1885, wherein the grantee was the figurehead of the grantor, according to the statement of the representative and counsel for the company. Such crooked contract concealing material frauds, according to the representative and counsel already mentioned, was accepted bj" a finan- cial organization, abandoning to the beneficiar}' 40 per cent of the profits. It is not necessary to be a financier to aííirm that such organ- ization was doomed to death from its inception, and that under the conditions of the deal and the contract the child of the combination, the General Company of the Orinoco, created one year and a half after- wards, or on March 10, 1888, could not possibly live. Legitimate busi- ness transactions can not prosper, unless in that pure atmosphere of credit and trust, which is onl}^ found in the road labor and capital follow, leading to wise management and legitimate though moderate gain. If Messrs. Tejera and Delort had appropriated to themselves, according to the statutes of the syndicate, *60 per cent of the profits, simply because they had transferred to the s}Tidicate two written con- tracts without any positive value, could it be expected that Frencii capitalists, who are as conservative as clever, would contribute to make up the business capital indispensable to the development of the scheme within its proper proportions ? Undoubtedly it could not be so, and that is wh}' the company, which could scarcel}^ get together a capital of 1,500,000 francs, when it was established in March, 1888, had liabilities exceeding 800,000 francs, made up of a debt to the coinage association of 491,486 francs and another debt due M. Chau- velot, a member of the S3^ndicate, of 300,000 francs, and for which 600,000 francs in unassessable stock were delivered to him. Under such circumstances the capital on hand to continue the colossal scheme was reduced when the company began operations to the amount of 400,000 francs. Two years later the company failed with liabilities amounting to 2,741,084.27 francs, its credit heing totally exhausted (see report of li([uidation), so that it was forcibly driven to go into Vu\ui- dation on May 30, 1890. Such, and no other, could be the end of the company when the beginning was tainted. I beg to submit to the honorable um])ire with this additional opinion and an annexed portion of it an ailidavit dul}^ attesteil ct)ntaining the deposition made in Paris on June 6, 1903, by M. Joseph Ilippolyte Andrau-Maural, a former re])res(»ntative and attorney in Vcne/iu'la for. the General Company of the Orinoco, in liquidation from the latter part of 1890 until April, 1893. ADDITIONAL OPINION OF VENEZUELAN COMMISSIONER. 31 3 Such affidavit contains, in confirmation of all the foregoing, the cir- cumstances and the facts that have led the General Company of the Orinoco to its complete disorganization and the impossibility to con- tinue to exist; and as a résumé of the causes which produced such results, the following may be transcribed : The scheme was neither well investigated nor seriously propared, and was put into execu- tion in the worst possible manner. The scheme fell fatally under the weight of universal reprobation, a bad financial position from the start, through reprehensible dealings and detestable management. This affidavit is accompanied b}^ several letters addressed to M. Andrau-Maural by M. Roux, lic[ui mc, as information, that he had l>cen obliged to leave the French ainiy for misdi'meaiior. He then came to .seek his fortune at ADDITIONAL OPINION OF FRENCH COMMISSIONER. 319 the mines of Callao, married at Ciudad Bolívar, entered tlic company of tlif Orinoco in 1891, being chosen by the agent of the company at Ciudad Bolívar without the director of the company at Paris being informed, to take command of the l)oat Lihertad, wliich lie lost the same year in a strange manner. I found him at Caracas in October, 1891, and his relations represented him as the representative of tlie lifjuidation during a very short time. He demanded money continually and was a veiy active agent for the claim against the Venezue- lan Government . We do not then imderstand iiis protest. In 1893 he received the order of the liquidators to transmit his power and documents to Mr. Maninat, a new representative. He left the company, taking away important pieces from the dossier and was sent from Venezuela in 1893 by President Crespo for an act of indelicacy notoriously well known. He came to Paris to ask me for a loan and forgot to pa}' me. I have not seen him since and the liquidators remain without news from him. His protest without right, value, or reason is an infamous and inexcusable act. Wait the dossier which we are forwarding you and which will furnish proofs. Please send copy of the protestation. (Signed) Delort. When the dossier mentioned reaches me, I will present it as a second annex to my memoir after having shown it to my honorable colleague. E. DE Peretti de La Rocca. NoRTHFiELD, February IS, 1905. The French arl)itrator has the honor to remit to the umpire a dossier of twelve exhibits which has just been sent to him by the Company General of the Orinoco in view of destroy- ing the effect which may have been produced bj' the protestation of Mr. Andau Moral remitted by the Venezuelan arbitrator. It will be enough for Mr. Plumley to read the letter of Mr. Andau Moral of the date of June 19, 1893, and to compare it witli his letter of 1904 to take account of the authority which the declaiations of this person may have that the com- pany seems justified in accusing him of liaving written his protestation for monc}'. In fact the 19th of June, 1893, Mr. Andau Moral wrote to the liquidators of the company' : "I put myself at your disposal for the steps to be taken to obtain from the Government the support which is necessary for the liquidation to bring to a head the legitimate claims against Venezuela." As for the letter of Mr. Delort of November 25, 1891, which my colleague tries to use as a weapon against the company, I will remark to Mr. Plumley that the company itself produces a copy of it in the support of this claim. I rnaintain that there has not been any line of this letter from which one can raise an argument against the legitimacy of the claim in question. E. de Peretti de La Rocca. NoRTHFiELD, Mavch 1, 1905. NOTE WITH REGARD TO M. ANDRAU MORAL FOR M. DE PERETTI DE LA ROCCA. On his arrival in Caracas, October 25, 1891, he, M. Delort, was received by M. Andrau Moral, and great was his surprise for he believed iiim to be on the Orinoco on board the Lihertad, which he commanded. He was ignoiant in fact of the loss of tins steamer of which he had not yet received the news on his departure from France. M. Andrau Moral was not unknown to M. Delort of whom he had asked, in 1880, to be appointed on the mission which the Messrs. Perière had sent to Venezuela to study the resources of this country and the business enterprises whicli might succeed there. M. Delort had been placed at the head of this mission. In tiie programme of the investi- gation were included tiie four mines of Callao and M. Andrau Moral had come from Callao, where he had been employed, to Caracas to oiler his services, but the information gained with regard to him by tiie Marquis de Tallenay, ciiargé d'affaires of France in Wnezuela, prevented the acceptance of these oilers. M. de Tallenay informed M. Delort that M. Andrau Moral had been obliged to leave the French army for misdemeanor. In 1883 M. Delort ran across M. Andrau Moral at Panama, where he was in the employ of the Inter-Oceanic Canal, 320 COMPANY GENERAL OF THE ORINOCO CASE. and since that time he liad not seen him. Aiter the failure of the enterprise of the canal, M. Andrau Moral had come back to Ciudad Bolívar, where he had married a Venezuelan girl in ISTi). He obtained, in 1S91, from the agent of the Company General of the Orinoco in liquidation, M. Boulissière, the command of the ste&mcr Libertad. M. Bt)ulissière did not inform tlie people at Paris of this nomination, so that the liquidators found it out only through the report of the said agent relative to an attack on this steamer in April, 1S91, by the armed l)ands of Valentini Perez. After the loss of the Libertad in August M. Andrau Moral had come l)ack to Caracas. He explained to M.Dclort tliat going up the Orinoco August 6, at 5.1.5 in the morning at about 8 nules from Buenavista, the Z-iWioi/ had encountered a squall from the east so violent that the steamer had capsized in a moment and was wrecked by the explosion of the boiler a moment later. It was a great lo.ss to the company, the steamer having cost a hundred thousand francs. At any other time M. Delort would have wished to make an investigation with regard to the responsibility of M. Andrau Moral in the loss of the said steamer of which he was the captain: but he was so preoccupied with the .situation tiiat tiie judgment of the high court, rendered October 14, ISOl, was going to cause to the lii|uidation of the company that he laid aside this investigation for the time. lie had taken counsel of the advocates of the company as to the measures to be taken and as the latter saw no other action possible than a claim through diplomatic means, it was necessary to prepare tiiis In' evidence for the chargé d'afl'aires of France at Caracas, M. de Lacvivier. M. Andrau Moral was at that time •on excellent terms with the said chargé d'affaires. He offered M. Delort to aid him in his work which he was rushing as much as possible in order to return to Paris where his presence was necessary. It was neceasary to be ac(|uainted with Venezuela and Caracas to under- stand tlie position in which M. Delort was placed. The president. Dr. Andueza Palacio, whom he knew very well and for whom he had even had the opportunity to render a .service some years before wiien he was in a precarious position, refused to receive him, and the ministers followed his example. The representative of the liquidation, M. Fiat, who had become an emploj-ee of the Government, luid handed in his resignation and wished to with- draw through fear of compromising himself. For M. Delort personally, it was all right, but it was not necessary that he should speak of the Orinoco. No merchant would have accepted the representation of the company through fear of the Government. In such circumstances M. Delort was well pleased at finding in M. Andrau Moral a person who did not fear to com- promise himself in openly supporting the company, and as M. Delort did not wi.sh to remain at Caracas more than one month he had with the said Andrau Moral the advantage of the man already acquainted with the affair and being able to prosecute it effectively with the French legation where he was very well regarded. M. Delort then thought no more about an investigation with regard to the loss of the Libertad. He considered tlie faults of youth as peccadillos to be forgotten, and he prepared M. Andrau Moral to continue in the business of which he had laid the foundation. Moreover, M. de Lacvivier encouraged M. Delort in this respect. On going away the latter left to M. Andrau Moral the instractions of which a copy is here attached, but not wish- ing, however, to invest him with powers of attorney without the approbation of the li(iui- dator, M. Roux, he remitted in lilank tiie said powers to tlie legation of France, awaiting the decision of the liciuiwers of atloiiiey. M. Andau Moral wrote to M. Delort the 5th of January a letter to bi> for- ADDITIONAL OPINION OF FRENCH COMMISSIONER. 321 warded to the liquidator, in which ho dcclarod that lie would demand payment of a regular salary and othenvise he spoke of accepting other oiTers which were made him. M. Koux replied to him by a first letter of the 25th of January and then by a second letter. As a result of this correspondence M. Andrau Moral had represented the liciuidation provisionally from the date of the departure of M. Delort the 15th of November, to January 5. 1S92, and officially from January 5, 1.S92, to February 25, 1892, on which date he received the letter informing him that M. Maninat had been .selected and that he was to turn over his powers to him. But M. Maninat to whom they had written at the same time to represent the company, did not put himself forward in this affair, at this time, made no reply, and took no steps with M. Andrau Moral who continued to represent the company t^oluntarily, but he had really noth- ing to do. Aflairs remained thus during the whole year of 1892, which was exceedingly troublesome in Venezuela becau.se of the civil war, the fall of Doctor Palacio, and the final victory of General Crespo. M. Maninat had come to France toward the close of 1892 and they had prevailed upon him to accept the power of attorney of the company. A letter was written to him, of which a cop}- is added. M. Maninat on his arrival at Caracas went to the legation to demand the dossier of the documents relative to the claims of the Company Gen- eral of the Orinoco in liquidation. He was then informed that M. Andrau Moral had taken possession of some important exhibits and had gone away without returning them, and of this act M. Maninat informed those at Paris. M. Delort demanded these documents of M. Andrau Moral, who replied that he had left them with his cousin Mathew Valéry, at La Guaira M. Delort then communicated with this said Valéry who pretended to have sent them back again to M. Andrau Moral and sent a letter herewith attached, a copy of which was transmitted to M. Andrau Moral who declared that the agent of the post in question had remitted nothing to him. Finally M. Andrau Moral has restored nothing. M. Andrau Moral was without pereonal resources and he expected to receive regularly from the hquidator a monthly allowance which would permit him to live. He complained much because the liquidator, M. Roux, had not wished to assist him. But at this time the liquidation had some heavy expenses to meet in regulating other aiïairs more important than a salary to M. Andrau Moral. On the other hand, the dossier of the company ought first of all to have been examined at the min- istry of foreign affairs. There was really nothing to be done at Caracas, as M. Andrau Moral himself knew. They did not see under these conditions the necessity of paying him, and the ofl"er which M. Roux had made him, placing to his credit some settlements to be made later, was a gratuitous kindness. Nevertheless he drew several checks upon M. Roux and M. Delort, together 2,500 francs, drafts which were paid. Thak could not continue and M. Delort urged him while waiting to take some employment. M. Andrau Moral had been able to win the good will of M. de Mondar, so that he got him the appointment of consular agent of France at La Guaira, to which he added the consular agency of Colombia in this same port. So in this manner he found the means of existence. Unfortunately ho had many political friendships and in this time of troubles of expulsions and of flights he aided in the flight of certain compromised men. M. de Mondar did not pardon him for this fault and had him replaced. Ho then went to ask M. Orsi do Monbdlo to take him into his busi- ness in order to help him to get a living. M. Orsi de Monbdlo was in high favor of General Crespo, who placed him in charge of certain works, for which ho was paid in advance to a certain amount, which is not common in Venezuela. M. Andrau Moral, who was notorious at Carcacas, got rid of part of these advances for him, and General Crespo learning about it sent him out of Venezuela, causing him to embark officially at La Guaira. M. Andrau Moral came to Paris. This was in April, 1893. M. Delort welcomed him kindly and aided him so far as he could in his plans, which he continued to pureue. M. Roux also welcomed him and remitted to him what he could. But the question of money always being the main thing, M- Andrau Moral drew upon M. Roux from Ajaccjo, where ho had gone. M. Roux rofusi'tl to accept and then received a letter of regular blackmail. S. Doc. 533, 59-1 21 322 COMPANY GENERAL OF THE ORINOCO CASE. But M.Andrau Moral changed his mind, and June 18, 1893, ho wrote to the liquidators, again offering them his services, hut this time for pnx-eedings to \w made at the ministry' of foreign affaii-s, where lie pretended to have influence powerful enough to act and to bring to a successful end the legitimate claims of the lifiuidations in Venezuela. And it is after such a letter that M.Andrau Moral protests against the claims of the Company General of the Orinico. Tlie liquidators of the company heard nothing further from M.Andrau Moral after this letter of June 18, 1893, and M. Delort has had no news from him since 1896. How. under these conditions, could M. Andrau Moral make a protest and to what end ? It can not be for the remainder of the credit which he may have upon the liquidation, for it is to that alone that he ought to have addressed himself. He has no cause of complaint against the liquida- tion nor against M. Delort ; however the protestation which he has made has for an end to injure the liquidation and M. Delort : but. then, what object was he pursuing ? M. Andrau Moral is not a man to act without interest, and for him interest is money. That is why his action aside from its lack of right, value, and reason is contemptible and csvn only place in confusion those who search to use it, making in a way a common cause with him. Th. Delort. Paris, Febniai-rj 17, 1905. OPINION OF THE UMPIRE. The liquidators of the Company General of the Orinoco, a French company, presented their claim through the Government of France before this honorable commission at its sitting in Caracas in 1903, claiming indemnit}^ in the sum of 7,616,098.62 francs of date July 10, 1902. The claim having received the careful consideration of the honorable commissioners, they found themselves in serious disagreement, the honorable commissioner for France deeming it just that there be awarded the liquidators the sum of 7,000,000 francs, while the hon- orable commissioner for A'enezuela refused them any sum. The claim was therefore reserved for the consideration of the umpire, to whom it was presented at the sitting of the commission at Xorthfield on the 13th day of February last. Nothing is in controversy but the merits of the claim. It arises out of two concessions granted by the respondent Govern- ment. The earlier was to Miguel Tejera, a Venezuelan, through Gen. Guzman Blanco, jilenipotentiarv of the Republic of Venezuela, at Paris, France, on the 1 7th day of December, 1885, and was approved by the Congress of the conceding Government May 21, 188(). made executory May 24, and published in the Official Gazette of June 5 of the same year. The other was from the respondent Government to Theodore Delort, made at Caracas A|)ril 1, 1887. It was approve Orinoco and its eastern conlhicnts wcic all wilhin the domain of NCnezuela, while inipoi'lant sections of the western allluents lay likewis(> within the Kepublic and under its control. The concessionary saw in these facts OPINION OK THK FMIMHK. 325 far-reaching opportunities for exclusive navigation over many waters and through immense regions, and there came to him visions, not fanciful, of giant fortunes. There was, however, little genuine knowl- edge of these Territories; they were largely unexplored and in detail unknown. It afterwards appeared that the population had heen decreasing for some time through diiïerent causes, and nuuiy villages once fairly populous were reduced to very few iiduihitants. The rapids, which it was the plan of this concession to avoid by means of railroads, had heen the suilicient cause both of the ignorance of the outside world concerning lands lying beyond them and of a paucity of inhabitants, of enterprise, and of improvements therein. The conditions peculiar to a tropical country had added to the usual factors, making early explorations and investigations dependent exclusively upon waterways. The ra]:)ids had cut off approach from the north to the upper Orinoco, as well as descent therefrom. The Casiquiare joined together the Amazon and the Orinoco, and by this means the sea could be reached with freight carrying traffic from these Territories, and it was the only way by which the Territories had been open to navigation. It was only foresight and patriotism which suggested the plan proposed in the concession to unite these separated sections of Venezuela by means of steamboats and railways on and by the Orinoco. While the enterprise promised much to its promoters financially, it bade fair to be of untold value to the Republic of Venezuela. A French syndicate was formed September 1, 1886, to take over this concession, which was merged in the Company General of the Orinoco. This company was organized at Paris, France, March 28, 1887, with a capital of 1,500,000 francs, composed of 3,000 shares of 500 francs each. This company beame the legal assignee of the con- cession of December 17, 1885. April 1, 1887, at Caracas, the Government of Venezuela entered into a contract with Theodore Delort, a French citizen, for the exclu- sive exploitation of sarrapia for a term of twenty-five years within the Government lands which are included between the eastern boundaries of the Federal Territories of Upper Orinoco and Amazonas and British Guiana and between the Orinoco and the Venezuelan-Brazilian fron- tier. In addition to the provision concerning sarrapia there was granted by the Government the right to construct railroads and telegraph lines wherever deemed necessary for the development of its works and to establish rates of transportation subject to the approval of the Government; to become the proprietor in fee of the lands occupied by these establishments; to receive in fee one hectare of land for each immigrant introduced; to import free of duty all materials, machinery, and tools necessary for the exploitation of sarrapia and for the con- 820 roMI'AXY (íKNKRAL <»F THK oKINítCO < A!^K. tstruction of steamers, houses, railroads, and teleo;raph lines; the right to cut in the national forests the wood and timber to be used in all such constructions; to have all these ])rivile<;es exclusively durino; the term of the concession; to have the unliniited rit;ht toassi<]:nment or transfer of said contract by simply advisin»; the Government thereof. In return for these privileges there were certain compensatory obli- gations resting upon the concessionary in said contract, such as that Mr. Delort was to organize a company with sufficient capital to carry on the exploitation named; also imposing these duties — to pay the National Government in specie 50 bolivarsfor each kilogram of sarra- pia which should be exported; to introduce at the expense of the concessionary immigrants to colonize the Territories in which the exploitation of sarra})ia was to take place; to establish hospitals and pharmacies sufficient for the immigrants and workmen who might fall sick; to introduce Catholic missionaries to catechise the natives of the Territories where the exploitation was to take ])lace; to establish steam navigation on the princi])al l)ranches of the Orinoco where it was pos- sible within the Territories included in the contract; totcarry on the exploitation of sarrapia in such a manner as to keep in good condition the existing plantations; to transmit gratuitously postal correspond- ence. This contract was also taken over by the Company General of the Orinoco, and it became the lawñü assignee thereof. Of both these assignments to the Company General of the Orinoco the respondent Government had due and sufficient notice and advices. Prior to the organization of the Company General of the Orinoco the syndicate heretofore referred to did nuich toward preparing the way for performing the duties and gaining the privileges of the conces- sion; but immediately following the organization of the company the enterprise was pressed faithfidly and with measurable success. I'nex- pected difficulties and obstacles were met and overcome so far as the conditions would permit. Steamboats were placed on the lower Orinoco for navigation between Ciudad Bolívar and the Atures; between the rapids of the Atures and the Maipures and above the upper falls for the service of the upper Orinoco. By May 2, 1887, regular com- munication had been established between Atures and Ciudad Bolívar, the trip down taking five days and the trip up about ten. By the latter part of 1887 the boats on the np))er Orinoco were i)lying l)et ween San Fernando de Atabapo and Mai|)ures with reasonable regularity, accomplishing the service in about twelve days from San Fernando to Ciudad Bolívar, where before it had taken three months. The distance from Ciudad Bolívar to Atures is about î)()() kilometers, and from Atures to Maipures is about 60 kilometers, and from Maipures to San Fernando de Atabapo is about 400 kilometers. The discovery of two rapids between the Atures and the .Maipures, not named in the contract and a])|)areMtIy not known, practically OPINION OF THK UMPIRE. 327 negatived the idea of a successful scheme consisting solely of two narrow-gage railroads of about 10 miles each, one passing by the lower and the other by the upper rapids with carriage by boats between these two points, as was contemplated by both ])arties to the conces- sion. It was essential to a wise issue that there be one railroad only of sufficient length to include both rapids, built at such distances from the river as the topography of the adjacent territory required. This would necssitate the crossing of wide and deep rivers, affluents of the Orinoco, and would entail expensive bridges and viaducts. Such railway would cover a distance of 60 kilometers. One feature of the Orinoco not understood by either party to the concession, as it would seem, was the might}" flow of waters in a certain part of the season, reaching forty feet in height above low-water mark and inundating the country for leagues, especially on its western side, with a corresponding paucity of the waters during the opposing sea- son. The successfid navigation of the Orinoco was seriously impaired by these facts in the matter of accessible ports and towns of stable and organized character and by the lack in parts of a sufficient depth of water at its lowest ebb for the passage of such boats as the general condition of navigation in the upper Orinoco seemed to demand. It also preventetl the railroads, which by the terms of the concession were to be built around the upper and lower rapids, from being located near the banks of the river as they existed in the ordinary" flow. A temporary railway was constructed around the lower rapitls on the right and around the upper rapids on the left of the Orinoco in order to lift the steamers overland and to points where they could be again placed upon the river for purposes of navigation between the rapids and above. By this means steam navigation was estab- lished on the upper Orinoco. These railways were built and used for no other purpose. They could not be permanently maintained at these places because the annual floods would lay them deep beneath the waters. Instead, pending the building of a satisfactory railroad line, cart roads were built around each of the rapids; carts, mules, and other draft animals were secured and maintained, and in this way and by these means and by the aid of an adequate ferry upon the Cataniapo, and by a raft upon the Tuparo, the products from the Territories were carried by the rapids and taken up by the steamers in the lower Orinoco, and similarly transportation was eflected from the lower to the upper Orinoco. It was not transportation by railroads around the rapids, but it linked together steam navigation on the Orinoco and opened up the Territories of the Upper Orinoco and Amazonas and this outer world by way of northern Venezuela. Important steps in the construction of the railroads were taken and while in fair progress the work was interrupted and prevented by serious inundations covering quite a period of time. 328 ("OMl'ANï (JENEUAL <>F THE ORINOCO CASE. During the years 1887-'8 the company entered upon the construc- tion of a railroad from the mouth of the Cano Meta to the Rio Ventu- ario above the great rapids, uniting the Caura with tlie upper Orinoco. The progress of this work was interrupted when twelve leagues had been completed by the impressment of the workmen, under order of the Government of Caura, to be used as troops in the defense of the Government against the revolution. The work thus interrupted was never completed . Contrary to the early expectations of the projectors of the enter- prise, it was impossible to obtain the recjuisite labor in the countrA^ where the work was to be performed, and it l)ecame necessary to obtain workmen from Ciudad Bolívar and even from Trinidad. In the Upper Orinoco a census of all the workmen, including men, women, and children, did not exceed one thousand. Stations and depots were duly established by the company at Punta Brava, at the mouth of the Caura, at the ports of Perico, Salvajito, Atures, Maipures, Vichada, San Fernando ile Atabapo, San Carlos, and at the Brazilian frontier; storehouses, workshops, and supplies were at the stations Atures and Maipures; there were phar- macies at all the stations centralized at Puerto Perico; there was a chapel and home for the priest at San Fernando de Atabapo. The company also established herding and agriculture at La ^'ichada. The flora of the territories was carefully studied and reported upon by Doctor Gaillard, a distinguished expert, the result of his investi- gations being printed in two volumes and presented to the Venezuelan Government. Explorations were made on the rivers Vichada, Guavi- are, Inirida, Ventuario, Atabapo, Guainia, and the Casiquiare. When the steamers were all placed as used in the enterprise of the company, there were the Libertad, Caroni, Caura, and the Maipire for navigation between Ciudad Bolívar and the lower rapids; the Meta and Maipures between the rapids; the Atures, Naroa, Eva, and San Fernando for the traffic of the upper Orinoco, of which steamers the first two made occasional trips to the Brazilian frontier and t)n the river Atabapo as far as Javita when the condition of water per- mitted. By means of the boats between the rapids the journey, which formerly occupied three or four days, was accom])lished by them in six hours. The company made careful reports of its proceedings annually, in 1888, 18S9, and 1890, and these reports were furnished to the Vene- zuelan ministers of public works and of fomento, so that they were ftilly advised of the doings of the enterprise. Agencies were established by the company at San Fcruando de Atabapo, San Carlos, and at the Brazilian frontier. During the earlier stages of the enterprise it depended for infor- niatit)n, to n large degree, U])on its assignor, Mr. Tejera, who, in addi- OPINION OF THE I'MIMHK. 820 tion to a familiarity with the general characteristics of the country, gained in his department of minister of public works of the Republic of Venezuela, had paid officiai visits to the parts involved in this con- cession. Much of his informaticm must have been obtained at second hand, after all, for it was seriously inexact and proved so misleading as to be ver}^ expensive to the company. Experience gave the enterprise to know that in the upper part of the Orinoco its banks and the banks of the Casifjuiare and of the Atabapo were completely inundated during the seasons of high water, which extended over a period of four or five months and attained a very serious maximum every ten or twelve years. As a result they are uninhabitable, except at certain elevated points, and the distance between these points is sometimes as great as 200 kilometers. The company found the native population very much scattered and estab- lished at places in the interior both above and beyond the reach of the annual floods. It w^as also learned that there was no agriculture and no live stock; that even to sustain life in these regions was difficult and many died of hunger. The annual production of rubber in these Territories at the begin- ning of the exploitation of the Orinoco did not exceed 40 tons. There were also 50 to 60 quintals of copaiba oil and a few tons of piassava, although in the interior there w^ere great opportunities for obtaining much larger products of all these, the development of which was a part of the plan and the hope of the company. Except at Atures with three families and Maipures with one family there was no village upon the banks of the Orinoco from Cariben to San Fernando de Atabapo. In February, 1889, application was made by the manager of the enterprise to the minister of fomento for lands which had been visited and selected on which to place the immigrants wdio were expected in a few months. It was explained in this communication that any earlier bringing of immigrants had been impossible, since the company's means of transportation had been inadequate to suppl}^ their needs, as everything on which they were to subsist at first must be brought into the countr}^. The lands selected and applied for were situated opposite San Fernando de Atabapo. No reply w^as received to this application. In the early part of the year 1 889, 370 head of live stock were obtained in Buena Vista and were sent across the savannas to the A'ichada, where, as has been previously stated, an hato had been established. The necessity of building one railroad of 60 kilometers to go round the four rapids was fully develo])ed to the national Government by the manager of the enterprise as early as February 4, 1889. A state- ment of the probable expense w^as given at the same time and the proposition was made to the Government that a 7 per cent guarantee HHO f'O.Ml'ANV (iKNKKAL <»K THK <>KIN<>("<> CASE. be made to secure its construction. The estimated cost was 60,000 francs to each kilometer. No reply was made })y the national authorities. For the two years of 1888 and 1889 the company had a reo^ular monthly .service from Ciudad Bolívar to San Fernando de Atabapo, and witliout accident carried every payin^j: pa.s.sen<íer who offered him- self for transportation. In 1888 General Silva, j^overnor of the Terri- tories Upper Orinoco and Amazonas, with his o^eneral secretary and a laroje staff, went from Ciudad Bolívar to San Fernando de Ata.bapo to take up his office under the national Government in the boats of the company, takino; with liim also his troops, tliirty soldiers, his bago:a^e, and his provisions; similarly' General Silva descended the Orinoco in 1889, and General Cabellero, receiving his appointment as governor to succeed General Silva, went from Ciudad Bolívar to the capital of these Territories in the boats of the company; later he came down on leave in these boats and again went back to his post in the same vf&y, the company receiving no compensation for all the service above stated. It was the universal custom of the company to receive as passengers without pay all employees of the Government. It carried tlie mail free from Ciudad Bolívar to San Fernando de Atabapo, and by means of its agencies performed the service of the budget of these Territories without commission or compensation. September 15, 1888, tlie steamer Libertad was requisitioned by lawful authorities to transport troops, material, and provisions to the fort of Guyana Vieja in defense of the national Government. Reim- bursement was demanded of these authorities by the company, but was refused. The fuel for the steamers and even the board of the crew during the trip was furnished without recompense by the company. In December, 1888, the lawful authorities again recjuisitioned the steamer Libertad, which during the whole of that month made trips loaded with troops between Calcare and Rio Caura. To the request of the company for an indemnity there was a refusal. It was at this time that the workmen uj)on the railroad running out from (^aura, an incident previously mentioned, as well as the agricidtural laborers of the company, were impressed by the Government to march against the revolutionists. None of the workmen ever returned to the service of the enterju'ise. October ',U , ISSS, the pro tempore gov(M"nor of U|)per Orinoco and Amazonas Territories issued a decree annulling all of the accounts of the Indians with the company wherein they were del)tors. This was done in the especial interest of Valentin Perez and other like contractors. OPINION OK THK lîMl'IKK. 881 Governor d'Aubeterre carried with him to San Fernando de Ata})apo, Ills caj^ital city, a considerable sto('k of did'erent kinds of merchandise for the purpose of traliic in india rubber, which traille he entered upon openly, in so far opposing the rights of the company in exploitation of this j^roduct. In December, 1889, the same «governor caused u ])etition to be sii^ned against the company by persons of little standing, in this way attack- ing the company instead of assuring the execution of its contract. At the same time a similar petition was passed among the merchants of Ciudad Bolívar. Tlie claimants assert that it was done at the instigation of the minister of the interior. Early in the year 1890, Governor d'Aul)eterrc nuuh^ a long journey into the interior of the Territories in order to gather up the largest quantity possible of india rubl)er which had been harvested by means of advances made to the harvesters l)y the company. May 17, 1890, a ministerial decree authorized the j)roprietors of sarrapia and other natural products to export them freely, paying the same duty as the company. The historical order is here interrupted to name a very important matter, which may well be under consideration as having explanatory value in connection with the events of 1888 to 1891. both inclusive. The Venezuelan-Colombian boundary (|uestion, which for a long time had been a matter of diplomatic contnn'ersy between these two countries, by a treaty executed by them September 14, 1881, was submitted to the arbitration of his Majesty the King of Spain. Gen. Guzman Blanco was then Presitlent of the Republic of Venezuela and executed on its behalf the treaty aforesaid. On February 15, 1885, at Paris, for and on behalf of his Government he signed a declaration extending the time within which the award could be made. October 28, 1887, the minister for foreign affairs for Colombia wrote from Bogotá to the minister of foreign affairs for Venezuela asking for explanations concerning the prospectus with map accompanying which had been published in the interests of the concession. The nature of his communication can best be gained from the letter itself, W' hich is here reproduced : BoGOT.\, Ovtoher 28, 1887. Mr. Minister: A French society known as the "Company Gonoial of the Upper Orinoco" has pubHshed a memoir or description upon the concessions wliich, it saj's, tlie Government of your excellency has granted to it of certain rights within the Territories Upper Orinoco and Amazonas of the Republic of Venezuela. Annexed to the memoir concerned is a geographical map in which the boundaries of the said territories on the western side arc marked in such a manner that they include the large tract of land which in this part is in litigation between Colombia and Venezuela, and of which in virtue of the treaty of arbitration (arbitramiento juris) of December 11, 1881, the true ownership is to be settled bv the sentence of the Government of Spain. I have the honor to call the attention of j'our excellency to this point, being convinced that the Government of Venezuela, in accord with the Kepublic of Colombia, will recognize 8;^2 ("OMI'A.VV (iENKRAL OF THE ORINOCO CASK. that tht> error of the Compiiny of tlio Upper Orinoco cau not be passed over in silence, consid- » ring that it affects a solemn agreement l)ot\veen the two nations, in which is ceded in an absolute manner to a third parly the right as arbitrator to define the boundary which s<'pa- rates Colombia and Wnezuela. It is evident that neither of our Governments can make any valid concession upon the said land: it is equally evident also that the error of the Company Cieneral of the I'pper Orinoco can have no other cause than that of agreeing with geographical or statistical data anterior to the above-mentioned treaty of 1881, which places this zone of territory ¡n a condition not only litigious, but about to be settled in an exclusive manner by an arbitrator airead}' appointed. I have the gratification to profit from this circumstance to renew to your excellency the expression of my most distinguished consideration. (Signed) F. Ángulo. To Ills Excellency the Minister of Foreign Affairs of the United States of Venezuela. It does not come to the knowledge of the umpire that any reply was made by the Government of \'enezuela to this note from Colombia : neither is there anything to indicate that the attention of the Comi)any General of the Orinoco was immediately called to the c|iiestions raised l)y the note. The first oilicial attention given to its contents, so far as is known to the umpire, is found in the action of the minister of foreign affairs for Venezuela in addressing a communication to the minister of fomento, in substance following: Caracas, Xovember 2ó, 1S87. The minister of foreign relations of the Republic of Colombia has brought to the knowl- edge of this department that the French company known as the "Company General of the Orinoco" has published a memoir with a map annexed in which is included in the limits of the territory conceded to the said society the territory in litigation between the twocountries. To be able to reply to the said note of the Colombian minister it is necessary to have before us the said memoir, which I pray you to send me by right of devolution if it is found in the department under your charge. 1 am, etc., Diego B. Urbaneja. To this there was a reply on the next day, as follows: Sir: As it has never been remitted to this department I find it impossible for me to remit to the mini.stry over which you preside so worthily the memoir of the Company General of the Upper Orinoco, of which your communication of the 25th of the present month treats. This seems to be the end of progress in this line until about August, 1S88, when the minister of Colombia renews his in(|uiries, as appears from the communication of the minister of fomento, as follows: Caracas, ,1 ut/ust 10, ¡888. In order to examine and resolve a claim of the Kepui)lic of (\)lond)ia I have need to have before my eyes a copy of the contract ])as.sed with the Company General of tlie Upper Orinoco and Amazonas. That is why I |>i'ay you to give me information of the concessions and pri\ ¡leges made to the said company. 1 am, etc., A. YsTi Riz. OPINION OF thî: umpire, 333 To this there is a reply on the tlay succeeding in these terms: Caracas, Augusi 11, 1888. Sir: In reply to your lottor of the 10th of the present month, No. 293, I have the lionor to send you tlie OfTicial Gazette of February 20, 1886, No. 3,698, in which is published the contract with the Company General of tlie Orinoco. I am, etc., Fombona Palacio. There follow successive communications between these ollicials of the Government relative to this ail'air which, perhaps, arc better (pioted in full than placed in abstract. They are therefore subjoined: Caracas, August 13, 1888. Sir: Besides thecontractof the Company of the I'pper Orinoco and Amazonas constituted in virtue of the concession made to Mr. Tejera, which you have kindly remitted to me in the corresponding number of the Official Gazette, I should be very grateful to you to send me a general report upon the proceedings of this company to the department under your worthy charge, as also every communication which this company may have made upon our maps, notices, or memoirs relative to the privilege which the said contract gives it. YSTÚRIZ. Caracas, August 21, 1888. Sir: In reply to your note of the 13th instant. No. 297, I have the honor to inform you that the company which has been exploiting tlie Territories Upper Orinoco and Amazonas since the date of its contract, December 17, 1885, has asked of this department exemptions from import duties at different dates upon the objects destined for its works ; that it announced November 14, 1887, that the steamers Atures and ¿'va had passed above the rapids of Maipures, and that the latter .steamer arrived at San Fernando dc Atabapo the ;3()th of August, 1887, and as to that which concerns the memoir published In' this company relative to the said territories I remit it to you inclosed with its map annexed. I am, etc., Gil. Caracas, September 15, 1888. Sir: The envoy extraordinary of the Republic of Colombia has made a claim against the publication of a geographical map and of a memoir of the Company of the Upper Orinoco and Amazonas, in whicli in describing the limits of its concession it has included as having been ceded vast extents of land in litigation between the two countries. Con.sequently, considering the necessity of examining the .said map and memoir, I hope that you will kindly send them to this ministry if they exist in your department, and if not I pray you to a.sk the representative of the company mentioned for information as to what has been done in this regard and also the map and memoir concerned. YsTi'-Riz. On the 18th of September, 1888, the minister of fomento advises the minister for foreign relations by note in part as follows: I am addressing myself this very day to Mr. Th. Delort, contractor of the Territories Upper Orinoco and iVmazonas, asking him for information as to the contents of your said communi- cation, and as soon as I shall receive them it will be veiy agreeable to me to send it to tlie ministry over which you preside so worthily. I am, etc., COROXALIM). 334 COMPANY (íEXERAL of THK ORINOCO CASE, The letter addressed to Th. Dolort. the iiiana]iear in court on the 41h day of that month and produce his ])ower of attorney. This was done and a translation of the sam(> was ordered, and on the 16th day of June this was completed and a('c('])tcd by tiic courl and a summons ordered ii])()n Mr. Fiat. On the l!)th day of June the claim for damages was icduccd hy (lie attorney of the Government from ()00,()()() bolivars to 4(),()4S.()2 boli- vars, and on the same day Mr. Fiat received and receipted for the ('oi)> of the ])eli(i«)ii. On I lie same day llie court issued a decree by which an ocdei' was made 1«» not iiy Mr. I^'iat of the ainendineiit to t he ])etition OPINION OF THE UMPIRE. 337 above stated and to give him a copy of the amendment. Mr. Fiat was also directed in the order to receipt for this cop}^ and to present in court his answer to the petition after ten days from Jime 19. This order was (hdy served on ^Ir. Fiat on the day of its issue and he gave liis receipt to that effect on June 20. July 2, the day appointed for the answer, ^Mr. Fiat appeared, accompanied by his counsel, D. B. Urbanoja and R. F. Feo, and as well appeared the fiscal nacional de hacienda. It was then and there agreed to defer the answering of the suit to a date fixed at eight days after the presentation of the docu- ments to which reference is made in the suit by the plaintiff, in order that the company should have time to examine these documents. On Juh' 22 ^Ir. Fiat with his counsel, above named, appeared in court and filed his answer to the suit; at the same time he preferred his petition for an extraterritorial term in order to obtain evidence from France and Rome. The suit progressed in ordinary course, during which the parties were to produce their respective evidence, the court reserving its right to decide on the petition of Mr. Fiat in regard to an extraterritorial period of time. Later on the president of the court granted one hundred days to obtain this extraterritorial evidence, and Mr. Fiat having appealed from this decision on the grounds that the term granted was too short, the court then extended it to one hundred and thirty days. September .5, Mr. Fiat was notified that the fiscal had petitioned the court that the suit might be registered in Ciudad Bolívar, in order to avoid any transfer intended by the company. That he received this notice is established, because at the foot of it is set his signature, and on September 8 he appeared in court, accompanied by his said coun- sel, and declared that he had no opposition to make to the recording of the suit, with the alterations which were made to it afterward. The court issued an order on the same day that a copy of the suit be sent to the judge of the first instance of Ciudad Bolívar, that it might be recorded in the registry' office in that city, and said order was car- ried into effect on the same day. August 7, 1890, ;Mr. Fiat presented the court with a petition asking that evidence might be promoted as he thought convenient to the case of the company. As a part of this evidence were declarations to be made b}^ witnesses resident in Paris, Rome, Port of Spam. Rio Chico, Barcelona, San Fernando de Apure, and Caracas. The president of the court issued a \vTÍt, dated August 12, admitting the promotion of such evidence as far as the law permitted, and com- missioned seA'eral civil judges of first instance of the residences of the respective witnesses to hear their declarations; he also issued rogatory commissions petitioning the competent judges af Paris, Rome, and Port of Spain for the same purpose. October 1 1 of the same year, Mr. Fiat appeared in court and stated that by virtue of the authority con- tó. Doc. 533, 09—1 J-J 338 COMPANY GENERAL OF THE ORINOCO CASE. f erred on liim, 1)y his jwwer of attorney from the company, he conferred a special power on Dr. Ramón Feo and Dr. Martin F. Feo, so that both together, or eitlier one of them separately, mifrht intervene in the col- lecting of evidence that had to be made by the fiscal in the city of Caracas, and also stating that he conferred special power on persons resident at Porto Rico, Barcelona, Ciudad Bolívar, San Fernando de Apure, Port of Spain, and for the territories of Orinoco and Amazonas, for the collecting of evidence on behalf of the company in their respec- tive districts, and to intervene in the collecting of evidence by the plain- tiff in the same districts. October 11, 1S90, the president of the court ordered that commissions and petitions be issued to the different par- ties named by Mr. Fiat as aforesaid, and that said petitions and com- missions contain the powers conferred on them as requested by Mr. Fiat. The said order was carried into execution October 13, and the said commissions and petitions being issued were handed to the defendant. All these commissions and petitions were duly returned after having been carried into operation, with the exception of those addressed to the judges of Paris and Trinidad and to His Excellency Cardinal Simeoni of Rome, which were not returned by the representative of the company, although they were given him. March 24, 1891, marked the expiration of the time given for the col- lecting of testimony, and on that date the president of the court ordered that the papers and records of the suit be sent to the fidl court, wliich was duly effected. April 29, the fiscal moved the court to begin the study of the papers and records of the suit and that an order be issued for that purpose. On May 21, 1891, the fiscal renewed his motion, and on May 23, an order was issued to begin the study of the papers and records on the 30th of that month. This study begun in fact on June 16, and pro- ceeded on June 24, the court not being in session on the 17th to 23d, inclusive. On the 1st, 4th, and 7th of August suppletory judges were called to fill the vacancies existing. Two of those selected were excused on their own petition. On September 16, the full court was made by the suppletor}' judge, Dr. Carlos F. Grisanti, and the 19th was appointed for the study of the process. The study was begun as ordered, and proceeded on the 21st of September and following days until the 25th. The 29th of September was appointed to hear the reports or proceed- ings of the plaint iif and defendant. The records of the 25th of Sep- tember show this note by the secretary: CAR.\rAS, September 25, 1891. In the sitting of this day the .study a ¡^ examination of xhv papers and records by the court was completed, and tlie sitting; of tlie'iOth current is appointed for plaintiff and «lefendnnt to present their respective reports or pleadings. Let the parties \yv notified. (). BlROOS. OPINION OF THE UMPIRE. 339 There was no decree of the court ordermg the parties to be invited, as appears of record. September 29, the fiscal nacional do hacienda appeared in court, })ut no representative or counsel on behalf of the defendant. The court proceeded to sit in conference. From September 30 to October 13, only one sitting of the court took place, wliich was on the 3d of October, on which day the judges con- ferred on the sentence to be passed and ao;reed as to the same. October 14 the sentence was dra^v^l and sij^ned by the members of the court. As appears from the liistory already given, the suit for rescission was begun in 1890, May 28; summons to the defendant was issued May 30; and on June 2 Mr. Fiat appeared in the high Federal court and avowed and acknowledged liimself the legal representative in Caracas of the Company General of the Orinoco. On the next day, the min- ister of foreign relations atCaracas, wrote the minister plenipotentiary of the Republic of Colombia to the United States of Venezuela as follows : The Minister of Foreign Relations, Caracas, June 3, 1890. Mr. Minister: Relative to the confidential memorandum of August 9, 1888, and to the note of your excellency of January 24, concerning a memoir published by the Company General of the Orinoco, I have the honor to communicate to your excellency that the Govern- ment has resolved to demand of the said company the rescission of the original contract. Please accept, etc., M. A. Saluzzo. The most excellent Dr. J. F. Insign.\ries, Envoy Extraordinary and Minister Plenipotentiary of the Republic of Colombia. The Colombian minister did not accept the proposed action of the Government of Venezuela as an earnest of sufficient protection to the interests of liis Government, as is made evident by his reply, which follows : Legation of Colombia at Venezuei^v, Caracas, June 6, 1890. Mr. MiNnsTER: I have the honor to reply to the note of your excellency of the 3d of the present month, in which your excellency deigns to communicate to me relative to the confi- dential memorandum of August 9, 1888, and to my note of Januaiy' 24 last, which refers to memoir published by the Company General of the Orinoco, that the Government of your excellency has re-solved to demand the rescission of the contract made with the said company. I shall transmit the said note to my Government, but I ought to manifest to your excellency, as I am doing veiy respectfully by means of the present, that the fact which it communicates can not modify in any way the state of the claim in which in a matter so grave was initiated bt>fore the Government of your excellency by that of Colombia in a note of October 28, 1887, to which there has yet to-day been no reply. In fact, as your excellency will clearly under- stand, in spite of the demand of rescission proposed and while waiting for it to lx> decided favorabh" the Company General of the I'pper Orinoco will continue to enjoy the contract in virtue of which the Government has made concessions in the territories of the I'pper Orinoco and Amazonas, a concession which the said company extends through error or unjust ly to the lands which on this side are in litigation lx'tweenColoml)ia and Venezuela as it appeal's with all clearness in the geographical map annexed to the memoir of the relation which has set in motion the claim of my Government without formal rectification on the part of the Govern- ment of Venezuela. 340 COMPANY GENERAL OF THE ORIN CASE. î'avornl)lt' as the sontcnco may 1h' to the Governnu'nt of \'eiiezuela there will still exist powerful reasons of equilv and justice with which the Goveriuiient of Colombia has solicited the said rectification because this act is notoriously in violation of tlie treaty of arbitration of September 14, 1881, by which the two nations submitted their differences with refrard to the frontiers to the decision of the Goveniment of Spain. Consequently it is my duty to insist, as I am doing, with the greatest respect, l)efore the Govenuiient of your excellency for the said claim of my Government, reproducing to this effect the contents of the note of October 28, 1887, mentioned, which was the origin of my memorandum of August 9, 1888, and of my note of Jainiary 24 of the present year. I profit, witli plea-sure, from this occasion, etc.- (Signed) J- K. Insignaries. To Doctor SoMZZo, Minister of Foreign Relation.^ of the United States of Venezuela. Eleven days prior to the date of the suit for rescission the minister of the interior at Caracas issued a statement authorizing; the propri- etors of sarrapia and other natural products in the Federal Territories Upper Orinoco and Amazonas to export them freely on i^aying the same duties as the company. During the same month the agent of the company at San Fernando de Atabapo and the engineer of the Naroa were threatened with death and were forced to take refuge at the home of a habitant. Frightened by the conditions surroumling them, they declared they could no longer remain on the upper river and asked to be relieved. The 4th of June Governor d'Aubeterre left liis capital, descended the river, and arrived at Ciudad Bolívar June 27. The day of his departure from his capital he sent a long telegram to the Government at Caracas, stating that the company did not have funds wherewith to pay for the india rubber which was gathered and tlemanileil that authority be given to those who possessed this ]iroduct tt) ex])ort it directly either by way of Ciudad Bolívar or through the custom- house at San Carlos. The custom-house of San Carlos had been closed by the Government since 1886 and had never been openeil for the use of the company, thus compelling it to use the Orinoco exclusively for the shipment of the products obtained by it. On the de])arture of Mr. d'Aubeterre from San Fernando de Ata- bapo Mr. Ilemy Page became governor pro tempore. June 16, 18!)(), upon his own authority, he issued a decree which annulled the con- tract of December 17, 1885, and he sent Valentin Perez and Sinforiano Orosco to Caracas with this decree to obtain for it the approval of the Government. lie based his action upon tlic anticipated damages which the agents of the company might cause the inhabitants and that through them the j)ublic order might 1)0 endangered. At this time there were three agents of the (•<)ni]):iny in rpj)er Orinoco. They were Messrs. Calvaras and Xiuy at vSan Fernando de Atabapo and Mr. Oudiirl al San ( "ailo^. oriNION OK THK UMIMKK. 841 The Government decided not to approve of the decree of June 16, issued by pro tempore Governor Pa('o task. On the next day llic minister of interior issued the administrative order, No. Kill, as follows: (Administrative ortici. No. 1011.] C.\R.\CAS, !)th of August, IftOO. (27 and 32.) C'lTiZE.s Governor of the Feder.vl Territory Am.vzo.nas: Accompanyinfi I st-ivd to you a copy of No. 5016 of tlie Ofliciul Gazette, containing a decree issued by tlie President of the Republic with date of yesterday, in which he annulled that which the Government pro- nounced on the 17th of last June, relative to declaring the defimct condition of the contract celebrated by the national executive with the Señor Miguel Tejera, of which the cessionary is the General Company of the Orinoco, remaining conseciuently null and without any value or effect, and in which it wa.s decided (or determined) that until the high Federal court may decide what may be justice the national executive will dictate, through means of this ministry and those of hacienda and fomento, to all necessary length, the arrange- ments (orders) necessary for satisfying the just exigencies manifested 1)V the inhabitants of that Territory. Consequently you will please not to give any permission to the agents of the expressed company to continue exploiting the products of that territory and give large franchises in order that the inhabitants can without hindrances undertake the work of exploitation upon the products referred to. God and federation. S. Casanas. It will be observed that the provision in the decree of Aiijiust S that the national executive would act throufih the ministries therein named took effect in the last paragraph of the above order. On the 29th of August the minister of the interior sent a telegram of advice to the governor of the Federal Territories Upper Orinoco and Amazonas through Mr. Valentin Perez of the following tenor: Caracas, 29th August, 1890. Señor Valentin Perez: The governor ought to enforce the decree suspending the prerogatives of the Alto Orinoco and Amazonas. It can not continue exploiting tlic natural products of the Territories nor collect reward upon those which it expected to obtain by its proper work. S. Casanas. By a letter of later date he again brought the attention of the citi- zens of those territories to the situation, as existing under the decrees of August 8 and 9, l)y means of a letter, which is as follows: Caracas, September 10, ISíHl Señor Sonforia.no Orosco: By resolution of the ministry of hacienda, dated May 27, ISIK), it is ordenad that the owners of sarrapia and other natural products which the company exports, to which you refer in a telegram of day before yesterday, can ex|)()rt them freely, paying the same iluties as said company, and by the decree of the Sth of August it prohibits to the company the absolute (unconditional) ex|)ortations and exploitations which it had of tho.se products, all which ordei-s were transmitted to the custom-house opportunely b}' the ministers of hacienda and of fomento in order for their fullillment. You and the rest are interested in this matter on account of the last urgent ordei-s. God and federation. S. Casanas. OPIKION OF THE UMPIKK. 343 Having followed the process of the high Federal court from the inception of the suit for rescission, May 28, 1890, to the sentence of the high Federal court, given October 14, 1901, having traced the progress of the administrative department in its relation to the com- pany to September, 1890, it is well to examine into the condition and histor\ of the Company General of the Upper Orinoco during the same time. May 30, 1890, the same day on which Mr. Fiat was summoned to appear before the high Federal court to answer to the suit of the national Government for rescission of both concessions, the Company General of the Orinoco met in a shareholders' general meeting at Paris, in which meeting a resolution was passed for the purpose of converting the company into an English company with the name of Orinoco Exportation and Trading C^ompany, which meeting like- wise determined to dissolve and wind up the Company General of the Orinoco and appoint a liquidator. It is said in behalf of the company by the liquidator in a memorial of date December 5, 1895, that — the board of directors had many debtors and they hesitated therefore to collect the harvest of 1890, but 3'ielding to the representations of their agents they furnished the necessary funds in agreement with a Liverpool firm, who sent out their special agent, Mr. Staedelli. The position of the company in Paris was very painful, as its credit had been totally exhausted. All efforts made in France seemed to be of no avail, while in England confidence was not lost and it was possible to go on there with the business. The board of directors therefore wilHngly considered a proposition from England for the constitution of a company in London to which all the assets, contracts, material, works, etc., of the Company General of the Orinoco would be transferred. It is ascertained that the liabilities of the company, as stated by it, were on May 30, 1890, as follows: Francs. To the shareholders 1, 500, 000. 00 To the Society (La Monnaie ) 722, 851. 56 La Banque de Consignations 236, 3.56. 00 Mr. Alfred Chauvolot 191, 176. 00 Mr. Eugene Ferminhac. . . ' 63, (XX). 00 Mr. Louis Roux 13, 059. 55 Mr. Th. Delort 14, 641. 26 Total 2, 741, 084. 37 It is an agreed fact that the company had no knowledge or intima- tion of the pending suit in Caracas at the time of this meeting of May 30, 1890, and that its proceedings on that day were without any rela- tion thereto and not in any way influenced thereby. June 2.3, 1890, at a general meeting of the shareholders of the Company General of the Orinoco at Paris, a lic|uidator was appointed, and in the third resolution of the shareholders his powers were defined as follows: Confers upon the liquidator its full powers to the effect of realizing the social assets by way of fusion or union in another French or foreign society, existing or to be created, to ;U4 <(».MrANï <}?:nekal <>k thk orinoco case. receive whether in specie or obligations or stock, free or not free, to liave recourse to actions and dehberations wliich shall have for their object the formation and constitution of a new society to sell tlie stock or obligations received until the concurrence of the sums necessary' for the payment of the liabilities and to turn over the surplus in confonnity with the statutes. Also to take all the measures possible for the continuation of the business until the realiza- tion of the assets, to exercise in this regard all the powers conferred upon the council of admin- istration by article 22 of the statutes. Further, to negotiate and conclude all contracts, whether for the purchase and sale of the merchandise and other objects or for the exploitation of all or part of the .social capital by lease or otherwise, by forfeit or by means of fines or parts of the lM>nefits; to borrow all sums necessary for meeting the engagements of the society; to confer all guaranties upon the lenders — in a word, to do all which circumstances require in the interest of the society, tlie powers above mentioned not being limited. Tlie oreneral meetino; of the sharelidlders of the company M'as held December 27, 1890. From the liquidator's report made to this meet- ing it was learned that the approval given by the shareholders at their meeting of June 23 to an arrangement that would merge the Comi)any General of the Orinoco in a new English company, as is previously stated herein, was so far completed on June 7, 1890, that an agreement had been signed b}' the company with the "Gold Trust and Invest- ment Company" providing for such transfer. Following the approval of the shareholders, as above stated, the new company, the Orinoco Exploration and Trading Company, was formed and registered in England. Owing, however, to the political relations then existing between England and Venezuela over the boundary line between the latter country and British Guiana, involving, among other (piestions, claims on the part of England in connection with the outlets of the Orinoco, the Government of Venezuela, from reasons of state, as it is understood — absolutelj' refused to acknowledge this new company and to transfer to the same the rights and concessions of the French companj*. This cjuotation is taken from the report of the liquidator at the shan^holders' meeting of December 27. 1890. He goes on to sa}' in his report : It was but very late that I was made acquainted with the cau.^es %\hich were opposed to the formation of the English company, and this delay was the cause of my losing very valu- able time; but the nunnent I knew of these causes 1 took steps conducive to a result which might save our company. I have appealed for assistance to the former directors of the company who are now nego- tiating with the Government of Venezuela, and iiave looked towarti another .solution of the problem, wliich is the only means of assuring the future of the company, vi/,. the recon- struction of the present company with an increase of fresh capital in cash. Following the rej)ort of the li([uidator the duiirman of the nictning announced — That owing to the facts which had just been mentioned by the iiiniidator the i)i)-\i-d of directors had sent to Caracas Mr. licit hier, who had been a former agent of tlie company, with the following mission: OPINION OF THK UMPIKK. 345 To obtain from the GovcmmcMit the revision of th:^ old eoncessions, whieh evidently con- tained clauses wliich were einhurrassini^ to the Government , as well as to the com|)aiiy. Mr. Berthier Wius, besides, to make sure tliat the Government would make no dilhculties for the transfer to a new company (provided this he not an Knsilish company) of all the rifihts and concessions accruing from the new contract. The double purpose of Mr. Berthier's mission has been obtained; the terms of the new contract propcsed have been accepted, and one of its clauses will allow the transfer to a new company. The new company will lie French- Belgian, formed with the a-ssistance of a powei ful Belgian group. The chairman then read the draft of the articles of concession of the French-Belgian company information. At some time succeedino^ October 1 1, 1890, on which day he appeared in the hio;h Federal court as the attorney of the company, Mr. Andrés .Fiat resijjned his position as such attorney, and Mr. Bernabé Planas was appointed, but he declined the appointment. On the advice of Mr. Delort it was then determined, as above stated, to send Mr. Berthier to Caracas as a special apjent of the company, he being well accj[uainted with all details of the matter. He arrived in Caracas October 25, 1890, and remained imtil July, 1891. His mission, as disclosed by the statement of the chairman above f^uoted, was to be confined to negotiations with the Government looking to a discontinuance of its suit without costs to the defendant, a relinquishment on the part of the company of the concessions it held, the Government to grant to the company for a period of twenty- five years the exclusive right of steam navigation on the watersvays of the Federal Territories Upper Orinoco and Amazonas and in the rivers Caura and Cuchiroro, during which period the Government would not grant a similar concession to any other person or comj^any. This arrangement was put into writing; and in article 10 of this agreement there is found the following: This contract can be transferred to any other party or company with the previous assent of the Federal Government, without which formality that transfer can not be effected. However, as an exception, this contract can be transferred in part or in whole to the Belgian company called Compagnie Internationale des Caoutchoucs et Produits Naturels au Bassin de rOrénoque. In another part of the agreement the company was accorded the right to construct within the Territories mentioned such railways and telegraph lines as it might think convenient or valuable. Through misadventures this agreement was not effected. In the meantime, anticipating success in the above-mentioned negotiations, the Belgian company had been constituted tt) take oAcr the new contract. In the end there was no new contract and the Belgian company did not become effective. The departure of Mr. Berthier for Paris July, 1891 , left no attorney to represent the company before the high Federal court, and it does not appear that another was appointed. March 17, 1891, His Majesty the King of Spain published his award settling the boundary dispute between the Republics of Venezuela 346 COMPANY (lENKKAL <»K THE ORINOCO CASE. and Colombia. It was unfavorable to the first-named country and sustained the contention of the latter. It gave to Colombia more than one-half of the area of the Federal Territories Upper Orinoco and Ama- zonas as claimed by Venezuela up to the date of the ro^^al award. It made the Orinoco south of its junction with the Meta, the ('asi(|uiare. and the Rio Nec^ro the line lietween the two countries, g^iving both of them ec[ual rio;hts therein. It removed from the control of Venezuela tlie Rio Guaviare, Vichada, Inrida, Atabapo, and Guainia. Of these the last four were wholly and the first was lar«iely in the territory of Venezuela, as claimed by that Government in her contention before the royal arbitrator and as it appears from its official maps. Similarly the maps current in the United States of America prior to 1891 allotted this territory to Venezuela. Under the rectified boundary these rivers are wholly within Colombian territory. On the territory thus removed from the dominion of ^'enezuela the company had established on the left bank of the Vichada an hato, where had been installed 800 cows, 12 bulls, mules, and donkeys, and had there prepared lands for cultivation; on the left bank of the Guaviare it had begun the cultivation of sugar cane, had built a sugar house and a still; on the left bank of the latter river and also of the Orinoco had been begun improvements of the cacao. Of these enterprises the Government of Venezuela had received due and seasonable notice. The compan}^ considered a valuable part of its concession to be the marble deposits on the Inrida, the minerals in the region of the Guaviare, and above all the great savannas west of the Meta, regarded as xerj valuable for cattle raising. It is now time to bring forward the decree of rescission pronounced by the high Federal court. The amendment, previously named, which was made by the fiscal nacional de hacienda of June 19 was to the effect that examination of the documents relating to the articles imported by the Company General of the Orinoco disclosed that the unpaid duties on these articles by reason of the company's exemption amounted to 40,048.62 bolivars, which sum is demanded in damages as a substitute for 600,000 bolivars, which appeared in the original petition. The answer which was made by Andrés Fiat to the suit in question on July 22, 1890, is in substance and effect summarized in that portion of the decree which is herein quoted, and therefore need not be set forth here. Upon the issues formed and upon the testimony adduced before the high Federal court it proceeded in due course to the consideration and determination of the cause and to the pronouncing of its sentence. The decree of the high Federal court is a carefully considered and carefidly written document of many ])ages, but that which is essential to the questions here involved can be easily abbreviated. After OPINION OF THE UMHIKK. 347 having brought into the decree the essential facts connected with the process and proceedings anterior to the setthng of its decision the court says: 6. Tliat it ivppoars from the documents that the Government has fulfilled on its part all the obligations wliich the contracts ¡already mentioned imposed upon it. And considerinji that from the documents result the proof of the failure of accomplishment by the Company General of the Orinoco of the obligations, 1 2, 8, 4, ó, (5, 7, and 9 of the first contract, and also that it has not carried out the stipulations 3, 4, and 5 of the second contract, the Govenunent having brought to an end the perfect execution of the said contract; that the representative of the said company has alleged, in reply to the demand of the present process, that " the facts on which they pretend to base themselves are not certain, or are inexact, and those which really can be established prove that the company has fulfilled with extraordinary efïort and diligence and with enormous expenses up to the point where there have appeared insurmountable difficulties, which constitute /o/re majeure, or acts of author- ities dependent upon the Government itself and contrary to the stipulations of the contract." That these exceptions offered by the company do not appear to be proven by the docu- ments of the present process, and that finally the lack of accomplishment on the part of the company of the two contracts referred to is an evident fact being given that in the present case are applicable the provisions of article 1149 of the civil code, in virtue of which the omission in the accomplishment of any one of the requirements of a contract is equivalent to its absolute inexécution when there is no agreement to the contrary, and it has not been alleged nor proven that any compact of this nature exists; that article 1110 of the civil code establishes that " the resultory condition is always implicit in bilateral contracts in the case where one of the two contracting parties does not accomplish its ol)]igation;" that as for the resolution, it has the effect which article 1256 of the same code provides; that article 1163 of the said code imposes the payment of damages and prejudices to the debtor who does not execute his obligation, damages, and prejudices which in the present case amount to 40,048.62 bolivars, according to the liquidation produced by the demander, a sum to which the claim of the treasury on this subject is limited. For such reasons the high Federal court, admin- istering justice in the name of the Republic and by authority of the law, declares to allow the chxim presented in the present process by the fiscal nacional de hacienda against the Company General of the Orinoco, and consequently is declared the resolution of the con- tracts of May 24. 1886, and May 31, 1887, passed by the National Government with Messrs. Tejera and Dclort, respectively, of which the company named is cessionary. The Company General of the Orinoco is sentenced to pay to the National Government the sum of 40,048.62 bolivars for damages and prejudices caused to the nation from the non- accomplishment on the part of the company of the contracts named, together with the expenses of this process. There was no appearance on the part of the company on September 29, 1891, at which time the National Government was properly repre- sented and was heard m oral pleading before the court. No notice was served or summons made upon the counsel who hail appeared in the case for Mr. Fiat. Indeed, since he was attorney of the company, and they were his counsel only, their relation to the company and to the case since he had resigned, their right to appear and to be heard, or the duty of the Government to have them cited in, had such a duty rested upon the Government at that stage of the cause, is in none of these respects verj^ clear to the umpire. There was no attorney of the company then resident in Venezuela, and there had been none since July previous, but whether this fact was known to the Government 348 (((Ml'ANV (íKXKKAI, of the ORINOCO TASK. or to tlie court doos not appear. The evidence of two witnesses adduced l)y the company is referred to by the court in its decree as liaviny; been considered l)y it in coinin<^ to its linal juil<];nient. Aside from this evidence the court was not assisted by the company in any- way after the court berwards, notwithstanding adequate jirovisions had been made by the company OPINION OF THE UMPIRE. 349 with a Liverpool firm to furnish the re(}iiisite ñinds to complete the payment for those products and the a<;ent of the iirni had been sent out to Venezuela for that purpose, and in spite of the fact that much of the india rubber had been harvested by means of advances which the company had made aforetime. Mr. ^^alentin Perez, the trusted representative and a slightest degree any other than a scrupulous regard for the lights of the defendants therein. With this judgment formed from his study of the |M'oce(lur(> in this case the umpire wt)uld be peculiarly constituted if he should hokl OPINION OF THE TtMVIRE. 855 that this distinguished body ANould necessarily depart from its well- ordered course when there was presented before it a just cause for reconsideration. In the suit to rescind the contracts of December 17, 1885, and of April 1, 1887, it is therefore adjudged that the decree of the high Federal court of October 14, 1891, 'is not now open to attack by the defendant therein through the intervention of the claimant Govern- ment, and it is not a denial of justice under the treaty of 1885, or in virtue of the rules and principles of public law. It follows, therefore, that ever^^ matter and point distinctly in issue in said cause, and which was directly passed upon and deter- mined in said decree, and which was its ground and basis, is con- cluded b}' said judgment, and the claimants themselves and the claim- ant Government in their behalf are forever estopped from asserting any right or claim based in any part upon any fact actually and directly involved in said decree. The general principle announced in numerous cases is that a riglit, (juestion, or fact dis- tinctly put in issue and directly determined by a court of competent jurisdiction, as a ground of recoverj', can not be disputed, etc.. Southern Pacific R. Co. v. U. S., 168 Sup. Ct. Rep., 1. (S. C, L. C. P. Co., 42, 377, %vith extensive annotations.) Also, see 9 Encylc. PI. and Pr., 625, and the notes. Is this holding by the umpire conclusive of this claim? The answ^er is affected by the decision which he will make upon the proposition, that no award can be predicated upon any other ground than a denial of justice ; which proposition is based upon the ground that the treaty of 1885 is determinative of the issues which ma}' be decided by this honorable commission. If the treaty of 1885 is applicable to this ease, then liis position in reference to the decree of October 14, 1891, decides adversely this claim. If the treaty of 1885 was bjpfore the umpire he would interpret its provisions as did the honorable President of the Swiss Republic in the Fabiani aw^ard. Being so interpreted, it would be impossible to award damages here. There has been no denial of justice, nor such a delay of justice according to usage or to law, nor such exhaustion of the legal means available to the claimants, nor such a violation of treaty or the rules of the right of nations as would admit of a favorable award, if the jurisdiction of this honorable commission is thus limited. Such, how- ever, is not the interpretation placed by the umpire upon the conven- tion of February 19, 1902. Article 2 of that protocol provides that — Demands for indemnities other than those which arc aimed at in article 1 . l)ut based upon facts anterior to tlie 23d of May, 1899, will be examined in concert by the minister of foreign affairs of Venezuela and by the French minister at Caracas, etc. All of the cases which came before this honorable commission at Caracas in 1903, including the eight reserved for the consideration of 35fi (OMPANY GENERAL OF THE ORINOCO CASE. the umpire, wero under the above provisions of article 2, which con- cludes with the clause: It is intended that tliis procedure, like that whicli is adopted for the claims of 1892, is instituted as an exception only and does not invalidate the covenant of November 26. 1885. The ])r()visi()ns of the treaty of 1885 were not interposed in the case of Jules Brun, heirs of Maninat, Frierdich & Co., heirs of Massiani, Fieri & Co., or Antoine Fabiani. It was apparently not interposed in Caracas af^ainst any of the cases heard by the honorable commissioners and reported in Ralston and Doyle's Venezuelan Arbitrations of 1908. None of the six cases above referred to antl now before the umpire for his decisi(m rest upon denials of justice. All have been submitted upon the claim, implied or stated, that the treaty of 1885 did not apply. The Fabiani claim was based entirely upon this proposition. To these positions of the claimants there has been no dissent on the part of the respondent Government. The umpire has been permitted to proceed upon this theory and has made liis judgment and awards in accordance with what he understood to be the admitted construction of the con- vention of 1902; and it is not until he reaches the case now in hand that this question is raised, if it is now distinctly raised, by the respond- ent Government. He is inclined to the view that it is practically in assent to the assumption of the eminent counsel for the claimants that such might be the construction of this treaty that the respondent Gov- ernment takes the position it has seemed to take in this case and contends for the paramount authority of the treaty of 1885. Were the umpire unaided by the interpretation wliich in practice has been placed upon the protocol of 1902, he would have no serious difficulty in construing it adversely to the contention of the respond- ent Government. In efi^ect, if not in express terms, the treaty of 1885, by the convention of 1 902, is left in force generally ; but for the puq^oses of claims to be considered under article 2 of the last-mentioned con- vention the treaty of 1885 has wholly superseded and practically abro- gated it so long as the protocol of 1902 remains effective. Such nuist be the meaning of that provision in article 1 of the ]irotocol of 1902, which relates to — examininfi in concert the demands for iiidenniity presented by Frenthmcn for danuij^es sustained in Venezuela, etc. Concerning this there might exist a doubt, but not when there is considered the ])r()visions heretofore quoted, that the ])roceilure insti- tuted by the ])rotocol of 1902 is — as an exception only and does not invalidate f lie covenaiil of XovciiiIxt 2(1, 18S.5. Tiic uiii])irc iiolds, therefore, that by the terms of lluM-oiiNciit ion of FcbiMiary 19, 1902, he cim awai-d such sum in daniag(>s in any ¡lud ¡dl of I lie cases subiuitlcd lo jiiin ;is. in his judgmciil . ])r()])('ily clarilicd OPINION OF THE UMPIRE. 357 and stoatlied by the etliical precepts o I" international law, tHjuit y ai id good conscience demand, in no respect limited or controlled by the treaty of 1885. It is a consequence of this holding that if there were aught of wrong toward the (V^mpany General of the Orinoco done or permitted by the respondent Government through officials or persons for whose acts the Federal Government is responsible which were not concluded in and determined by the decree of October 14, 1891, then over such this hon- orable commission has jurisdiction and for such there may be an award m damages if justice and equity so permit and so require. In the o])inioii of the umpire there are many matters anterior to Ma}' 28, 1890, which might seriously affect the rights of the content! ing par- ties which were not at all involved in the decree of the high Federal court. The restrictive (jualit}' of estoppel by judgments is well under- stood. It is not broader than the rule stated by the umi)ire in this case. It is only the particular matter in controversy which is decided. It is the exact issue as formed which is determined. There must be identity of cause, the same questions in issue, the same subject-matter. (9 Encycl. PI. and Pr., 622-623; id., 624, 625; Storj^'s Eq. Pleadings, par. 791 ; 24 Encycl. of Law, 2d éd., 775; 5 Encycl. PI. and Pr., 780.) What was affirmed in the case in question by the plaintiff therein? (1) That on the part of the plaintiff Government it had ñilfilled the stipulations agreed to in both contracts. (2) That certain articles and parts of articles of both contracts as set out in the declaration had not been ftdfilled on the part of the defendant. Wliat Wîis the pleading of the company ? (1) Thi.t it liad ])erformed. (2) When it had not performed it hud been prevented by main force or by the acts and neglects of the Government or by the acts and neglects of the authorities for whom the Government w s responsible, these acts and neglects referring to tlie matters of the contract. Such were the issues. These were determined: That the Government had ful- filled on its part all the obligations which the two s id contracts imposed uj)on it; that the défendent had not fulfilled the o})ligations contained in Nos. 1, 2, 3, 4, 5, 6, 7, and 9 of the contract of December 17, 1885, nor the stipulations 3, 4, ; nd 5 of the contri ct of April 1, 1S87; that it was not prevented from fulfilling these obligations liy insurmountable difficulties constituting /orce majeure nor was it so prevented l)y the acts of raithorities dependent upon the Government itself and con- trary to the stipulations of the contract. This reference to the acts of authorities dependent upon the Government in the answer of the defendant in excuse for its failure to fulfill certihi of its obligations is understood solely to refer to matters springing from the contracts and referring to the Government as the other party thereto. Such also in the opinion of the umpire is the force, extent, and V!).lue of the decree upon that point. However, from the attitude wliich this 358 COMPANY OENERAL (>F THE ÔRINOPO CASE. chiiin has assunu-d in [\\v iniiid of the umpire it is not ncci'ssary thai he make criticr.l analysis of the decree or •>!" the elements of fact anterior to Mav 2S, lSi)(), wliicli niüv or m;'y not l)e inehided therein and eonckided therehy. The answer of the defendant company in the suit for rescission was in defense only. It presented and suetwcen the same parties is upon a différent claim or demand, the judgment in tbi'jirior action operates as an estoppel only a.s to those matters in is.sue or points controverted, upon the determination of which the finding or verdict was rendered. In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cau.sc of action to matters arising in a suit upon a different cau.so of action, the inquiry- must always be as to the point or question actually litigated and determined in the original action: not what might have been thus litigated and determined. Only upon such matters is tlie judgment conclusive in another action. (Cromwell r. Sac County, Í Otto (V. S. Sup. Ct.), 3.51-371; (S. C, L. C. P. Co., 24, 19.5-204, and note.) The law in respect to estoppel by judgment is well settled, and tlie only difficulty lies in the application of the law to the facts. The particular matter in controversy in the adverse suit was the triangular piece of ground, which is not the matter of dispute in this action. The judgment in that oa.se tlierefore is not conclusive in this as to matters which might have been decided, but only as to matters irhich were in fact decided. (Last Chance Mining Co. r. Tyler Mining Co. 1.57 V. S. Sup. Ct., 683-68.5; (S. C, L. C. P. Co. 39, .S(i2): 9 Encyd. PÎ. and Pr., 629-6.30; 24 Encycl. of Law, 2d éd., 77.5.) Not having been pleaded and passed upon in the suit for rescission, all claims or demands which b}' the claimant company on May 28, 1890, might have been plead i:s counterclaims or claims in set-off to the suit for rescission in its prayer for damages, or which might have consti- tuted at that time ground for an independent action, are ])roper to be presented and considered in this honorable commission t s substantive ground for an award. (24 Encycl. of Law, 2d éd.. 775; id., 7i)l .) It is certain that a claim in offset would not be concluded by a judgment wiien it was neither placed, considered, nor dcducled in making up tlie judgment. (Sup. Ct. of Vt., found in .52 Vt., 121.) For the same reasons as have already been given, the decisitm of October 14, 1891, settled nothing after May 28, 1890, the day on which the suit to rescind was entered in the high Federal court by the ii.scal nacional de haciendti. The issues were formed as of that date. Tlie cause of action had then accrued. It then existed or the court had no jurisdiction. For .such ctiuses as accrued after that date the coiHl gaint'd no juri.sdiction in virtue of the suit then ])ending. The (►PINION OK THE rMITKK. 359 actions of the claimant coni])any and of tlic respondent Government posterior to that date arc all |)ro])cr subjects of inqiiirs' and of award. Tl\o rausc of action does not accrue until tlie existence of such a state of things as will enable a person liaving the proper relations to the property or persons concerned to l)ring an action: * * *. (i Bouv. Law Diet., 295.) Causes of action must e.xist at time of commencement of suit. (1 Encyci. PI. and Pr., 209). Hence a judgment against a defendant is not conclusive as to .set-t)ir or counterclaim which he might have pleaded to the action. In the absence of statute a defendant having a cross-demand against the plaintilT may, at his election, either use it in the pending suits as a set-o(ï, or reser\'e it to be used as the l)asis of an independent action. Ilis failure, tliere- fore, to plead it does not preclude him from bringing a sul)sequcnt action upon it. (24 Encj'cl. of Law, 785. ) Notwithstandino; the clear rifjlit of this honorable eommssion to weicih, pass upon, and merge in the award any and all rightful claims for damages inhering in the claimant company for wrongs suffered through those for whom the respondent Government is responsible and w'hich occurred prior to May 28, 1890, it does not become necessar\" to take tliis position m order to obtain equity in tliis claim, and for that reason only none such will be considered for that purpose. There is no disagreement that in the spring and summer of 1890 arrangements had been perfected by the liquidator of the company and approved by its shareholders whereby an English company regularly organized and registered was to take over the properties and franchises, rights, and privileges of the Company' General of the Orinoco, assume and pay its indebtedness, and furnish a pecuniary basis for the continuation of its enterprise. It is agreed that this compact and these results failed to be consummated solely tlu-ough the absolute refusal of the respondent Government to permit it. There were unquestionably grave reasons of state wliich animated and inspired this action of the respondent Government and wliich in its judgment required and compelled it to take this course; but it was as fatal to the interests of the claimant company as though diíTerently inspired. The contention wdiich had been ver^' tlireatenmg and serious between the United States of Venezuela and Great Britain over the right of the latter to an ec^ual control with the former Gov- ernment of certain mouths of the Orinoco — a right claimed largely through alleged occupancy bj' the British citizens of the country contiguous thereto — was a cogent reason why the former Government should seriously object to any relations with a British company through a contract which by its very terms gave exclusive rights in certain portions of that river and peculiar privileges over its whole extent. That to Venezuela it seemed impossible to permit such a condition to exist is evident from its acts. That it was wholly justified in this assumption is the opinion of the umpire. As a party to the contract, however, it was bound by its terms, and one of its provisions spe- 3('>() COMPANY (;kní:ral ok thk ohixoco case. ciiifully ])t'riiiitlt'(l, uithoiil rest iiCt ¡on or siipcixision, just such ¡iii assitjnnient as was proposed. Tlie ri<;lit to assit^ii was the solr value ol' the contract to tlie ori^íinal concessionary. It was exercised airain in the contract passetl from the syndicate to the company. These assignments were recognized by the respondent Government. The inter])retation was tlnis and then made by the parties thereto and especiall}' hj the Government of ^>nezuela that the assignment named in the contract was not restrictive in its operation to the first concessionary. Witlioiit sucli an inteq:>retation l)y the parties thereto it wouUl seem to the umpire to be the only correct inference to be drawn from the language used when the piiqjoses and coiiihtions are considered. This is beyond all fair question. As the Government of Venezuela, whose duty of self-preservation rose superior to any question of con- tract, it liad the power to abrogate the contract in whole or in part. It exercised that power and canceled tlu' provision of unrestricted assignment. It considered the peril superior to the obligation and substituted therefor the duty of compensation. Had there been no other troublesome (piestion cf State entangled with the contracts of the Company General of the Orinoco it is quite possible that this gov- ernmental surgery would not have taken the life of the claimant com- pany. Such entanglements, however, existed. One is found in the controversies between Venezuela and Colom- bia over the terms of those ccmtracts, the territory involved, and the claims of the company in connection therewith. A careful student of the situation quickly discerns the delicate position occupied in that matter by the respondent Government. It is not difhcult to under- stand the supreme confidence of Gen. Guzman Jilanco and of \'ene- zuela in general, concerning the favorable final outcome of the arbi- tration then resting in the hands of Ilis Majesty the King of S])aiii. This belief was .so intense, so complete, that it is evident that the dispute over the boundary and the pending arbitration were not dis- turbing factors in the ])lans of Venezuelans or of their (íovernment. This easy and perfect coniidence begot a carelessness of conduct in reference to the territories involved, readily imderstood but none the lesh, even more, distur])ing to the other ])arty litigant. The ])osition of Colombia was undeniably correct. A'eneziiela could not (|Uestion it. The serene c(mlidence of Gen, Guzman Blanco and his coni])atriots had unintentionally betrayed the Ke])nblic into a seeming .serious afl'ront to Colombia. The contracts were .susceptible of no other interpretatiim than thai through thcni there was an assumi)tion in Venezuela of exclusive control over the U])])er Orinoco and its im])or- tant conduents entering it from the west and ov(>r larg(> areas of terri- tory to the west of the Orinoco. Eijually, there was an assumption that this control was to cxi.st indelinitelv. notwithstanding tho OPINION OK THF. TMI'IRK. 361 poiidinjí liti reasons stated had become a source of serious national danger. The changed position of the respondent Government toward the claimant company, a change not at all obscure or doubtftd, is thus easily and, as the um- pire believes, correctly explained. No other than a paramount rea- son, in the belief of the State, can explain the ministerial decree of May 17, 1S90; the suit for rescission of IMay 29, 1890; the gul)erna- torial decree of June 16, 1890; the administrative decree of August 9, disaffirming the action of the governor only because it was a usurpa- tion of power, but displacing it with the ministerial decree of August 9, 1890; the successive and progressive acts of the ministers and the governors of similar tenor and effect together substantially annihi- lating the enterprise. No ordinary cause woiUd have suggested or permitted this destruction of an internal improvement possessing such potentialities for the future of Venezuela, against the ordinar}^ policy of the country, which had been to foster and encourage such enterprises. The umpire does not question that there was an intimate relation l)etween these administrative and official acts and the attitude of Colombia toward the respontlent Government in regard to these con- tracts. The prompt report made by the minister for foreign affairs to the minister plenipotentiary of Colombia at Caracas has deep sig- nificance when it is noticed that it answered a communication of that same Colombian minister of date Januarj^ 24, 1890, which answer had been apparently withheld until something of a positive and decisive character coidd be given. Five days after the suit was entered in court, three days after the company had been summoned, the day after Mr. Fiat appeared, this notification to Colombia was made. A suit for rescission did not satisfy Colombia. Its interests were still, in its judgment, imperiled and would remain thus imperiled so long as the company had power or opportunity to extend its exploitation over the debatable ground. Colombia by its reply of June 6 indi- cates this very precisely and emphatically to the respondent Govern- ment. Following this correspondence there were the gu])ernatorial and administrative decrees of June Hi, August 8 and 9, the telegrams of the minister for the interior of August 29, and his letter of Septem- ber 10. Other facts might be easilv adduced which are of some evi- 3fî2 (OMl'AMV (íENKRAL <>K THK ORINOCO CASE. (lential value, all tendinis toward the same end. Enough has been said, liowever, to suiijîest the «iroiind upon which the umpire bases liis judgment that the strait of \'enezuela in regard to the Colombian incident was a potent cause for the ])osition assumed by the responilent Government toward the Company General of the Orinoco in 1SS9. 1890, and 1S91. It was a questi(m of governmental policy, and that Venezuela decided upon this plan of action must be attributed to its solicitude for peace with a sister Republic. liinining as a not unimportant thread in this warp of discomfort and resulting discontent of the respondent Government was the attitude of antagonism toward the company assumed by the business men of the Orinoco from Ciudad Bolívar through theTerritoriesof tapper Ori- noco and Amazonas. The monopoly in the natural products granted in its concessions interfered with their personal enterprises. These privileges were in compensation for the very important obligations resting upon the company, which when fulñlled were to be of incal- culable value to the country, but this did not prevent the sense of wrong and the feeling of revolt on the part of these people. That this feeling was general and deep on their part is readil}" discerned. The governors and officials there resident were naturally sympathetic. The President and his c abinet observed and were disturbed by these manifestations of anger and dissatisfaction, which became very appar- ent. The situation in this regard was grave. The Perez campaign was perhaps the most violent and destnictive, but it illustrates the situation. These contracts then became a source of constant annoy- ance to the administration at Caracas and of menace to the internal security and welfare of tlie State. It is (|uite probable that the natural hostility of the business men of that section of the country was increased and made bitter and rancorous through the method and manner of some of the agents of the company. Where concession and concilia- tion might have been most valuable emollients, they were not always in evidence, but instead there was no doubt at times superciliousness and arrogance. Such is the purport of the evidence before the umpire. It is too like a possible fact to be discredited. It is not strange with all the cunmlative reasons therefor that tlic Re|nd)lic of Venezuela becanu» ver}^ weary over the situation which its contracts had created or ])er- mitted, or that it sighed for relief therefrom at whatever cost. The .sum to be awarded the clainumt GovernnuMit in behalf of the liijuidators must })e nuide comnuMisurate to the danuiges causeil by the act of the resptmdent Government in denying edicacy to the con- tract of a.ssignment from the Company General of the Orinoco to \ho English company. A careful study of the e\-ents connected with this Governmental act, and of those which followed, reveals nothing wliich in any degree lightens the rcs]i()nsii)ility or in any i)iirt chnngiv-^ the OPINION OF THE HMPIRE. 363 relation which the respondent Govenuuent assumed toward tlie (com- pany General of the Orinoco and its creditors when it exercised this sovereign rii^ht. The successive st'rui>:«!;les of the company for exist- ence which followed this act have been collated in this opinion; they need not here be referred to in detail. vSuilice it to say that its ruin was not its fault. It fouvolutionary upheaval of 1892-93, the unsettled conditions which followed, then, at the hands of the executive and judicial powers of the Territory — Upper Orinoco — the finale. These efforts of the company for resuscitation and the expense involved were necessary, but they can not be charged against the respondent Government. They are not a proximate residt of the primary act for which it is held responsible in damages. The Venezu- elan Government might make a new contract but it was not bound to do so. It might recede from its suit for rescission, but it had a right to refuse to do so. These were matters of negotiation, and that they resulted unfavorably to the wishes of the company is unfortunate, but it does not add to the pecuniary responsibility of the respondent Government. The acts of administrative authorities in 1S90 hereto- fore referred to onlj^ c^uickened the process of dissolution. There was in it all no demonstrated financial loss to the lic{uidators on the basis upon which this award is to rest. It was not the liquidators but the Liverpool firm, which was to reap the pecuniary benefit of the conces- sion for 1890. To the suggestion that there was undue and unneces- sary loss of the property because of the acts done or permitted by the respondent Government from 1890 to 1893, both inclusive, there is this answer, that the award practically covers that investment so far as the liquidators are concerned, and it is impossible from the data at hand to arrive at any just conclusions concerning the pecuniarj-^ loss, if it were proper or necessar}' to consider it at all. To the possible sug- gestion that the arrangement with the English company might have proved illusory, when the suit for rescission had become known to this latter company, there is the answer that there was then ample grounds for the successfiü defense of that suit, had defense been the desired polic}' of the company. A fidl defense lies in the fact that there was in this suit for rescission no oft'er to restore to the company the benefits con- ferred by it upon the plaintiff when coupled with the uncontroverted fa-zt that the companj' had conferred many and repeated benefits upon the plaintiff Government, which were capable of being measured in money, and for which there had been no compensation. Notably among these benefits is the one stated in the suit itself, where it refers to the amount paid by the company to the Government under its con- 864 COMPANY (íKNKKAL oF THK oRlXoPo CASE. tructs for the oxploitation ami i'X|)<)rtati()ii of ¡lulia rubber ami sarra- pia. {24 Kncyd. of Law, 621.) Many otlier o(|iially ])ertineiit easily discerned farts in the historical data are broiif;ht into this case, in the opinion of the umpire. It is not necessary to do more than to refer to them in this general way. Again, it was easily suscej)ti])le of j^roof that the respondent (rovemment could not sustain its contention that it was without fault in the prem- ises, and this is an essential fact which must always precede and accompany a suit for rescission and without which there must always be judgment for the defendant. In the Encycl. of PL and Pr., vol. 18, page 752, there is laid down this general proposition: The right to rescind Ijolongs only to the party who is liirnself witlioiit defaiih . Thus, if one having sufTicient ground therefor wishes to avoid a contract, hut has done some act wliicli hinders performance by the other, or has failed in any way to perform his own part of the stipidations, his riglit is thereby lost to him. What were these defaults of the respondent Government? There was the Colombian incident ])nstling with points along this line; there was the decree of the minister of hacienda of Maj' 17, 1890; there were the unrecompensed requisitions of 1888 and 1889; the decree not disailirmed, not annulled, of Governor Larrazabal, October 31, 1888, an indisputable attack upon the terms of the contract; the absorption of the workmen of the company at Caura for the national defense, which, while proper, if necessary as an act of sovereignty, was none the less an attack upon the terms of the contract, when the Government is viewed in its proper position as the other party thereto ; its neglect to allot or designate lands for immigrants as and when requested; its neglect to allot or designate lands for agricidtural pm- poses as and when requested; the traille in india rubber enteretl into by Governor d'Aubeterre in direct contravention of the exclusive privileges inherent in the company imder this contract, and t)ther incidents not so important, which, taken together, add force antl value, yet need not liere ])e brought forward. The umpire is convinced that with these facts proven before it the high Federal court would have rendered a judgment for the defendant . Certainly a coin*ageous com]>any, conversant with these facts, would not have regarded the retention of the contracts as a very (l('l)atnblc proposition, and for that reason alone would no! lunc regarded them as of insignificant value. This point is adverted to oidy that there may be negatived any proposition that on knowledge of the suit for re.scission the British company might have refused to go on with its contract on the terms agreed upon. This ¡xjsition of the umpire does not at all rellect upon the action of the high Federal comt , which proceeded to pass its decree upon tli(> facts which were beft>re it and U|)on a cause whose defense had been abandoned because its mana- ruarv 19, 1902, must Ije determined. He fails to find such power, but finds it limited to providing indemnities for damages suffered by Frenchmen in Venezuela. To accom- plish this, its methods of procedure must not contravene the general and established principles of the law of nations, nor its awards be oppo.sed to justice and equit}-. It is given no power to revoke, rescind, modify, or limit the terms of a contract to the very least degree. Such was not the purpose of its creation, it was endowed with no such powers. Were rescission or abandonment agreed upon between the claimant company and the respondent Government, then it might lie competent for the com- mission to establish the indenmities for such rcscis-sion or abandonment. The contracts in issue were mutual and reciprocal, and neither party can make abandonment or rescission without the consent of the other. Tlie United States of Venezuela d status quo by returning the funds. It is also held negatively, becau.se there is no ofi'er to restore, and if there were offer to re- store, this conmii.ssion under the protocol has no power to compel its acceptance. The claimant company was compelled by force majeure to desist from its exploitation m 1899. The respondent Govermnent from the .same cause was prevented from paying its indebt- edness to the .claimant companj^. This was the sole cause of the acts and neglects of the respondent Government. Its first duty was to itself. Its own preservation was paramount. It had revenues only sufficient to that end. The respondent Government is not chargeable with the loss which came to the company through the confusion and havoc of war, or because there were none to ride and no prod- ucts to be transported. This was a part of the a.ssumed risks of the conipan}- when it entered upon its exploitation. Such possible disordered conditions of a country are all discounted in advance by one who enters it for recreation or business. There is no question a.s to the liabilit}' of the respondent Government for the natural and consequential damages which resulted to the railroad properties while they were in the use and control of the titular government. There is unquestioned responsibility on the part of the respondent Government for all the necessary and consequential injuries which resulted to the railroads and its properties when used by either the successful revolutionary or the then contending governmental forces. OPINION OF THE VENEZUELAN COMMISSIONER. Mr. Albert Revnaud, deputy administrator of the "Compañía Francesa de Ferrocarriles Venezolanos," in a communication which he addressed to his excellency the minister of foreign affairs of France, dated the 21st of January, 1901, introduced before said department S. Doe. 588, 59-1 24 370 FRENCH COMPANY OF VENEZUELAN RAILROADS CASE. the claim Avhicli is tlic object of this o])iiiion. in the followineen aj)])reciated; and re^ardino; the steamers that were at the OPINION OB' VENEZUELAN COMMISSIONER. 371 service of the company the indemnity is based on the primitive cost of said vessels, deductinji the sum of 11,100 francs whicli (lie company received for the sale of two of said steamers, the Reliance and the Santa Barbara. The representative of the Venezuelan Government, in his reply to the foregoing claim, denies any proving force to the documents presented by the company, as it only consists in a statement of facts which the company itself narrates without any j)roof of the veracity of its asser- tions; and said documents, on the other hand, far from being favorable tt) the company, offer, on the contrary, sufficient merits to support very serious charges against the said enterprise for not having com- plied with the obligations it contracted and for the abandonment of the railway without any reason that might justify a measure of such a significance, which latter fact renders it responsible for the losses deriving therefrom to the commerce of the regions which the Govern- ment intended to benefit by the railway concession in question. The agent of the Venezuelan Government refers in his reply to the technical report presented by Drs. F. Arroyo-Parejo and Ocanto, which was formulated in the very field and by order of the national executive in December of last year, appreciating that said report shows clearly and scientifically that the larger part of the losses sustained by said company are due to the bad construction of the line in the first place, and then to the abandonment of it, which facts are ])roved by the official documents produced by the Government and excluding any responsibility on its part; that what he has said of the line must be applied to the steamers the company had at its service, for the losses claimed for that respect are due to causes imputable to the claimant, which abandoned the exploitation without a reason warrantable in law and without taking into consideration the prejudice which by so inconsiderate a step it had to cause to the other contracting party, which up to the present has reserved to itself the action which pertains to it in law to legally claim the same; that regarding the other losses which the company says it sustained on account of facts imputable to armed factions and enemies of the public order raised against the law- ful authority of the Government, it is a (piestion determined in accord- ance with the priiïciples of international law that lawfully constituted Governments which have endeavored by all the means at their disposal to reestal)lish order and energetically to afiirm their authority are not responsible for such prejudice, and in conclusion the representative of the Government of Venezuela argues that the claiming company itself is the cause of the prejudice which it says to have sustained and of those which by the abandonineut of the concession it has caused to Venezuela, The points debated in this cliiiiu liiiviug ]n'v\\ lixcd, it pertains to this tribunal to examine the facts that may a|)p(>ar pioxi'd and to 37*2 FKENCH COMrANY OF VENEZUELAN RAILROADS CASE. estahlisli the rosponsihilitios wliicli tliose facts may ori^jinate as sources of obligations rccij)rocally allVcting tlie ])arties interested in this issue. The Congress of the United wStates of Venezuela, by law of the '^á of August, ISS.S. gave its ap])roval to tlie contract concluded in Caracas on the 25th of July. 1887, between the minister of public works and the Duke of Morny, which had for its object the construction of a rail- way from Mérida to the Lake of Maracaibo, canalizing the rivers Chamas and Escalante, or some other navigable river. By article 10 of said contract and in accordance with the law on the matter, the Government of Venezuela guaranteed the 7 })er cent of tlie ca])ital that the contractor, his assigns, or successors .should issue in bonils, .shares, or obligations in representation of the capital of the company. On the 13th of August, 1888, Gen. Guzman Blanco, envoy extra- ordinary and minister plenipotentiary of \'enezuela in Paris, concluded with the Duke of Morny an amplification of said contract, and by article 1 of said am])lification it was agreed u|)on that the railway from Mérida to the Lake of Maracaibo would be divided into two section.s — the first, starting from the point on the Escalante River which the concessionary would determine and developing in a length of GO kilo- meters in the direction of Mérida; and the second .section, starting fn)m the terminal point of the first up to the city of Mérida. By article 4 it was agreed upon that on the opening of the first section of 60 kilometers to the exploitation the guaranty' provi Chemins de Fer Vénézuéliens," modifying that of the 25(li of »Iul\ , ISST, which modilicalion contains the t hree follow- ing art leles: Auiici.K 1. 'I'lic (•nii(t's,sii)ii sliiill K'lii.nii ctiiiliticd til the lirsl scclioii of sixt\ kiloiuoti-i-s, wliicli will cxtciid from Sniitii liáilmni lo llic lii^li lond, :il ;i poinl one Uiloriiclci- distant I'lom ]jh Vit;iii, wluMc the line will (iTiiiinalc. .\itr. 2. Tlu> piiyincnt of the •;iiaraiit('<> shall be niadi' at the clos»' of cacli (|iiailt'r of cxploi- tiition in acionlanrii witli llu- primitive conlracls. The .sum owed to the eompany .shall he OPINION OF VENEZUELAN COMMISSIONER. 373 calculated at the rato of 7 per cent on tlie sum lixed in llie condiicl of the i;}tli of Au<¡;u.st, 1888, after deducting the net profits realized hy th(^ exploitation. These ])rolits will he the net proceeds of the receipts of any kind that the exploitation of tlui railway may obtain after deducting the general expense of the company and the exploitation expense. Art. 3. The sums that shall be paid to the company by way of int(!rest guarantee will constitute but advances which the Government of Venezuela has a right to be reimbursed, as follows: Wlien the profits realized by the company in the exploitation of the railway will exceed the 7 per cent on the capital guaranteed, the Govermnent will have one-half of the svu-j)lus until the entire reimbursement of its advances; when the Gov(>rnment shall have been reimbursed said advances, it will continue to participate in the profits to wliich this article lefers until completing the 20 per cent thereof. The company also obtained l)y said concession exemptions of duties for the importation of all its material, machines, implements, and other things necessary for the construction and exploitation of the railway, and in fee simple a zone of 500 meters of land on each side of the line of the one pertaining to the nation without any indemnifica- tion; it was, moreover, granted it that the wood necessary to the com- pany for the construction works of the line might be freely taken in the national woods and that the company would not, at any time, be burdened with national or State taxes. There was also secured to the company by said contract the exploitation and enjoyment of the reve- nue of the enterprise during ninety-nine years, at the end of which it was to become with all its appurtenances the property of the nation without any indemnification. In return the company agreed to termi- nate the work undertaken within a term of two years from the 13th of August, 1888, excepting that a compensation would be given, if nec- essary, for loss of time occasioned by main force; to transport the mail free of charge, and, for one-half of the tarifi^ price, which would be established, the employees on commission, the military officers on service and the troops and war ammunitions. The '^ Compagnie Française de Chemins de Fer Vénézuéliens" was constituted in Paris on the 28th of September, 1888, with a share capital of 300,000 ft-ancs, the Duke of Morny contributing thereto the railway concession to wliich the above contracts refer. The construction of the railway, from the port of Santa Barbara to the inland having been undertaken early in January, 1889, as appears from a note addressed by the president of the company, under date of the 3d of January, 1880, to Gen. Guzman Illanco, the works went on with frequent mterruptions and serious irregularities, such as the freshet of the Escalante River in January, 1890, which completely inundated all the works of the line, its warehouses, deposits of materials and offices at Santa Bárbara, compelling the company to absolutely suspend the works. The report presented on that account by ^Ir. A. Lacasette, cliief engineer of the railway, to the ministry of public works, found on pages 126 and 136 of the piece of records No. 1 of the papers which said min- ister has handed to this commission for its examination, details, in all 374 FRENCH COMPANY OF VENEZUELAN RAILROADS CASE. itsc'xU'iit, thedaiuajic caused hy tlic said inundation, and concludes by asking for an extension of one year to comply yâth. the engaf^ement contracted by the coni])any. which extension was granted by the Government. By the month of ^hlrch, 1S91, according to the report of the inspector of the railway, transmitted l)y the President of the State of Maracaibo, with a note addressed to the minister of public works, the locomotive arrived at the site called "Los Cañitos," distant 50 kilome- ters more or less from the Santa Bárbara station, the starting point. On the 30th of September, 1891, according to a telegram addressed by the Suine inspector to the ministry of public works, it wüs commu- nicated that the locomotives had arrived at kilometer 56, but soon after, in the month of October of the same year, according to report subscribed by the chief engineer of the line, Mr. Curau, inserted on page 66 of the piece of records No. 1 bis, a great flood produced by the swells of Cañonegro River made the water fall on the railway line on a width of more than 2 kilometers, and on account of their extreme violence the currents destroyed everything on the way and covered the distance from 49.50 to 51.60 kilometers up to a height of 50 centime- ters and more. In said report it is added that the inundation also threatened the Cañonegro station, the one that was established on the liighest land and on wliich many installations had been made. It was impossible to save a train formed by a locomotive and tlu-ee platforms. This situation forced the company to suspend the exploitation beyond kilometer 48, it only remaining between Santa Bárbara and Los Cañitos. In a telegram of the 21st of the same month the inspector announces to the minister of pul^lic works that the inundation having continued with heavier force, the Cañonegro station had disappeared, as well as the locomotive that was there, the whole space being now converted into a marsh with very powerfid current. The works of reconstruction at 50 to 53 kilometers, which were inim- dated, lasted, according to the reports and returns sent by the com- pany to the ministry of public works, until the month of August, 1892, there having arrived at the La Vigia station, on the 28th of July of the same year, a train that inaugurated the traflic between the initial station at Santa Bárbara and the terminal station at kilometer 60. The company being unable to pay in November, 1892, the coupon of the obligations it had contracted to meet the expense of the estab- lishment of the enterprise, asked for the benefit of the French law of the 4th of May, 1889, and obtained the ai>pointment of a judicial liquidator. At the same time, and having hatl to enter into new engagements with the Tives-Lille C()m])any and Dyle & Bacalan Works Company (Limited), it was owing said company, according to the balance of the 29th of October, 1892, the sum of 864.482. t)9 francs. In the impossibility to meet tliis debt, it asked for an agreement with its OPINION OF VENEZUELAN COMMISSIONER. 375 creditors, jiroposin^ the exchange of the old obligations for an equiva- lent niimbor of the new ones, to which the distribution of the assets would entitle them, or, in ciise of the nonacceptance of that proposal, the payment of the 20 per cent of their credits in fifty annuities. Besides, it was proposed that the contractors of the construction, the only creditors of the company besides the bondholders, would be entitled to receive as many new obligations as the amount of their chirographic credit would contain, 3S2.25 francs. This agreement having been approved, the liabilities of the coin})any were represented, according to the balance of the 31st of December, 1893, in the follow- ing manner: Francs. Shares " 3, 000, 000. 00 Obligations : Francs. 1,811 old ones 905, 500 42,757 new ones 21, 378, 500 22,284,000.00 Sundry debts 40, 979. 31 To-order accounts 42, 392. 15 Guarantee owed by the Venezuelan Government from the 1st of April, 1892, to the 31st of December, 1893 2, 205, 000. 00 Interest due up to the 31st of December, 1893 (obligations) 1, 781, 541. 60 Total 29, 353, 913. 12 On the 1st of May, 1893, the official inauguration of the railway from Santa Bárbara to La Vigia, ordered by the Government of Vene- zuela, took place, and the exploitation service of the whole line, which had not undergone any interruption during the administrative year of 1893, was violently interrupted about the close of the month of April, 1894, by the earthquake which occurred in that region. The extraor- dinary violence of the seismic phenomenon caused the line to be injured through the fall of large trees, and the superposed works, as bridges and buildings, to be destroyed, and the traffic entirely paralyzed. It was necessary at any price to remedy without delay this situation, for, if the railway was left in such a condition, the power of vegetation in Venezuela and the action of the tropical rains would speedily entirely destroy it and render any construction very difficult. The available resources being insufficient, a loan is indispensable. Consequently, we have at once convened the gentlemen connuissaries for the execution of the agreement and obtained from them, as the representatives of the bondholders, the authorization to contract for an efïective loan for 300,000 francs, which .sum was considered by common accord as the maximum for the reestablishment of the exploitation. According to the data furnished bj' the direction in Venezuela, we therefore propose to create lionds for a nominal value of 500 francs each, bearing interest at the rate of 6 per cent, which bonds shall be redeemed within the maximum term of ten years. (Rapport du Conseil d'Admin- istration, 189^.) The debt contracted by the company to make the repairs occa- sioned by the earthquake of 1894 did not confine itself to the sum of 300,000 francs, which had been considered as the maximum, but 37<) FRENCH COMPANY OF VENEZUELAN RAILROADS CASE. ascended to 2.000,000 francs, as appearing from tlio following para- graplis of the report of the administration couiuil corresponding to the year of 1 897 : We shall rtMiiind you, gentlemen, of the fact that, on account of the earthquake of 1894 and of numerous inundations which were the consequence thereof, our railway sustained from 1895 to 1897 considerable damage, and we saw ourselves compelled, in order to raise the resources necessary for those repairs, to create privileged bonds bearing interest at the rate of 6 per cent a 3'ear, free from taxes and redeemable within ten years at the latest. The creation and issue of 4,000 of those bonds, which constitute the privileged debt of a nominal value of 2,000,000 francs, have been successively authorized by j^ou. The balance presented on the 31st of December, 1897, oilers for that date the following situation : Liabilities. Francs. Shares 3, 000, 000. 00 Obligations (44,569) 22, 284, .500. 00 6 per cent ten-year bonds (4,000) 2, 000, 000. 00 Sundiy creditors' accounts 102, 403. 09 Interest owed to bondholders on the 31st of December, 1896 6, 235, 175. 00 Total 33,622,078.09 On the 18th of April, 1896, between the citizen minister of public works of the United States of Venezuela, sufRciently authorized by the President of the Republic, and with the vote of the Government coun- cil, on the one part, and Mr. Charles Weber, representative of the "Compagnie Française de Chemins de Fer Vénézuéliens," according to a power of attorney executed before the notary Dufour and his col- league, of Paris, on the 21st day of March, 1898, on the other part, a contract was entered into concerning the payment and redemption of the 7 per cent guaranty, the preliminaries and definitive provisions of which are as follows : 6597. Contract entered into on the ISlh of April, 1896, between the Government of the United States of Venezuela and ^Ir. Charles Webor, representative of the "Compagnie Franvaise de Chemins de Fer Vénézuéliens," concerning the payment and redemption of the 7 per cent guaranty. Between the citizen minister of public works of the United States of \'enczucla, sufli- ciently authorized by the citizen President of the Republic, and with the vote of the Govern- ment council on the one part, and Mr. Charles Weber, representative of tlie "Compagnie Française de Chemins de Fer Vénézuéliens," hereinafter called "the company," according to a power of attorney executed before the notary Dufour and his colleague, of Paris, on the 21st of March, 1.S91, which, duly legalized and translated, is hereto annexed, the following contract has been concluded: IMIKI.I.MI.NAUIKS. (a) liy a contract of the 25tii of July, 1SS7, entered into l)etween the National Goveni- ment and the Duke of .Morny,and afterwards approved l)y tiie National Congress, on the.'iOtli July, 1888, the nation granted to him tiie right to build a railway from Mérida to the lake of Maracaibo, the Govermnent guaranteeing tiie 7 per cent on the capital that the contractt)r, his assigns or successors, should emit in bonds, shares, or obligations, and which would rep- resent the cajjital of the company. OPINION OF VENKZT'KLAN COMMISSIONER. 377 (b) On the 13th of August of the same year the tninister plenipotentiary of Venezuela in Europe made some reformations in the above-mentioned contract, among which the ono that tlie total line of the railway remained divided into two sections, namely: the first, start- ing from a point on the Escalante River, at the discretion of the concessionar}, thence to pro- ceed in the direction of Marida on an extent of (iO kilometers; and the second, starting from the point where the first terminates and proceeding from thence to the city of Mérida. And by this same contract of explanation and amplifications the guaranty of 7 per cent was fixed on a capital of 300,000 bolivars per kilometer of the first section and of 340,000 bolivai-s per kilometer of the second. This contract was approved by the Federal council on the 30th of November of the same year. (c) By a contract of the 17th of June, 1891, reforming those of the 2.'5th of July, 1.S87, and 13th of August , 1S88, Aove cited, the company, as the cessionary of the railway from Mérida to the lake of Maracaibo, stipulated with the National Govermnent : First, that said conces- sion would remain confined to the first section, to which the reformation of the primitive con- tract refers, according to paragraph b — i. e., 60 kilometers from Santa Bárbara to a point distant 1 kilometer from El Vigia; second, that the payment of the 7 per cent guaranty would be made cjuarterly on the simi of 18,000,000 bolivars, fixed as the price of that section, according to the contract of the 13th of August, 1888. Bolivars, (d) The company claims from the National Government for guaranty due until the 31st of December, 1895 4, 725, 000. 00 And, besides, for damage and other motives, the following items: Insuffi- ciency of exploitation, according to returns and notes 396, 921 . 75 Damage sustained on account of the forcible conscription of the laborers of the company 525, .509. 57 Requisitions according to voucher 96, 320. 00 Damage and prejudices through nonpayment of the 7 per cent guaranty, which occasioned an emission of 2,616 "obligations," supplementary, of 500 francs each 1, 308, 000. 00 which forms a total of 7, 051, 751. 32 (Seven million fifty-one thousand seven hundred and fifty-one bolivars and thirty-two centimes.) The Government has rejected the claim of the guarantj* during the time elapsed from the 1st of April, 1892 (at which date the line could have been opened to traffic, if it had not been for the forcible conscription of the laborers), to the 1st of May, 1893, the date of the official inauguration; and it has likewise rejected the claim of the sum of two million three hundred and twenty-six tnousand seven hundred and fifty-one bolivars and thirty-two centmies (2,326,751.32 bolivars), to which the items of insufficiency, damage, etc., above mentioned refer. The company, although sustaining in principle the equity of the claims it has formulated, is willing to make important concessions with a view to arriving at an arrangement, and, after long discussions regarding the accounts presented, the Government and the company, by way of a compromise, have agreed upon the following: Art. 1. The company reduces to one million nine hundred and fifty thousand bolivars (1,950,000 bolivars) the total amount of its claims for the 7 per cent guaranty, liquidated up to the 31st of December, 1895, and for any other cause to which it may be entitled. Art. 2. For the redemption of the obligation of the Government to continue to pay the same 7 per cent guaranty on eighteen miUion bolivars, guaranteed capital, for the remainder of the ninety-nine years, terms of the contracts referred to, the company agrees to receive two million five hundred thousand bolivars (2,.5(X),000 bolivars), articles 2, 3, and 4 of the above-mentioned contract of the 17th of June, 1891, remaining in virtue thereof without any effect. 378 FRENCH COMPANY OF VPJNEZUELAN RAILROADS CASE. .Vrt. .'■{. Tho payment of tlip one and the other sum is made by the Government in this act delivering to the representative of the company an order on the direction of the Disconto Gesellschaft of Berlin for the sum of four million four hundred and fifty thousand bolivars in par Injndsof the Venezuelan loan of ISiXJ with 6 per cent yearly interest and 1 per cent of redemption, which order shall Ix^ provided, besides, with the approval of the representative of the Disconto in Caracas. Art. 4. The representative pi the company declares the nation, therefore, free from all responsibility, as well on account of the 7 per cent guaranty already due a.s on account of the obligation to pay that same sum in future, and will repeat this declaration on the receipt he will give the direction of the Disconto Gesellschaft. iVkt. 5. The company binds it.self to have, within the term of six months from the date hereof, any imperfection undergone hy the railway line on account of ^ chun/je of the course of the Chamas Rií'er repaired and to keep the line in vforhin^f order in accordance laith the obli- gations contracted in the contracts above referred to, subject to the penalties imposed by the laws on the matter. Art. 6. In all that is not contrary to the provisions of this agreement the rights and obli- gations acquired b}' the company in virtue of the preceding contracts herein referred to remain in their perfect force and vigor. Done in duplicate to one same effect in Caracas, this eighteenth day of April, one thousand eight hundred and ninety-six. (Signed) C. Bruzual Serra, The Minister of Public Works. Ch. Weber, The Representative of the "Compagnie Française de Chemins de Fer Vénézuéliens." By article 5 of the above-inserted convention the company was bound to have, within a term of six months from the date of the com- promise, any imperfections which the railway Hne might have under- gone on account of the change of the course of the Chamas River repaired and to keep the line in working order in accordance with the obligations contracted in the contracts referred to and subject to the penalties imposed hy the laws on the matter. The company met the expenses of the interest service and of the redemption of the loan contracted by it to meet the expense of the repairs of the line, occasioned by the earthtjuake of 1S94. and numer- ous inundations which followed in the j^ears 1895 to 1S97, with the proceeds of the negotiation of the 4,450,000 bolivars delivered by the Government of VenezAiela in par ])onds of the Venezuelan loan of the Disconto Gesellschaft of 1S9(). The company collected the amount of the interest and redemption of the bonds of the loan, corresponding to the half years due on the 81st of December, 1896, and 80th of June, 1897. and having kei)t in its possession, when negotiating the bonds in 1898, the interest coupons due on the 8()th of June of that year, amoimting to about 79,000 francs, it received from the Disconto (íesellschaft on the 15th of January, 1899, a payment on account of 28,228.94 francs, there remaining, therefore, on the said date as a balance of interest in favor of the com])any a sum of about 50,000 francs. These data appear from the two reports presented by the admin- istration council to the ordinary general meeting in its sittings of OPINION OF VENEZUELAN COMMISSIONER. 379 the 30th of Juno, 1898, and 12th of March, 1900. From the first of tlieni the following paragraphs are copied: Oil account of the cartliquake of 1S94 and of numerous inundations which were the conse- quence thereof in 1S05 to 1S97, our raihvay iiaving sustained considcrahie dainafîe, we were compelled, in order to raise the resources necessary for their repairs, to create privileged bonds beai'ing interest at the rate of (3 per cent a year, free from taxes and redeemahli^ wit hin ten years at the latest. The creation and issue of 4,(X)0 of those l)onds, which constitute the privileged debt of a nominal value of 2,000,000 francs, of which w(> have just spoken to 3'ou, was successively authorized by you. We propose you, therefore, to give in payn\ent of this privileged debt, to which thoy are already appropriated, the bonds of the Venezuelan 5 per cent loan, 1896, which we have received from the Venezuelan Goverimient, in redemption of the inter(\st guarantees it has promised us b}' our concession act, which bonds figure in the balance you have just approved as stock of the company, for a valuii of 3,1.52,000 francs. As we told you at the beginning, we have a buyer of these bonds of oin- stock, which bonds are not quoted and the di.sposal of which is almost impossible for a sum that might enable us to redeem and reimburse the 4,000 bonds that are outstanding and to obtain besides the constitution of an administration ñmd of 200,000 francs. In view of the fact that the 3 per cent revenue of Venezuela is quoted in London at from 31 to 33 per cent, you will see, gentle- men, as the comptrollers of the compromise and as your administration council, that the companj' will obtain by this combination a realization under imexpected conditions of these bonds of the 5 per cent Venezuelan loan of 189(3, since these realizations will take place at 70 per cent. And from the second report, dated the I'itli of March, 1900: The funds that had remained available to the company after the reimbursement of the ten years' bonds would have constituted for it, in normal timen, a suflicient administration fund, but the revolutionary events which almost uninterruptedly have occurred up to the present have rapidly consumed them. These resources having been exhausted and in view of the continuation of the revolution the commis-saries of the compromise, on the 16th of August, 1899, authorized the council to borrow up to the amount of 100,000 francs, the .sums it would require to meet the situation, whether there was a possibility to proceed vnth the exploitation or the necessity of suspending it. The coupons of the .5 per cent Venezuelan loan of 1896, due on the 1st of July, 1896, repre- senting about 79,000 francs, were given as .security for an advance, which amounted to .58,21.5.9.5 francs. This advance was reduced 28,228.94 francs on the 15th of Januaiy last through the part pajrment made to us on that date on the coupons given as security. In short, the debt we have in favor of our lender is this day of 29,987.01 francs. He has in his pos.session a pledge of about .50,000 francs, nominal value, represented ])y tlie receivable balance of the aforesaid coupons. From the narrative above made, from all the modifications made in the primitive contract whi( h liad for its object the construction of the raihvay from Mérida to San Carlos, from the difi'erent cases of main force which at different times suspended the construction works or largely destroyed them, from the agreements concluded between the contracting parties with a view to avoiding the sometimes insur- mountable obstacles which nature opposed to the stability of the enterprise, and, finally, from the compromise concluded on the ISth of April, 1896, between the Government of Venezuela and the repre- 380 FRENCH COMPANY OF VENEZUELAN RAILROADS CASE. seiitative of tho ' Compagnie Française do f'liomins de Fer A'éné- zuéliens/' the followinj? facts appear sufliciently proved: On tlie Ist of July, 1898, which date it is convenient to estahlisli for the due separation of the time to which the claim presented refers, all the engagements contracted by the Government of Venezuela with respect to the company, as the concessionary of the contract concluded with the Duke of Morny in August, 1888, and in virtue of the subsequent convention directly concluded between the Gov- ernment of Venezuela and the representative of the company, had been exactly comj)lied with. The obligations contracted by said Government by the contracts of the 13th of August, 1888, of the 18th of June, 1891, and the 18th of April, 1896, were: To give in fee simple to the contractor 500 meters of national lands on each side of the line on the whole length thereof; to allow it to take in the national woods all the timber required b}^ the enterprise for the construction of the works of the line; to permit the introduction, free from duties, of the machines, materials, implements, and other utensils necessary for the construction of the railway; not to impose upon the enterprise at an}' time any national or state contributions; to grant extensions of time for the conclusion of the work in cases of main force that might stop the works of construction, and, finally, to deliver to the company 4,450,000 bolivars in par bonds of the Venezuelan loan of the Disconto Gesellschaft, 1896, in payment of the sum of 1,950,000 bolivars, to which it reduced the total amount of all its claims for the 7 per cent guarantee, liquidated up to the 31st of December, 1895, and for any other cause to which it might be entitled, and, besides, for the redemption of the obligation of continuing to pay the same 7 per cent guaranty on 18,000,000 bolivars, guaranteed capital, for the rest of ninety-nine years, for which respect the company agreed to receive 2,500,000 bolivars. All the aforesaid obligations were in due time complied with, as appearing from the voluminous records relating thereto, and as is acknowledged by the company itself. The Government of Venezuela appears to be the debtor in the month ot June, 1899, only of the sum of 50,000 francs for balance of interest on the bonds of the loan of 50,000,000 bolivars, which the company received, which interest corresponded to the first six months of 1898, and that debt is not one of the ^'enezuelan Government as a con- tractor with the "Compagnie Française de Chemins de Fer Véné- zuéliens," nor said Government could pay it sejiarately and directly to the company, as the latter has pretended, but it formed a part of an obligation contracted by the Republic with the Disconto Gesell- schaft, of Berlin, with which the loan was contracted for and which is called by the same contract to receive the funds destinetl to tho gradual redemption and the payment oÍ interest. OPINION OF VENEZUELAN COMMISSIONER. 381 Article 3 of the contract concluded on the 18th of April, 1S96, vvith the representative of the French company explicitly says: The payment of the one and the otlier sum is made l)y the (lovcmment in this act, dehv- ering to the representative of tlie company an order on the direction of the Disconto Gesell- schaft of Berlin for the sum of 4,4.50,000 bolivare, in par bonds, etc., which order shall l>e provided, besides, with the approval of the representativo of the Disconto in (^aracas. Payment means cancellation, extinction of a debt, and, therefore, between the Government of Venezuela and the French company, as parties to the contract which had for its ()])ject the construction and exploitation of the railwa^^ from Santa Bárbara to La Vigia, an}^ credit or claim that on account of thé guaranty or for any other cause was pos- sessed by the company against the Government remained legally extin- guished in virtue of the provisions of articles 1, 2, and 3 of said agree- ment of the 18th of April, 1896. Any rights pertaining to the com- pany as holder of coupons of interest, due and unpaid, of the loan of 50,000,000 bolivars of 1896 are a subject entirely strange to the juridical relations established between the Government of Venezuela and the company on account of the railway contract and com])letely alien to the facts connected with the compliance with the obligations derived from that contract. As a proof of this inference, see Article VI of the AVnezuelan- German protocol signed in Washington on the 13th of Februar}^, 1903, which runs as follows: The Government of Venezuela undertakes to make a new satisfactoiy arrangement to settle simultaneously the .5 per cent Venezuelan loan of 1896, which is chiefly in German hands and the entire exterior debt. In this arrangement the state revenues to be employed for the service of the debt are to be determined without prejudice to the obligations already existing. For the more precise appreciation of the grounds on which it is pretended to base the present claim, it is to the purpose to examine the steps taken b}'" the direction of the ''Compagnie Française de Chemins de Fer Vénézuéliens" near the ministry of foreign afl'airs of France posteriorly to the arrangement to the 18th of April, 1896, steps that moved the chief of said ministry to exercise his diplomatic action through the consul of France in Caracas based on the data furnished by the company. In a letter addressed by the administrator of the company to the minister of foreign afl'airs in Paris on the 29th of November, 1898, said administrator asked for the intervention of the French Govern- ment to secure for his countrymen in the employ of the company in Venezuela the protection of their persons and property and com- pel the Government of Venezuela to comply with its engagements to its creditors, adding in said letter that the administration was informed by the Disconto Gesellschaft, of Berlin, that the Imj>erial Government would simultaneously interfere to the same j)urj)ose, 382 FRENCH COMPANY OF VENEZÜELAN RAILROADS CASE. and in support ot his request he recalled tlie letters which had been addressed to the ministry dated the 2d and the 25th of June, 1898. It was in virtue of that rei^uest that the ministry of forei^jn affairs addressed on the 7th of December, 1898, to Mr. Quiévreux, in charge of the archives of the legation of France, the oilicial note inserted in these records under No. 8, in whicli tlic following instruction's are communie ated to him : You are not unaware that the "Compagnie Française de Chemins de Fer Vénézqéliens " was placed, in April, ISiHi, by the government of Caracas, under the necessity of accepting for the redemption of tiic guaranties that had Ijeen given in the concession of the enter- prise, certain bonds proceeding from an especial loan of 50,000,000 bolivars, negotiated in Berlin. The Disconto Gesellschaft, in charge of the operation, distriJMited those redeemaltle bonds to the différent European railway companies and our fellow-countrA'men for all pt-' ment of a debt already due, of more than 7,000,000 francs, and for the redemption of 'A) annuities of 1,260,000 francs had to-content themselves with a net sum of .3,200,(XX) frarn-, represented by bonds of said loan. The monevs proceeding from the payment of interest and from the sinking service hu i e constituted for two years the only resources with which the French company has been alile to continue its exploitation. But the deliveries have ceased this year, or, at least, the Du- conto Gesellschaft has not been aljle up to the present to meet only one of the monthly pay- ments of 1898. In view of the suspension of payments of this .5 per cent loan of 1896, our countrymen declare that they find themselves under the necessity of abandoning their enterprisi\ which will lead to the definitive lo.ss of the French capital which has been invested therein, and tiie amount of those capitals, I am assured, is not less than 33,-500,000 francs. In order to prevent this eventuality, that the company already considei-s as imminent, it is necessary that the Venezuelan Government detennines to immediately pay a sum of 210,000 francs, including: Francs. For interest due 160, 000 For bonds redeemed 50, 000 If the information given me corresponds with what yourself may know concerning the financial situation of the French company, and, in case you know that, under the pressure of the legation of Germany, the ministers of \'enezuela may l)c compelled to comply within a short delay with all or part of the obligations to the European creditors, you must procure that the rights of our fellow-countrymen are taken into e(|uital)le consideration. For the date of the above-inserted note, the 7th of December, 1898, the French company had alienated the 4, 450, ()()() francs in bonds of the loan of 1896 and only had an interest of about 79, ()()() francs in coupons due on the 1st of July, 1898; so that it induced the ministry of foreign affairs of France, by its erroneous indications, to ask from the Govenimciit of Venezuela the immediate ]):iymciit of lM (),()()() francs as owed for redem])tion and interest of bonds whieii no longer pertained to it, allirming, however, that that redemj^tion and that interest represented for the company a vital necessity and that with- (jiit their ]iayment il \V(»ul(l lind itself in the impci'ioiis case of al)an- doning its entcr])ri.sc. It thus appears from the resolution passed l)y the gcncial me(>ting of shai-choiders held on the .ÎOth of .lune, ISSS, by which said meeting, OPINION OF VENEZUELAN COMMISSIONER. 383 approving the proposal of the achninistratioii council and oi" the com- mittee of commissi(mers of the obligations, authorized said council : 1. To deliver on the 1st of Jidy, 189S, all the bonds of the 5 per cent Venezuelan Loan of 1896 that the company had in deposit with the Disconto of Berlin, upon: (A) The delivery of 8,619 ten-years' privileged 6 per cent bonds of the company. (B) A cash balance of 390,500 francs. 2. To invite to the reimbursement, on the 15th of June, 1898, at 500 francs par, of the 381 privileged 6 per cent bonds, the numbers of which are indicated, and to separate, in order to meet this reimbursement, the sum of 190,500 francs from the 390,500 francs received as said in article 1. The balance of 200,000 francs was to serve as working ñmd. Besides, as already shown, the 79,000 francs, more or less, left in favor of the company for interest of the coupons due up to the date of the negotiation of the bonds of the loan remained represented in the sum of 50,000 ft"ancs, more or less, in January, 1899, for a part i)ay- ment made by the Disconto of 28,228.94 francs and that nominal value of the. coupons was utilized by the company in obtaining a loan and leaving them as security for the sum of 30,000 francs, more or less. The argument that the company has adduced against the Govern- ment of Venezuela by making the existence of the company depend on the opportune paj^iient of the redemption and mterest of the bonds of the loan is inconsistent, for it is a fact that it considered convenient to its interest to negotiate those bonds when it thought it oj^portune so to do, availing itself of an offer of 70 per cent, which it considered highly advantageous. Regarding the imposition which it is adduced the Government of A'enezuela exercises against the company, compelling it to accept the 4,450,000 francs in bonds of the loan in payment of a debt of 7,000,000 francs already due, and for the redemption of ninety annuities of 1,260,000 francs each, while it can not truly be maintained that the compromise between the Government of ^ enezuela and the re])resen- tative of the company took place in that manner, as it was the result of the free and spontaneous will of the two contracting parties, circum- stances may certainly be pointed out, which show that the sum ])aid in bonds by the Government of Venezuela and which gave the com- pany the opportunity of receiving in cash the sum of 2,508,000 francs represents, in view of the occasion on which the arrangement was made, the only possibility the company could obtain to find itself in a position to undertake and carry out the works of repairs of (he line, which it indispensably required to ])ut it in working order on account 384 FKKNCH COMPANY <>K VENEZUELAN RAILROADS CASE. of the damage caused by the earthquake of 1894, and of the subse- quent inundations until 1897. The Government of Venezuela had contracted tlie obligation of guaranteeing the company the 7 per cent on the capital of the enter- prise during ninety-nine years, taking as a basis for the computation of the capital the sum of 300, ()()() francs per kilometer on the length of 60 kilometers — i. e., 18,000,000 francs — and also taking as a basis to fix the sum corresponding to the 7 per cent the proceeds of the enter- prise in its exploitation, dediicting from the income the general administration expense and the exploitation expense. The verA* nature of this engagement shows that the company was to constitute itself with a capital of at least 18,000,000 francs, at which the cost of the construction of the railwa}^ was estimated, and that it was to con- tribute, out of its own resources, all the sums indispensable for the completion of the work and the repairs indispensable for keeping it in constant exploitation. The articles of association of the company and documents thereto aimexed show that the capital with which it constituted itself was only 3,000,000 francs; that it immediately created bonds to raise resources, which amounted to more than 18,000,000 francs, bearing interest at the rate of 6 per cent, and that from the year 1892 the companj', being unable to pay that interest, had to ask for and obtain the appointment of a judicial liquidator, and the following year, 1893, asked for the conclusion of a concord with its creditors. The inauguration of the railway took place in March, 1894, and in the same year, in the month of November, there occurred the earth- ((uake that destroyed the line and caused the suspension of the exploi- tation, and thereupon other great inundations took place until the year 1897. These disastrous accidents found the company in a state of insol- vency, without possibility to make use of any credit, bound as it was by a concord with its creditors and without any other basis to raise funds to undertake the works of rec(mstruction than the guaranty promised by the Government of Venezuela that coidd not be reiulered effective imtil the exploitation of the railway had been perfectly as.sured, in permanent conditions by the lirnuu'ss and solidity of the railway line on its whole length. The conclusion of the agreemenl with the company, which put an end to the guaranty, took ])lace on the iSth A])rii, 1S9(), and at that time the suspension of the trallic of the railway subsisted on account of the works of repairs which the company had to undertake after the earthquake of 1894, and that continued until 1897. Still, in tlu» month of November, 1890, the national executive dcti-rniined to delVi- to a r<'(|uest presented by Mr. J. Brun, as director of the railway, having for its object to ask foi' the extension of the time lixed by article ô of the OPINION OF VKNEZUELAN COMMISSIONKR. 385 contract of the 18th of April of that same year, in order to have repaired within a term of six months the damage that the Vme liad sustained through the change of the course of the Chamas River, and the president of the Republic was pleased to defer to that request bv granting an extension of three months, from the 1 oth of October above referred to. The precarious condition of the works of repairs and the continual dangers to which the line was exposed b}' the deviation of the Chamas River, are technically shown in the report addressed by the inspector of the line, Mr. Leónidas Vargas, in February, 1897, to the ministry of public works. From said report are taken the following paragraphs : The principal station, Santa Barbara, i.s 14 meters on the level of the sea and .5 nietei's on the low waters of the Escalante River, which in its freshets of 1890 ascended '.i.ñO mefei-s over its level, overflowing in all its length and innndating the farms on its hanks. The terminal station at kilometer (50, "La Vigia," is 128 meters above the sea level on a higii plain having a 2 per cent grade as far as kilometer 55, where the railway crosses the creek "Bobuqni," then comes the creek " La Arenosa," and on the distance to 4ü kilometer there are found "Cañonegro" and "Los Cañitos." In the year 1889, in December, the Chamas River had a large freshet i)y whii'h coipulent trees were dragged along that were detained near "La Vigia," obstnicting its natural bed with heaps of dirt, for which reason the current broke the banks that sloped "El Vigia " and inundated all the woods existing between kilometers .52 and 41 of the line from Santa Bar- bara to "La Vigia." In 1890 the work of repairs i)egan. Every one .did his duty, but according as the river went on with its freshets it went on destroying all that man opposed to its caprices, always led by the unevenness of the ground, which presented a 2 per cent grade, and the waters invaded the woods and inundated a portion of the line. Then comes the earthf|uake, the trepidations of which caused many a damage on the cor- dilleras of the Andes and adjoining plains, producing a larger unevenness in the woods lying between La Culebra and Caño del Padre, through which the railway passes, leaving rails in the form of Nos. 3 and 5, and of the letter S, curves straight and straight curves; springs of dark mud having a nauseous odor in the drains and culverts, flow 20 and 2.5 centimeters wide and incalculably deep, through which the invading waters of the Chamas entered, exca- vating the embankments of the rails and separating from the ground the sleepers that remained adhered to the rails: these were in the form of a hammock swinging when the roll- ing stock pas,sed, moved by force of arms, that the mercantile intercourse might not stop. From the j'ear 1894 up to the present the French company has made streiuious efforts to restore the line to its normal condition. To that purpose they had built a siding from 43 to 46 kilometers, where the Chamas forms a drain consisting of two curves, through mud pits from 1.50 to 200 meters wide on each side. In November, when this siding was completed and tried, another freshet of the Chamas took place, stronger than the preceding ones, and inundated the line, dragging along an alluvial sediment that has stopped up the 70 meters' light of the "Los Cañitos" bridge, and the waters have spread on the banks and left the neighboring villages in a flood three and four feet deep and the rails with 20 or 40 centi- meters of water over them. This I saw in m\' last visit to the line. Now the company again undertakes the reconstruction, according to a document 1 have before me, and also undertakes to carry the Chamas to its former bed, the onhj renifdi/ which, in my judgment, can save the line of the railway, for else all the ballast that the Cordilleras of the Andes may give mil not be sufficient to resist the violence of 60 meters in a minute that the Chamas possesses in the currents of the La Libertad straight line, from .{.? to 46" kilometers, a» it nx>uM be dragged aioay according as it ivould be put in place. S. Doc. ó:í3, .59-1 25 386 FRENCH COMPANY OF VENEZUELAN RAILROADS CASE. The situation of the company regarding its repair works and the reopening of the railway traihc in February, 1897, after the expiration of the extension granted by the national Government by its resolution of the 15th October, 1896, is shown by the following letter of ttie director of the exploitation: Line from San Carlos to Mérida. — Direction of the Exploitation. L. R., No. 329.] CoMP.vcNiE Française de Che.mins de Fer Vénézikliens, Santa Barbara, Februanj 26, 1897. Citizen Minister of Public Works: We have the honor to inform you that communications are reestabHshed and that the trains and locomotives of our company are regularly and without transfer running between Santa Bárbara and El V'lgia from this date. Breysslol-. For the Director. During the administrative year of 1897, and the first six months of 1898, the railway company made'use in its relations with the national Government of the exemptions granted it by the concession as regards the importation of materials as appearing from the records 15 and 16 of the archives of the ministry of public works. The direction of the exploitation omitted in the year 1897 to send to said ministry the statistical tables which it was its duty to periodically send to it, con- formably to article 99 of the regulations on railways. The agency of the French company at Maracaibo said to the ministrvof public works, in a communication dated the 17th of May, 1897, that in virtue of instructions communicated to him from Santa Bárbara del Zulia by Mr. Julio Brun, director of the exploitation, the company in Paris had since long ago taken charge of the opportune remission of said data to the ministry. From the tables sent to the ministry of public works, corresponding to the months from January to November, 1898, forming the records No. 17, it appears that the exploitation in said months left the com- pany an unfavorable balance amounting to the sum of 184,418.13 francs. During the period running from the 1st of January to the 20th of May, 1899, of direct and regular exploitation, the company coidil l)y dint of economies and in full crop realize a favorable balance of 30,001) francs, the receipts amounting to 172,593.01 francs and the expenses to 141,883.28 francs. From the 20th of May to the 12tli of October, at which date the actual suspension of the exploitation took place, owing to the nonexistence of regular traffic, the receipts rapidly decreased and even ceased entirely, wliilo th(> expense did not undergo any reduction. The deficit of that jjeriod amounted to about 60,000 francs, the receipts amounting to 83,153.33 francs and the expense 141,809.46 fi'ancs, and that df^ficit consuuiing the preceding favorable balance and the remainder of tiie resources of the comjiany. OPINION OF VENEZUELAN COMMISSIONER. 387 In the rei)ort of the administration council presented to the share- holders on the 12th of March, 1900, from which the foregoing data are taken, it is said that the Govornmont of Venezuela was owing the com- pany on the 31st of December, 1H9S, a sum of 174,()!>7.2() francs for expense of transportations, regularly ordered by its oilicial manda- tories, and that on the 31st of December, 1899, the same Government was owing the sum of 203,529.70 francs. The balance contained in the above-mentioned report, correspond- ing to the 31st of December, 1899, gives the following indication of the assets and liabilities of the company: First cstalilishim-iit Deposit "( stores in Venezuela . . . Money in safe and in banks Debtors: Francs. Sundries 81,443.34 Government of Venezuela . . . 203, .529. 70 I'rofit and loss 1,010,417.59 Interest o w e d bondholders on 31st December, 1889 8,439,083.35 Total Francs. Liabilities. 16,352,175.70 84,757.98 1,827.35 284,973.04 9,449,500.94 Shares Bonds, 44,509, of Francs. 500 francs 22, 284,. WO. 00 Difference between the nominal value and the proceeds realized 7,649,405.50 Francs. Sundry creditors Bondholders' interest on the 31st December, 1899 (article 2 of con- cord) 3,0(X),000.1KJ 14,t):<5,034.50 99,117.16 8,439,083.35 26,173,235.01 Total 26, 173, 23.5. 01 The foregoing indication throws light enough to make the financial situation known in which the ''Compagnie Française de Chemins de Fer Vénézuéliens" found itself on the 12th of October, 1899, at which date it abandoned its exploitation for lack of resources to continue to meet the most indispensable expense, which in proper commercial terms is called state of bankruptcy. With assets represented by investments or dead capital of 16,436,933.68 francs, 1,827.35 francs in cash, and 284,973.04 francs in credits receivable, and liabilities of 14,734,151.60 francs in bonds, and 8,439,083.36 francs in interest, subject to a concord and without an\' credit, the company could not but abandon, as it did, the exploitation of the enterprise for lack of resources. Such is the situation of every merchant who, being in want of the most indispensable means to continue the movement of his business, is constrained to suspend it and call his creditors to the liquidation and distribution of their credits. The "Compagnie Française de Chemins de Fer Vénézuéliens'' did not act in this way, l)ut, protected by a concord which favored both its interest and that of its creditors, preferred to the li(|uidation and dis- tribution of its assets declaring the Government of Venezuela respon- sible for the bad condition of its finance, for the lack of resources to continue the traille, for the paralyzation of this on account of révolu- 388 FRENCH COMPANY OF VENEZUELAN RAILROADS CASE. liDiiarv inovcnu'iits. of the use of its steamers, which was the origin of the only important credit contained in its assets and the cause, through default of payment, as it pretends, of the ruin of its concerns. The chart's formidated hy the company against the Government of \'enezuela. and as appearing from the reports of the 12th of March, 1900, and the 3üth of the same month, 1901, and from its communi- cations to the ministry of foreign affairs of France, are sununarized in the paragraphs of a conmumication aildressed to the minister of foreign affairs by the president of the administration coimcil on the ;iOth of March, 1901 . running as follows: MoNsiECK i.K Mini.stkk: We liavc just lu'cii oflkially inlonued. hotli tliiougli Mr. Qui^vreux, consul of France in Caracas, and tlie ■"Compagnie Franvaise de Caljles Télé- <;rapl)i to .seize our steamers, trains, material, personnel, and who even in the moments of calm in the revolutionary disturbances oppo.sed our transporting merchandise for which we were organized. If we bad been in due time reimbursed i>y the \'enezue!an authorities the expense and dis- bursements of all kinds we had to make for them, we would have been able to continue, reorganize, and recommence our exploitation. But nothing of that has happened. We have never been honored with a j)ropo.sal or even the least comnnmication. .\ow,onl3' because we are French, because no diplomatic relationsexist between \'enezuelii and France, and because, according to the idea spread over all the country, trni/lfnug ran hr (lone to (he French irilhoiil harliuj anijthind it in the presence and with the a.ssistance of the \'enezuelan authorities and our consulîU' ag(>u( . OPINION OF VKNEZÜKLAN OOMMISSIONER. 389 The records, certainly too voluminous, that oui' conipiíuy possesses in the niinislry of foreign iid'airs, teem with oincial and unoilicial evid(>nce of the vexations sud'ered hy our fi^llow countrymen, either ajjents or not of our French company, and even by oin- national flag. It would, rigorously, he sufFicient for us to respectfully remind you. Monsieur le Ministre, of the fact that Mr. Brun, a French engineer, iras murdered in May, 1898, in liis post as director, in our directive hou,se, at a window over which the French flag was floating, by a Venezuelan soldier, who obeyed the orders of the Venezuelan general, Eleazar Montiel. The flag was pulled down and dragged along in the nuid, etc. Through a prudence which we have thought wotild be appreciated we have avoided to revive these sad incidents. Thenceforth, in 189S and 1899, several of our .service employees have been arreste*!, or threatened to be arrested, by generals and even by the brother of the late President of the Republic, Mr. Andrade, the president of the State of Zulia. Oiu- steamers have been seized, deteriorated, and destroyed, of which a proof is offered by our steamer 5'on Cdrloa y Mt'rida, which, anchored in the harbor of Maracaibo, has served as target for the marksmen of both parties and Anally was sunk by their bullets. We request you. Monsieur le Ministre, to excuse our insistence in asking foi- your intci- vention. The question, in effect, is the interest the importance of which is consideiable for (an- iel low countrymen, not only from the particular point of view of the millions which the bondholders of our company represent, but from the general point of view of the moral and commercial influence that France possessed in Venezuela and which it is about to lose forever. Venezuela i.s a rich country. It would suftice for it to l)ecome a very prosperous coinitiy, that its interior organization should be regenerated. Monsieur le Ministre, permit that we finally appeal to the protection of France in favor of the French interests we represent, that we renew to you the claims formulated in our letter of the 17th of January, 1901, and that we protest with all our force against the new abusi that seems to threaten us. Kindly accept. Monsieur le Ministre, the assurance of our high ct)nsideration. E. Reynaid, The Pre.tidenf. The integral insertion of the foregoing note will facilitate the chronological examination of the facts therein mentioned, abstaining in this examination, as becomes our duty of an impartial judge, from all appreciation that is not entirely conformable to truth, that does not appear proved in the voluminous records to which the aforesaid note refers, that is not inspired with the principle of justice and absolute equity upon which the arbitrator must base his decisions. In this examination of the evidence presented by the very claiming party, consisting in the declarations of the employees of the company themselves, the first place pertains, by order of dates, to the accident of the killing of Mr. Brun, a French engineer, wliich took place on the 15th of Juh", 1898, in order to ascertain whether it is true, as affirmed by the president of the company, that Mr. Brun was mur- dered in liis post lis director in his own house, at a window over which the French flag was floating, by a Venezuelan soldier, who obeyed the order of the Venezuelan general, Eleazar Montiel, and pulled dowai and dragged the flag along in the mud, etc. 390 FRENCH COMPANY oF VENF:ZUKLAN RAILROADS; CASE. On the 1st of May, 1898, General Eleazar Montiel, late governor of the "Colon" territory, proceeding from Maracaibo on the steamer Progreso, landed with troops of the Government at Santa Bárbara. The said steamer went down the river Escalante, carrA'ing 120 con- scripts and the authorities of Santa Barbara. The following day the steamer Santa Bárbara arrived, bringing on board a guard of 12 soldiers of the Government. On Wednesday, the 3d of ^hiv. at midnight 150 insurgents, commanded by a General Figuera, took possession of the steamer Santa Bárbara after short, but severe fighting, in which 5 soldiers of the Government and the boatswain of the steamer were wounded. During the 4th, 5th, 6th, and 7th of May the revohiti(maries, masters of the territory, cut the telegraph and made the steamer Santa Bárbara set out for Santa Cruz del Zulla, a village situated up the Escalante River, with some of their men, scattering their partisans in guerrillr.s j'long the rivers to wait for the arrival of the troops of the Government. They had taken pos- session of 6 empty wagons and formed a barricade on the landing pier. On Sunday, the 8th of May, at 6.30 in the morning, a lively musket firing was heard at some distance from Santa Bárbara, wliile the troops of the Government penetrated by the bottom of the vil- lage, and a lively musket firing broke out in the streets. Now comes the textual part of the report of Mr. Peysselon, chief ^gent of the company at Santa Bárbara : Notwithstanding that the French flag was hoisted on a)l the windows and angles of the building of the direction, this building was not respected. Five bullets of a precision arm were directed to the windows only, and while Mr. Brun was closing the shutters of one of them he was very seriously wounded in his right hand. Without hesitation and without a deliberated purpose we can say that the buiU't which so unfortunately wounded Mr. Briui proceeded from one of the arms of the .soldiers (»f the Government. The gucriilla which executed tiiis .sad deed was commanded by Eleazar Montiel, which aflirmation I am in a position to make, because wlien I went to look for a physician, almost inunediately after the misfortune, the lii-st and only known person I saw- was Montiel. When I went out the second time, I found his lieutenants, Beliais and José Acosta, with him. To make the first cure of Mr. Brun, it was necessary to wait a m« ment for the arrival of the physicians. Mr. Bnm sustained then a very painful and long opera- tion and the doctor did not conceal from us that his state was a .serious one. Mr. Peysselon comj)letes his statenient in the following terms: Steps were taken immediately near the generals and the legal authorities to obtain the transportation of Mi-. Bnm to Maiiiciiiho on tlie steamer PnxjnsD. Tlie.^-e steps had no result. At 2 o'cloi'k in the afternoon the troops were mastei-s of Santa Eárhani. On Monday morning Generals Eleazar Montiel and Zuleta set out toward Santa Cruz with 100 n-.en to retake from the insurgents our steamer Santa Bárbara. Several forces took part with tiiem in the expedition of Tuesday. Our steamer, wiiicli the revolutionaries hatl led going up the Hscalante to beyond Santa C'ruz, amidst luimerous risks wiiich that waterway, mmnvigable in that part, olfercd, was recovered on Wednesday by the troo|)s of the Govermnent and brought l)ack to Santa BiVrbara, towed l)y barks, as tlic revolutionaries had taken away tiie bearings and cushions of tlic axle in order to inmii)i)ili/.c lier. OPINION OF VENEZUELAN COMMISSIONER. 891 By order of the legal authorities our shop immediately made the necessary pieces and within a few days put the steamer in navigating order. On Timrsday morning at 10 o'clock our director, Mr. Brun, who wa.s a little better, was embarked on the Progrefto, bound for Maracaibo, and died on l)<)ard at 8.45 p. m. on account of his wound having gangrened. Such was the information wliich the agent Peysselon transmitted to his company while the events above narrated took place, affirming, without hesitation and without a deliberated purpose, that the bullet which wounded Mr. Brun had been intentionally directed by one of the soldiers of the Government, under the orders of Gen. Eleazar Montiel. Let us now see wliich was the declaration made by the same Mr. Peysselon before the consul of France at Maracaibo on the 19th of May, 1898, regarding the events of the 8th of May. It is as follows: On Sunday, the 8th, the legal troops carried on the steamer Progreso arrived at 12.30 at the village. Under these circumstances we must foresee a battle in the streets. This foresight advised us to immediately shut all the doors and windows of our dwelling house. While I was closing a window overlooking the square, Mr. Brun was closing that of his room, which overlooked the Santo Domingo street. At the same moment the musket firing began in that street, the window was closed already, but Mr. Brun had not yet had time enough to remove his hand from the lock, when a bullet of a precision arm pierced the window through, twisted the lock in an extraordinaiy way, and pierced his hand through and through, throwing the chips on his breast. Mr. and Mi's. Crinière, who inhabit the house of the direction, assisted Mr. Biun in this sad circumstance. On mj- part I immediately went out to the square to have a physician called, met with twenty armed men of the Government, and the only person known to me to whom I could appl}' was Gen. Eleazar Montiel, the chief of the force. As the doctor had not arrived, I went out for a second time and saw the same General Montiel, with Bcliais and Acosta, his lieutenants, and another guerrilla of the Government. Then, when the first panic was over, Drs. P. Rosales and T. Cohen could be called and immediately came to assist our friend. To complete my declaration, I address you a copy of the information presented bv Doctor Cohen, the plwsician of the company, who assisted Mr. Brun until his death. I must add that since the morning we had heard the dull noise of a distant musket firing: that in view of the situation prudence advised us to hoist the French flag on all the fronts of the house, which we did at about 10 o'clock in the morning, when the public rumor announced that the Progreso was sailing up the river with Government troops. In spite of our three colors, you see it well. Monsieur le Consul, our house was not respected and five bullets were shot on our windows. Mr. Brun remained at Santa Bárbara until the first occasion that f resented itself for him to come down to Maracaibo. He was embarked on Sunday at about 10 with the great- est attention, and his state did not permit us to foresee so fatal and prompt an end. The bookkeeper of the company, M. A. Crinière, declares, before the same consul of France, at Maracaibo, in the following words: In the morning of Sunday, the 8th of May, fearing a serious encounter of the two parties, we hoisted at about 10 o'clock on the house of the direction flags with our French colors, two on the windows of the hall overlooking the square, which were hoisted by Mr. Brvm himself, helped by Miguel Labarca, and two others which were hoisted by me, a very large one in Santo Domingo street. It was through this street that the Government forces flanked the iñllage, and the room in which Mr. Brun was wounded while closing a window overlooked this street. The fifth flag was placed by the same Labarca on the entrance barrier overlook- ing the road. ;^V>'i KKENCH rOMPANV nF VENEZUELAN RAILROADS CASE. \Vf weicuitrunquil ln'causi- we did not see or licariiiiytliiiig, wlu'ii at half past twelve it was known that the steamer Frogreao was at the entrance of Santa Barbara. A great move- ment took place and a white flag was seen at the station,!/'^ if /i tranquilized «.« a little, as we thought that the two parties would make tenns. Unfortunately it did not happen so, and a strong volley broke out at that moment in Santo Domingo street. It was that the .soldiers .sent from ^hlra<•aibo arriving by the bottom of the village nttacTced the forces of Gentralu Fujiiera and Pozo in rear. Iiiuiu'diately Messi-s. Brun, IVvsselon. and myself ran in order to protect ourseleves from the bullets to close doors and windows. I had already heard IxOiiiid me as the noise produced by the fall of gravel. It was a bullet that had pierced through the window of the hall, on which there were two flags and which overliMjked the square: almost at the .same moment I heard Mr. Brun cry, "Ah! I am wounded." We all ran to help him and saw his right hand horribly mutilated bj- a bullet. This happened in one instant. We furnished the first attentions that so serious a wound required and, the musket firing, being over Mr. Peys.selon ran in search of a physician. I followed him in .search of water and saw soldiei-s of the Ciovernment keeping the entrance of the house of the direction which overlooked the road and the Frcncli flag floating over their heads, which did not prevent them fn)m preparing to fire at us, and fortunately Mr. Pcy.sselon had presence of mind enough to cry "French company," which was sufficient to prevent that they should carry out their purpose, and then Mr. Peys.selon went out. In view of the manner in which the two ])resential witnesses, who were hiojh employees of the company, relate the events of the 8tli of May and the manner in which the wound of Mr. Brun took place, the affirmation of Mr. Peysselon that the bullet which caused the wound of Mr. Brun was intentionalh" directed against the window where the latter was, can only be considered as entirely jjroundless and precisely suo:g;ested hy the deliberate purpose to attribute a mis- chievous intention to a merely accidental act. The declaration of the bookkeeper of the company that on hearing; the musket firing in the street Monsieurs Brun, Peysselon, and himself ran to close the doors and windows to protect themselves from the bullets, proves to evidence that that impulsive movement of self-preservation, the desire of protecting themselves ft'om the manifest danger oflered by the entrance of the bullets fired in all directions by the forces com- bating around the house, was precisely the origin of Mr. Brun's pres- ence at the fatal point and moment to be a victim of the tloj)lc)rable accident that occasioned the wound of his right hand. To style this event as murder of the director of the company in his post of director in his own house, at a window over which the French il.:g w;;s floating, by a Venezuelan soldier, who obeyed orders of General Montiel, is to pretend to entirely disfigure the natural and frequent accidcMits of a deed of arms, to convert them, as it has been attempted in the ])re.sent declaration, in a characterized proof of outrages sufi'ered by French citizens, agents of the companv, and even bv the FrcMich Hag it.self. The very circumstance that the flag was ])ulled down and dragged along in the mud at the moment of the wound of Mr. Brun, as is roundly ailirmed by the president of the company, in his note to the minister' of foreign ailairs of France, strongly appealing to th(> pro- OPINION OF VENEZUELAN COMMISSIONER. • 893 tection of France in favor of his fellow-count rynien and of the French interests, proves to be a mere invention destined to impress the mind of a hio;h French officer af the events. I am informed that mules coming to La Vigia with cargo have been taken by the revolutionists, that hundreds of others have taken a different direction in order to escape from the revolutionary bands. Such facts, the narra- tive t)f which spreads from village to village, arc not proper to encourage transportation, as you will well judge. Many days will pass so, supposing the movement is of a short duration, before those people will have recovered confidence and send us their merchandise. In the bill which \ intend to present to the Government (I have already prepared it for the requisition of the month of March) it is my purpose to charge, besides the expense occa- sioned by the immobilization of our steamer, the damage caused to our traffic: but what a small and problematic reward ! By the correspondence of the agent, Decleva, the following facts are evidenced: That he agreed with the President of the State of Zulia that that Government would undertake to prepare and put in serving order the steamer Reliance and that, regarding the Santa Barbara, Decleva would give the order that it might be brought to Maracaibo without delay and without waiting for any cargo; that he delivered, purely and simply, the steamer Reliance, the treasury of the State uni CA^V. latter (joeii throuijit. 1 rcciucsi ymi hi t-iidoavor witliout delay to obtain in my uanu- that the director of the company cooperaiex as far as it may he possible in the restoration ofordtr, thus avoiding disagreeable incidents. In the absence of a reply from the tlircction of the company in Paris to the cableijrams sent to it by its agent asking; for instructions to de- cide as to his persisting; in the position he had taken, Decleva con- strued tliis silence, accordini; to his letter of the 1st of July, 1S99, as follows: I do not know, I regret, your projects, your purposes. You may have a necret one whi(h you hare not told me. which you have no reason to tell me, which you pursue without me, as it vere, and of which the orders I receive are the consequence. If such is the case, I must obey your instructions at all events. But if. on the contrary, it is your intention to carry things only to the limit that is prudent in view of the future inter- ests of the company, my pa.ssive ol)edience would prove to be a' hlindnes.s. You do not ask for my opinion. It does not appear that you ar(> willing to leave the decision of the situation to me. Your ordere are peremptory, precise, categorical: hence my embarrassment. What has the appearance of a contradiction is only, in reality, an exceeding care in serving you, carryiny out your intentions. And in the letter immediately following;, of the 3d of July, it is said: I recur to what I told you yesterda}'. You may be pursuing a purpose unknown to me, a purjMse which only the resistance opposed here by your directors to the requi-titions of the Government can prepare. And could I act against that purpo.se^ No: my conscience prohibits me to do .so: my duty, the devotion I owe to your interests, everything commands me to obey you. To this discussion occasioned by salaries of the personnel of the steamers, amountino; to the sum of 2,300 bolivars monthly, an end was put by the following; telegram from the direction in Paris, dated the 4tli of July: No act of hostility: of the salaries pay what you can out of what you may have. It is well undei-stood that the Government will jmy all the other expense and previously achiowledye its former and present debts. Here we have exhausted all the resources. The foregoing decision and the request to acknowleilge the accounts luiving been comnuinicated to the President of the State by the agent of the company, the President su})mitted said approval to the National Government, for such was incum})ent upon it. Owing to this reply, Mr. Decleva consulted the direction as to whether he could proceed to Caracas with the purpose of presenting these accounts, and was answered by cable on the 5th of the same month: It is not possible that you should leave Maracaibo for (\iracas. Mr. Simon will stoj) there In his next voyage. According to a telegram from the consular agent of France at Mara- caibo, dated the 13th of August, and addressed to the French consid, the Government had reestabli.shed traille and intended to return the steamers of the company, but revolutionaries having reappeared at Tovar and Merida, ])recisely in the line of exploitation, the Frencii (•<)m])any had to wait for the resull of the further o])erations befor(> the restitution could take ])lace. OPINION OF VENEZUELAN COMMISSIONER. 397 In a letter tinted the .23d of August of the same year, the deputy administrator of the company in Paris informs the minister of foreign affairs that the steamer Rclicnur had been returned to them, as li(> had already been notilied, with its axle broken and the ])r()peller lost ; that the steamer Santa Bárbara remainetl in the possession of the Govern- ment of the State of Zulia; that the railway continued to be in the same condition, without having as yet a free tragic: that no ])ayment had been made by the Venezuelan authorities, and that its director, Mr. Gustavo Simon, would leave on the 26th of August for Venezuela with instruc- tions to go to Caracas. On the 15th of September of the same year, said director, on his arrival at Caracas, asked, through the vice-consul of France, for an audience from the minister of iinance, which was granted him imme- diately for the next day. In this audience Mr. vSimon asked the National Government /or a settlement of accounts or a part payment, in order to be able to proceed on the exploitation of the enterprise. Minister Olavarria answered that there was no money in the safe of the treasury and that he could not foresee when he could have fimds, and that, therefore, he was sorry not to be able to give satisfaction or to make any promise for the future, however small the sum might be. In the statement addressed on the 10th of October of the same year to the President of the Republic, then Gen. Ignacio ^Vndrade, by the same director, Gustavo Simon, setting down the motives why he had determined to suspend the exploitation of the railway from Santa Bárbara to La Vigia, the following facts are made to appear: That in September, 1899, there was a moment of peace, and some receipts were obtained, but that -the revolution reappeared on the 27th of September, and thenceforward the traffic was paralyzed and Maracaibo incommunicated with Santa Bárbara; that meanwhile the Govern- ment did nothing to free the company from the revohitionarics and enable it to proceed on the exploitation: that it had remained without one cent in its safe, uith all the expense in. force ami without any income; that in Paris the coupons of the 5 per cent Venezuelan loan of 188G had not been paid, although due on the 1st of July, 1898: that its claims presented to the Government for damage and prejudice had not been satisfied, and that the circumstance to be most regretted was that they had not succeeded in obtaining from the Government the payment of the accounts for freight, money lent, sundiy effects furnished, etc., which amounted on the 30th of September, 1899, to 200,000 bolivars, as there existed arrears from the year 1884, and that on the 3d of October the President of the State of Zulia had asked the colnpany for the Santa Bárbara steamer to carry a commission to Encontrados and had not been able to pay for two piles of wood available on board and a sum of 300 bolivars on account of the traveling expense, as it had promised to do. In virtue of the facts above narrate I, the director of the company concluded his statement to the President of the Republic with the following declaration : First. There is no possibilitj' of lealizing any revenue in the exploitation of the line, «v the revolutionaries are masters of it, and until this date, the 1st of October, there is no hope that the Government may recover that place. Second. The Government of Venezuela can not ¡hi y the comjyiny any of its debts, or even the least sum, oi- anv sum l)v installments. 398 FRENCH COMPANY OF VENEZUELAN RAILROADS CASE. Tliird. The company Aa* no longer any resources, as they haiv all been exhausted, and it has sent all its nionev from Paris to meet the expense of its line, while there ims no revenue on account of frequent revolutions. The company, considering that this .state of thine that the Government may recover this place. The director of I lie exploit at ion, K. Si.mons. OPINION OK vp:kezuelan commissioner. 399 At the end of this document Mr. Simon ex])restse.s the h<)j)e that everything mi^ht be settled before the c h)se of the montli, })eeause he had just been advised that the President of the Repubhc of Venezuela had resigned and left Caracas on a ship of war for an unknown destination. In a communication addressed by the minister of foreign allairs of P>ance to Mr. Quiévreux, vice-consul in Caracas, Mr. d'Empaire, the consular afjent in Maracaibo, appears vested with the commission of watching and stating the state in which the goods of the comjjany were. The steamer Santa Bárbara was returned to the company on its return to Maracaibo after the expedition made on it by President Andrade, in which voyage it sustained a damage in one of the wheels. Mr. Glennie was appointed overseer of the seals, and Mr. Aiguillon, late chief engineer of the Santa Barbara, keeper of the maritime mate- rial. Mr. d'Empaire received from the director of the compaii}^ a sufficient sum to pay for the furniture, rent, and the salaries of the agents Glennie and Aiguillon and of the one at Caracas, during six months from the 1st of December, 1899. In the fight that took place in the harbor of Maracaibo in the month of November, 1899, between revolutionarv nationalist forces and those of the Government of General Castro, the steamer San Carlos y Mérida, at anchor in the harbor, sustained, on account of bullets, damages that caused it to sink, and the steamer Santa- Barbara also suffered deteriorations on its top part. Such appears from the testi- monial investigation carried out by the consular agent of France at Maracaibo at the request of Mr. Arguillon. The witnesses, Edmond Hainel, Antonio Martinez Peña, and José Vincente González declare that the steamer San Carlos y Mérida, at anchor opposite the stores of Rafael Morales and McGregor & Co., had wrecked in the night and day of the 1st and 2d of December, 1899, on account of the bullets received in its hull on the port and starboard sides during the fight and the fire between the forces of Gen. Cipriano Castro (Maracaibo side) and the forces of Gen. José Manuel Hernandez (Los Haticos side). The damages sustained on its sides were so numerous, that the afore- said steamer sunk at 4 p. m. on the 2d of December, 1899. The consular agent, Mr. d'Empaire, ordered the appointment of experts to estimate the damages sustained by the steamer Santa Bárbara during the time it was at the service of the State, to which purpose ^lessrs. Eugenio Kreutzer, a French mechanic domiciled in that town, and ]\ianuel Maria Loto, a captain in the Venezuelan navy, commander of the Venezuelan steamer Progreso. Said experts — after having examined the steamer and its engines and considered that said vessel has been kept, from the last days of j\iay of the preceding year until the first days of November, constantly in motion under j)ressure. 4(m FRENCH COMPANY <>K VENEZUELAN RAILROADS CASE. without {^ivinji timo to make any repairs on it or repaint it, which cir- cumstance increased the vahie of the repairs required; that, throuf^h a constant labor tlie enfjinc had suffered a ^reat deal; that during; the last vovatje it made in tlîc river Zulia, at the service of the Govern- ment, a piece of timber entirely broke one of its wheels — valued the damatres at 10,000 bolivars, without beinfj able to make an especial mention as to the state of the hold of the steamer that was submerfjed. On the 20th of January, 1000, Mr. d'Empaire communicates to the direction that there was an indi\adual that desired to know the lowest price of the little steamer Reliance, with a view to seeinjí whether he could buy it, and that he thou<;ht that the company would transact a trood business, if it succeeded in sellinfi: it for any price. On the 9th of December, 1890, Mr. Simon left Venezuela for Havre. It is equally apparent that the company posteriorly disposed, accordino; to its own declaration, of the two steamers. Reliance and Santa Barbara, for the sum of 1.100 francs the former and 10,000 bolivars the latter. On the 3d of February, 1900, the administration of the company addressed a letter to the President of the Republic, proposino; to him the reorfjanization of the exploitation of the railway and maritime lines, upon the delivery which the Venezuelan Government was to make to him of a part payment of at least 300,000 francs in cash, calculated on the sums which he considered were owed to said lines both by the nation and the States, as follows: (A) A sum of 300^000 francs for reimbursement of transportation expense and requisitions carried out by order of the authorities. (B) A sum of 250,000 bolivars, at which the company valued the minimum oí the indemnity which the authorities were owln» to it for the material reparation of the damao^e done to all its pro])erties, rail- way, steamers, innnovables, material, etc., during: the last campaipi. (C) A sum of 105,000 francs monthly from the 1st of July, 1899, as indemnity for the losses that said lines had sustained ft'om that date on account of the almost absolute suppression of the trailic and the immobilization of the means of exploitation. The total of those monthly debts that woiUd be owed to them on the 1st of May, 1901. would amount to 1 , 050,000 francs. The true motives that compelled tlie French company to suspend the exploitation of tlie railway line and of the steamer Santa lidrhara, as appearino; expli( itly declared l)y the director of the company, Mr. Simon, in his statement addressed to the President of the Republic, on the 12th of October, 1899, from the advertisements published in dif- ferent news})apers and from all the documents of this claim, were only the lack of resources in the treasury of the company, of funds proceed- ing from the tniilic, owin^ to the fact that this had ceased, on account of the re\()liitioiiary ev(Mits which recommenced in Sejitember and continued in October of tlic same yeai-. The company exhausted all OPINION OF VENEZUELAN COMMISSIONER. 401 its available resources, to the extent of being forced to eliminate the personnel of its employees. The requisitions made by the authorities of the State of Zulia con- cerning the steamers and trains of the company, with a view to satis- fying the necessities of the pulilic service and restoring order consti- tute the exercise of a power vested in the authorities of a State with a purpose to provide for the security of lakes, rivers, and ways of com- munication and with a purpose also to subtract any clement of struggle from the revolutionary action, thus cooperating in the restoration of order and the consolidation of peace. Those requisitions were volun- taril}?^ accepted by the company, as it was by its contract bound to accept them, and the nature of its business and its own advantage required it to do so. They ( ould only give rise to the obligation, on the part of the Venezuelan authorities, to indemnify the company for the service rendered and the direct damage that the means of locomotion seized might sustain during that service, through motives that might be attributed to the especial nature of the same services, which obliga- tion was determined and valued by the administration council of the company in its report rendered before the general meeting of share- holders, inserting it in the balance of the 31st of December, 1901, for a sum of 203.529.70 francs. The government of the State of Zulia and therefore the National Government contracted the obligation of paying to the company the amount of those accounts, and this debt has never been denied by the constituted authorities. The local government of the State of Zulia could not in the days the aforesaid requisitions took place nor could the minister of finance at Caracas at the date he was visited by Mr. Simon make any part payment on account of what might be owed to the company. This impossibility is comprehensible under those cir- cumstances, under which every resource was consumed by the impera- tive necessities of war, and both the National Government and the government of the State of Zulia were deprived of a large portion of the ordinary revenue on account of the same disturbance which deprived the company of the proceeds of its ordinal y traíHc on the line. It is neither just nor equitable, therefore, nor is it based on any law, that the Government of Venezuela, because it could not pay in moments of penury of its revenues the sum of more than 200,000 bolivars to which the company made its credit amount, and of which it urgently needed to continue in the activity of its transactions, should be responsible for the sum of 18,000,000 bolivars, at which the com- pany estimates the integral value of its capital and obligations (bonds). When a debt is contracted to be paid in cash, it is a universal law that the nonpayment thereof in due time only constitutes a delay which binds the debtor to pay interest at the rate agreed upon or at the legal rate, this when liquidated accounts or debts are the question. S. Doc. 533, 59-1 26 402 FRENCH COMPANY OF VENEZUELAN RAILROADS CASE. The larger part of the credit that the company pretended to collect in the month of September, 1899, from the minister of finance at Caracas, re({uiring from him a part payment, proceeded from debts contracted by the government of the State of Zidia and approved by its legislature in previous years, but the company at no time thereto- fore had endeavored to obtain the payment of those accounts from the National Government, nor is it proved that the steps taken near the government of the State before the revolutionary events of June and July, 1890, were active. The insistence shown by the company in those moments, placing the government of the State in the alternative of delivering a sum which it had not, or eliminating the personnel of its steamers; the silence kept by the direction in Paris for several days, leaving its agent at Maracaibo engaged in a discussion which grew more and more bitter with the authority, and, finally, the violent determination taken by Mr. Simon of entirely suspending traffic, dismissing all the employees of the line and placing under seal all the appurtenances thereof, precisely when a change of administration and the victory of the revolutionary arms promised the prompt pacification of the country, only show the deliberate purpose of abandoning the enterprise, creating a situation entirely alienate from the conditions of the original contract, and only tending to accumulate difficulties, present- ing to the Government of Venezuela, as a previous condition for the reestablishment of traffic, new and more exacting claims, as well as demands of money. It was, therefore, a perfectly voluntary act, due to the purely financial causes, connected with the state of insolvency in which the company had been for some years past. That abandon- ment has continued since the suspension of the exploitation was determined by the direction of the company. All the damages that may have been caused by that abandonment to the material of the line, and that, it is natural, must have been very considerable, owing to the intemperature in which it has remained for four years and to the want of all care on the part of its owners, only affect the responsi- bility of those who adopted the measure, save the excuse they have adduced, the force majeure produced by the exhaustion of means and resources to continue the exploitation. The free disposal of its property has always remained within the reach of the company, as is proved by the circumstance that the con- sular agent of France at Maracaibo has constantly been the custodian thereof, and that it was .sealed to that purpose. The measure projected by the National Government in March, 1901, of making an inventory of the line, of its permanent and rolling stock, and of the vessels and other apjiurtenances which the construction company had abandoned, as appears from the same resolution, OPINION OF VENEZUELAN COMMISSIONER. 403 was tried, taking into consideration the oilicial capacity of Mr. Julio d' Empaire and his commission as custo(Uan of the property of the company, and to that ])urpose the National Government intrusted said agent with the commission of attending to the formation of the inventory and reporting, with the remarks he might think perti- nent, about the actual state of that property. Mr. d'Emj)aire declined the commission, stating that he had been oliicially designed to take care of the material, tools, and archives of the company, which proved that they were not abandoned and that the company had but suspended the exploitation. Mr. d'Empaire adds, in his reply to the (lovernment, dated the 26th of March, 1901, that whenever he has to ai)ply to the authorities, either of the State of Zulia or of that of Mérida, in his capacity of in charge of taking care of the interests of the company, asking for the suppression of some abuse or for support on the part of the Govern- ment, lie has always been answered and attended to, which clearly shows on the one side that the company has always preser'ved its rights to the line and its material, and on the other that such rights have at all times been recognized by the (Tovernment of Venezuela. In view of tliis reply, the Government thought it advisable to leave things in the same state they were, as it does not appear that it has in any sense attempted to interfere with the determinations of the com- pany regarding the free disposal or maintenance of its goods on the railway line. The damage those goods have sustained, according to the technical report presented to the minister of public works by Drs. Francisco Arroyo-Parejo and Eliodoro Ocanto, attorney-general and engineer, respectively, at the orders of the ministry, is due. " besides the natural causes of the exposition to intemperature and tlie weather, to tlie very especial one that the company did not cairy out the drawing in accordance with the rules and principles ordered hy science in enterprises of such a nature, for the line is constructed on lands the topog-aphical configuration of which is unfit thereto," and said report adds that "if it is certain that the inundations of the Chamas River havt- cooperated in that destruc- tion it is also true that the company has not made such efforts or used such means as were necessary to prevent the damage." The report adds: Without the help of the drains cut parallel to the road (during the construction) in order to extract therefrom the earth necessary for the embankments, wiiich drains will always i>e the cause of the destruction of the line, the undermining of t he gro'und would not have taken place, for the waters proceeding from the inundations would not stagnate on each side of the plat- form, but would go through culverts conveniently situated, following the natural depres- sions of the ground, to Iw lost on the plains; and to place again tiiis line in a state of good service it is necessary either to make the Chamas River return to its former bed or to stop 404 FKKXCH COMPANY OF YKNEZUKLAN KAILROADS CASE. up the drains parallel to tlio line, raising the level of the line with good materials, and to make serious repairs to the rolling stock, which is almost tantamount to renewing it in its entirety. For all the ioasons aforesaid and in virtue of the careful examina- tion of all the précédents of the case the Government of Venezuela can not be held responsible for the damage that the "Comi)a<;nie Française de Chemins de Fer Vénézuéliens" may have sustained, for the sus- pensiim of the exploitation of the line and the abandonment in which it has kept its property, or for the consecjuences that nature, the weather, and the bad construction of the works may have produced in its concerns. Neither can this commission fix the amount owed by the Govern- ment of Venezuela to the above-mentioned company for services rendered by its railway and line of steamers, for those accounts have not been presented or been the object of any examination in this connnission. With regard to the damage done by revolutionary parties on the line from Santa Bárbara to La Vigia during the time it was occupied by said parties, neither this fact nor the responsibility of the authorities then constituted in the State of Zulia has })een proved. The only thing that has been proved is the damage sustained by the steamer Santa Bdrhara while at the service of the government of the State of Zulia, which damage was valued at the sum of 10,()()() bolivars ])y the experts appointed by the consular agent of France at Maracaibo. The prejudice caused the company by the sinking of the steamer San CárloH y Mérida, wdiich, as it appears, was out of all active servic(> since long before and which was not apt to be utilized, does not affect the responsibility of the Government of Venezuela, for it appears fr(.)m the evidence produced that the sinking took place on account of the firing exchanged in a deed of arms, and is therefore recognized in international law as an accident ineilicient to cause any responsibility on the part of the constitutetl authorities. It is my opinion, therefore, that the company is entitletl to an indemnity of 10,000 bolivars and interest thereon at the rate of 3 per cent from the 12th of October, 1899, which the Government of Vene- zuela will pay for deteriorations of the steamer Santa Bárbara while at its service; that its rights nmst be reserved to it to obtain payment of the accounts for freight, transportation of troops, and the use of two steamers by the authorities of the State of Zulia didy formulated and proved and which, as expressed in the balance of the :nst of October, 1899, amouiUcd on that date to the sum of 203,529.70 francs with interest thereon from the respective dates at which they had their origin; that to the Venezuelan Government the rights and claims must also be reserved which may ])ertain to it for the sus])ension of traille, the abandonment of the ('X[)loitation and ensuing damage OPINION OF FRENCH COMMISSIONER. 405 caused to the line through lack of maintenance, and that for all the rest the claim presented must bo disallowed. Caracas, AugnM 28, 190S. NOTE BY THE VENEZUELAN COMMISSIONER. This opinion was presented at the sitting of the 28th of August, 1903, and an understanding was not arnv(\d at witli the Fronch arl)itrator, who was of the opinion that the company must be allowed the sum of 18,4S CASK. appeal at Paris, Mr. Dacraigne, the care of replying point by point to the plea of Doctor Paúl. It only remains for me to call the particular attention of the umpire to a few observations. In the first place, I have taken it upon myself to get information de visu of the condition of the line from Santa Barbara to El Vigia. I then went on board the P>ench cruiser Joutfroy on the south of the lagoon of Maracaibo. Then I went up the river Escalante as far as Santa Bárl)ara. There I inspected in detail the estal)lishments of the company, and followed the line on foot for several kilometers. I observed that the company had neglected nothing to place the service of merchandise and passengers in excellent condition. A large rolling stock was found at Santa Bárbara, where the buildings of the com- pany include, besides the passenger station, the depot for merchandi-se, the director's office, vast storehouses for the materials, and large work- shops supplied with machines, tools, and material for repairs of all kinds. In spite of the numerous repairs which these buildings and this material w^ould require after five years of abandonment, the)" are far from having no value and from being of no use. In the second place, it is not superfluous to recall that a claim in all points analogous to the claim of the French Company of Venezuelan Railroads has been presented by the English company of the railroad from Puerto Cabello to Valencia to the British- Venezuelan Mixed Com- mission which sat last year at Caracas under the presidency of an American umpire. This English company had likewise ceased its traffic, which it has since resumed, because of the n(mpayment of a guaranty promisetl, and because of requisitions. It obtained, if I am well informed, an indem- nity of 7,000,000 bolivars gold. It had been less tried than the French companj', whose terminus at Santa Bárbara is upon a river inaccessi- ble to warships, in a region which is entirely out of reach of action of foreign navies, while Puerto Cabello, head of the line of the English company, can be visited l)y European squadrons. Finally, while the foreign claimants will receive in gold the amount of indemnities which have been allowed them, the French claimants will have to be satisfied, according to the terms of the protocol of Paris, with the payment in bonds of the di])lomatic debt. Thanks to the concession consented to by the French Government to allow the Venezuelan Government to pay its debts with greater facility, the figure of the French indemnities finds itself in reality singularly reduced. The bonds in question having undergone a depreciation of 60 i)er cent, if the umpire ])artakes of the opinion of the French arbitrator, it is in reality only a sum of 8,500,000 bolivars in gold which the French company woidd be entitled to receive and the \'enezuclan Government obliged to pay. ADDITIONAL OPINION OK VENEZUKLAN COMMISSIONER. 409 The value of the concession or of sums disbursed by the company is far from this amount. Paris, September 13, 1904. ADDITIONAL OPINION OF THE VENEZUELAN COMMISSIONER. I have most carefTilly examined the brief prepared by my learned colleao:ue, bearing date of September 13, 1904, explanatory of his opin- ion at the sitting of the commission held in Caracas, August 28, 1903. I have also read the brief and the opinion submitted by Maître Dacraigne, which is annexed thereto. But I have not been able to find in either of these documents sufficient reasons, based upon right and justice, to convince me that my opinion submitted at the session above mentioned does not adhere most strictly to the truth as estab- lished by facts, as well as to the statutory and common-law precepts which are applicable to such facts in« order to find and establish the liability of the A^enezuelan Government, while rejecting all that can not be held as good and sufficient grounds for liability. Under such circumstances I am satisfied that the grounds upon which my opinion was based still subsist as strong as ever, and I may say stronger than ever, as the new line of argument introduced b}^ the French commis- sioner and Maître Dacraigne seems to strengthen my former opinion, as stated. Both these gentlemen hold as a powerful reason to grant and demand the indemnification under discussion that the agreement made between the Venezuelan Government and the French Company of Venezuelan Railroads under date of April 18, 1896, by virtue of which the 7 per cent guaranty on the capital of 18,000,000 francs was redeemed and the company paid up to December 31, 1895, the amount of her claims due as per balance sheets on the same guarant}^ and settlement made for any other and all causes the company may have a right to invoke, was a ruinous agreement imposed upon the company, which found herself compelled to pass under the Caudine Forks of said compact. This new argument is of such character, that it is in}' sincere belief that no answer whatever is needed in rebuttal. Such argument offers, because of its far-fetched application, the most telling proof of the scarcity of grounds, real solid grounds, the company has upon which to build the liability of the A^enezuelan Government. I will simply remark that when that agreement — now called Caudine Forks by my learned colleague — was entered into, the company, accord- ing to the statement of Maître Dacraigne, page 14 of liis opinion, found herself in this position : The earthquake of April (1894) left the company as unexpectedly as unfortunately with- out resource of any kind. In order to attend to urgent repairs and work and to procure funds, the company was compelled to make a first issue of 5ÜO-franc bonds, drawing an interest of 6 per cent. 410 FRENCH COMPANY OF VENKZITKLAN RAILROADS CA8E. On page 12 of the same opinion the following statement is found: The company issued in this way 4,000, the largest portion of which was held bv tK' Dyle and Bacalan and the Tives-Tjille companies. It was agreed with these two companies that the payments made by the state were to be employed in preference for the payment of said bonds. It was therefore in execution of this covenant entered into by the company because of the failure of the state to keep its part of the agreement that in the month of June, 1898, the Venezuelan Railroad Company tran.sferred to the other two companies the Venezuelan revenues received. About the 30th of June, 1898, the general a.ssembly of stockholders ratified such agree- ment, which was confirmed by the bondholders, and after payment of all accounts there remained out of this transaction at the disposal of the railroad company a balance of 200,000 francs as working capital. If, notwithstanding the fact tliat the Venezuelan Government had delivered to the compan}^ 5 per cent bonds of the 1896 loan to the amount of 4,450,000 bolivars, thus enabling the company to redeem its debt, amounting to 2,000,000 francs, in stock and bonds, the largest portion of which was held by the Dyle and Bacalan and the Tives- Lille Companies, still lea\àng the company a working capital of 200,000 francs if, I say, notwithstanding that fact, the company was unable to meet the ruinous future events, it is plain that the failure of the company to continue repairs and to defray operating expenses would have taken place sooner. This clearly shows that the company, in view of its critical financial position in Paris, its credit being Completel}^ exhausted, found it advantageous to its interest and to the continuation of the under- taking to accept the propositions made by the Venezuelan Govern- ment for the redemption of the guaranty and the payment of the amounts due, whicli the company agreed to reduce to the amount of 1,950,000 bolivars, fixing the redemption of the future guaranty at 2,500,000 bolivars. In this agreement made by the French Company because the com- pany found it to be acceptable and advantageous, Mr. Dacraigne finds grounds to hold "without possible discussion" that the French Com- pany is authorized to ask the rescission of the contract and the reim- bursement of all the expenses that such action entails, plus the corre- sponding damages and respective interest. Thus, he says, is justified the claim for the 18 millions expended and the interest as above specified. Thus the Venezuelan Government, because of the fact that it has canceled its ol^ligations up to the date of (he convention, after having paid a heavy sum in settlement of a guaranty which could remain undue and without foundation, as the company was unable to con- tinue operations })ecause of the ruinous future events, must pay again and settle, besides, damages and interests because such had been jiaid. The Venezuelan commissioner has been unable to find in the legisla- tion of any country, nor in the natural law, anything that may lead ADDITIONAL OPINION OF VENEZUELAN COMMISSIONER. 411 to the acceptance and holding of such kind of Habihties as established either by private or international law. Tl:(^ French commissioner holds that the Venezuelan Government, as stated in the opinion, woiüd enter into possession of everything the company possesses in Venezuela, and details such possessions as "the line, the buildings, the rolling stock, the maritime property, in such condition as they are found now," and fixes the amount of the indem- nity such conveyance would represent at 18,483,000 bolivars. I have also been vmable to find among the documents and papers in the case reasons justifying sudi forcible transfer, nor any advances whatever on the part of the Venezuelan Government which might lead to the supposition that the Government is inclined to accept such transfer of the property in question in such condition as it is found now for the amount demanded by the claimant company, which the French commissioner grants. Such transactions are always con- trolled b}' the convenience of both contracting parties, are agreed upon freely and spontaneously, and can not be the object of a decision of this commission. I think it my dut}" to quote, in this connection, the following state- ment of the French commissioner as having special significance: The company, through its legal advocate, claims, besides the adjudication of interest at the rate of 7 per cent, which, in my opinion, does not harmonize with the manner in which this indemnification may be estimated. We are now dealing with a simple exchange of lvalues without any consideration of profits or interest. If the interest were to be esti- mated, would it not be also necessary to take into account, for instance, the products of the exploitation of the line while it was in operation and deduct them from the amount of the indenmity^ The Paris protocol by wliich this tribunal has been vested with arbitration powers by special commission intrusted to the legal repre- rentatives of France and Venezuela has narrowed the scope of said commission to a single and solitary point — that of examining and decid- ing upon the claims for indemnification entered by French citizens for acts which have taken place at a certain time. Now, to grant indem- nities^br acts which have not actually taken place because of the exchange of values which were to be made by virtue of a sentence of the com- mission, would be to substantialh' alter the terms of the protocol bind- ing the contracting parties and to render the award of the commission nugatory, as it would then involve a violation of the pact which con- trols the commission. The pact, or, in other words, the free agreement of the parties, by which they agree to sub- mit the examination and settlement of differences arising among them to an impartial third party, controls the whole arbitration proceedings. The pact previously agreed to by the contracting parties is, in fact, the essential condition for the institution of arbitration pro- ceedings — is the starting point, the rule to be followed by the arbitrators. The nature of things and common sense thus direct. The arbitrator or arbitrators can not constitute themselves as judges of a question. The limit of the mission intrusted to them grows 412 FRENCH CnMl'ANY <>K VKNKZrKLAX RAILROADS CASE. exclusively out of the will of the parties; having been chosen to apply the law to a question, theij themselves can not create the rule of law and apply it. The jyacf determines and circiim- ftcribes the object of the dispute, * * *. (Pradior-Fod(?r(?, Droit International Public, vol. 6, section 2612.) The pact as laid down by the French court of cassation in its judg- ment of January IS, 1842 (Mauny case — see Dalloz, Juri.s])rudence Générale, Vol. IV, Arbitrage, No. 471, note) — is the only essential thing to be consulted to decide whether the arbitrators have pa.ssed judgment without authority or jurisdiction. It is true that the claim of the French Company of Venezuelan rail- roads embodies the sum of 18,430,000 bolivars for indemnities demanded from the Venezuelan Government, and this conmiission is vested with full authority to determine whether the amount of the indemnities which Venezuela is to ])ay for such acts as may have directty caused actual damages to the company's property or for actual services such companj' may have ren(!ered the Government of Venezuela, such damages and services to be fully established and affecting Venezuela's liabilities. Any and all acts partaking of either character, be it damages or sermces rendered which the Government of Venezuela should indemnify, falls under the action of this commission. It was by reason of this application of the terms of the protocol, which I consider the right application, that in my opinion rem'.ered in Caracas on August 28, 1903, I differed from my learned colleague and explained the acts which in my judgment, and in conformity with the proofs furnished by the papers in the case the AVnezuelan Government might incur a liability for, concluding my opinion with the following concrete statement : - I am therefore of the opinion that the companj' is entitled to an indemniiication of ten thousand bolivars (10,000 bolivars) and interest at the rate of 3 per cent from October 12, 1899, which the Government of Venezuela will pay/rr wear and tear of the steamer Santa Bárbara while .she was in the Government's .service; that the company should reserve her action to ol)tain payment of the bill (ov freight, tiansporlation (f troops, and use of two of her .steamers by the authorities of the State of Zulia, duly made out and vouched for, and that according to the balance sheet of December, 1899, amounted to that date to the sum of 203, .529.70 francs, and interest from their respective datesof origin, and that theOovernment of Venezuela should also re-^erve the actions and rights that might concern it, becau.se of the suspension of traffic, abandonment of operation, and consequently damages suffered by the line because of failure to maintain and preserve it; and that as far as the other points art» concerned the claim .should be rejected as groundless. (Comisic^n Mixta Venezolana- Francesa. Protocolo de 19 de Febrero, 1902. Dictámenes del Arbitro Venezolano. Edición Oficial, 1903, p. 200. ) During the oral ])roceedings hail at the sitting of August 28, 1903, (ibid., p. 211), the grounds for my decision were sumnuirized as follows: The commissioner for Venezuela considering in opposition — That the actual reasons of the suspension of opeiation of the line by the company are of an economic character, as the company was comijelled to take such steps because of the lack of traille due to the state of revolt of the eounlry and because of the impo.ssibility in which it (the company) was placed by reason of its bad financial situation of obtaining the ncceaeary ADDITIONAL OPINION OF VENEZTTî:LAN COMMISSIONER. 413 funds to repair the damages caused by the weather toa line built under unfavoralile condi- tions; That tlio Venezuelan Government could iwt he responmhle either for the davim/es sull'ered by the working materials because of voluntary abandonment nor yet of such danKujes as the company may have sufTered on account of (he state of revolution in (he country or t)V an accident of war; That the agreement entered into l)y the company and the Venezuelan (lovernment, in regard to the guaranty stipulated in the contract, has been duly and fully executed and that the company has received the sums residting from the sale of the bonds whicli in compliance with the terms of said agreement were delivered to the company: That the Government of Venezuela has never refused to pay the company the \ aluc of the requisitioihs (seizures) and the damages resultiwj therefrom to the material and that tiie ina- bility of the Government to make such payments because of the exhausted condition of the public funds during the civil war only makes the Government liable for the jmyment of unpaid interests; The conmiissioner is therefore of the opinion that the claim of the company lacks proper grounds and onlj^ acknowledges to the company the right to an indenuiity for 10,000 bolivars for the wear and tear suffered by the steamer Santa Bárbara while she was in the Government's service and reserves to the company the right to claim from the Venezuelan Government by filing the proper and necessary vouchers the amounts due by requisitions (seizures) and the corresponding interests; Doctor Paid reserves for the Venezuelan Government all its rights of action against the company because of the abandonment of the operation of the line. The French Company of ^^enezllelan Railroads under date Septem- ber 28, 1904 — that is to say, one year after the session of August 28, 1903, when the commission closed its labors in Caracas — submitted all the documents in support of the requisitions or services rendered by the railways and the ships of the company to the Government of the State of Zulia up to September 30, 1899. I have examined with due care and attention the bills and annexed vouchers and found correct the balance due to the company by the government of Zulia, accord- ing to a communication addressed by the manager to the President of the State on the date aforesaid and found under No. 3 ''Dossier Réquisitions — Jacket No. 11." According to said communication and vouchers submitted the balance due amounts to 193,135.95 bolivars. In a communication addressed under date of January 18, 1900, by the board of managers of the French company to his excellency the minister of foreign affairs in Paris a copy of which is found m Exliibit 3, document 5, the following statement is made: We take the liberty to send you herewith a copy of the report of our chief manager, the engineer, Gustave Simon, relating to his mission, which said gentleman delivered to us upon his arrival in France. Every day that passes since we were compelled and forced by the re\olutionary events to suspend our operations in Venezuela, since October 12, 1899, will render more difiicult and onerous the possibility of our resuming operations. The failure to maintain a road and, above all, a railroad leads to its rapid desti-uction, especially in a tropical country where vegetation is powerful and of almost instantaneous growth. * * * -We c.stimate in .30(),(KJ(J francs the mininunn cash amount necessary to renew, before the end of April next, the operation and service of our busiues.s. 414 FRENCH COMPANY OF VENEZUELAN RAILROADS CASE. Now the different debts of the national Government, as well as those of the provincial governments, due to our company may be resumed as follows: (a) The amount of 300,000 francs, in round numliers, representing reimbursement oftrans- portation expenses and requisitûm.^i made by the account of the authorities. The itemized accounts have been furnished to the authorities according to fonns and decrees. The largest portion of these bills have received proper official approval. (b) The amount of 2.50,0(X) francs, our minimum estimate of the indemnijication due by the Government of Venezuela by substantial repairs and damages caused because of its acts to the whole of our property during the last revolution.' (c) The amount of 1,050,000 francs which, at the rate of 105,000 francs per month, rep- resents the amount of the indemnification which the Government of Venezuela owes us because of suppression by its act of our traffic during the ten months elap.sed Ijetween July, 1899, and May, 1900. Wc have taken as a basis for this estimate of the indemnification the amount of the guaranty of 1 ,260,000 francs which had been fixed and acknowledged to our company b}' the concession-contract, duly approved and ratified by the Venezuelan Congress and the Presi- dent of the Republic. Let US examine now, one by one, these charges for mdeinnity requested from the Government of Venezuela under date of January 18, 1900 — that is to say, three months after the abandonment or sus- pension of operations on the part of the board of managers, on the 12th day of October, 1899. The first item — that is, the amount of 300,000 francs in round num- bers, as reimbursement for transportation and requisitions by the authorities — exceeds in the amount of 106,864.05 bohvars the sum of the balance sheet submitted by the same board of managers to the au- thorities on September 30, 1899, or twelve days before the suspension of operations and the delivery of the rolling stock, offices, implements, and other property of the company to the consular agent of France in Maracaibo, Mr. A. I. d'Empaire. The claimant has produced said bills and vouchers before the commission. In this regard, the Gov- ernment of Venezuela is the debtor of the French Company of Vene- zuelan Railroads, as per bills and vouchers, to the amount of 193,135.95 bolivars, and interest at the rate of 3 per cent, as established by the company, from the date when it is showTi such transportation and requisitions took effect in compliance with the orders of the local authorities of the State of Zulia. The dates and respective balances are the following, as sho^\^l by the examination I have made of the bills in the record of the case: Bolivars. Balance approved by the legislature of the State of Zulia, February 27, 1894 . . 2, 994. 85 Balance approved by the legislature of the State of Zulia, January 23, 1895. . 6, 434. 60 Invoice as per statement up to December 31 , 1897 15, 443. 60 Invoice, etc., to May 30, 1898 3, 886. 00 Invoice, etc., to October ."iO, 1898 34, 618. 90 Invoice, etc., to March 3, 1898 6 532. 00 Invoice, etc., to April (i, 1899 9, 047. 00 Invoice, etc., to Se|)lemlx'r :«), 189Í) 114, 679. 00 T.Jtai 193, 635. 95 ADDITIONAL OPINION OF VENEZUELAN COMMISSIONER. 415 An estimate of the interest on the several balances from their respec- tive dates until that when the company may probably come into pos- session of the funds by virtue of the execution of the sentence wh^ch may be finally passed, a lapse of time which I believe to be reasonably witliin three months, takin<>; into consideration any inevitable delay, will show that the company in this regard is entitled to the sum of 36,060 bolivars. Between the amount of 193,135.95 bolivars, which is established by the company's statements, and that of 203,529.70 bolivars, balance in the company's statement of December 31, 1899, as due by the Vene- zuelan Government at that time, as shown in the report of the board of managers to the stockholders in the company, and to which I have made reference at the conclusion of my opinion of August 28, 1903, there is a difference of 10,393.75 bolivars, to wliich I find no other explanation in its support than that it represents the price the com- pany has charged the Government of Venezuela for the service of the steamer Santa Barbara during the days intervening between Septem- ber 30, 1899, and the end of October of the same year, when it appears the steamer was returned to the company after having taken to the island of Curaçao Doctor Andrade, the President of the State, after the so-called ''Liberal-Restauradora" revolution. Such amount, even if it does not appear in a specified form, f.s it should do, I deem to be a fair compensation for the services rendered by the steamer Santa Bárbara to the local authorities during the month of October, as, according to documents in the case, the company had suspended since the 12th of the same month all operations in its railroad and steamer service, so that there were no expenses for maintenance of the service. On the aforesaid amount, which I recognize as also due by the Gov- ernment of Venezuela, interest at the rate of 3 per cent should be added from October 30, 1899, to the date of the execution of the sen- tence as aforesaid, so that the amount of the indemnity increases to the sum of 1 ,767 bolivars. So that the principal and interests on this amount, as shown, amount to 203,529.70 bolivars as principal and 37,827 bolivars as interest, or, in all, 241,357.70 bolivars. I do not think that the indemnification wliich this commission may award the company should exceed such sum for delay in payment of services rendered the authorities of the State of Zulia at different times, because such services as are represented by transportation of employees and troops, both by land and water, during the time intervening be- tween 1893 and March, 1899, the correspondence and other papers submitted in the case show they were a portion of the active and frequent business transactions of the company carried on with the local authorities, originating debits and credits in account current. 416 FRENCH COMPANY OF VENEZUELAN RAILROADS CASE. There is no written or documentary evidence showang that the com- pany did ever j)ress the puyment of the periodical bahinces of the acpount by means of jiny of the measures wliich the law places at the disposal of the creditor to olitain or enforce the payment of what is due him. Under such conditions there was no denial of justice nor has such claim been advanced. On the contrary, from the correspondence it a])pears that such activity in the account current of the Government with the company dining the six years mentioned was of such imjiort- ance for the latter that it could well afford, as it happens at times in tliis kind of business transactions, to take into consideration certain circumstances wliich only the company was cap{;ble of appreciating, in order not to institute \egcA proceedings to compel such payment, but willingly to wait the paj^ment of such sums as fell due. It must he stated that the delà}' in the payment of the balances on the part of the local authorities of the State of Zulia only repre- sents in a period of over six years the amount of 78,450.95 bolivars, out of wliich sum 50,197.90 bolivars belong to the six months elapsed from October, 1898, to April, 1899, preceding the revolutionary events of May of the latter y?ar. It is also worthy of notice that the com- pany has not shown the total movement of its account current with the government of the State of Zulia from the year 1893 up to the month of April, 1899, when the government of the State appears to be the company's debtor to the amount of 78,456.95 bolivars. The company has only submitted to this commission the balances due at certain dates, which do not furnish suilicient data to find out the amount represented l)y the total volume of the business transactions during the six years in question to indicate whether the government of the State of Zulia is as remiss in the ])ayment of its obligations as represented. The same documents and correspondence, which 1 have had before me, show, as has been established, that the larger portion of the total balance for freights and re(|uisitions due by the government of the State of Zulia on September 30, 1899, arises from services rendered by the railways and the steamers of the company to the authorities of the State of Zulia for the months ehipsed from May of the same year when the revolution '' Libertadora" broke out in the Andes until said authorities were deprived of their power, because of the triumph of the revolutionary party. It was during these months that traliic was suspended on the railroad, because of the interrupted communications with the interior and the complete cessation of all transportaticiii of the products, whicli made the normal carrying trade of the line in the ordinary course of business transactions. The man- agers- of the line found themselves in an embarrassing ])<)sition to meet the indis])(Misable exjxMises for ti»e want of the income pnxhiced by such transportation opei'iit ions, and it was then that the goNcrn- ADDITIONAL OPINION OF VENEZUELAN COMMISSIONER. 417 ment of the State of Zulia, finding itself under the necessity of defend- ing the duly constituted authorities and to restore public order, made use, as the government was entitled to do and the company bound to allow by the terms of the concession-contract and the imperious military necessity, of the means of transportation over land and water that the company had at a standstill at that moment because of the lack of mercantile traihc. Thus the debt created by the authorities of the State of Zulia in favor of the company under such circumstances represents the sole industrial profits the company could have obtained out of its land and water transportation facilities, wliile the use to which said author- ities placed such means of transportation afforded the only possible means to protect and save such property either from the injurious action of a protracted period of idleness or from the risk of being seized and destroyed by the revolutionary party in order to prevent that the Government they were opposing might make use of it. I do not find that the impossibility said government was in of satisfv'ing the pressing request for payment wliich the agent for the company in Maracaibo began to urge precisely at the very moment said authorities were, for the same reasons alleged by the company, in want of funds and when the Government was compelled to spend whatever revenues might be collected to defray the expensive opera- tions of war — I do not find, I say, that such impossibility can be made a cause to justify the claim of liability which the company pretends affects the national Government and settlement of which by an indemnity amounting to millions of bolivars has been demanded. If the managing board of the French Company of Venezuelan Rail- roads found itself compelled to suspend operations because of the lack of funds, and neither the company nor the board of directors can be made responsible for such sta^e of affairs, as it is due, the company avers, to a case of force majeure, why is the national Gov- ernment of Venezuela to be made responsible because the local author- ities of the State of Zulia were in the impossibility to make disburse- ments to the company in payment of its debts when such authorities were also under the force majeure of impossibility on account of the war? In an interview had in Caracas between the manager, Mr. Simon, and the minister of finance, Mr. Olivarria, in September (16), 1899, when for the first time a direct request for a payment on account of the sum due the company by the sectional government of Zulia was made to the national Government, the aforesaid minister of finance gave as a reason for not making the payment then requested lack of funds and impossibility to promise to make such payment in the near future. At the time of this interview the national Government of Venezuela, represented by the president general Ignacio Andrade, S. Doc. 533, 59-1 27 418 FRENCH COMPANY OF VENEZUELAN RAILKOADS CASE. was reduced to the capital of the Repubhc after the armed conflict of Tocuyito, September 12, when the Government forces were defeated bv the army under the command of Gen. Cipriano Castro, the present provisional President of \'enezuela. General Andrade and those who composed the Federal executive could not at that moment be in a position to satisfy- other needs than those the precarious conditions of the disorganized Government exacted as of vital importance. A month after, which was spent in gathering new troops and directing military operations, to which effect new war contributions were levied and requisitions issued on the inhabitants of Caracas for horses, mules, and provisions for the army, General Andrade found himself in the impossibility of continuing the struggle and abandoned the capital, accompanied by some ofhcers and soldiers, on October 19. From these facts, which are in perfect accord with liistoric truth, by the simple application of common sense free from any passion or preju- dice whatever, it is concluded that there has not existed on the side either of the sectional government or of the national authorities any deliberate puq^ose of doing any injury to the prosperity and the business of the French Company of Venezuelan Railroads by delaying without any justifiable cause the payment of the amounts due. The liability wliich by all possible law and by all principles univer- sally established affects the debtor who does not pay his obligations in due time is solely that of paying interest to his creditor for the time of the delay at the rate agreed upon and, in the absence of an agree- ment on this point, at the legal rate. The provisions of the Venezuelan Civil Code, which in tliis matter agree with those of the French and Italian Civil Codes and with the civil law of all countries, establish that there exist obligations with penal clause when the debtor, to secure the fulfillment of an obligation agrees to give or to do something in case of failure or delay in the execution of such obligation, and that the penal clause is the compen- sation for damages growing out of the failure tt ñdfill the principal obligation. (Articles 1 175 and 1 178 of the Venezuelan Code of 1896). » When the government of the State of Zulia made a compact with the French Company of Venezuelan Railroads for the service of trans- portation of troops, ammunition, etc., and the requisitions which created the Government's debt, no penal clause was stipulated to secure the fulfillment of the contracted obligation, nor did the Gov- «Art. 1175. Hay t)ljligucionc\s con cláusula penal cuando cl deudor, para asc>;urar cl cumplimiento de una obligación, se compromete á dar ó hacer alguna cosa para el caso de inejecución ó retardo en el cumpl¡mi( nto de la obligación. Art. 1178. La cláusula penal es la compensación de los daflos y perjucios causados por la inejecución de la obligación principal. VA acreedt)f no puede reclamar á un luismo tiempo la cosa principal y la pena, si no la hubiere estipulado por el simple retardo. ADDITIONAL OPINION OF VENEZUELAN COMMISSIONER. 419 eminent become bound to pay damages in case of delay in the pay- ment different from those the law in i.ll countries grant the creditor against the debtor of (m amount of money — i. e., interest either in con- formity with the contract or with the law. The following provisions of the Venezuelan Civil Code mentioned, which agree with the identical prescriptions in the French Civil Code, from which they were adopted, are j^ertinent to the case: AiiT. lini. The debtor is not under obligation to pay damages when ¡is tlie consequence oí fortuitous events or force majeurehe has failed to give or to perform that wliicli lie is houiul to do, or has performed that wiiich was forl)iddoii. Art. 1192. Damages are generally due to the creditor for tlie loss sustained or the benefits which he has been deprived of, according to the provisos and exceptions hereunder. Art. 1193. The debtor is not liable except for such damages as liare been foreseen or that could have been foreseen the time the contract was made, when the failure to fulfill the obliga- tion is not due to fraud or deceit (dolo). Akt. 1194. Even in cases where the failure to execute an obligation may he the result of fraud or deceit on the part of the debtor the damages for the loss suffered by the creditor or from the loss of profits of which he might have been deprived, can not extend beyond tlie immediate and direct consequences of the failure to fulfill the obligation. Art. 1196. When in the obligations /or a certain sum, of money there exists no special agreement, such damages as are the result of delay in the execution are indemnified by the pay- ment of interest at the legal rate, except when otherwise specified. Such damages are due from t he day of delay, the creditor not being under obligation to establish any loss b}^ proof .a These prescriptions which are based on iniiversal rules of civil and commercial law of all civilized countries are the only ones applicable to tins case. And it is based upon such rules that I have held and do still hold that the Venezuelan Government is not liable to the French Company of Venezuelan Railroads for any other damages for failure to pay the amounts due on the contracts for services rendered, except the payment of the sum of money due for such services and the corre- sponding interest at the legal rate. To hold otherwise would be to apply to Venezuela a penalt}' wliich has not been established b^" any codes of any of the nations existing under international law. I, therefore, limit the liability of the Government of Venezuela on this «Art. 1191. El deudor no está obligado á pagar daños ó perjuicios cuando es á con- secuencia de un caso fortuito ó de fuerza mayor que ha dejado de dar 6 de hacer aquello á que estaba obligado ó que lia ejecutado lo que le estaba prohibido. Art. 1192. Los daños y perjuicios son debidos generalmente al aen-edor, por la pérdida que ha sufrido y por la utilidad de que ha sido privado, sa'vo las modificaciones y excepciones establecidas á continuación. Art. 1193. El deudor no queda obligado sino por los daños y perjuicios que han sido previstos ó que han podido preverse al tiempo de la celebración del contrato, cuando la falta de cumplimiento de la obligación no proviene de dolo. Art. 1.194. Aunque la falta de cumplimiento de la obligación resulte de dolo del deudor los daños y perjuicios relativos á la pérdida sufrida por el acreedor y á los (|ue son con- secuencia imnediata y directa de la falta de cumplimiento de la obligación" Art. 1.196. A falta de convenio en las obligaciones que tienen por objeto una cantidad de dinero los daños y perjuicios resultantes del retardo en el cumplimiento, .se satisfacen con el pago del interés legal, salvo disposiciones especiales. 420 FRENCH COMPANY OF VENEZUELAN RAILROADS CASE. account to the amount above mentioned — 241,357.70 boilvars — as principal and estimated interest on the debt. As the final complement in the discussion of this part of the indem- nification claim, I am pleased to quote the high authority of the opinion of my honorable and learned colleague in the American and Venezuelan Commission, Mr. William E. Bainbridge, in the case of Ford Dix against the Venezuelan Government : Governments like individuals are responsible only for the proximate and natural conse- quences of their acts. International a.s well a.s municipal law denies compensation for remote consequences in the absence of evidence of deliberate intention to injure. In my judg- ment the I0.SS complained of in this item of Dix's claim is too remote to entitle him to com- pensation. The military authorities, under the exigencies of war, took part of his cattle, and he is justly entitled to compensation for their actual value. But there is in the record no evidence of any duress or constraint on the part of the militaiy to compel him to sell his remaining cattle to third parties at an inadecjuate price. Neither is there any special animus showTi against Mr. Dix nor any deliberate intention to injure him because of his nationality. If the disturbed state of the country impelled Mr. Dix to sacrifice his property, he thereby suffered only one of those losses due to tiie existence of war for which there, is unfortunately, no redress. (Venezuelan Arbitrations of 1903, Ralston's Report, p. 9.) The same reasoning is applicable to the necessity of the company to suspend operations, which the company made dependent from force majeure, because of the lack of revenues during four montlis by reason of the revolution and the failure of the Government to pay its debts to the company and because after September 27, 1899, the railroad line was in the hands of the insurgents, and until the day of the suspension (October 12) there were no hopes that the Government would recover the place. See the notice of the manager announcing to the public that traffic had been suspended published in the newspapers called El Fonógrafo, El Anunciador, and La Com'pañia Francesa. The second charge made by the board of directors of the company, resuming the claim for indemnification demanded from the Govern- ment of Venezuela, January 18, 1900, reads as follows: (b) The amount of 2.50,000 francs, our minimum estimate of the indemnification due by the Government of Venezuela for substantial repairs and damages caused because of its acts to the whole of our property during the last revolution. In my opinion of August 28, 1903, 1 granted the claimant company an indemnification of ten thousand (10,000) bolivars and interest from October 12, 1899, for damages caused the steamer Santa Bár- bara while in the service of the government of the State of Zulia by reason of the revolutiomiry movement at that time. wSaid estimate is based on the documentary evidence protluced by the company or, in other words, on the estimate of the damages sufTered by the steamer, as directed to be mtide by the Frencli consular agent in Maracaibo, Mr. A. J. d'Empaire, on January 2, li)03, Messrs. Eugene Creutzer, a French mechanical engineer, and Manuel Maria Soto, a captain in the Venezuelan merchant marine, bemg intrusted as experts with the ADDITIONAL OPINION OF VENEZUELAN COMMISSIONER. 421 appraisement of said damages. The report of these experts to the consular agent January 2, 1900, which bears the signature of said consular agent, fixes the amount of damages at the sum of ten thousand holwars. There is no other evidence on record purporting to estab- lish the existence of damages to the railroad material of the company, while, on the contrary, from the correspondence of ^Ir. Decleva, acting as manager of the company, it appears — that peace and order reigned on the 7th of June, 1899, according to the reports received from the Hne. Under date of June 18 the same manager reports to the company: I am back after an uneventful trip. In Santa Bárbara, in La Vigia, along the line, every- thing is quiet. The road is in pood condition and tJie material complete. All our engines have come back to the shops, even those employed in the ballast work, which I had pressed into service and kept by order of the ciml and military authorities. The only thing that the record esta})lishes in reference to damages sustained by the maritime property of the company, besides the damages done to the steamer Santa Bárbara, valued at 10,000 bolivars, is the loss of the steamer San Carlos y Mérida, at anchor m the harbor of Maracaibo. The witnesses, Edmond Hainst, Antonio Martinez Peña, and José Vicente González declared at the inquest held by direction of the French consular agent — that the steamer San Carlos y Mérida at anchor opposite the warehouse of McGregor & Co., and of Rafael Morales, had foundered during the evening of the 1st and the day of the 2d of December, 1899, because of the shots received in her hull, both on the port and starboard sides, during the engagement and shots exchanged between the forces under Gen. Cipriano Castro (on the Maracaibo side) and the forces under Gen. José Manuel Hernandez (on the Haticos side). What is the liabilit}^ affecting Venezuela for the above-mentioned events? The answer is the same Mr. Evarts, Secretary of State, gave Mr. Hoffman July 18, 1879 (Wliarton's Int. Law Dig., section 224) : As a principle of international law, the view that a foreigner domiciled in the territory of a belligerent can not expect exemption from the operations of a hostile force, is amply sustained by the precedents you cite, and many others. Great Britain admitted the doctrine as against her own subjects residing in France during the Franco-Prussian war; and we, too, have asserted it successfully against similar claims of foreigners residing in the Southern States during the war of secession. I do not deem it necessary to quote numberless decisions of arbitra- tion courts or commissions in support of the views of the eminent Sec- retary of State. Taking as a basis the above-quoted principle, I have not been willing to admit liability on the part of Venezuela for the foundering of the steamer San Carlos y Mérida, which was not occupied by the Govern- ment forces, but was anchored in the Maracaibo harbor, unfortunately placed between the belligerent forces during an engagement at a point where the cross fire damaged her hull to the extent that she foundered. 422 FRENCH rOMPAXY OF VENEZUELAN RAILROADS CASE. Under such circumstances, the indemnification 1 liave granted for substantial damages to the company's property is Hmited to what has been estabhslied as aiiec ting tlie resp()nsi])ilitY of the Venezuehin Government — i. e., the damages sustained hy the steamer Satitd Barbara while in the service of the local authorities of the State of Zulia, appraised by experts at the sum of ten thousand (10,000) boli- vars. Tlie interest on this sum at the rate of 3 per cent from t] e date of the return of said vessel, about the end of October, 1899, until the time ])ef()re stated, represents an amount of 1 ,075 l)()livars ora sum total for the whole item of 11,675 bolivars. The third and last diarge for indemnification contained in the report of the director of the company under discussion is as follows: (<•) The amount of 1,0.5(),(XX) francs, which, at the rate of 105,000 francs per month, repre- sents the amount of the indcmnificatirjn which the Government of Veneziiehi owes us Ix'cause of suppression hij itx i/r/.v of our traffic during the ten montlis elapsed Ix'tween July, 1SÍH), and May. 19f)0. The above-mentioned allegation is based on the suppression of the trafile of the comjiany, a fact which is attributed to an act of the Gov- ernment of A'enezuela. From all the documents submitted to this commission by the company, the only established fact is that the sus- pension of traffic from the month of July, 1S99, to October 12 of the same 3'ear, was due to the state of revolution then existing in the Cordillera de los Andes and localities contiguous to the State of Zulia, such revolution ' ausing interruption of the carrying trade and j^araly- zation of all suth commercial transactions, and that such suspension of traiiic from October 12 on was due to the determination taken by the manager of the o})erations of the cr Gen. ('ij)riano Castro. Neither tlie authorities of the government of General Andrad(> nor the revolutionary forces led b}' General Castro, whit h afterwards con- stituted the government, did ever perform any direct act which nuiy render the A'enezuelan Government liable for the suspension of traiiic both by land and by water of the company during the months elaj)sed from July, 1899, to October 12, 1899, while it is ñdly established that the inanag(Mneiit directed the suspension of the operations of the lines, and this constitutes an act of its own volition. Even in the event, which is not the iwesent case, thai (h(> govern- mental authorities .shoidd have directed th(> traille of the trains to ADDITIONAL OPINION OF VENEZUELAN COMMISSIONER. 423 stop temporarily because of the needs of war, such determination could not have made the Government of Venezuela incur a liability to indemnify the damasses sustained. There can be no reasonable doul>t that it is the rigiit of a governnieut , in situations of dan- ger or organized rebellion and revolution, to take such measures as it may deem proper to prevent the passage of persons, either for travel or business, from one point to another in the localities where there are armed and organized troops of insurrectionists, and to this end it certainly has the right and the power to suspend traflic upon any line of transportation; but this right is coupled with a corresponding «luty, which is to make proper compensation to the company in cases other than those wliere the territory traversed b}^ the railroad is the theater of active warlike^ operations between armed forces. (Opinion of the Hon. Henry M. Duilicld, umpire in the Gcrman-\'cnezuelan Claims Commission in the case of tlic Great Railroad of \'enezuela against Venezuela, llalston's Report, p. (>.%.) That the authorities of the State of Zulia directed the suspension of traffic on the railroad line, as alleged, has not been established. But even in such case, the operations of war being active precisel}^ within the territory over which the railroad runs, the right to suspend traffic rested with said authorities, the Government of Venezuela not having obligation on that score to indemnif}^ The interruption of the ordinary course of business is an inevitable consecjuence of the state of war, to which both natives and foreigners must submit, and therefore the losses suffered under such circum- stances do not create any liability for indemnification to the govern- ment of the territory where the war takes place. This is the same rule controlling the case of liability when the property of neutrals suffers a direct injury or is destroyed during an engagement of the belligerent forces. No government compensates its subjects for losses or injuries suffered in the cour.se of civil commotions * * *. (Hall, 4th edition, p. 232.) The reason for this is obvious. If the damages suffered by natives as well as aliens in consequence of a war were to be indemnified, the sum total would be so great that whatever the war might have left standing would not be sufiicient to indemnify the claimants for direct damages. Pa3Tnent woidd have to be made with their own property, and per- haps even this would not suffice. If governments were under obligations to accept such liabilities as the French Company of Venezuelan Railroads has pretended should be charged against the A>nezuelan Government because of the war, claiming for the value of the capital invested in the operation of the Santa Barbara and El Vigia Railroad an indemnification of 18, 000, 000 francs, because the state of war compelled the company to suspend operations, suppressing all its revenues, and pretending besides that Venezuela should receive in exchange both the railroad and the maritime property of the company in such a condition as it is now, why should it not be admitted also that all railroad, maritime, commercial, industrial companies, even the undertakers and funeral '424 FRENCH COMPANY OF VENEZUELAN RAILROADS CASE. directors who have been compelled to suspend in A^nezuela their active business transactions on account of a state of war, are entitled to transfer to the State their several business properties in exchantje for an indemnity equivalent to their working capital ? The claim of the French Company of Venezuelan Railroads for 18,430,000 bolivars leads to such absurdity. The foregoing statements are, I beUeve, suiRcient to firmly estab- hsh that the lack of grounds to base the claim for an indemnification upon,* larger than the two I have acknowledged, relieves the Vene- zuelan Government from other liabilities to the French Company of Venezuelan Railroads than — First. Indemnity for transportation and requisitions as established and estimated interest, 241,357.70 bolivars. Second. Indemnity for damagçs to the steamer Santa Bárbara and interest, 11,675 bolivars. Or a sum of two hundred and fifty-three thousand and thirty-two boUvars, rejecting the other claims, as they are not fully established. In this connection I beg to reaffirm in each and every particular my opinion of August 28, 1903." Before closing this paper I desire to be allowed to make two remarks in reference to the opinion submitted by my learned colleague in sup- port of his decision. The first remark is that the claim my colleague quotes in his opinion of the English Company of the Puerto Cabello and Valencia railroads,^ wliich by the award of the umpire in the B^itish-^'enezuelan mixed commission obtained an indemnification of £231,794 7s. lid., has no similarity whatever with the present claim, as my learned colleague avers, but, on the contrary, it essentially difl'ers as regards the grounds upon which it rests. Such claim, as the honorable umpire knows better than we do, as he passed the final judgment upon the matter, was entered before the commission by the English Government in behalf of the Puerto Cabello and Valencia Railroad Company, demand- ing from the Venezuelan Government the amount of £319.381 4s. 9d. as arrears on the guaranty that the Venezuelan Government had given the English railroad company, and their interest, besiiles a small sum for freights. The English Government could not have submitted to an international arbitration court a claim similar to that submitted to this commission by the French Company of A'ene- zuelan Railroads. The second remark is that it was not Doctor Paúl who published a volume entitled ' ' Dictámenes del Arbitro Venezolano " (Opinions of the Venezuelan Commissioner) , among which is found that which my learned a See pp. 3(59-405. Herein, p. 408, and citing Venezuelan Arbitrations of \{KY¿, líalston'.s Report, p. 4.55. ADDITIONAL OPINION 0Î FRENCH COMMISSIONER. 425 colleague, with a certain amount of fitness, perhaps, calls ' ' a formal defense of the Venezuelan nation." It is the Venezuelan Govern- ment which made the publication, and it may be possible that such step has been taken with the purpose that the French commissioner or the counsel for the claimant companies may have an opportunity to learn as far in advance as possible the arguments therein contained, so as to be able to contradict them with convincing proofs and argu- ments before the umpire. I will simply say to my learned colleague that it is not our opinions which are to be submitted to the judg- ment of the honorable umpire. It is the mass of papers and docu- ments around which the claimant has woven the net of its preten- sions which will give no little trouble to the honorable umpire to unravel. It is the claims for indemnification against the Venezuelan Government which are to be sifted to attain the ends of justice. I also submit herewith five exliibits translated into English, marked, respectively, with the numbers 2, 3, 4, 5, and 6, containing several reports from the railroad inspectors during different stages of the construction and operation of the road and during the suspension of traffic, as well as other communications from the company's agents, addressed to the department of promotion (ministerio de fomento) of the United States of Venezuela, relating to the facts dealt with in the present case. NoRTHFiELD, Vt., February 13, 1905. ADDITIONAL OPINION OF THE FRENCH COMMISSIONER. After having read the additional memoir presented by my honorable colleague, I can only maintain the position which I took at the meet- ing of the commission of August 28, 1903, and explained in the prior memoir. Although Doctor Paúl speaks of my "arguments," I maintain that I have rendered my opinion according to my conscience, as my posi- tion as an "arbitrator" requires. The protocol of 1902 gives us the title of "arbitrators" and not "commissioners" or "advocates." I have no arguments to furnish. I am satisfied to examine those of the company and its defender, Mr. Dacraigne. I have judged them to be convincing. I have read the two memoirs presented by my honorable colleague, not to combat them, but to find reasons for changing my convictions. After having read them my conviction remains intact. The Venezuelan Government has failed in its contractual obligations in never having paid to the com- pany the guaranty of interest as agreed; it has imposed upon the company, which was forced to accept it, a leonine contract of which judges in equity could not recognize the existence any more than 426 FRENCH COMPANY OF VENEZUELAN RAILROADS CASE. ordinary judges can accord value to a signature given under threat; it has paid the pittance which it has kindly given on this occasion in paper Avithout value; it has used the materials of the company for its needs; it has deprived it of its ordinary resources and employees; it has not even paid the price for services demanded. Consecjuently it has ohliged the company to suspend operations. It is, then, respon- sible for its ruin, and it owes it an equitable compensation. The manner which I have adopted for calculating this compensation seems to me to be the only one which meets the requirements of e(|uity and avoids, as the spirit of the protocol desires, a new claim being held after the arbitral sentence is rendered. Besides this estimation is made in accordance with the terms of the contract, and in this mode of settlement the \"enezuelan Government would find advan- tages, since it would acquire a concession and a line of railroad at a price inferior to the contract price estimated In' itself. My colleague considers that mj^ decision is contrary to the protocol and that the commission could not pronounce the rescission of a con- tract. Such is not my opinion. "Wliat are the terms of the protocol? The commission will unite for the purpose of examining "the claims for indemnities presented hj Frenchmen." If the two arbitrators "do not agree upon the amount of indemnities to be allowed, the demands will be submitted b}" them to an umpire,'' who "will decide without appeal." The protocol says nothing else, and it woidd be to take from it all the efficacy which the signers wished to give it to restrain the powers of the umpire contrary to the letter and to the spirit of this diplomatic act. The protocol was intended to terminate all the differences existing between Frenchmen and the Government of Venezuela, and has placed no limitation upon the sovereign j)ower of the arbitrators to weigh and decide and, in case of disagreement between the latter, that of the umpire. In pronouncing the rescission, besides, the commission would only cause a condition of fact to be registered, solemnly, and consecrated, the Venezuelan Government having treated the contract in question as nonexisting, since it has never executed its clauses. Finally, I ought to remark to the honorable Mr. Plumley that Doc- tor Paul has not always been of the opinion that the rescission of the contract was l)eyond the jurisdiction of the commission, since at the sitting of the commission of May 12, 1903, relative to the Fieri claim, he decided that this Frenchman should obtain an indemnity in exchange for the concession which he held of a contract with a inunici])ality. The umpire can refer to the extract of the minutes of the said meeting, which he will find in the dossier of the Fieri claim. As to the foundation of the claim, it is not for me to defend the com- pany of which 1 am not the advocate but lh(» judge: I can oidy pray the umpire to go over the dossier and the argument of Mr. Dacraigne. ADDITIONAL OPINION OF B'RENCH COMMISSIONER. 427 It only remains for me to express a few ideas which are suggested to me by the additional memoir of my honorable colleague, additional memoir which, with the memoir printed in the "Dictámenes," form so well an argument in favor of the \'enezuelan Government that the latter has presenteil no other defense. In support of his opinions Doctor Paúl cites passages frojn known authorities and decisions of arbitrators whose science and im])artiality I respect; he calls to his aid international law and the law of all coun- tries. I reply that these authors, these arbit rators, and these laws agree in proclaiming that States, like individuals, are bound to keep their engagements solenuily made and to pay their debts, and are responsi- ble, like individuals, for damages which their faults have caused to others. Doctor Paúl asks why the Venezuelan Government should not also reimburse their capital to all enterprises, "even ñmerals," which have suffered in Venezuela from operations of war. And to this ((uestion I make the same reply as he : We are agreed upon the above. It is not a question of that in the claim of the French (\:)mpany of Venezuelan Railroads, which was bound to the Government by a formal contract and has rendered it service worthy of remuneration. Doctor Paúl maintains that there is no possible comparison between this claim and that of the English Company of Railroads l)etween Puerto Cabello ahd Valencia. It seems to me, however, that both cases relate to the nonpayment of a guaranty of interest. Only they did not dare, because of the easy access of English fleets to Puerto Cabello, to impose upon the English company the conditions which the French company was obliged to accept uui.er penalty of obtaining nothing for the sums due it. A look cast upon the map of A>nezuela is more instructive than all the explanations. It is also known that France is opposed to using force against the weak to have her rights respected. Besides, the umpire knows better than anyone the claim of the English company, which I have merely heard spoken of, and he will be able, knowing the case, to decide if what has been granted the one can be reñised the other because the other is less fortunate or less feared. Doctor Paúl courteously observes to me that it is the Venezuelan Government that has had the ''Dictámenes del arbitro venezolano'^ published, perhaps to permit the French arbitrator and the advocates of the parties to understand its arguments, and besides that the honor- able umpire ought to pass, not upon our respective decisions, but upon the claims themselves, of which he ought to become, conversant integrally. On the first point, I reply to my honorable colleague that I have never criticized the publication of the "Dictámenes" — I have no authority at all to do so. I am content to state that this publication 428 FRENCH COMPANY OF VENEZUELAN RAILROADS CASE. emphasizes the character of the arguments of the ''Dictámenes" and gives to the French claimants the right of replying, as certain of them have done. On the second point I am happy to share completely the opinion of my honorable colleague. It will be necessary to remember on this occasion that it is not the first time that \ve have agreed since we have airead}' settled together, without recourse to an umpire, 72 claims out of the 80 that were submitted to us under the protocol of 1902. NoRTHFiELD, Fehruary, IJf., 1905. OPINION OF THE UMPIRE. July 25, 1887, the minister of public works of the United States of Venezuela, duly authorized, executed a contract with the Duke of Momy, a French citizen, which contract was duly approved by the Congress of that Republic August 3, 1888. It contained provisions which are summarized by the umpire as follows : The Government of Venezuela conceded to the party above named the right to build a railroad from ^lérida to the Lake of Maracaibo; canalizing the river Chamas, the Escalante, or any other navigable river whatsoever; the exploitation and the enjoyment of the revenues of the enterprise for a term of ninety-nine years; a strip of 500 meters of land on each side of the railroad track without payment therefor to be taken from the lands of the nation; the right to avail himself of the lands belonging to individuals wliich might become necessary for the construction of the railroad, stations, and the like, in conformity with the laws governing the taking of lands for public use and subject to compensation therefor; the wood and timber necessary for the con- struction of the works to be taken from the national forest without compensation therefor; the right to introduce into the country free of import duties the engines, material, instnmients, and everything necessary' for the construction of the line, subject only to proceeding in reference thereto in conformity with the provisions of article 177 of the code of finances; the right of exemption from assessments at all times by the nation and the State; a right to extension of the time allowed for the beginning and the completion of the works when delay was caused by /orce majeure, the entire extension not to exceed one year; a guaranty of 7 per cent on the capital in shares, bonds, or obli- gations; the right to construct such branch lines as he should deem necessary; the privilege of transferring the contract thus executed to any other person or com])any at his ])leasure on notice to the Vene- zuelan Government. The Duke of Mornv obligated himself in said contract to begin the said railroad and the canalization of the river, in case it be necessary, OPINION OF THE UMPIRE. 429 within one year from the date of the contract and to finish the Hne in three years therefrom; to yield up to the Government of Venezuela at the expiration of the said ninety-nine years, without indemnity there- for, the enterprise with all its annexes and ])roperties; to carry the mail free of charge; to transport for one-half the established rates the employees of the Government, its soldiers, troops, and elements of war; to the resolution by the competent tribunals of the Republic, in conformity with its laws, of all doubts and controversies which might arise from the contract. August 13, 1888, certain declarations and amplifications to the fore- going were made by Gen. Guzman Blanco, envoy extraordinary and minister plenipotentiary for Venezuela, to and with the said Duke" of Morny, which are summarized by the umpire as follows : The Govern- ment of Venezuela thereby and therein conceded to the other party that the railroad from Mérida to Lake Maracaibo was to be divided into two sections; the first section was to start from a point upon the river Escalante, which point the concessionary was to determine, and to be continued for a length of 60 kilometers in the direction of Mérida ; the second section was to start from the terminal point of tliis first section and continue to the city of Mérida ; an extension of the time fixed in said modification of the contract for the building of the first section equal to the delay suffered, if the delay was caused hj force majeure; the guaranty of 7 per cent provided for in the original contract to begin when the first section was opened for exploitation; an extension of the time fixed in this modification to the original contract for the building of the second section was to be made equivalent to the delay suffered, if the delay was caused hj force majeure; establishing the capital at an estimate of 300,000 bolivars per kilometer for the first section and at 350,000 bolivars per kilometer for the second section, the guaranty of 7 per cent to rest upon the amount of this estimate ; to pay the said guaranty in three equal parts at equal periods during the year; to add to the material which was to be imported free of duty under the terms of the original contract the engines, material, and instruments necessary for the running of the railroad ; and that during the period of twelve years from the date of the said modification of the original contract the Government would not establish a service of navigation to carry on traffic between the terminal point of the rail- road or any points upon the Escalante and the different ports of the Lake of Maracaibo. The concessionary was obligated therein to begin the work of build- ing the first section of said railroad within six months from August 13, 1888, and to complete the same within two years therefrom; to com- plete the construction of the second section within four years from the date named, and to introduce the material which was to come in duty 430 FRENCH COMPANY OF VENEZUELAN RAILROADS CASE. tree in conformity with the provisions of the law of finances provided for in such matters. April 10, 1891, further mochfications of the contract were made by the Congress of the United States of Venezuela b}' and with the repre- sentative of the French Company of Venezuelan Railroads, which latter had succeeded to the rights of the original concessionary, which modifications are summarized by the umpire as follows: The Republic ratified in behalf of said company the contract of August 13, 1888, and confirmed the original contracts except where they were contrary to the conditions named in that modification. The company renounced and declared null and void Article X of the contract of August 13, 1888, wdiich gave exclusive navigation privileges on the river Esca- lante and the difierent ports of the Lake of Maracaibo. It was mutu- ally stipulated that the concession was to be limited to the first section, which w^as to extend from Santa Bárbara to Camino Real, a point 1 kilometer distant from La Vigia. The guaranty of 7 per cent was to be reduced by the amount of the net benefits received by the company, these being composed of the net j)roduct of the receipts of every nature made by the exploitation of the railroad after deducting the general expenses of the company and of its management; the sums paid on account of said guaranty to be treated as advances only, to be returned as and wdien the benefits received by the company exceeded 7 per cent on the guaranteed capital by api)lying one-half of such excess in li(|uidation of said advances until all Avas reim- bursed; that after said advances had been fully reimbursed the Gov- ernment was to continue to share in said benefits to the extent of 20 per cent thereof. There was added to the provision in regard to the resolution of all doubts and controversies by the tribunals of the Re- public the further agreement that in no case were these doubts and controversies to give place to international claims. It wall be observed that by the modification of the original contract made August 13, 1888, the capital of the company for the purpose of reckoning the guaranty w^as estimated at 18,000,000 francs. Following this arrangement a French company was formed Sep- tember 28, 1888, taking the name of French Company of Venezuelan l^ailroads, with headfiuarters at Paris, and its duration limit od to ninety-nine years. The concessions obtained by the Duke of Morny were taken over by this company. The social fund was fixed at 300,000 francs, divided into 6,000 shares of 500 francs each; the other resources of the company necessary to the enterprise were to be raised by a loan. The laws of the company provided that from the guaranty of the Venezuelan Government of 7 per cent there should be set aside annually a sullicient sum to insure the payment of interest on the capital, which was to be obtained by loans. This guaranty was OPINION OF THE UMPIRE. 431 reckoned to produce 126,000 francs annually on the estimated capital of 18,000,000 francs. October 26, 1888, the company created 41,664 obligations of a nominal value of 500 francs, each representing 2.5 francs annual interest. With the capital thus provided, a syndicate undertook to construct the railway, pay the interest in the meantime, and reserve iuially to the company for current funds at the time the first section was ready for exploitation the sum of 300,000 francs. The building of the road was in progress from 1889 to 1892. It is complained by the company that on April 16, 1891, the Gov- ernment, by the rule of the stronger, compelled in the agreement of that date, the provisions of wliich have already been stated, the intro- duction of the clause into the original contract that there was to be deducted from the amount of the guaranty the actual net profits of the company. September 29, 1891, the ûrst section was nearly completed and about ready for use, when there occurred a very serious inundation, causing a considerable delay and the expenditure of a large sum of money to reconstruct the parts destroyed. It was April 1, 1892, when the company considered the work of construction completed and demanded of the Government its acceptance. But the State of Andes was then in revolt, while that of Zulia was loyal to the titular Government. A portion of the railroad was in each State. To whom should it apply ? Which was its Government ? August 5, 1892, the company made publication in the local papers of the fact of the completion of the railroad and that it had begun business. The company suffered badly from the insurrection, in requisitions from both sides, in the dispersions of its workmen, in the disappear- ance of its traffic, while the Government in the midst of this intestine war paid neither requisitions, damages, nor guaranties. The. line was repaired from the resources of the company, but it thereby exhausted its capital, and November 1, 1892, judicial liquiilation resulted. The creditors accepted the proposition made by the com- pany to pay them pro rata and permitted it to continue its enter- prise. February 23, 1893, the engineer of the Government examined the line and declared it to be well constructed and advised that by April 1, 1893, it would be in a situation to be accepted by the Government. March 23, 1893, the decree of inauguration was published, and on May 10, 1893, the record was made of its definite acceptance by the Venezuelan Government, dated back to April 1 of that year. As a matter of fact, the line had been in operation since 1892, with receipts for that year aggregating 149,241.21 francs, for 1893 the ■132 FRENCH COMPANY OF VENEZUELAN RAILROADS CASE. receipts being 570,061.37 francs, and in 1894 they were 458,525.24 francs. An earthquake in 1894 did great damage to the roadbed and to the bridges, which required large expenditures to restore. The receipts through its trafl&c were insufficient to meet these expendi- tures, and the national Government, though repeatedly urged so to do, paid neither guaranties nor indemnities nor requisitions. At the general meeting of the shareholders of the company, held June 30, 1894, its reports showed a claim against the Venezuelan Govern- ment amountmg to 2,205,000 francs. In fact, the repairs which were required by the earthquake had been made only by the issue of bonds of the denomination of 500 francs, drawing interest at 6 per cent, to be reimbursed by the sums to be received from the respondent Gov- ernment. On June 20, 1895, the report to the general meeting of the shareholders showed a claim against this Government of 5,820,785.47 francs. In 1894 the company issued 800 of the bonds, which have been mentioned, and in 1895 it made a further issue of 400. In the month of December of this last-named year requisitions by the national Government began again; the financial condition of the company became more strenuous. It sought diplomatic aid through its o-^Ti Government, but obtained no results. December 31, 1895, it claimed of the Government of Venezuela as follows: Bolivars. For guaranty to December 31, 1895 4,725,000.00 Damage to the exploitation 396, 924. 75 Damage for recruiting its workmen 525, 509. 57 Requisitions 96, 320. 00 Damage resulting from the nonpayment of the guaranty for the issue of bonds ~. 1,308,000.00 Total 7, 051, 754. 32 The years 1892 to 1894, both inclusive, were involved more or less in the successñd CVespo revolution. It was February 20, 1894, that General C-respo became constitutional President of the Republic for a term of four years. But it was not imtil the year 1895 that his authority was everywhere recognized, and up to that time there were occasional revolutionary outbreaks, entailing large expense upon the Government and lessening and interrupting its sources and means of revenue. The answer of the national Government to the repeated and urgent requests of the company for the recognition and ])ayment of its credits was always a lack of ñinds, of which fact there could be no real denial. The respondent Government had not, however, agreed to the sums demanded of it by the company. By 1896 the financial condition of the national Government had greatly improved, and in April of that year, together with Mr. Charles Weber, the duly constituted representative of the French CQmpany OPINION OF THE UMPIRE. 433 of Venezuelan Railroads, it took up the claims of that company. Substantially the same figures were presented to the respondent Government as have been here produced of date December 31, 1895. The consideration and discussion of these affairs resulted in a formal convention made April 18, 1896, when was brought in first a rehearsal of the salient matters of the previous contracts and then the state- ment of the claim of the company against the respondent Govern- ment. This statement is succeeded by the language which follows: (c) The Government has refused the payment of this guaranty during the time between April 1, 1892 (date upon which the hne would have been opened to trafiic had it not been for the forced recruiting of workmen) , and June 1, 1893, date of the official inauguration; and, furthermore, it has refused the payment of the amount of 2,326,751.32 bolivars, which treats of damages not well founded. The company, although maintaining in principle the good foundation of the claim, shows itself dispo.scd to make important concessions in view of arrivmg at an agreement, and after lengthy discussions upon the accounts presented the Government and the company by way of a transaction have agreed upon that which follows: Art. 1. The company reduces to 1,950,000 bolivars the total amount of all its claims for the guaranty of 7 per cent, liquidated until December 31, 1895, for every other cause which it would have the right to invoke. Art. 2. For the redemption of the obligation bj' which the Government has to continue to pay the same guaranty of 7 per cent upon 18,000,000 bolivars guaranteed capital during ninety-nine years, the term of the above-mentioned contract, the company consents to receive 2,500,000 bolivars. Articles 2, 3, and 4 of the said contract of June 17, 1891, become by this fact without force. Art. 3. The payment of both these amounts is to be made by the Government simultane- ously with the present act and by remitting to the representative of the company an order upon the Disconto Gesellschaft of Berlin for the amount of 4,450,000 bolivars hi bonds at par of the Venezuelan loan of the Disconto Gesellschaft of 1896 bearing 5 per cent interest annually with 1 per cent amortization, the same order bearing moreover the signed approval of the agent of the Disconto at Caracas. Art. 4. The representative of the company declares m consequence the nation to be free from every responsibility, as well upon the guaranty of 7 per cent already due as for the obli- gation to pay this same guaranty in the future, and he will repeat this same declaration in the receipt which he will give to the direction of the Disconto Gesellschaft. Art. 5. The company binds it.self within six months from this date to repair whatever deteriorations have been sustained by the railroad from the changmg of the course of the river Chamas, and to keep the line in a good condition for use, in conformity with obligations assumed in the previous contracts, and submitting itself to the penalties which the law, inflict in this matter. Art. 6. In all that which is not opposed to the .stipulations of this convention the rights and obligations resulting for the company from anterior contracts to which reference has been made retain all their force and all their vigor. Made in duplicate at Caracas, April 18, 1896. Two days thereafter the ministers of finance antl of ]3ublii' works for Venezuela made the following communication: Caracas, April 20, 1896. To the Direction of the Disconto Gesellschaft, Berlin. Gentlemen: In conformity with the provisions of article 5 of the contracts of the loans passed between our Government and your direction, the citizen President of the Republic informs you that, in accordance with the contract passed between the national Government and the French Company of Venezuelan Railroads, you will have to remit to the said com- S. Doc. 533, 59-1 28 434 FRENCH compatît OF VENEZUELAN RAILROADS CASE. pany the sum of 4,450,000 bolivars in bonds of Venezuelan loan of 1896 at 5 percent annual interest, with 1 per cent amortization. It is to be noted that in giving you the receipt for this amount the French Company of Venezuelan Railroads is obliged to make the following declarations: "That it recognizes as annulled all its credits against the Venezuelan Government for the guaranty of 7 per cent due up to Decemlx'r 31, 189.5, and that it renounces absolutely this guaranty during the remainder of the ninety-nine years, the term of its concession; that in consequence it declares the nation freed from all responsibilities." June 27, 1896, there was a general meeting of the shareholders of the French Company of Venezuelan Railroads, and the council of administration made its report. In that report is found the following: At the beginning of this year, 1896, the Venezuelan Government, being desirous of mak- ing a settlement of its debts with the different railroad companies of Venezuela, negotiated with the Bank of Berlin, the Disconto Gesellschaft, for the creation of a loan, called the Venezuelan loan of 1896, bearing 5 per cent annual interest and with 1 per cent amortiza- tion, and payable within the term of thirty-six years and a half. The loan was guaranteed by custom-house receipts. The nominal amount of this loan was fixed at 50,000,000 bolivars. Each of the German, French, English, and other railroad companies were invited by the Venezuelan Government to negotiate simultaneously the paj-ment of what was due them and the redemption of the guaranty which had been conceded. EatJi of these com- panies, after lively debates, accepted the conditions imposed by the Venezuelan Government, Jiarsh as they were, under penalty of seeing themselves eliminated forexer from the only com- bination which might terminate their credit upon this Government. Like the other companies, we then accepted the conditions which were imposed upon us. However, we did not authorize our mandatary at Caracas to give our acceptance until after we had taJcen counsel and received the authority of the controllers appointed by the shareholders. ^e :{: % 4£ :jc :|e :): Seeing the necessity of keeping the social assets up to their full value and with the author- ity of the controllers appointed in execution of the concordat to represent the creditors, the company has had to issue up to this date 2,.50O privileged bonds of .500 francs to procure funds for repairing the line, repairs which are not yet finished. Recently the Venezuelan Government, having shown a desire to settle with the different companies of railroads in Venezuela, our company, following the example of the Genuan, English, and other companies, .sent to Venezuela its formal representatives, and after a long negotiation it succeeded in obtaining from the Government of Venezuela the remittance for the balance of credits and for the redemption of the guaranty for the future of its con- cession a net sum of 3,200,000 bolivars in bonds of Venezuelan loan of 5 per cent, 1896, above mentioned. The able patronage of the Disconto Gesellschaft of Berlin assures the actual value of this title. However grievous sudi a transaction has seemed to us, we had to resign ourselves, after having been authorized by the official representatives of the shareholders to accept it, like other railroad companies, jis the only means of obtaining any indenmity what- ever. * * * We shall reijuest of you, gentlemen, to ratify the transaction l)etwccn tiie \'cnezuelan Government and your company. After the reading of this report the shareholders passed the resolu- tion which follows : The special assembly, after having heard the report of the council of administration read, ratifies the transaction between the Venezuelan Government and the council of admin- OPINION OF THE UMPIRE. 435 istration of the Company of Venezuelan Railroads, assuring regularly the dehts of the said Government toward the said company and the redemption of the guaranty in favor of the said company by act of concession which Inid been attributed to it. June 25, 1897, there was an annual meeting of the shareholders of the company, and among its proceedings is found a resolution which is here reproduced : Second resolution. The general assembly, approving the measures taken by the council of administration following the disturbances caused by the inundations which .succeeded the earthquake of 1894, authorizes it, so far a.s it has need, to realize in the best measures possible a complement of the loan voted in 1894, which will be represented by 1,500 privi- leged bonds of the nominal value of 500 francs, bearing 6 per cent annual interest and redeemable in at least ten years from January 15, 1897, raising thus from 2,500 to 4,000 the total number of these ten-year bonds. June 30, 1898, there occurred an annual meeting of the shareholders of the company. There was a report of the management of the line for the year then past, from which it is learned that the exploitation suffered a loss of 10,401.75 francs, and that the finishing of the repairs, bridges, buildings, etc., amounted to 499,805.70 francs. There fol- lowed certain resolutions, the second of which is here quoted : Second resolution. The general meeting of the shareholders authorizes the council of administration, first, to remit, July 1, 1898, the full amount of the bonds of the Venezuelan loan, 5 per cent, 1896, which the company possesses on deposit under its name at the Disconto Gesellschaft at Berlin, contra: (a) the remission of 3,619 ten-year privileged bonds, 6 per cent, of the company, (b) abalance in cash of 390,500 francs; second, to call on July 15, 1898, for the redemption at par of 500 francs on 381 privileged bonds, 6 per cent, of the following numbers, and to raise, to meet this payment, the .sum of 190,.500 francs of the 390,500 francs received as in article 1. The balance of 200,000 francs will be used as current fund. (Numbers of the bonds here given.) June 29, 1899, there again occurred the company's annual meeting. The directors presented their report, from w^hich is taken the following quotation : Our railroad has given us an income of 8,966.23 francs, while our service of navigation has caused us a loss of 22,324.83 francs. There is, then, a net loss of 13,358.60 francs. We have finished the repairing of the damages which were caused by the earthquake of 1894 and by the floods which up to 1897 were the consequence. The special expenses paid for this in 1898 reached 149,191.86 francs, which were settled by means of funds at hand; the latter were reduced December 30 last to 51, .344.86 francs. The somewhat unsatisfac- tory results are attributable almost exclusively to the consequences of the political crisis which had been going on in Venezuela for the greater part of the year. * * * Among the 256,126.14 francs of the different debits found in the balance sheet which we are going to submit to you the Venezuelan Government is .set down for 174,077.20 francs. For some months quiet seems to have been reestablished in the country. We hope that with it the commercial situation will resume normal conditions and that our exploitation will profit from it. The first months of 1899 seemed to justify this hope. The reimbursement of our privileged bonds ha-s been carried on regularly and in con- formity with your decision of June 30, 1898. Earlier in this opinion the gross receipts of the railroad for 1894 were stated. The net result for that year was 72,332.15 francs. In 436 FRENCH COMPANY OF VENEZUELAN RAILROADS CASE. 1895 the net receipts were 101,676.97 francs and in 1896 they were 102,319.28 francs. In 1897 the respondent Government employed the line to transport its troops and materials, but paid nothino: and did not answer the claims presented by the company. As a result the year 1897 showed a loss; similarly, the year 1898. The 4,000 bonds issued by the company, under authorization which has been (juoted, were largely held by the companies D^le & Bacalan and of Tives-Lille, and with these companies it had always been under- stood that the payments made by the State were to be used first of all in pajTnent of these bonds ; it was for this reason and under the author- it}^ above quoted and by reason of the general inexécution of the engagements of the State toward the company, that in the month of June, 1898, the French Company of Venezuelan Railroads turned over to these financial companies the Venezuelan loan of 1896, which was arranged through the Disconto Gesellschaft, of Berlin. And, as has been seen in the quotation last made, there was left for the current use of the railroad company a balance of 200,000 francs. In June, 1898, there was a new revolutionary movement aflecting especially the States of Zulia and Andes. The general in charge of the Federal forces drafted the workmen. The director, Mr. Brun, was shot at Santa Bárbara in the midst of a conflict, and died of his wounds; there were rec^uisitions of material, of trains for the transfer of troops, of war material, etc. The passenger and freight service was paralyzed ; the claims of the railroad received no attention from the Government ; there was no payment for the services and sacrifices required of and imposed upon the company, and its very existence was seriously threatened. It appealed to its own Government, it rehearsed its wrongs and grievances but it obtained no relief. Just as the exploita- tion began again to yield some income and the revenues of the national Government began to quicken, the successful revolution of General Castro broke out. Requisitions were again in evidence and more than ever before. Destruction was manifest on all sides; grave losses were caused to the boats; while the revolutions took from it its traííic, the Government made requisitions and neither paid anything. This successful revolution of General Castro wliich began in the spring of 1899 brought serious disaster to the railroad in many ways. A letter of date October 12, 1899, to the French minister of foreign aflfairs by Mr. Reynaud of the administrative board vividly portrays the situation. Selections therefrom are quoted: The political and revolutionary crisis which exists in Venezuela has not diminished in intensity since the last communication wiiich we had the honor of addressing to you Auf^i^^t 23 la.st. Our projMîrty and all our possessions — our railroad material and our lH)ats — have not ceased for several months to Ik* arbitrarily seized or se(|uestered hy the authorities, now said to lie legal, now revolutionary. The future of the exploitation of our railix)ad and lK>ats ¡m grievously comproniised in the source of its receipts. OPINION OF THE UMPIRE. 437 The harvests are destroyed, abandoned, or lost; the workmen are pursued and tracked in the forests; the owners and merchants in flight or ruin. Finally, our resources are exhausted. We have been obliged, then, to suspend our exploitation. It was two days anterior to the date of the above letter that Mr. Simon, general manager of the railroad, informed the citizen president of Zulia in writing that ''because oí force majeure" all operations of the steamers and of the railroad from Santa Bárbara to La Vigia were suspended. In this communication the /orcé! majeure referred to is thus explained: 1. All the resources which the company had, whether at Paris or at Maracaibo, have been completely exhausted in paying the expenses of this railroad and its steamer Santa Bárbara during all of the revolutions, and then the Venezuelan Government and the insurgents used these means of transfer until little by little they became masters of them. 2. Since September 27, 1899, the revolutionists have again taken possession of the line, and consequently we can have no receipts except from our steamers and of these the Govern- ment is con.stantly taking possession. 3. All our efforts with the national Government at Caracas, as well as with the govern- ment of Zulia, to recover the large sums which they owed the company, have had no success, not even for the little sums of 300 and 144 bolivars, which were to be paid October 3, 1899. 4. In these conditions if the company continued the exploitation it would be obliged to go into bankruptcy. 5. If susperuls its exploitations unthout renouncing its rights on that account upon the con- cession of the railroad from Santa Bárbara to La Vigia until the special settlement takes place hetrveen the French company and the Government. A communication to the same effect was sent to the national Gov- ernment through its minister of public works. In it Mr. Simon stated that the revolution had made it impossible for the railroad to receive any benefit during the months of June, July, and August. It was there stated that in September there was a suspension of hostilities and there were some receipts ; but that the new revolution broke out September 27, since which time the traffic had ceased. The use of the steamer plying between Santa Bárbara and Maracaibo had terminated, because of the order of the customs ofiicer forbidding its use and of the confirmation of the same by the president of the State. The situation is there summarized by Mr. Simon as follows: 1. It is not possible for the exploitation to gain any receipts since the revolutionists are masters; and up to this day, October 10, there is not hope that the Government can retake this city. 2. The Venezuelan Government can not pay the company any of its debts nor even give it an account nor make any promises for the future. 3. The company has no longer any resources, having exhausted everything by which it may meet expenses of the line, while it has made no receipts l>ecause of the frequent revo- lutions. Considering that this state of affairs has caused it prejudices and enormous damages, and that if it continued its expenses it would be led into bankruptcy, the company sees it.self because oí force majeure obliged to suspend the exploitation of its line and its steamers until a settlement may be made with the national Government of the United States of Venezuela; that the company does not abandon its right upon the concession of the said railroad from Santa Bárbara to La Vigia. 438 FRENCH COMPANY OF VENEZUELAN RAILROADS CASE. October 22, 1899, by communication of Mr. Simon to the company at Paris it is learned that the archives and records of the company had been locked up in the safes and a detailed inventory had been given the consular agent of France at Maracaibo; that the entire personnel of the })oats had l^een paid and discharged, and the copy of the notice to the public wliicli had been given it through the newspapers was therein remitted. It is added that — The lack of income during more than four months, together with the revolutions and lack of payment bj- the Government of its obligations to the company, are the reasons which lead the company to ask for a settlement with the national Government before continuing anew the exploitation. It appears that since the 27th of September the railway is in the hands of the insurrec- tionists, and that until this date, October 12, there is no hope that the Government may recover this place. The Government of France through its foreign office directed its consular agent at Maracaibo to safeguard the interest and properties of the; railroad company during its suspension of activities. December 2, 1899, there was an armed conflict on the shores of the bay of Maracaibo between the forces of General Castro and those of General Hernandez. A steamer of the company, the San Carlos y Mérida, was lying at anchor in the bay and the armed forces were so situated toward one another that the steamer lay in their line of fire; as a result the damage to the hull of the steamer was so serious that it sank during the afternoon of that day. These facts concerning the steamer are taken from the report of the French consular agent at Maracaibo in a communication made b}^ liim of date Decem- ber 30, 1899. January 2, 1900, the appraisers specially appointed for the purpose of estimating the damages suffered by the Santa Barbara while in the service of the national Government made their report, naming these damages at 10.000 bolivars. January 18, 1900, the French Company of Venezuelan Railroads addressed the minister of foreign affairs of France and referred to its communication of the previous month to the same official and asserted a claim which is reproduced in the additional opinion submitted by the honorable commissioner for Venezuela to the umpire at North- field, Vt., February 13, 1905," and it need not, therefore, be repeated here. February 3, 1900, the railroad company addressed itself to the Presi- dent of the Republic of Venezuela, informing him of the grave dis- asters which had overtaken the company and declaring that any considerable delay in the settlement of the sums due it from the national Government might ])rove fatal. January- 18, 1901, the French Company of Venezuelan Railroads. having received no payment from the respondent Government and a Page 413. OPINION OF THE UMPIRE. 439 no encouragement that payment would be made, came to believe that its efforts were forever compromised, and it then presented to the French minister of foreign affairs a claim for 18,000,000 francs, the ensemble of the losses which the action of the respondent Govern- ment was held to have brought upon it. To this was added the serv- ice of the boats, which had been destroyed or injured, and a part of the material of the dredging macliinc, which had been stolen, making a total of 483,900 francs, deduction having been made of 11,100 boli- vars, that sum being the price for which the Santa Bárbara and the launch had been sold. This claim was brought to the iittention of the consul-general of Venezuela at Paris, whose response was that the new president up to that time had been able to concern himself only with matters political and martial. It is claimed on the part of the company that in March, 1901, the respondent Government had planned to cede or let the line and its accessories to a Mr. Bolaro, and to that end had appointed a com- mission for making estimates. The action of the Government met with a very vigorous protest from the company, and if results were intended there were none. In behalf of the company there is also presented by Coimselor Dacraigne in his very able and valuable brief the claim that it was ruined at the hands of the respondent Government; that this ruin was practically consummated by what he is pleased to denominate the culpable removal of the guaranty. He insists that the exchange made between the company and the Government was without any equivalent and was brought about only by such pressure that it was invalid and should be declared a nullity. He í:1so asserts that it should be declared a nullity by default of execution, since the respond- ent Government has not paid the arrears of the bonds which it has given the French company in exchange for its guaranty. The respondent Government, as the essential part of that exchange, was to furnish bonds bearing 5 per cent interest, the bonds having no other value than their interest-bearing qualities. The interest not being paid, the bonds were without value; hence there was, in fact, no con- sideration for the surrender of the guaranty by the Company, and the respondent Government having thus failed to perform that which was essential in the contract for the surrender of the guaranty, tJti^ company has a right to demand the rescission of that portion of the convention *t)f 1896. He includes in the right of rescission a claim for damages in behalf of the company, which is in the natuië' of à reimbursement of all the expenses which have been imposed upon it, with interest at 7 per cent. He urges that the guaranty be liqiai- dated from May 10, 1893, up to the date of this award, less the sun^ks paid thereon, with a charge of 7 per cent interest annually for the default. The claim for 18,000,000 francs is presented on behalf Of the company in another view. The reasons given are that thcTespohdent 440 FRENCH COMPANY OF VENEZUELAN RAILROADS CASE. Government by requisitioning tlie material and the personnel of the company deprived it of its rights and its ])ri)perty. The Gov- ernment had power to take it, but it is equity that the company be reimbursed for it. The damage thus consummated is estimated at the ])rice set upon it by the Congress of Vene/Aiela in 1891, which, it is urged, is the amount of the claim liere presented. Summarized, then, the claim of the French company, as presented by its counsel, is as follows: 1. F'or the loss of its line the sum of 18,000.000 francs, with interest at 7 per cent upon the capital of 1.5,(X)0,000. 2. For the loss of its maritime exploitation, the sum of 4S;î,000 francs, with interest at 7 percent. The interest on both of these items should be reckoned from March '2S, 1893. This résumé of the facts appearing in this chiim and forming the body of it is perhaps sufficient to make intelligent the opinions of the honorable commissioners, and later, the views and holdings of the umpire. He thinks that he can best make to appear the divergent paths by w^hich the honorable commissioners approached the ques- tions involved by quoting liberally the record of their proceedings, which is as follows: The examination of the claim of the French Company of Venezuelan Railroads, presented at the .sitting of May 19 last, and amounting to the sum of 18,483,000 bolivars, was then taken up. The French arbitratt)r considering: That the nonexecution of the obligations contracted by the Venezuelan Government with the company and the nonpayment of sums which it owed, from the fact of its engagements and its requisitions carried on, have placed the company in the imposibility of continuing its exploitation; that the inspection of the line, of the material, and of the buildings demonstrates clearly that the company had not recoiled Ix-fore anj* expense to a.ssure in excellent condition the service of merchandise and travelers; That the examination of accounts permits to establish that the exploitation would have been remunerative in .spite of the obstacles presented by the civil war and the inclemencies of the climate if the Venezuelan Government had paid over the amounts due from it, and that consequently by the act of the Venezuelan Government the company has lK>en deprived of the legitimate lienefits which it had the right to hope for; That according to the said contract the Venezuelan Government having accorded a guaranty of 7 per cent upon a kilometric value of 300,000 bolivai-s, has itself iniplicity recog- nized that the value of the exploitation wa.s 18,(XX),000 bolivans; That the Vene/u^iun Government seems to have had the intention to amiul the contract and to accord the concession to a new enterprise; That the company's claim for indemnity for the damages suffered by its maritime service from Maracaibo to Santa Barbara is perfectly ju.stified; Decides that (he Venezuelan (rovernment ought to pay to the Fi-ench Conijiany i>f Vene- zuelan Railroads (he .sum of 18,483,000 bolivars demanded by it, on coiiditiwii (hat (he latter renounce (he concession of the enterprise and abandon (o the Venezuelan (iovermnent its line, its buildings of e.xploitatitin and habitation, i(s stores, and i(s (erres(rial and mari(ime material in (lie condiiion in which they are found, by means of which j)aym('n(, renunciation, and abandonmen( the two parties will be five from all their reciprocal engagements and obli- gations. The Veuezueian arbitrator, considering on (he contrary: That the true reasons for the suspension of the exploitation of (he lino l)y (he company ai'e of ocoop^c ortler, the latter having been led (o (ake this resolve because of (he lack of OPINION OF THE UMPIRE. 441 traffic due to the troubled state of the country and by tlic impossibility in whidi its bad financial position liad placed it to obtain new funds necessary to make repairs for damages caused by the inclemency of the weather to a line established under unfavorahie conditions; That the Venezuelan Government could be held responsible neither for damages caused to the material of the exploitation by a voluntary abandonment nor for those suffered from tiie fact of the troubled condition of the country or of accidents of war; That the arrangement entered into by the company with the Venezuelan Government on the subject of the guaranty stipulated in the contract has been entirely carried out and that the company has received the sums accruing from the sale of tiie bonds which have been remitted to it in execution of the said arrangement; That the Venezuelan Government has never refused to reimburse the company for the requisitions and damages caused by them to the material, and that the impossibility in which it finds itself of making this reimbursement as the result of the penury of the treasury in the course of the civil war obliges it only to pay interest after demand; Decides that the claim of the company is without foundation. It recognizes only the right to an indemnity of 10,000 liolivars ^or damages done to their steamer Santa Barbara during the time when it was requisitioned, and reserved for it the privilege of claiming from the Venezuelan Government by presenting the necessary justifi- cations, the sums due for the requisitions with interest corresponding. It etjually reserves the right of the Venezuelan Government for the fact of the abandonment of the exploitation. Thus disagreeing, the claim was presented to the umpire at a sitting of the honorable commission held at Nortlifield, Vt., February 14, 1905. During the sitting of the honorable commission at Caracas and on August 28, 1903, the honorable commissioner for Venezuela presented an able memoir or opinion relating to this case, giving the reasons of fact and equit}' which prevented him from allowing any of the claim except the sum of 10,000 bolivars for the appraised injury done the steamer Santa Bárbara while in the service of the respondent Govern- ment. Many of the facts brought out in his opinion are not repeated in the statement of facts preceding, as reference may be had to them as thus set out in the opinion of the said honorable commissioner. The memoir has been of valued service to the umpire. September 13, 1904, at Paris, the honorable commissioner for France wTote a memoir or opinion in regard to this claim for the con- sideration of the umpire, in which he reviewed the memoir or opinion of the honorable commissioner for Venezuela and wherein he gave more in detail than is set out in the records of the proceedings at Caracas, the belief which he entertained in reference to this claim and his inability to accede to the position of his honorable colleague. It has been of great value to the umpire in his study of the claim. The services of the eminent counsel of the company, ^Ir. Dacraigne, have been of large value in placing before the umpire in concrete form the facts of the case and their bearing upon the question in issue. Follow- ing the brief of Mr. Dacraigne is an additional opinion by the honor- able commissioner for Venezuela, in which he reviews the utterances of his honored colleague and the arguments of the company's leameii counsel. 442 FRKNCH COMPANY OF VENEZUELAN RAILROADS CASE. He also brings to the attention of the umpire the contents of the dossier, réquisitions, jacket Xo. 11, which, among other things, con- tains the required proofs from the company concerning its claims against the respondent Government for requisitions, transportation of troops and material, and other services rendered the responilent Government by the company after December 31, 1895, the date of the last settlement. As the honorable commissioner for Venezuela does not (juestion, but, on the contrary, ñdly accepts the evidential force of the proofs thus adduced, they were not earlier brought into the statement of tliis case and are not here brought forward, except to name the annual balances, the total, and the conclusion and the allow- ance which are made by the honorable commissioner aforesaid. The dates and respective balances are the followmg, as shown by the examination I have made of the bills in the record of the case : Bolivars. Balance approved by the legislature of the State of Zulla, February 27, 1894. . 2, 994. 85 Balance approved by the legislature of the State of Zulia, January 23, 189.5. . 6, 434. 60 Invoice as per statement up to December 31, 1897 15, 443. 60 Invoice, etc., to May 30, 1898 3,886.00 Invoice, etc., to October 30, 1898 34, 618. 90 Invoice, etc., to March 3, 1898 6, 532. 00 Invoice, etc., to April 6, 1899 9, 047. 00 Invoice, etc., to September 30, 1899 114, 679. 00 Total 193. 635. 95 An estimate of the interest on the several balances from their respective dates until that when the company may probably come into possession of the funds by virtue of the execu- tion of the sentence which may be finally passed, a lapse of time which I believe to be reason- ably within three months, taking into consideration any inevitable delay, will show that the company in this regard is entitled to the sum of 36,000 bolivars. Between the amount of 193,635. 95 bolivars, which is estabHshed by the company's state- ments, and that of 203,529.70 bolivars, balance in the company's statement of December 31, 1899, as due by the Venezuelan Government at that time, as showoi in the report of the board of managers to the stockholders in the company to which I have made reference at the con- clusion of my opinion of August 28, 1903, there is a difference of 10,393.75 bolivars, to which I find no other explanation in its support than that it represents the price t he company has charged the Government of Venezuela for the service of the steamer Santa Bárbara during the days intervening between September 30, 1899, and the end of October of tiie same year, when it appears the steamer was returned to the company after having taken to the island of Cura(,ao Doctor Andrade, the president of the State after the so-called liberal (restaura- dora) revolution. Such amount even if it does not appear in a specified form, as it shoukl do, I deem to be a fair compcn.sation for the services rendered by tiie steamer Santa liarhara to the local authorities during the montli of October, as according to docmnents in the ca.se the company had suspended since the 12th of the same month all operations in its railroad and steamer service, so that there were no expenses for maintenance of the serAice. On the aforesaid amount, which I recognize as also due by the Government of Venezuela, interest at the rate of 3 per cent should be added from October ;iO, 1899, to the date of the execution of tiie .sentence as aforesaid, .so that the amount of the indenmity increa.ses to the sum of 1,767 Ijolivars. As the honorable commissioner for France, in his supplementary statement made at Northfield, Vt., on February 14, 1905," reviews o Pp. 425-428. OPINION OF THE UMPIRE. 443 this additional opinion of his colleague, Doctor Paúl, and does not suggest any error in the figures presented by him as above set out, the umpire has accepted them without careftilly stud\àng the original proofs and has adopted them as a basis upon which that feature of the case can safely rest. The French Company of Venezuelan Railroads contends for an allowance of 18,483,000 ft-ancs, (a) on the basis that the Venezuelan Government is responsible for the ruin of the company and that in equity this responsibility carries with it the rescission of the contracts signed between the said company and the respondent Government, as stated in the first paragraph of the opinion of the honorable commis- sioner for France; (h) on the basis that the French Company of Vene- zuelan Railroads renounces the concession of the enterprise and abandons to the Venezuelan Government its line, its buildings of exploitation and habitation, its stores, and its terrestrial and maritime material m the condition in which they are found by means of which — payment on the one hand, renunciation and abandonment on the other — the two parties will perform all their reciprocal obligations and engagements, as stated in the record of the proceedings of the honorable commission at Caracas in defining the position of the honorable commissioner for France in regard to the said claim. These two statements of the claim, although differing in form, are understood by the umpire and will be treated by him as in essence one and the same. In event of failing to impress this view upon the honorable commis- sion the company asks for a large allowance in the way of deferred guaranties and other losses, together with an allowance of the sums approved and accepted by the honorable commissioner for Venezuela. In order to reach the consideration of these deferred guaranties, it urges upon the honorable commission the duty to declare that portion of the convention of April 18, 1896, which refers to the redemption of the guaranty to be null and void, because it was obtained in a manner so conscienceless that it can not be sustained in the forum of equity. If this view is upheld, the honorable commission is asked to pass in detail upon the elements composing this claim. To take these several propositions in their order, it becomes neces- sary to consider first the claim of 18,483,000 francs, which is the sum demanded provided tñe umpire decides in favor of the rescission of the contract. y It would seem to the umpire that the question first occurring is one of jurisdiction — in other words, of competency. For however deeply the sjmipathies of the trier may be stirred in behalf of those who have bravely struggled and who have seriously lost there is an imperative duty whicn is primary. That duty is to determine the limits which circumscribe him and keep him witliin the set and required bounds. 444 FBENCH COMPANY OF VENEZUELAN RAILROADS CASE. Tlie limits of this honorable commission are found and only found in the instrument which created it, the protoccil of Fel)ruary 19, 1902. An arbitral tribunal is one of lar^e and exclusive powers within its prescribed limits, but it is as impotent as a morning mist when it is outside these limits. A reference to the convention which created this commission will disclose its purpose and purview. Article I declares : That the first two arbitrators shall meet * * * for the purpose of examining in eon- (^ert the demands for indemnity presented by Frenchmen for damages sustained in Venezuela, etc. Article II provides that : Demands for indemnities other than those which are aimed at in Article I or based upon facts anterior to the 23d of May, 1899, will be examined in concert by, etc. Article II, then, would permit this liberal reading: The arbitral tribunal here constituted shall meet for the purpcse of examining in concert the demands fur indemnity presented by Frenchmen for damages sustained in Venezuela, but exclusive of those which grew out of the " insurrection events" of 1892. The sole scope and sweep of the authority given is to provide indem- nities for damages suffered by Frenchmen in Venezuela. It is not defined but it is assumed that its methods of procedure will not con- travene the general and established principles of the law of nations, nor its awards be opposed to justice and equity. This much can be assumed, but to assume that it has power to revoke, rescind, modify, or limit the terms of a contract, even so much as by a hair's breadth, is impossible. It was created for no such purpose; it was endowed with no such powers. So far as a Frenchman has suffered damages in Venezuela for which Venezuela is responsible, the indemnities may be stated and the decision be final. The arbitral tribunal thus consti- tuted may, as a means to the end provided, ascertain and declare the responsibility of Venezuela, it may pass upon its own jurisdiction within the scope of its charter, but it can not step in the least outside the path prepared for it, which is and only is the path which leads from damages to indemnities. If the French Company of Venezuelan Railroads and the respondent Government did but agree that rescis- sion should be had, or that abandonment should be made of the con- cessions and the properties of the company to Venezuela, then this honorable commission might be considereil comj)etent to pass upon and establish the indemnities thus required, (otherwise there is incompetency absolute and entire. This commission is not only des- titute of primary authority which is enough, i)ut it is equally desti- tute of all capacity to compel the parties to carry into effect any such award were it made, which is more. The contracts in issue were mutual and n>cij)rocal and neither ¡larty thereto can make abandonment thereof without the consent of the OPINION OF THE UMPIRE. 445 other. The United States of Venezuela does not consent. Therefore the French Company of Venezuelan Railroads can not, by right, abandon its contracts or its properties. If it be held that the respondent Government has wrought the utter ruin of the company and that this was done in a manner and by means which charge upon the nation the full measure of responsibility, then there is a case for damages only, and the sum awarded might be — it is not said would be — the sum of 18,483,000 francs, the amount claimed. But it is always and only on the basis of indemnities for damages that this honorable commission has jurisdiction, and it is utterly powerless, even for good cause, to decree an unaccepted and unacceptable aban- donment by either party of a mutual and reciprocal contract, or to award an act of rescission which has not, in effect, previously taken place. The umpire finds ample warrant for his conclusions regarding his powers in the authorities to which he makes reference, and that their pertinency ma}' at once appear he quotes briefly: The authority of the arbitrator * * * jg derived exclusively from the submission, and every part of it, as well as the documents referred to therein, must be taken into con- sideration in order to determine the extent of such authority. 2 Am. and Eng. Encycl. of Law, 669 {2d ed.) It has been held that the arbitrator can consider only the precise question submitted to him, that he can neither modify the question nor add other controversies to it, no matter how cognate to the matter submitted. Id., 671. However, it is within the arbitrator's power to award in regard to all matters which are necessarily or properly incidental to, or included within, the terms of the submission, etc. Id. But he can not lawfully go beyond the terms of the submission in order to do general justice. Id., 672. For this honorable commission to order something to be done which would cause damage to the party obeying the order and then to award damages therefor would be opposed to the terms of the convention. It would be an independent act posterior to the convention, and were kthis to be done by the umpire it would require a payment by Vene- zuela to the claimant company for damages in fact sufiFered in the United States of America at the hands of the umpire. A submission of all matters in difference means, as a rule, all matters in difference doum to the date of the submission but not after. Id., 61Ù. The umpire can not entirely ignore the restrictive features of the contt««t between the claimant company and the respondent Govem- me^,, which in terms and in fact strictly required and still requires that nil doubts and controversies arising from that contract should be resoKtid by the competent tribunals of the respondent Government. Certainly to consider and determine the question of its rescission is tfaeaiofli senous doubt, the most important controversy, which could grow out el «r arise from the contract in question. A claim for Ativa- *f»e may be regarded as ulterior to the contract, especially where the 4-l() FRENCH COMPANY OF VENEZUELAN RAILROADS CASE. damage has accrued from the operation of the parties under the con- tract, but the question of its rescission is an entirely different propo- sition. The unrestricted agreement to submit to an arbitral tribunal the question of damages suffered by Frenchmen in Venezuela may properly be considereci, if necessars', as equivalent to a suspension of the provision in the contract, were the damages claimed to be such as arose or grew out of the contract; but the agreement to submit a question of damages arising through operations performed under a contract, in no sense suggests a purpose to arm that tn])unal with plenarj^ power to consider and settle the question involved hi the rescission of a contract, and therefore does not suggest an intent on the part of the high contracting powers to ask on the one hand or to grant on the other the suspension of the restrictive features referred to, wliich are contained in said contract. What is here said concern- ing the matter of rescission applies váth. equal force to the matter of abandonment. It is therefore the deliberate and settled judgment of the umpire that he can not determine this claim on the basis of a declared and directed rescission or of abandonment, and can only decide the amount of the award, this to depend upon the ordmary bases of damages which have been suffered in Venezuela by the French Company of Venezuelan Railroads at the hands of those for whom the respondent Government is responsible. By the claimant company the redemption of the guaranty as settled by the compact of April 16, 1896, is declared void in equity, (a) for want of adequate consideration and as being made agamst the desire of the company and under the irresistible compulsion of circum- stances which were availed of b^^the respondent Government to drive a bargain so hard and so unconscionable that it should be set aside by this tribunal; (h) as a default of the Government in neglecting to meet its obligations of interest as they fell due upon the bonds wliich wore given to redeem such guaranty, being a total failure to comply \ñth and carry out the terms of that agreement which renders the agree- ment itself nugatory and void; and for these reasons the rescission thereof should be declared by this honorable commission. The agreement effected to redeem this guaranty of the French Com- pany of Venezuelan Railroads was only a part of a gon(>ral ]>lan intro- duced by the United States of Venezuela in 1896, to bo made appli- cable to all similar enterprises wherever located in that country imd by whomsoever ex])loited. To this end it had arranginl with the noted and conservative German house, the Disconto Gesollschaft, to float a loan of 50,000,000 bolivars, secured upon the custom-houses of the nation and l)earing 5 ])er cent interest annually, the proceeds of said funds to be devoted to the ])uri)ose named. It was accepted generally by the different guaranteed enterprises, . the claimant company being one of the several. „ OPINION OF THE UMPIRE. 447 Examination of the reports made hj the company to the share- holders at its annual meetings for the years 1894, 1895, and 1896 shows a successive and continuing ability on the part of the claim- ant company to raise money by loans. June 27, 1896, was noteworthy in this regard, since at this annual meeting successfid ])rovision was made for floating a loan of 1,300,000 francs. In 1895, the year pre- ceding the redemption of the guaranty, there was raised by loan 200,000 francs, and in the 3'ear 1897, a year and more succeeling the settlement, there was negotiated a loan of 1,500,000 francs. Hence it was not an overwhelming financial necessity whicli confronted the company nor an utter inability to obtain money otherwise which compelleil the acceptance of the offered redemption. The redemption of the guaranty on the terms provided did not mean, on the part of the claimant company, the relinquishment of 1,260,000 francs annually for the sum of 2,500,000 francs in han('. It was only the relinquishment of such sum, if any, as might remain when the net annual revenue was deducted from this annual guaranty. The net revenue had been growing for the years prior to April 16, 1896. In 1894 it was 72,332.15 francs; in 1895, 101,676.97 francs. Both parties had contemplated and apparently believed that it would finally exceed the guaranty and had provided for that contingency, as will be seen by reference to the contracts which arranged to meet and eventually to cancel the guaranty which had theretofore been paid, directing that one-half of the net annual revenue in excess of 1,260,000 francs be used in payment, and also agreeing that after the said advances had been canceled fidly the respondent Government should continue to enjoy 20 per cent of such excess in perpetuity. By tliis redemption the right of Venezuela to participate in any way in the net profits of the company was canceled. That this right was considered as of some value is evident or it never woidd have been placed in the contract. In fact, by its terms the annual giiar- anty was only in advance, an indebtedness of a peculiar character, payable only in certain contingencies and in a particular way, but still it was an indebtedness. By the agreement constituting the redemp- tion these conditions were all changed, to the effect that the arrears then provided for and the 2,500,000 francs then paid were not debt producing, but debt reducing. They were gifts, purely and simplj', so far as any duty of repayment was concerned. In another sense they were not gifts. They were the nation's estimate of the value of the railroad and the steamboats to its commerce and to its agri- culture, also to the means of communication between different parts of the country. The transaction itself was open, the negotiations lengthy, the time for reflection ample. The cooperation of the direc- tors of the company and of the representatives of the creditors was solicited and received, and all was done with due deliberation imder 448 FRENCH COMPANY OF VENEZUELAN RAILROADS CASE. circumstances which permitted entire freedom of will and of action. The approval just mentioned took recorded form on June 27, 1896, after a lapse of more than two months and after a ñdl and explicit report of the action taken, with the reasons therefor fully set forth. It was referred to approvingly at the annual meeting of 1897, and on June 30,1898, two years and two months after the agreement of redemp- tion was made, the bonds which had been issued in accordance with that agreement were appropriated by the deliberate action of the company to the payment of a special indebtedness. They were accepted by tw^o of the vigilant and sagacious financial houses of France in place of the obligations of the company. There are appar- ent none of the features which accompany and signalize bargains which the courts undertake to set aside. The freedom of contracts is one of the bulwarks of business, and courts are loath to interfere where a contract is executed and where are lacking the elements of fraud or mistake, and where it rests upon the mutual assent of parties intelligent, competent, and free to contract. It is elementary law that every person of sound and disposing mind and under no legal disability has the absolute right of disposing of his property in any way not expressly or impliedly forbidden by law and to anj- person legally capable of taking it. Hence, where a person competent to convej* has fairly and knowingly made a complete conveyance of his land to another person competent to receive it, and no fraud, accident, mistake, or undue influence was involved in the transaction, the fact that the conveyance was wholly voluntary and without consideration constitutes no ground for rescinding the conveyance and canceling the deed; and in such a case the fact that the disposition of the property was unwise, improvident, or absurd will not be considered by a court of equity. 2Jf Am. and Eng. Encyd. of Law, 611 {2d éd.). Where the contract has been fully and voluntarily performed before relief by rescission is sought, it is only where the most forceful reasons exist for granting equitable relief that a court of equity or a court exercising equitable powers will intei-pose to decree the rescission of the contract, etc. Indeed it has been frequently held that nothing short of actual fraud or mistake will justif}»^ the court in granting rescission of an executed contract. Id., IH2. Although the consideration of simple contracts and of certain forms of real conveyances must be valuable, it is not essential that the consideration should be adequate in point of value. Tlie law does not weigh the quantum of consideration, deeming it unwist> to interfere with the facility of contracting and the free exercise of the judgment and will of the parties, but allows them to be the sole judges of the benefits to be derived from their bargains, pro- vided there be no incompetency to contract and the agreement violates no mle of law. i> Am. and Eng. Encyd. of Law, 69JÍ {2d éd.). The final appropriation and use of the redemption fund after such length of time, after such opportunity for observation, investigation, and reflection, without a murmur of dissent in the meanwhile or a re(iuest for rescission or an offer to restore the statu quo is too ]iali)ably a solemn acceptance to admit of ik)ubt, while the absorption of the funds precludes return. There is also no offer to restore. If there were such ofl'er this honorable commission has no j)ower to compel its acce])tance. OPINION OF THE UMPIRE. 449 Moreover, in order to render valid the compromise of a claim, it is not essential that the matter should be really in doubt. It is sufiicient if the parties consider it so far doubtful as to make it the subject of a compromise. 6 Am. and Kruj. Encycl. of Law, 713 (2d éd.), citing Union -Bank v. Geary, 5 Peters (U. S. Sup. Ct.), 99. The parties to a contract may at any time rescind it, either in whole or in part, by mutual consent, and the suiTender of their mutual rights is a sufiicient consideration. 6 Am. and Eng. Encycl. of Law, 729 {2d éd.), note. An agreement by one party to a contract, at the instance of the otlier party, to modify its terms, is a valuable consideration. Id., 7,iS. A prepayment of interest before it is due is a valuable consideration for an agreement to extend the time of payment. (Summaiized.) Id., 704- It is a valuable consideration if the promisee, having the right to refuse pennis.sion, is moved by the promise to allow a certain thing to be done. The question is not, did the promisor derive any benefit from the permission or did the promisee suffer any detriment from giving it? but merely was it something the latter had the riglit to refuse. Consideration arises from the permission, irrespective of the benefits derived from it. Id., 741. The umpire is unable to accept the contention of the claimant com- pany that the respondent Government was the sole cause of its ruin. This is nowhere asserted, or even suggested, by its agents and managers during the progress of the events which culminated in its suspension, nor until the lapse of many months thereafter. It is entirely opposed to the expressions of Mr. Reynaud, of the administrative board of the company, in his careful and analytical statement of the claims of the company on February 3, 1900, since which time it is not claimed that there is to be found any direct injury received fTom the respondent Government, unless it occurs in its delay to pay its debts. The claim then put forth was (a) payment of 300,000 francs as the full amount due for expenses of transportation and recpiisitions on account and by order of the authorities of the nation and the States; (b) payment of the sum of 250,000 francs, estimated as the minimum amount of the indemnity due for damages which had been occasioned upon its property; (c) the sum of 105,000 francs a month on account from July 1, 1899, to indenmify the company for the loss which it had suf- fered since that date from the almost absolute suppression of its trailic and for the immobilization of its railroad and boats. This sum is obtained by taking the amount originally stipulated as an annual guaranty, viz, 126,000 francs, and dividing it by 12, the number of months in a year, the quotient being 105,000 francs. This communi- cation from its authorized agent must be taken as the voice of the company speaking its honest and deliberate convictions and asserting its claims in their most broad and comprehensive sense. This state- ment was made when all the facts were fresh in the minds of both parties and when there were no reasons for concealment, reservation, or dissimulation. The umpire will accept it as the maximum of the claimant company's demands for those matters which had occurred at that time. He will allow so much of the 300,000 francs as he S. Doc. 533, 59-1 29 450 FRENCH COMPANY OF VENEZUELAN RAILROADS CASE. ascertains to be well founded. He will grant so much of the 250,000 francs as is detennined to exist in a claim properly attributable to the respondent Government. He will allow nothing of the claim for 1Ü5,UUÜ francs a month, as he finds no lawful responsibility in the respondent Government. It can not be charged with responsibility for the conditions which existed in 1899, prostrating business, par- alyzing trade and commerce, and annihilating the products of agricul- ture; nor for the exhaustion and paralysis which followed; nor for its inabihty to pay its just debts; nor for the inability of the company to obtain money otherwise and elsewhere. All these are misfortunes incident to government, to business, and to human life. They do not beget claims for damages. The claimant company was compelled by force majeure to desist from its exploitation in October, 1899; the respondent Government, from the same cause, had been prevented from paying its indebtedness to the claimant company. The umpire finds no purpose or intent on the part of the respondent Government to harm or injure the claimant company in any way or in any degree. Its acts and its neglects a\ ere caused and incited by entirely difi'erent reasons and motives. Its first duty was to itself. Its own preservation was paramount. Its revenues were properly devoted to that end. The appeal of the com- pany for funds came to an empty treasury, or to one only adequate to the demands of the war budget. When the respondent Government used, even exclusively, the railroad and the steamboats it was not out- side its contractual right nor beyond its privilege and the company's duty had there been no contract. When traffic ceased through the confusion and havoc of war, or because there were none to ride and no products to be transported, it was a dire calamity to the country and to all its people ; but it was a part of the assumed risks of the company when it entered U])on its exploitation. When revolution laid waste both country and village, or seized the railroad and its material, or placed its hands upon the boats and wrought serious injury to all, it is regrettable, deplorable, but it is not chargeable upon the respondent Government, unless the revolution was successful and unless the acts were such as to charge responsibility under the well-recognized rules of public law. These possible dis- ordered conditions of a country are all discounted in advance by ()ne who enters it for recreation or business. It is no reflection upon the resj)ondent Government to say that the claimant com]>any must have entered upon its exj)loitation in full view of the possu)ility, indeed, with the fair probability, that its enterprise would be obstructed occa- sionally by insurgent bands and revolutionary forces and l)y the incidents and conditions naturally resulting therefrom. The honorable commissioner for Venezuela allows, as has already been shown in this opinion, 241,357.70 bolivars. This includes interest OPINION OF THE UMPIRE. 451 on the annual balances appearing in tlie claimant conijiany's state- ment to the national and sectional governments, also interest for the use of the steamer Santa Barbara. The umpire sees no reference b}" tlic lu)nora})le commissioner in his additional opinion to the appraised damage done the steamer Santa Bárbara, which said honorable commissioner allowed in his original opinion. The umpire, by a cursory examination of the vouchers which support the claims allowed by the said commissioner, does not find that it is included therein. Hence the umpire concludes that there can be no mistake in adding tliat sum, with interest from Octo- ber 1, 1899, which makes an amount of 1 1,750 francs. The sinking of the steamer San Carlos y Mérida, as stated by the consular agent of France, was, without doubt, an accident of war. No circumstance is suggested which takes it out of the usual rule of nonresponsibility on the part of the respondent Government, and hence it must be dis- allowed. The injuries done the railroad, the buildings and the material, by use in war, must have been considerable, and since the revolution was successñd, the respondent Government is properly chargeable for its use and for the injuries and damages which resulted. There is no question as to the liability of the respondent Government for the nat- ural and consequential damages which resulted to the railroad proper- ties while they were in the use and control of the titular Government. Hence there is unquestioned and complete responsibility on the part of the respondent Government for all the necessar}", natural, and con- sequential injuries which resulted to the railroad and its properties when used by either the revolutionary or the governmental forces. The umpire is destitute of data upon which he can safely base his judgment as regards the just amount of that damage, but that it is considerable is unquestionable. He will approach the subject, however, from another standpoint. It is not right that the claimant company be paid only the regular one- half rate for services performed at such times and under such circum- stances. There is no clear proof just how much this service was, and any conclusion can in fact be only conjectural and at best only approximate. The umpire accepts as the best basis obtainable the last item of charge, viz, 114,679 bolivars. He assumes that this represented the usual charge to the Government at one-half rate. He considers full rate as none too much and he adds to the sum allowed by the honorable commissioner for Venezuela 1 14,679 francs and interest, wliich he reckons at 20,069 francs, making in all 134,748 francs. Wliere the respondent Government can be charged with no other offense than a neglec t to pay its debts through inability so to do, no greater responsibility rests upon it than the payment of interest for the delay thus caused. Such is the situation in this case, as it appears to the mnpire. 452 FRENCH COMPANY OF VENEZUELAN RAILROADS CASE. The facts brouo^ht upon the record, tlie facts placed in this opinion, do not disclose any relation of the respondent Government to the claimant company wliich makes the former chargeable financially for the ruin of the latter; and the award can not, in justi( e and efjuity, be placed upon any such basis. Tiie several sums allowed for the differ- ent causes mentioned constitute the maximum amount which can be named in the sentence. The atíf^rejíate of tliese sums is 387,875.70 francs, and the award will be prepared for that sum. NORTHFIELÜ, July SI, 1905. SUMMARY OF AWARDS BY UMPIRE. No. Claimants. Amount claimed. Bolivars. Heirs of Jules Brun 500, 000. 00 Frierdich & Co ! 17(),080.10 Ilei rs of Maninat ' 2, 000, 000. 00 Antoine Fabiani 9, 509, 728 . 30 iPieri Dominique ! 3, 370,000. 00\ ^Pieri Dominique & Co I 280,400.00J Heirs of Massiani I 728, 476. 48 Company General of the Orinoco 5,616,098.62 French Company of Venezuelan Railroads 1 18,483,000.00 Amount awarded. Bolivars. 100,000.00 Dismi.ssed. 100,000.00 Dismissed. 350,000.00 Dismissed. 2,408,563.35 387,875.70 453 APPENDIX. OPINIONS OF COMMISSION RENDERED IN CARACAS, o [I'aris Protocol.] LEDIT, ST. IVES, FISCHER & CO. CASE. Commi.s.sion declared without jurisdiction because claims aro.se subsequent to May 23, 1899. Paul, Commissioner: This claim arose out of a debt by the Government of Venezuela in faver of Mr. Domingo R. Wetto, a tailor domiciled in Caracas, for the price of uniforms for the national army, which debt was assigned by said Mr. Wetto on September 6, 1901, to the iirm of Leduc, St. Ives, Fischer & Co., as appears by a document authenticated by the parochial court of this city on the 23d of said month and year. The orders of payments drawn by the minister of war and marine in favor of Wetto are dated August 1, September 12 and 14, and October 19, 1899. As appears from the dates of these orders they are all subsequent to May 23, 1899, and consequently the examination of this claim does not belong to this commission, in conformity with Article II of the protocol of Paris, which deteiTnines its jurisdiction, wherefore the Venezuelan arbitrator is of opinion that the commission shoidd declare itself without jurisdiction to examine it. ROGE CASE. Damages allowed for unlawful imprisonment. Paúl, Commissioner: From the documents presented following the facts are proven: That Dr. J. M. Aveledo, as attorney of Alfonso Santerre and Carlos Luciani, on the 17th of October, 1888, before the court of the iirst instance, of the fii-st judicial circuit of Ciudad Bolívar, instituted a suit for libel against Ernesto Rogé, superintendent of the syndicate Alto Orinoco. The judge of the Iirst instance received testimon}- requested by the com-, plainant and that of .said Mr. Rogé, and, not finding any merit from the summary pro- ceedings to follow up the suit, issued a decree on November h of said year discontinuing the action and declaring that it did not injure the defendant in any manner »us to his ix'pu- taton. This decision having been called to the attention of the superior judge in tlie ordinary manner, the lattei' oilicial l)y a decree dated January 7, 1SS9, revoked the decree i.ssued by the judge of the first intsance and made an order for detention against tlie citizen Ernesto a See Venezuelan Arbitrations of 1903, Ralston's Report, pp. 490-510, inc. Decided by commission under I'rotoco! of 1902. While the French Connnissioner generally concurred in the result indicated by the following opinions, they were not submitted to him and ho accepted no responsibility for their reasoning. 454 OPINIONS OF COMMISSION RENDERED IN CARACAS. 455 Rogé. Dr. F. A. Hammer and Ramdn Barrios Gómez having certified that Rogé was suffering from rheumatism in the precordial region, which prevented him from remaining in the pubhc jail as a prisoner of that city, said superior judge made an order to the judge of the first instance that he should transfer said Rogé to the hosjiital for men of that city. The judgment of the superior judge having l)(>cn appealed from in turn by Rogé, the record j)as.sed to the supreme court, which in a judgment dated February 13, 1889, revoked ¡n all its parts the judgment rendered by the superior court, and confirmed the decree issued by the court of the first instance on November 5, 1888, ordering that the proper order be issued so that the defendant. Rogé, might be placed at liberty, which order was made on the same da3^ E. Rogé bases his claim for indemnity upon the injury, which he asserts was committed against his person, in ordering his detention and committing him to be deprived of his liberty for the space of thirty-seven days, the superior judge of Ciudad Bolívar violating by this proceeding the definite provisions of article 271 of the code of criminal procedure. On July 4, 1S92, Ernesto Rogé addres,sed himself to the minister of foreign relations of France, asking that his claim be pressed against the Ciovernment of \'enczucla for damages and injuries which he estimated at the sum of 2(X),(XX) i)olivars. During the detention of Rogé notes were exchanged between the representative of France in Venezuela and the minister of foreign relations of the latter country, the minister of France interposing his diplomatic action in order to procure the prompt release of Rogé and reserving in said notes all rights concerning the moral and material satisfaction that the Government of France on the one part, or Mr. Rogé on the other, might Ix'lieve the)' were entitled to obtain from the Government of Venezuela with reference to the attempt consummated against the liberty of a French citizen. Proof also exists in the record, which shows that the President of the Republic and the minister of foreign relations, then in authority, addres.sed themselves by telegraph concern- ing the actions of the French minister to the president of the State of Bolivar, asking the necessarj' information for a correct understanding of the matter, of which demand the said representative was duly advi.sed. There exists also a telegram dated on January 16, from Mr. Saint Chaffraj', minister of the French Republic, addressed to Mr. Delort at Ciudad Bolívar, which says: "Relying upon the intentions and sentiments of equity of the Government, I do not doubt that what is necessary will be done in order to assure Mr. Rogé of the benefits of constitutional guaranties and, on this occasion, to give a new proof of its benevolent inten- tions toward the Alto Orinoco Company." The superior judge of Ciudad Bolívar, in ordering the detention of E. Rogé, violated the provisions of articles 200 and 271 of the code of criminal procedure, it being expressly provided b}' said articles that — "In every case of discontinuance if tlie act in controvers}- has warranted the detention of the defendant, and if said detention has been effected, the person or persons released from responsibihty shall immediately be placed at liberty, under bond, while the superior tribunals affirm or overrule the judgment, as they are empowered to do by this code." Rogé not having been properly imprisoned in accordance with the discontinuance of the judge of the first instance, becau.se the committing magistrate did not find any reason to order his detention in conformity with article 137 of said code, the .superior judge could not order the arrest of tiie accused, becau.se he had not been put at liberty, but he ought to have limited himself to referring his judgment to the supreme court, and until it was rendered final by its confirmation it was the place of the committing magistrate or the judge of the first instance to fulfill wliat had been definitely adjudged, and his place to decree the detention of the accu.sed. The arbitrator considers this violation of the law as an unjust and illegal act perpetrated by the superior judge of Ciudad Bolívar; but at the same time he can not help but appreciate the attitude of the judge of the first instance, who in a truly justified and honorable judg- ment gave ever\ sort of guaranty and satisfaction. Likewise he considers the proceeding 456 APPENDIX. of the supreme court entirely in accord with the law and the acts which the President of the Republic and his ministers of interior and foreign relations performed with all diligence in order to satisfj-, as far as possible, the demand of the minister of France in favor of Rogé showing without any doubt what the said representative expressed in his telegram copied above, the good inhniions and senliments of equity of the Government, and that the necessary steps utre being taken to assure Mr. Rogé of the benefit of the constitutional guaranties. The amount of indemnity which is demanded is, under everj' aspect, disproportionate, seeing, as it is demonstrated, that relief was sought to l)e given by the national Government for the illegal act in question with the least possible delay, and it was corrected by the judg- ment of the siipremc c«urt in the State of Bolivar. The Venezuelan commissioner considers that it would be a reasonable and equitable com- pensation for the damage suffered by Rogé on account of his detention in the hospital of Ciudad Bolívar for thirty-seven days to award him the sum of 10,000 bolivars. DECAUVILLE COXrPA.NY CASE. Demand that claim be paid for the amount demanded in bonds of diplomatic deljt at 40 percent of their face value refused. Held, that the commission had no jurisdiction to change manner of payment prescribed by protocol. Pail, Commissioner : This claim for indemnity is made up of the following amounts: Bolivars. Balance of the debt of the Government of Venezuela to the Decauville As.socia- tion , due May 1 5, 1 889 10, 923. 46 Installment due September 15, 1889 25, 923. 47 Interest at 6 per c*nt, in accordance with the liquidation 9, 896. 55 Difference on account of the value which is contained in the claim of the bonds of the diplomatic debt, estimating them at 60 per cent 31, 162. 32 77, 905. 80 The document presented in support of this claim consists of a contract made between Mr. Alberto Smith, minister of public works, with the authorization of the Persident of the Republic, and the Vicomte Gonzague de la Baume, as representative of the Decauville du Petit Bourg Company, whereby the indebtedness which said company held against the Gov- ernment of Venezuela for the sale of four iron bridges was liciuidated and the amount of said indebtedness was fixed at the sum of 77,770.39 bolivars, inclusive of interest to the dates of the respective expirations of the three terms agieed on in said contract for the total payment of the debt. It appears, from a communication addressed by the citizen minister of the treasury to the minister of foreign relations, dated Juno 5 of the present year, and numbered 284, a copy of which has been transmitted to this commission, that the account which the representative of the Decauville company makes of the payments made by the Government of Venezuela upon the dates therein indicated on account of the del)t, is correct, and the balance which results as being owed on account of this debt at the date of the termination of the respective obligations, amounting to 36,848.93 boHvai-s, is likewise correct. Notwithstanding that the liquidation of interest made in the contract between the minister of public w»)rks and the represtintative of the DtTauville company was made at the rate of 6 per cent aninially up to the dates established for the subseijuent payments of the debt, there is no proof tiiat it was agreed to make any agreement in the future for interest upon the sums which nught remain owing at the same rate, wherefore the rate established by this commission ought to govern in this ca.se — that is to say, that in the ca,ses in which there is no express agreement concerning interest there will l)e allowed upon li(iuidated debts or obligations for loans of cash at the legal rate of 3 j)er cent, in conformity with article 1720 of our ci)cle, which is in OPINIONS OF COMMISSION RENDERED IN CARACAS. 457 accord with article 1907 of the Froncli civil code. This liciuidation heiiif; carried into eil'cct from the respective dates upon the lialances which Inivc icinaincd owinfj, a result of 4,530.85 bolivars is obtained. The contention which the claimant makes that he .should be allowed 40 per cent more upon the amount of the principal debt and upon the interest because of the fact that the payment was made, in conformity with the terms of the protocol, in bonds of the 3 per cent diplomatic debt, instead of in cash, is entirely inadmissible, becau.se the party claimant has spontaneously submitted his demand to this commission, whose authority is limited to examining the claims presented by Frenchmen, founded upon facts prior to May 23, 1899, fixing the amount thereof in conformity with the proofs which relate to the facts upon which they are based and in conformity with the grounds that may justify them. The method of payment established by Article III of the protocol is a fact entirely .sepa- rated from the duty of judging concerning the justice or injustice of the demand. This fact relates solely to the execution of the judgment which the arbitrators may pro- nounce, and this conclusion is clearly deduced from the terms of said article, which reads as follows: "Awards [those which the arbitrators or the lunpire may allow] shall be paid to the French Government in bonds of the 3 per cent diplomatic dcbtwitliin three months after the agree- ment or judgment." « The provision which Article IV of the protocol contains is of the same character, and provides: " That the Government of Venezuela shall ask Congress to include in the provision for expenses the sums necessary for the payment of the monthly installments in arrears of the diplomatic debt, and the holders of bonds of that debt shall, besides, participate in all the advantages which may accrue to them from the strict application of the Venezuelan laws applicable to the premises." The definite provision of Article III and that which Article TV of the protocol contains relate solely to negotiations of government with government, which refer to the manner of paying obligations incurred, be it by contract, by former arbitral decisions, or by tho.se which the present conmiis.sion may pronounce. It is solely for the respective governments to deter- mine the manner of payment by special agreement,, and in no way can this be attributed to the arbitrators, who are only called upon to decide concerning the justice oí' the claim and to determine the amount which the Government of Venezuela has to pay, in case it has to pay, taking into consideration the facts and foundation of the claim. It is to be observed that among the 40 claims which have been presented before this commission up to date, embraced in Article II of the protocol signed at Paris February 19, 1902, the claim concerning which this decision is given is the first to set up the extraoidinary and rash contention that there be attributed to the diplomatic debt by the arbitrator a value of 40 per cent, thereby causing a notorious injury to the actual holders of said debt and to those who arc authorized by the findings of this commi.s.sion to receive in payment of their debt, according to the terms of the protocol, bonds of the said diplomatic debt. Such an arbitrary proceeding would cause the continued depreciation of the value of the debt until it destroyed it completely, and the holders of it would be the first to sufTer the consequences of the values established against the economic rules which govern public securities. Therefore this portion of the claim is di.sallowed, and it is admitted for the principal and interest estimated until tlic 15th of September of the present year, or, say, three months after the date of the present award, amounting to 41,377.78 bolivars. «Page 3. 458 APPENDIX. LALANNE AND I.EL>f)rK CASE. Damages allowod hocauso of unjustifled refusal of customs oificials to clear ship from Venezuelan port. Pail, Commissioner: This claim is composed of 34,370.40 holivans demanded by G. Lalanne for damages and injuries resulting from the fact that the head of the custom-house of Ciudad Bolívar did not permit the .shipment, in June, 1886, on the steamer Dieu Merci, of 120 head of cattle which Gen.G. Battistini held ready to send toGuayana, as had been done in other prior shipments, in order to fulfill the contracts made by Lalanne with the governor of French Guiana, for furnishing meat to the penitentiary, garrison, and other administrations of Guiana, and for 14,400 bolivars which the owner of the steamer Dieu Merci demands for the freight which the cargo of 120 head of cattle ought to have produced him at 120 francs each, of which he was deprived. From the documents presented in this claim and in that of G. Battistini, which is joined with it, it is seen that G. Lalanne periodically sent to Ciudad Bolívar a steamship to load cattle destined for Guiana for the purpose of complying with contract with the governor of said colony; that a contract being in existence, made between Messrs. Fonseca, Xavarro & Co., merchants, of Ciudad Bolívar, with the national Government, which accorded them the exclusive privilege of exporting cattle liy steamships, which said firm ought to have put in operation for the navigation of the Orinoco River between Ciudad Bolívar and the West Indies,' that they had consented to the exporting of cattle in steamers sent by Lalanne, charging for each shipment 8 bolivars per head; that in its turn the national custom-hou.se in Ciudad Bolívar required, in order to give permission for shipments of cattle, that there be presented by the shipper the order or pemiission of Fonseca & Co., showing the paj'ment to them of the tax imposed; that in accordance with this rule G. Battistini had been permitted to ship cattle for Cayena in steamships, by order and for the account of Lalanne, up to the number of 767 head, from Septemlier, 1885, (o March, 1886, Battistini having paid to Fonseca, Navarre «S; Co. the sum of 6,136 bolivars, as is proven bj- tlie receipt of cash by Alejandro Mantilla, as attorney for Fonseca & Co.; that in the month of June, 1886, the steamer Dieii. Merci arrived at Ciudad Bolívar to load the customary 120 head of cattle which G. Battistini had ready for this journey upon the order and for the account of Lalanne, and that it was not possible to complete the shipment because the custom-house had refused to permit it, alleging that the order of Fonseca & Co. had not been presented to it, as was necessarj'; that it was impossible to obtain this order because Messrs. Fon.seca & Co. refused to give it, notwithstanding that payment of the tax was offered them, as had been done before, and even Battistini had ofl'ered to bu}- from Fonseca & Co. their own cattle and ship them in place of those Battistini held ready; that these refusals of Fonseca & Co. and that of the maritime government house at Ciudad Bolívar caused the detention foi' .sev- eral days of the steamer Dieu Merci in the harbor of ( iudad Bolivar, and caused it to depart from the port without loading the cattle under the protest of the captain: and, finally, it is also proven that in the months following, the voyages of the steajiier and the shipments of cattle were continued for the account of Lalanne, the shipment being permitted by tlie Government custom-hou.se at Ciudad Bolívar, because the hindrances placed uj)on f railic in cattle on the Orinoco by the hou.se of Fonseca & Co. had in fact cea.sed. During tb(! period of the first events the president of the State of Guiana was Gen. Kai- mundo I""onseca, an active member of the firm of Fon.seca, Navarro & Co., and at the time when the opposition of .said house to the .shipment of customs oí Ciudad Bolíxai', who ought to have OPINIONS OF COMMISSION RENDERED IN CARACAS. 459 authorized the shipment upon learning that the ownei-s of the cattle were disposed to pay to Fonseca & Co. the same duties or taxes which in prior shipments they had received. Tliis dual entity of first magistrate of a body politic and partner of a commercial firm putting in action the influences of his power in order to obtain pecuniaiy benefits at the cost of legiti- mate interests created under the protection of the constitutional guaranties naturally pro- duced a disturbance in the dealings cstal)lislied at Ciudad Bolívar by Lalanne for the ship- ment of cattle, and gave rise to the present claim which, even if excessively exaggerated, has in its favor the principle of equity. Having admitted this in the claim of Lalanne and Ledour, the former a contractor in the purcha.se and exportation of cattle for Cayena and the latter the owner of the steamer Dieu Merci, the Venezuelan cümmi.ssioner proceeds to estimate the damage suffered by both. The death of the 29 head of cattle, which Lalanne claims took place in the journey from Demerara to Cayena, is not proven, and it is only proven that the Dieu Merci took on l)oard at Cayena 75 head of cattle coming from Demerara. Nor is the difference in price between the cost of the cattle bought at Demerara and the cost of the cattle in Ciudad Bolivar des- tined for the shipment proved. The prospective profits of 122. .50 bolivars for each head of cattle which the contractor believed he would obtain for the 120 head which ought to have been shipped from Ciudad Bolívar is exaggerated, since it is equivalent to 1(X) per cent on the pric« of the cattle in that city; besides this, damage can not be demanded except for 45 head, since 75 were unloaded in Cayena upon that voyage of the Dieu Merci, and upon them the contractor reahzed the profit which they ought to have yielded. There is likewise an exaggeration in the demand of the shipowner for 14,400 bolivars for the freight upon 120 head of cattle which he did not take on at Ciudad Bolívar, since this damage is leduced to the freight on 45 fewer cattle loaded upon said voyage, to the expensesof delay during his stay at Ciudad Bolívar, and to those of the journey and stay at Demerara. Taking these points into consideration, the Venezuelan commissioner allows G. Lalanne an indemnity of 4,000 bolivars, and the owner of the ship Dieu Merci 4,000 bolivars — in all, for the total claim, 8,000 bolivars. BAT-nSTINI CASE. Damages allowed claunant for unjustified refusal of Customs officials to clear ship, whereby claimant suffered injur}'. Damages allowed for wrongful imprisonment. Claim for payment of outstanding bonds disallowed because of want of proof of ownership thereof. Claim allowed against Federal Government for supplies furnished the State of Guayana. Paúl, Commissioner: This claim is composed of ten distinct items, which the petitioner classifies, estimating tlie amount of each one of them, wherefore this opinion will refer particularly to each of them, examining the origin and the proofs upon which they are based, and will indicate the opinion which the corresponding demand for indemnity may merit. 1. For hindrances oppo.sed to the departure of the French steamer Dieu Merci witli a cargo of cattle destined for Demerara and Cayena, and the consequent necessity of leaving this cargo on shore where the cattle were destined for the provision of the government of Cayena, the claimant demands 100,000 bolivars. A claim on account of these same facts has been presented before this conunission by Messrs. G. Lalanne and H. Ledour, the former a contractor for the furnishing of cattle for the Government of French Guayana, and the latter the owner of the steamer Dieu Merci, and that claim was decided, an allowance of 8,000 bolivars being made for the damages, because the custom-house at Ciudad Bolívar did not allow the shipment of 120 head of cattle destined by Battistini to fulfill the order of sliipment for his constituent, Lalanne. The cattle appear to have been the property of Battistini, who sold them to Lalanne at a given price. It does not appear that these cattle were lost or decreased in value as a consequence 400 APPENDIX. of remaining in Ciudad Bolívar, and it is proved that the voyage of the steamers and ship- ment of cattle continued without intermption, Battistini himself carrying out said shipment for the account and by order of Lalanne. The injury suffered by Battistini, who is the owner of pasture lands on the banks of the Orinoco, was nothing but his returning these cattle to the pastures or their sale in Ciudad Bolívar at a price not so high as the transaction of Lalanne assured him. Estimating this expense or loss conservatively, the sum of 5,(X30 bolivai-s is allowed in this respect. 2. For the matter of Caliman, civil chief of Ciudad Bolívar, who (according to the record) has committed injustices in detriment to his interests, 20,000 bolivars. From the record it appears only that the civil chief, Caliman, ordered the withdrawal from public market of Ciudad Bolívar of a quantity of raw meat , which Battistini had sent there for its sale, disobeying positive orders not to do so, because this act was contrary to a contract made with certain persons for the furnishing of meat in the market. The meat withdrawn was attached and sold at public auction by the police officer. There exists no other proof referring to the action of the civil authority against the interests of claimants, and no claim against the nation can be founded upon this procedure of municipal regulation. 3. For the claim of Pereira Alvarez, judge of the first instance at Ciudad Bolivar, who, as Battistini says, has committed al)ominable injustices against his person and again.st his interests, for which he has not been able to obtain any reparation before the tribunals, 40,000 bolivars. It is proven that because Battistini had protested against the actiolî of thexivil chief, Caliman, in withdrawing from the market his raw meat, a protest which the subtreasurer of Ciudad Bolívar did not wish to record, because he considered it offensive to the authority, Judge Pereira Alvarez rendered judgment for calunmy and injuries against Battistini, and issued an order of arrest against him and a mandate to all the authorities to carrv- it into effect. Battistini fled from the locality and came to tiie capital of the Republic seeking pro tection. The son of Battistini complained to the judge, and the latter revoked the order of detention, because the offense had not been proven; that is, because there was nothing injurious or calumnious in Battistini's protest. Battistini sued the judge, Pereira Alvarez, before the court for neglect in the exercise of his duties, but the court could not move because Battistini w^as not able to obtain the necessarj' copies of documents which the judge in ques- tion ought to have ordered to be issued to him, and his solicitations in this regard before the president of the State and other local officials were futile. These facts proved the denial of justice, becau.sc the local authorities deprived Battistini of the legal means of instituting before the competent tribunals the actions which the laws would authorize him in case he might improperly have been condemned to a criminal judgment. In this respect the Vene- zuelan commissioner believes that Battistini is entitjed to an indemnity which, in relation to tlieoirense and the injuries whicii the arbitrary order of detention of the judge caused him, he estimates at 25,000 bolivars. 4. This item of the claim is a demand for indemnity amounting to 75,000 bolivars for principal and interests for a certain number of coupons or bonds of the debt of the State of Guayana, of which Battistini says he is the owTier, and that by decree of President-General Fonseca, it was ordered that tlicy should not be admitti'd as had been the custom in payment in the tax offices of the State unless they had been redeemed up to date. The claimant has not presented the original l)()nds or any part of tliem which he iiiny have in his j)os.se.ssion. The failure to present .said bonds makes an appreciation ri>gardiiig the legitimacy of the claim impossil)le, liecaiis*' its essential foundation, which is tlie ownership or existence under the control of Battistini of .such certificates or bonds and the exact a.scertainment of tlieii- amount, is wanting. Besides this circumstance, which by itself alone nullifies the claim, it appears from the claim of Battistini himself that these bonds are nothing eLsi> but bonds of a publi<' debt of the State of Guayana extinguishable from the time of their issue in 1878 by 10 per cent of the ordinary receipts of the treasury of the Stale; that later, in Novemln'r, 1882, the prcsidi>nt of the State suspended tiie circulation of .said bonds, and on Deceml)er 9 of said yi'iir he i.ssued a decree ordering their re made OPINIONS OF COMMISSION RENDERED IN CARACAS. 461 out of an allotment of 25 per cent of the special revenue of the State of Bolivar destined for the section of Guayana on June 7, 1884, and payment was made whereby the value of the bonds was reduced from 104,837 bolivars, tlie amount of the first issue, to the sum of 49,507 bolivars, which sum Battistini says was completely in his possession ; that the effects of the financial crisis that took place at that time and the reduction of 25 per cent in the revenue of the allowance and by the territorial revenues hindered the continuation of the extiiiguisli- ment, and finally that the legislature of the State by a legislative act t)f 1S88 passed a law concerning the public debt which had as an object to consolidate all the debts of the State. It is to this decree that the judgments of the court in the various grades of jurisdiction of the State of Bolivar have remitted Mr. Battistini in the suit which he instituted against tiio treasury of the State for the payment of the bonds which were in his possession. In May, 1890, Battistini, the claimant, instituted a proceeding of cassation against this decision in the supreme court of Ciudad Bolivar as a court of last resort, and on the 16th of that month the court of cassation granted the appeal which, as appears from the statement of Battistini, was allowed to lapse. There are, therefore, final judgments which decree that Battistini, like any other holder of the internal debt of the State of Guaiana, is obliged to submit him.self to the laws or decrees which govern the extinguishment of said debt. It is a principle of public international law that the internal debt of a state, classified as a public debt, which is subject to speculations current among that sort of values which are acquired freely and spontaneously at very different rates of quotations which mark great fluctuations of their rise and fall, can never be the subject of international claims in order to obtain their immediate payment in cash o just as they can not be the subject of judgments before the tribunals of the country in order that their holders may obtain the payment of their nominal value. To establish sucha principle would be to put a premium upon stock jobbing, which would be often possible with this sort of public values, and would place nations at the mercy of speculators who might obtain control of all their internal debt. The certificates or bonds, in question in the matter of the claim of Battistini, in this sulj- division, are in the same condition as the internal debt of the nation, which amounts to many millions and bears interest, and it is more than four years since payment for its extinguishment and the payment of interest has been suspended on account of the abnormal condition caused by the war. Could these mixed commissions have jurisdiction to decide claims which the foreign holders of this internal debt might present to them in order to obtain the payment of the principal and interests i This could not be sustained even with respect to the foreign, or as it is called diplomatic debt, of 3 per cent, nor with respect to any public debt which has been put upon the specu- lative market and may therefore pass from hand to hand by virtue of transactions j)rompted daily by those who profit from the rise and fall of public securities. This portion of the claim is declared inadmissible, because it can not be prosecuted before this Commission. 5. This portion of the claim arises out of the recovery of a private debt which Mr. Hernan- dez Lopez contracted in favor of Battistini, amounting to the sum of 12,228 bolivars, and which gave rise to a suit prosecuted before the competent judge of Ciudad Bolívar, in which judgment was rendered and ordered to be executed ordering the attachment of the property of the debtor. This attachment could not be carried into eflect because Hernandez di.sap- pearcd from the place of execution and the property of the debtor could not be found upon which to lay it. Battistini seeks to maKe the nation responsible for the insolvency of his private debtor, an unsustainable and evidently rash pretension, which only indicates in the petitioner a true monomania for claims. The amount of this portion of the claim therefore is disallowed, which is 25,000 bolivare. 6. The claim of 35,000 bolivars for a certain quantity of sairapia, which was declared contraband after a formal judgment wliich was twice appealed and terminated in the full a In the Italian Commission of 1903 (Boccardo case, not reported) judgment was given on internal bonds on authority of Aspinwall case, Moore's International Arbitrations, p. 3(510. 462 APPENDIX. Fodonil court confirming the judgments of the first and second instances, which condemned Battistini to lose the sacks of sarrapic, a contral«ind article, and to the payment of double duties, lacks all foundation, l>ecause there is upon this matter res judicata, and it ought therefore to be disallowed. (Items 7, 8, and 9 dismissed for want of proof.) 10. For the value of a certificate issued in favor of Domingo Maria Battistini April 29, 1891, by the general internal treasurer of the State of Bolivar, recognizing the debt against the old State of Guayana, amounting to 13,780 bolivars, for supplies made to the State of Guayana and by order of the citizen president of the same State, No. 2307. This is admitted for said sum. For interests upon tliis receipt and other general injuries there is aUowed by the arbitrators the sum of 6,220 bolivars. (This claim was allowed for 50,000 bolivars.) PITON CASE. a Prescription unless pleaded by the debtor will not be taken into consideration by the Commission. Paúl, Commissioner : The claimants, in their capacity of French citizens, and sole and legitimate children of P. Claudius Piton and Augustina Piton, née Lemoine, as appears from the public docu- ments which have been presented before this commission, demand from the Government of Venezuela the payment of the sura of 489,468.64 bolivars for capital and interest accrued since the date of their claim, arising out of the acknowledgment made by the minister of interior and justice on January 7, 1868, and by a resolution of the same date marked No. 5, in favor of Messrs. A. Lemoine & Co., for the following amounts: For the balance due on a credit of $50,000, to which they have a right by the contract of July 20, 1856, made with the honorable municipal council of La Guaira, and approved by the govern- ment of the former province of Caracas on August 28 of the same year, said contract having as an object the furnishing of drinkable \vater to the city of La Guaira by means of an iron pipe, the constiiiction of various public fountains, the building of a reservoir for the storage of the waters, and the repairing of the aqueduct in various places, $38,411.16. For interest accrued upon this balance at the rate of 6 per cent per annum from June 1, 1860, until December 31, 1867 $16, 751. 50 For damages and injuries which A. Lemoine & Co. claim for the breach of the contract (it being remembered that this amount is much less than what the profit of 1 per cent per month would have been which was indicated as simple interest in the original contract) 7, 500. 00 62. 662. 66 It was moreover resolved that this sum of $62,662.66 should be paid by the administra- tion of the revenues of tlic department of Vargas by tiie receipts from the public market of .said city of La Guaira, and by tiie tarifT for pure water wiiich .should be collected at that place, the payments having to be made monthly and the account to bear interest at said rate of 6 per cent per annum only upon the balance of $38,411.16, .since in no ca.se could interest be paid upon interest. As appears from the documents registered at La Guaira on January 28, 1868, under No. 4, protocol 8, the collector of revenues of the municipal council of the department of Vargas, Mr. G. Quevedo, by virtue of the special authorization of said body, by .said instrunuüit, put Messrs. A. Ijcmoine & Co. into possession of the receipts of tlic market and of pure water whidi might be collected by the administration of municipal rcvciuie.s of the department of Vargas, its product to be delivered monthly, without any other reduction except what might be cau.sed by its collection. o Reported in Venezuelan Arbitrations of 1903, p. 607, as "Daniel" case. OPINIONS OF COMMISSION RENDERED IN CARACAS. 463 It appears from the documents presented that the administrative council of tlie depart- ment of Vargas carried on with A. Lemoinc & Co. an open account in fulfillment of the resolution of the ministry of the interior and justice, under the division of districts until November 1, 1871, when tlie change of application of the funds destined for the extinction of the capital acknowledged to be due A. Lemoine & Co., and the interest on said capital at one-half per cent per month. From this la.st account it appears that upon the above date, November 1, 1871, the nmnicipal council of the department of Vargas owed A. Lemoine & Co. the following: For capital S31, 944. 04 Interest 25, 234. 62 Damages and injuries acknow^ledged 7, 500. 00 64, 678. 66 An account lias been presented bearing date April 17, 1882, showing an amount due of .$84,643.66 as the balance of the capital and interest in favor of A. Lemoine & Co., and a note addressed by the president of the municipal council of the district of ^'argas, dated June 1, 1883, No. 188, to Mr. Daniel Dibble, in order that he might transmit it to the heirs of A. Lemoine, deceased, wherein he announced to them that said municipal council at its session of June 7, 1883, had resolved with reference to the claim presented by said heirs upon March 31 of said year, to approve the opinion of representative Manuel F. Sojo couched in the following terms: "That it being a matter of the greatest importance, and his many duties not permitting him to examine it, he returned it, indicating that he thought it would be well to have the advice of a lawyer." The president of the council in said communication also announced that the body had postponed until another session the choice of the la^vyer to be consulted. Under letters D and E two plain copies of the two communications, the first addressed in July, 1895, by Carlos Piton in his own right, and Santiago Carias as the representative of Amelia and Isabel Piton to the municipal council of the department of Vargas, in which they requested that order be given that a liquidation might be made sho\\nng the indebtedness of said council to the heirs of Augusto Lemoine on account of the iron pipe line at La Guaira, in accordance with the contract in the premises which appeared in evi. dence in said record, and they demanded that a certified copj' be issued to them of such liquidation. The second communication, dated at Caracas in September, 1896, is written by the same petitioners and was addressed to the president of the State of Miranda, of which State the city of La Guaira then formed a part, asking said oflBcial that he examine the documents which the demand mentioned and that he might signify that he considered it just, and that he might fix upon a fortnightly payment for the gradual extinguishment of the debt. It is not proved that these two demands have reached their destination, and that con.scquently any determination with respect to them was reached. From the facts stated, it appears that an agreement duly recorded existed by which the National Government through its official, the minister of the interior and justice, acknowl- edged an indebtedness in favor of Messrs. A. Lemoine & Co. of $66,682.66, as capital, inter- est, and damages, and injuries in January, 1868, ordering the gradual extinction of this debt by means of the receipts of the rents of the market and pure water of the eity of La Guaira; that this agreement was performed for the space of three years and ten months, Messrs. A. Lemoine & Co. receiving from the municipal rents of the district of Vargas various sums from said rents, which extinguished in part the balance owed upon the capital, and that portion owed for interest increased, whereby, by November 1, 1871, the general balance ol tlie running account in favor of A. Lemoine & Co. amounted to §64,678.66; that from this last date it aocs not appear that there has ever been any action taken by the owner of the debt directly, nor by their legitimate successors in interest, before the competent tribunals or officials of the country, demanding the fulfillment of the 464 APPENDIX. agreement made \vi(h tlio municipal corporation of La Guaira. It is not possible to leave out of consideration this notable circumstance which as a consequence has caused the default in payment of a debt, recognized by a public instnmient, for the extingiiishment of which the party del>tor had set aside certain receipts of the municipal revenues, thus constituting a pledge which in law establishes a legal right in favor of the creditor. It is a notorious fact that the district of Vainas has since the year 1871 passed through a series of political and ectmomic changes which have radically altered its organization and greatly decreased for various rea.sons the receipts of the municipal revenues. The liabilitv which might attach to the National Government to-daj'for a debt which was originally contracted by the municipal council of the di.strict of Vargas, of the former pro- vince of Caracas, and which debt should be paid by these very nnmicipal revenues which .-aid corporation administered, can not be founded legally except in the ultimate territorial dis- tribution .sanctioned by the constitution of 1901 whereby the States obligated themselves to cede to the nation, among other cities, that of La Guaira. Upon the date of this session the debt due the successors in interest of A. Lemoine haa for a great many years remained without action, without their having been presented before this commission any suiRcicnt reason or motive to show that that situation was not owing to the neglect of the creditor and bis legitimate successors in interest. The reason upon which all legislations base the right of the debtor to invoke prescription as a means of extinguishing an ot)ligation is the abandonment in which the creditor has for a number of years left the exerci.se of his right, the legal presumption of payment arising therefrom. Prescription has not been invoked before this commission in the present case by the Government of Vene- zuela, wherefore it can not of its own motion take it into consideration, in conformitj- with the principles wliich govern, but there is no right for the allowance of interest upon the amount of the debt; and taking moreover into consideration that the amount shown tobe due by the liquidation of November 1, 1871, includes an item of $7,500 for damages, and at the same time another amount for interest up to that date upon the capital at 6 per cent, which amounts to the sum of $25,234.62; and that in all equity this double indemnity should not be allowed for interest and for damages, there should be deducted from the total amount of said lic|uidation the sum of $7,5(X), and the balance in favor of the successors in interest of A. Lemoine sliould be allowed, say, the sum of 228,714. (M bolivars, without interest. SuMMAiiY OK Claims Adjudicated by the Commissioners at Caracas in 1903. Number of claims submitted 75 Number of claims witlulra\vn 1 Number of claims in which awards were given 37 Number of claims dismissed for want of jurisdiction 2 Number of claims disallowed 27 Number of claims referred to umpire 8 — 75 Bolivars. Amount of claims presented (Jl, 334, 352. 45 Bolivars. Amount of claims withdrawn 336, 000. 00 Amount of claims dismi.s.sed for want of jurisdiction 22, 31 1. 00 Amount of awards made 1, 437, 021. 01 Amounts of claims disallowed 9, 068, 908. 08 Amount of reduction of claims in which awards were made 7,482,064.86 Amount of claims referred to umpire 42, 988, 047. 50 61,334,352.45 OPINIONS OF COMMISSION RENDERED IN CARACAS. 465 Claims Referred to the Umimue lnuer the French Protocol oi- 1002. Bolivars. 1. Fieri Dominique & Co 4, 010, -100. 00 2. Compañía General del Orinoco 7, OUi, Oi),S. (52 3. Compañía de Betunes del Orinoco 17(), OSO. 10 4. Massiani Sucesores ()92, 740. 48 5. Maninat, Pedro, y Hermana.s 2, (KK), (KX). 00 6. Compañía francesa de ferrocarriles venezolanos 18, 4S;i, 0(X). 00 7. Jules Brun ÍOO, 000. 00 8. Fabiani, Antonio 9, 509, 728. 30 Total. 42, 988, 047. 50 On these eight claims the French commissioner favored judgments for 36,868,541.8& bolivars, while the Venezuelan commissioner rejected all except 180,000 bolivars. S. Doc. 533, 59-1 30 INDEX Abandomnciit. {See Contracts.) Page. Agents: Of a government, acts of, must 1)0 considered as regular and proper until the contrary is clearly shown 31 Presumption in favor of regularity and propriety of acts of, as necessary to the public interests 31 Appendix: Opinions of Commission rendered at Caracas 454 Attorney: Appearance of, cures irregularities in proceedings 244 Awards {see Plumley, Umpire): Can not be increased because of reduction in market value of the securities set aside under the protocol for payment of such claims 5 Text of, in Fabiani case, of Swiss Arbitrator under convention of 1891 147 Text of, in Venezuelan-Colombian boundary dispute 268 Summary of, by umpire 453 Battistini case 459 Brun case: Opinion of Venezuelan Commissioner 6 Opinion of French Commissioner 9 Additional opinion of Venezuelan Commissioner 13 Additional opinion of French Commissioner 20 Opinion of Umpire 21 Burden of proof. {See Evidence.) Citizenship {see Nationality): Laws of Venezuela concerning, not peculiar 212 Of widow of French citizen 211 Of children of French citizen born and domiciled in Venezuela 212 Claimant {see Claims; Evidence): If rightfully in a case, however informally present, case should be decided on the merits, the decision to be fully binding upon all parties 5 Burden of proof rests upon, to establish his nationality 44 Nationality of, at inception of claim alone to be considered 45 Claims {see Claimant): Changed from individual to national character upon intervention of claimant's government 82 Claims, schedule of: Brun case 5 Fricrdich & Co. case 31 Maninat case 44 Fabiani case 81 Dominique & Co. case 185 Leduc, St. Ives, Fischer & Co. case 454 Rogé case 454 467 468 INDEX. Claims, schedule of — Continued. Page. Decauvilie case -i-^G Battistini ca.se 459 Piton ca.se 462 French Company of Venezuelan Railroad.s 367 Ma-ssiani, heirs of 21 1 Orinoco, Company General of. casi' 244 Commission: Personnel 4 Company Cieneral of the Orinoco. {See Orinoco, Company General of.) C(ntion of 1891 147 I'^alsc ¡m|)ris<>iim(Mil as ground oi indcnmity 18(> Federal court, error in act ion of, cured 215 INDEX. 469 I aRC. French Company of Venezuelan Railroads 367 Opinion of Venezuelan Coinniissioner 369 Opinion of Freneli Coniniissionei- 405 Additional opinion of Venezuelan Commissioner 40D Additional opinion of Freneli Commissioner 425 Opinion of Umpire 428 Frierdich & Co. case: Opinion of Venezuelan Commissioner 32 Opinion of French Commissioner ..'. 32 Additional opinion of Venezuelan Commissioner 33 Additional opinion of French Commissioner 36 Opinion of Umpire 37 Government {see Intervention; Liability): Will only treat with citizen of another nation throuf^li his government 144 Government, respondent, not responsible for loss or damages through havoc of war 309 Interpretation. {See Treaty.) Intervention: Should not be resorted to in a case of conflict of laws respecting citizenship. . . 45 Should not l)e had if defendant government conformed to its own laws in its own ports, said laws being such as are the product of civilization 31 Should not be had unless defendant government committed some legal wrong. 31 Jurisdiction: Commission has none to rescind contract 369 Leduc, St. Ives, Fischer & Co. case 454 Liability : A government is liable for injuries suO'ered by an alien through an act of a sub- ordinate officer, committed while former is in the presence of a conunanding general by order 44 In such case, if the government declines or neglects to punish the guilty person, the actual damages suffered may be claimed and an additional sum for the indirect affront to claimant's government 44 A government is liable for casualties resulting from warfare when such casual- ties could have been avoided 5 Maninat case: Opinion of Venezuelan Commissioner 45 Opinion of French Commissioner 50 Additional opinion of Venezuelan Commissioner 55 Additional opinion of French Commissioner 67 Opinion of Umpire 69 Marriage. {See Nationality.) • Massiani, heirs of 211 Opinion of Venezuelan Commissioner 212 Opinion of French Commissioner 217 Additional opinion of Venezuelan Commissioner 223 Additional opinion of French Commissioner 233 Opinion of Umpire 235 Measure of damages. {See Damages.) Nationality: Attempts to change after date of inception of claim not valid to affect rights. . 45 Of claimant at inception of claim is alone to be considered 45 By birth in a country a reasonable rule 45 470 INDEX. Nationality — Continued. Page. Of the citizens of a government must be determined by the countrj- of residence, inasmuch as governments must be permitted to regulate their own internal alfairs 45 Marriage of a woman to a Frenchman establishes her nationality under French law. both during her marriage and after the death of her husband 45 Establishment of, is on the claimant 44 Orinoco, Company General of 244 Opinion of Venezuelan Commissioner 246 Opinion of French Commissioner 282 Additional opinion of Venezuelan Commissioner 286 Additional opinion of French Commissioner 314 Opinion of Umpire 322 Paúl. José de Jesús, Venezuelan Commissioner (see Commission): Opinions — Brun case 6, 13 Frierdich & Co. case 32, 33 Maninat case 45, 55 Fabiani case 83, 97 Dominique & Co. case 186, 195 Leduc, St. Ives, Fischer & Co. case 454 Rogé case 454 Decauville case 456 Battistini case ^. 459 Piton case 462 Massiani, heirs of, case 212, 223 . Orinoco, Company General of, case 244, 286 French Company of Venezuelan Railroads 369, 409 Peretti, Count de, French Commissioner {see Commission): Opinions — Brun case 9, 20 Frierdich & Co. case 32, 36 Maninat case 50, 67 Fabiani case 93, 103 Dominique & Co. case 193, 198 Massiani, heirs of, case 217, 233 Orinoco, Company General of, case 282, 314 French Company of Venezuelan Railroads case 405, 425 Piton case 462 Plumley, Frank, Umpire {see Commission): Opinions — Brun case .•. 21 Frierdich & Co. case 37 Maninat case t>9 Fabiani case 110 Dominique & Co. case 201 Massiani, heirs of, case 235 Orinoco, Company General of, case 322 French Company of V'cnezuelaii Kailroads 42S Presumptions: Acts of governmental agents must be presumed to be regular and proper imlil the contrary is dearly shown 31 Are m favor of regularity and propriety of acts of governmental agents as ncce.s- sary to the public interests 31 INDEX. 471 Protocols: Page. Text of convention of 1902 1 Text of Fabiani protocol of 1891 110 Rescission or abandonment {see Contracts; Jurisdiction): Rescission, suit for, irregularities in, cured 244 Date of entrj' is date on- which issues are formed 245 Res judicata: Effect of judgment or award as 82, 245 Rogatory commissions: Error in, cured 245 Rules as to, of Institute of International Law 258 Rogé case 454 Sovereignty: To maintain, a country must be master of its internal policy 212 Treaty: To be interpreted in manner least onerous to party to be charged 45 War. {See Damages; Government; Liability.) O 39 12668 O