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edging itself to have made default in the payment of its own liquidated pecuniary debts and obligations to the citizens of another State, or acknowledging itself to be responsible for the wrongful appropriation and detention, by its officers or people, of property belonging to the citizens of another State, has expressly contracted to make payments or restitution, with interest at an agreed rate. But Her Britannic Majesty's Counsel, after careful inquiry from the best sources of information, has failed to become acquainted with any instance in which interest has yet been allowed as an element of damages between nation and nation in the settlement of unliquidated claims (to recur to the words of Sir C. Robinson) "for the acts of others, for the consequences of error or misunderstanding, rather than of intentional injury; and for cases in which no profit or advantage has accrued to the party by whom compensation is made."

27. The third and latest precedent, cited by the United States, is that of the recent award of Sir E. Thornton between Brazil and the United States, in the case of the ship Canada.

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In the year 1857 the Minister of the United States at Rio demanded compensation from the Government of Brazil for "an outrage committed on the high seas, near the Brazilian coast, by a body of Brazilian soldiers, upon a whale-ship called the Canada, sailing under the flag, and belonging to citizens, of the United States." The matter continued pending for some years, and, eventually, on the 14th March, 1870, a Convention was concluded between Brazil and the United States, by which this question was referred to the arbitration of Sir Edward Thornton, then and now Her Britannic Majesty's Minister at Washington.

Under this reference Sir Edward Thornton made his award, dated the 11th July, 1870, by which he found the following facts to be established by the evidence laid before him, viz: that, on the 27th November, 1856, the Canada grounded upon a reef of rocks within Brazilian jurisdiction; that, during the four following days, proper means were used by her captain and crew, with every prospect of success, to get her off; but that, on the 1st of December, a Brazilian officer, with fourteen armed men, boarded her, superseded the authority of the Captain, and forcibly prevented the further prosecution of the efforts which were being made to save the ship; that she would, in fact, have been saved, but for this improper interference of the officers of the Imperial Government of Brazil, and that she was lost through that interference; for which reason, he held the Imperial Government to be responsible for the value of the property so destroyed. He then proceeded to deter mine, according to the evidence before him, (which included proper particulars of her age and classification, and valuations of different dates,) the principal sum, representing the value of the ship at the time of her loss, and the actual cost of her outfit. He rejected all claims for prospective catch and earnings; he allowed some small sums for necessary expenses incurred by the crew in traveling; he also allowed to some of them moderate sums for three months' wages; and he allowed interest at 6 per cent. from the date of the loss, as the necessary result (in his judgment) of the liability of the Brazilian Government for the principal amount.

This decision, like those before examined, proceeded upon ordinary juridical principles. The Brazilian Government, by their officers and

Dispatch of Mr. Fish to Mr. Blow, communicated to Baron Cotegipe on the 28th December, 1869.

soldiers, had wrongfully taken possession of, and had, in effect, destroyed, a United States ship within their jurisdiction, which was entitled to their protection. For the full value of the loss so inflicted upon subjects of the United States, they became immediately and directly responsible, as much as if they had seized and detained the ship, under circumstances enabling them to restore it to its owners. Restitution of the ship itself being impossible, a full compensation and indemnity became actually due, from the moment of the loss; and the payment of this compensation and indemnity, though promptly claimed, was for many years delayed. The amount of the principal loss was properly investigated and accurately determined, and the interest given was accurately computed upon that amount.

28. In every point of importance, with respect to the principles involved, this last precedent (like those which had gone before it) stands in absolute contrast with the present case. In this, as in the earlier cases, (to sum up the whole matter shortly,) those elements were found to be present, which were juridically necessary to constitute a right to interest; and interest was accordingly given as a matter of strict right. In the present case all these elements are absolutely wanting; and, instead of them, others are present, the effect of which is not to support, but to repel, the claim of interest, even if the appeal is made, not to any rule or principle of public law, but to the exercise of a reasonable and equitable discretion.



The question upon which the Tribunal is understood to have admitted · argument on the part of Her Britannic Majesty's Government is, "Whether, supposing a capital sum as an adequate measure of injury, in the judgment of the Tribunal, has been arrived at, the proper indemnity for that injury involves the allowance of interest as a part of that indemnity from the date when the losses accrued to the sufferers (and as of which the capital of the losses has been computed) until the indemnity is paid? We have had an opportunity to read the argument of Her Britannic Majesty's Counsel submitted to the Tribunal upon this question, and now avail ourselves of the right under the Treaty to reply to it, so far as such reply seems to us suitable.

I. It is important in reference to this question, as we have heretofore had occasion to suggest in respect to other questions opened for discussion by the Tribunal, to confine the argument within proper limits. By doing this in the present case, we may very briefly dispose of much that occupies a good deal of space in the learned Counsel's argument.

(a) The question assumes that a method of measuring the injury to the United States, and the indemnity therefor from Great Britain, has been adopted, which takes account of the losses suffered as of the dates (actual or average) when they were suffered, and fixes an amount in money which, if then paid to the sufferers, would, in the judgment of the Tribunal, be an adequate, and no more than an adequate, indemnity for such losses to the sufferers. Upon this view of the capital sum, in respect of which the allowance or refusal of interest thereon is in question, (and no other view seems admissible,) it is impossible to raise any other points for debate than the following:

First. Is the delayed payment of a sum which, if paid at an earlier date, would then be only an adequate payment, still an adequate payment without compensation for the delay ?

There can be but one answer to this question. The earlier and the later payments cannot both be adequate, and not more than adequate, to the same obligation, unless they are equivalent to each other. But common sense rejects the proposition that a present payment of money and a delayed payment of the same sum are equivalent. They are not the same to the creditor or sufferer who receives the payment, nor to the debtor or wrong doer who makes the payment.

Compensation for the delay of payment is necessary to make present and delayed payments equivalent to each other, and each equal to the same obligation.

It thus being clearly impossible that earlier and later payment should be equivalent, whenever, in fact, only the later payment can be, and is to be, made, it must draw with it the compensation for the delay in the nature of interest, provided it is intended that the parties should stand after the delayed payment as they would have stood after an earlier payment.

Second. It will be readily admitted that this necessary compensation for delay in payment of a sum, which has been computed as a just payment, if made without any delay therein, cannot be justly withheld, unless there shall have been some fault on the part of the creditor or sufferer whereby the delay of the adequate payment is imputable to him.

We imagine that the principles of private law governing this question and justifying the refusal of interest for delay of payment all turn upon this, viz: that the debtor was ready to pay and the creditor was unwilling to receive.

It is true, in addition, that the jurisprudence of Great Britain and of the United States permits nothing but an actual tender of the sufficient sum, and a continued keeping of the sum good for payment on the part of the debtor, and a refusal to receive on the part of the creditor, to stop the running of interest on the debt.

The other class of cases, in which the debt is frequently spoken of as not drawing interest, more accurately should be described as a situation wherein the transactions between the parties do not culminate in any obligation of one party to pay, or right of the other party to demand, until, as a part of those transactions, there has been an ascertainment of amounts, and a demand of payment.

These are cases of mutual accounts, or of open demands, as yet unliquidated. Until the eventual creditor strikes his balance, or computes and demands his debt, there is no delay of payment, requiring compensation between the parties.

Third. There seems to be no other possible reason in the nature of things for refusing to add interest for delayed payment to a sum which was a mere indemnity, had it been promptly paid, other than a disposition not to give full indemnity, that is, an intention to apportion the loss.

But this disposition, if it should be just, can hardly be said to raise any question of the allowance of interest any more than of the allowance of principal. It will be all the same to the American sufferer who fails to receive the full indemnity which delayed payment involves, whether the sum which is actually paid him is computed by the Tribunal as half his principal loss with interest added, or the whole of his principal loss without interest. It is all the same to Great Britain in making the payment, whether the reduction from a full indemnity is computed by refusing the full capital, and calculating interest on the part allowed, or by allowing the full capital and refusing all interest upon it. The fact that full indemnity is or is not given cannot be disguised. It will not be more than given because interest is allowed. It will not be any less withheld because the part withheld is withheld by the refusal of interest.

II. If these views are correct it will be seen that, notwithstanding the very extended discussion of Her Britannic Majesty's Counsel, the real considerations which should affect the allowance or disallowance of interest in the computation of the award of the Tribunal lie within a very narrow compass.

(a) We may lay aside all the suggestions that interest on the capital sum, as it has been adopted or shall be adopted by the Tribunal, should not be allowed, because the capital is or is like to be excessive, and interest would be an additional injustice.

These ideas are put forth in sections 14, 17, and 18 of the learned Counsel's argument under two heads, (1) that the computation by the Tribunal of the capital will be excessive per se, and (2) that it will be excessive by adopting in coin values that are stated in paper currency.

In the first place, all this is not a reason for refusing interest, but for correcting the computation of capital on which the interest should be computed. We cannot enter into any such rude judgment as this. We are not invited to criticise the Tribunal's computation of the capital of the losses. We are not advised what that computation is or is to be. We have exhibited to the Tribunal evidence and computations bearing upon the just measure of the capital of the losses. If those should be adopted by the Tribunal, there is no danger of excessive indemnity to the sufferers. We have also exhibited to the Tribunal the evidence and the reasons upon which we insist that the valuations given to property in the "Claims" as presented are to be paid in coin. We do not repeat them here. But we protest against an attack, in the dark, upon the Tribunal's measure of the capital of the losses, under the form of an argument against the allowance of interest.

(b) We may also lay aside the suggestions prejudicial to the allowance of interest on the claims which, by subrogation or assignment, have been presented by the insurers who have indemnified the original suf ferers. So far as Great Britain and this Tribunal are concerned, who the private sufferers, and who represent them, and whether they were insured or not, and have been paid their insurance, are questions of no importance. But it is worth while to look this argument in the face for a moment. Some of the sufferers by the depredations of the Alabama, the Florida, and the Shenandoah were insured by American underwriters. These sufferers have collected their indemnity from the underwriters, and have assigned to them their claims.

The enhanced premiums of insurance on general American commerce have, presumptively, enriched the insurance companies. Great Britain should have the benefits of these profits, and the underwriters, at least, should lose interest on their claims! It is difficult to say whether the private or the public considerations which enter into this syllogism are most illogical. Certainly we did not expect that "the enhanced payments of insurance," which Great Britain could not tolerate, and the Tribunal has excluded as too indirect consequences of the acts of the cruisers to be entertained when presented by the merchants who had paid them, were to be brought into play by Great Britain itself as direct enough in the general business of underwriting, to reduce the indemnity on insured losses, which, if uninsured, they would have been entitled to.

(c) Equally irrelevant to this particular question of interest are the considerations embraced in section 11 of the learned Counsel's argument. These relate (1) to the fact that the belligerent aid given by Great Britain, for which it is now to be charged as responsible, were given in aid of the rebels against the Government of the United States in their attempt to overthrow it, and that by the triumph of the Government these rebels have been merged in the mass of the population of the United States. This idea, as intimated in the principal discussions of the British Case and Counter Case, has been responded to by us already, so far as it seemed to us to require response. (Argument, p. 479.) It certainly has no special application to the question of interest. The notion seems more whimsical than serious, but whatever weight it possesses should have been insisted upon before or while making the Treaty of Washington. The terms of that Treaty have relieved the Tribunal from any occasion to weigh this argument.

But (2) in section 11 of the learned Counsel's argument it is insisted that the allowance of interest, as a part of the indemnity, should be affected by the circumstances of the failure of the United States sooner to cut short the career of the cruisers, for whose depredations Great

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