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taken as indicating ipso facto the existence of liability in all cases of that class.

The convention seems to have determined only that that particular class of claims might be submitted to the Commission for decision. The convention prescribed no other basis for decisions of claims of that class than for the decision of claims of other classes; i.e., according to the "principles of international law, justice and equity". The very brief Decision of the Commission therefore leaves much to be desired in the way of the necessary explanation to make it an entirely satisfactory precedent for similar cases in future.

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It may be that some explanation of this Decision is to be found in the Decision of the Perry claim, ante, p. 71, in which the Commission indicated its intention to be guided rather by broad conceptions than by narrow interpretations". Such "broad conceptions ", however, would not seem to justify the determination of international liability, except by analogy with some standard heretofore recognized and susceptible of definition and as reconcilable with the principles definitely prescribed in the convention as controlling in the decision of all cases.

The basis of liability assigned by the Commission was not asserted by the claimant Government, and the defendant Government therefore had no opportunity to contest it in this case.

CLAIM

on behalf of

INÉS YANQUEZ ET AL.

(MALAMBO FIRE CLAIMS)

DOCKET REGISTRY NO. 22

(No decision)

SUMMARY OF FACTS

Under the Panama Canal convention of 1903 between the United States and Panama, II Malloy's Treaties 13491357, the United States had the right to take sanitation measures in the cities of Panamá and Colón, Republic of Panama, as a necessary incident to the construction of the Panama Canal. Extensive fumigation work was therefore undertaken by the sanitation authorities. On January 12, 1906, while a crew was fumigating houses in the Malambo section of the city of Panamá, by burning pots of sulphur in sealed buildings, a fire broke out which destroyed a number of houses. It was contended by the owners that the fire had started from a defective sulphur pot, while there was evidence that the fire had other origins.

By virtue of a special agreement entered into by the General Counsel of the Isthmian Canal Commission and the Panamanian Secretary of Foreign Relations in April 1907, the resulting claims amounting to $125,000 were submitted to the Commissioners of the Joint Land Commission acting "as an advisory board". On June 3, 1907, the Commissioners made the following finding:

"The Joint Commission being unable to determine the origin and cause of the fire in the Malambo district of the City of Panamá on the 12th day of January 1906, is of the opinion that the cases should be compromised and recommends the payment by the United States of the following damages:"

[Here follows a list of the claimants with a statement of recommended amounts, totaling $53,800.]

The Government of Panama filed this claim with the General Claims Commission asking an award on the theory that the above-indicated action of the Commission amounted to an arbitral award which the Government of the United States had wrongfully refused to pay.

The agreement of April 1907 by which the claims were referred to the Joint Land Commissioners, the effect of their finding and recommendation, and the subsequent legal status of the claims (including their status under the claims convention of July 28, 1926), are all fully developed in the following extracts from the pleadings.

EXTRACTS FROM BRIEF OF PANAMA

Three objections have been offered to the claim, namely: (a) that the claim was submitted to the Joint Land Commission created by the Canal treaty; (b) that, consequently, it became "specifically" excluded from the General Claims Commission; and (c) that the Panamanian citizenship of the claimants has not been established as required under article I of the convention of July 28, 1926.

I shall take up these objections before entering into the merits of the case.

It is true that the claim arising from the Malambo fire was submitted to and decided by the Joint Commission in an award which recommends to the United States Government the payment of the amount claimed. The appropriation to meet this item was requested from Congress by President Wilson. Hence, the decision, although it

has not been executed, was not objected to. The remedies of revision or nullity have never been pleaded against it. More than 25 years have elapsed during which the persons who sustained damages as a result of the Malambo fire have been patiently waiting for the stingy [misera] indemnity which was awarded [reconocida] to them.

The convention of 1926 does not exclude this case from the jurisdiction of the General Claims Commission. On the contrary, it justifies the claim inasmuch as article I provides that exception will be made only of claims which "must be submitted" [deben someterse-English text of convention reads: "to be submitted"] to the Joint Land Commission "for compensation on account of damages caused in the manner set forth in article VI of the treaty of November 18, 1903". The term used-must be submitted-clearly indicates that it refers to future claims and in no case to the claims which were decided and the respective awards of which had not been paid on the date on which the protocol was signed. The Panamanian plenipotentiaries who participated in the negotiations could not lose sight of the arbitral awards on the Malambo and Paitilla claims, one decided by unanimous award of the tribunal and the other by a decision rendered by the arbitrator, which had not been paid. Not long ago the Paitilla claim was settled due to an unjust compromise which the claimants were compelled to accept.

The Government of Panama does not pretend to reopen the Malambo fire claim which was the subject of a controversy between the same parties and decided in accordance with the treaty of 1903, the award in which case bears the stamp of res judicata. It only demands the payment of the award and interest due thereon, inasmuch as this is a question of a clear, express and overdue obligation. It would be illogical to exclude this claim and not to compute the amount thereby due Panama in the adjustment of the accounts provided for in article VIII of the convention, which reads:

"The total amount awarded in all the cases decided in favor of the citizens of one country shall be deducted from the total amount

awarded to the citizens of the other country, and the balance shall be paid at the City of Panama or at Washington, in gold coin or its equivalent within one year from the date of the final meeting of the Commission, to the Government of the country in favor of whose citizens the greater amount may have been awarded."

The case cannot be placed in doubt, as it would constitute a conflict with the most trivial principles of law and equity for a government, which has not paid an award rendered unanimously by the competent tribunal created under a public treaty, to believe itself entitled to demand from its creditors any payment while it is in arrears. The compensation would operate automatically by law.

The United States Government has never attempted to deny the validity of the award, nor has it made any appeal against it. The only excuse offered by the American Legation to the Panamanian Executive is the fact that Congress has not approved the corresponding appropriation. In short, a powerful force, inertia, is opposed to the justice of the award, which fact provokes in small countries a sentiment of distrust towards the high purposes of arbitration.

It has been objected that evidence has not been adduced of the Panamanian citizenship of the claimants, a condition which is necessary in accordance with the convention; but it is proper to allege that this case does not involve a study of the justice of the claim, which was weighed and passed upon prior to the signing of the protocol. The persons who sustained damages are Panamanians in a majority bordering on unanimity; but citizenship should not be taken into account in this specific case because it is governed by the provisions of the Canal treaty, under which any property-owner, regardless of the place of his birth, is entitled to indemnification for all the damages which may be caused to his lands or property of any nature whatsoever, on account of the concessions which said treaty contains or on account of the work carried out by the United States through its agents or its employees, or by reason of the construction, maintenance,

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