It begins with an incontestable truth: "It was not possible for Añorbes to maintain a suit against the United States Government because that Government does not respond in suit for damages because of personal injuries." [Answer, p. 12.] In effect, it is what Bret Harte describes as "the defective moral quality of being a foreigner" in so far as relationship with the Government of the United States is concerned. "Our Constitution recognizes this natural and often inevitable prejudice by giving to our national [courts] jurisdiction over all civil suits between aliens and citizens of the United States. We fail to recognize the same conditions, however, in respect of the security of the persons and property of aliens. The Revised Statutes of the United States aim to protect citizens of the United States against local prejudice and injury by providing in section 5508 . . . "This provision, however, does not apply to aliens, and no similar provisions apply to them." (Elihu Root, A.J.I.L., 1910, p. 524.) The Federal Constitution of the United States in its eleventh amendment provides: "The judicial power of the United States shall not be construed to extend to any suit in law or in equity commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state." It [statement of the Acting Governor of the Panama Canal] concludes with this affirmation: "This Honorable Commission is bound to decide the cases before it' in accordance with the principles of international law, justice and equity.' It is understood that these terms are synonymous with 'justice', and that the quality and measure of the justice rendered is in the sound discretion of the Commission. "The Commission is not bound by the laws of the Canal Zone or of Panama." [Answer, p. 19.] And on pages 17 and 18 it [statement of the Acting Governor of the Panama Canal] sets forth: "Under the law of Panama in effect in 1911 and up to this time, and the law of the Canal Zone in effect in 1911, Añorbes might have recovered: "(a) Emergent damages (daños emergentes); 66 Emergent damages, in this case include the cost of hospitalization until Añorbes was able to work again, and expenses. It is admitted that he was cared for at the expense of the United States Government while unable to work and was paid $601 in addition. The emergent damage has therefore been compensated." This requires an explanation: "In civil law every illicit, voluntary and wrongful act whereby a person causes injury to another is called a crime, quasi-crime, or culpa, an act or an omission prejudicial to another performed through ignorance, lack of skill, or through negligence. "Article 2341, Cod. Civ.: He who shall have committed a transgression of the law (offence or fault) which has caused damage to another, is obliged to indemnify him without prejudice to the principal penalty which the law might impose for the fault or offence committed. "The cardinal difference between delito (crime) and culpa (act of negligence) in general is only the intent." (Supreme Court of Bogotá, sentence of May 7, 1897, Garavito, Jurisprudencia de los tribunales superiores de Colombia, p. 368.) Regarding the computation of losses and damages, the Supreme Tribunal of Bogotá in a sentence of November 17, 1892 (Garavito, supra, p. 241), has ruled: "The law can only point out certain general principles regarding the computation of loss and damage; their application is at the discretion of the Tribunals and varies ad infinitum according to the circumstances. "Moreover when the loss and damage is not fixed by the law or by convention, judges have discretionary power for fixing the amount." What the local law says is in accord with principles universally accepted by international tribunals, to wit, that in cases in which the loss and damage caused is not fixed either by the parties or by convention, the tribunal has discretionary power for making the computation, judging each case according to the circumstances. This assertion made in the Answer that "the 'emergent damage' has therefore been compensated", because the claimant's hospital fees and the sum of $601 were paid to the claimant, the latter corresponding to his salary "until he was able to work again", is erroneous. The fact that "he was cared for at the expense of the United States Government while unable to work" is not indemnity at all. His salary which was paid ($601) was specifically to enable him to support his wife and four children during the time he was unable to work, but in nowise was that sum compensation for the injury inflicted with the loss of the forearm and right hand. If while disabled, with only one hand, he was earning on July 1st of the year 1928, $90 per month, little computation is needed to imagine that if he had been in possession and control of his two hands, above all the right, he could have earned double. In the citation from Vélez (Estudio del derecho civil colombiano, vol. XI, pp. 13 and 14) offered by the respondent, this is clearly confirmed. In effect, the Colombian commentator in expressing his concurrence with the assertions of the Chilean author Vera (the Colombian Civil Code as is known was taken in toto from the Chilean Code): "If the crime is one of wounds or of physical offenses, the indemnity shall consist of the payment of all costs of the cure and convalescence of the injured party and of all the profits that he may have lost up to the time of the complete restoration of his health." Inasmuch as the disability is permanent to the time of death, the "profits that he may have lost must be up to the time of his probable death". It is evident that the amount for which claim is made is very moderate and conservative in taking as a basis the same amount which the respondent admits that the claimant earned in 1928 when he had the use of only the left hand. The jurisprudence of the Canal Zone, although the Republic of Panama does not do so, authorizes the calculation of mental suffering in computing damages. (Fitz patrick vs. Panama Rail Road Co., Canal Zone, III; Panama R.R. Co. vs. Bosse, 249 U.S. 41.) The accident occurred in the Canal Zone and not in Panama. The Honorable Commission is, as stated by the respondent, "bound to decide the cases before it in accordance with the principles of international law, justice and equity and that the quality and measure of the equity and justice rendered is in the sound discretion of the Commission". Pursuant to international law and likewise according to Panamanian legislation and that of the Canal Zone, the claimant has the right to be indemnified for all the injury caused him by the negligence and through the fault of the respondent. The respondent itself admits through the Governors of the Canal Zone that the Government of the United States will not give any compensation whatever to the claimant when this High Tribunal has issued its opinion, whatever it may be. EXTRACTS FROM REPLY BRIEF OF UNITED STATES III. THE FACTS IN THIS CLAIM DO NOT ESTABLISH THAT THE GOVERNMENT OF THE UNITED STATES IS RESPONSIBLE IN DAMAGES UNDER INTERNATIONAL LAW.1 From the beginning of the construction of the Panama Canal it has been the policy of the United States to provide compensation and also, whenever possible, employment to former employees who have suffered injuries while in the performance of their duties in connection with the 1 '[With respect to the applicability of the provisions of the Civil Code of Colombia, reference was made to the Reply Brief of the United States in the Juan Manzo claim, Registry No. 21. See p. 683, ante.-AMERICAN AGENT.] construction, operation, or maintenance of the Canal. In many cases positions are provided as pensions to such persons. It is to this policy that Añorbes owes his present position. He is virtually a pensioner. If his employment with the Panama Canal ceases and he fails to receive $50 per month in other employment, he will benefit by the relief legislation referred to above, namely, the act of June 30, 1930. Under the act in question, and the Executive orders issued thereunder, the Government of the United States undertook to provide for the claimant in an exceptional manner not required by laws applicable to the case when the injury was incurred. In other words Congress accorded to the claimant special protection and placed him in a preferred position ". 66 Under the act and Executive order in question, the Governor of the Panama Canal Zone was authorized to act in an administrative and quasi-judicial capacity in determining the merits of claims submitted under the act. Sec. 1, Executive order of September 15, 1916. The Chief Claim Examiner of the Panama Canal, acting under the authority of the Governor, informed Añorbes on December 9, 1930, Answer, annex 2, p. 21, that if the claimant "should be unable in any calendar month to earn the rate of pay which you were receiving when injured because of your disabilities resulting from such injuries a claim for compensation on account of such pay loss may be filed through the Governor of the Panama Canal." In view of the fact that no evidence has been filed by the Panamanian Government to show that the claimant has taken advantage of that privilege, the presumption arises that Añorbes has continued to receive compensation equal to or more than that earned at the time of his injury. As a matter of fact, it is shown by the evidence that he is at present receiving from the Government of the United States more than he was earning at the time of his injury, Answer, pp. 7 and 10. |