order that the further action required by that award shall be taken for the decision of the above question. The provision is as follows 7. The unanimous decision of the two national commissioners, or the majority decision of the umpire and one commissioner, shall be final and binding. 8. Any difference in regard to the regulations specified in Protocol XXX of the arbitration proceedings, which shall not have been disposed of by diplomatic methods, shall be referred not to the commission of expert specialists mentioned in the award but to the permanent mixed fishery commissions, to be constituted as hereinbefore provided, in the same manner as a difference in regard to future regulations would be so referred. ARTICLE 2 And whereas the tribunal of arbitration in its award decided thatIn case of bays the three marine miles are to be measured from a straight line drawn across the body of water at the place where it ceases to have the configuration and characteristics of a bay. At all other places the three marine miles are to be measured following the sinuosities of the coast. And whereas the tribunal made certain recommendations for the determination of the limits of the bays enumerated in the award; Now, therefore, it is agreed that the recommendations, in so far as the same relate to bays contiguous to the territory of the Dominion of Canada, to which Question 5 of the special agreement is applicable, are hereby adopted, to wit: In every bay not hereinafter specifically provided for, the limits of exclusion shall be drawn three miles seaward from a straight line across the bay in the part nearest the entrance at the first point where the width does not exceed ten miles. For the Baie des Chaleurs the limits of exclusion shall be drawn from the line from the light at Birch Point on Miscou Island to Macquereau Point light; for the Bay of Miramichi, the line from the light at Point Escuminac to the light on the eastern point of Tabisintac Gully; for Egmont Bay, in Prince Edward Island, the line from the light of Cape Egmont to the light of West Point; and off St. Ann's Bay, in the Province of Nova Scotia, the line from the light at Point Anconi to the nearest point on the opposite shore of the mainland. For or near the following bays the limits of exclusion shall be three marine miles seawards from the following lines, namely: For or near Barrington Bay, in Nova Scotia, the line from the light on Stoddard Island to the light on the south point of Cape Sable, thence to the light at Baccaro Point; at Chedabucto and St. Peter's Bays, the line from Cranberry Island light to Green Island light, thence to Point Rouge; for Mira Bay, the line from the light on the east point of Scatary Island to the northeasterly point of Cape Morien. Long Island and Bryer Island, on St. Mary's Bay, in Nova Scotia, shall, for the purpose of delimitation, be taken as the coasts of such bays. It is understood that the award does not cover Hudson Bay. ARTICLE 3 It is further agreed that the delimitation of all or any of the bays on the coast of Newfoundland, whether mentioned in the recommendations or not, does not require consideration at present. ARTICLE 4 The present agreement shall be ratified by the President of the United States, by and with the advice and consent of the Senate thereof, and by His Britannic Majesty, and the ratifications shall be exchanged in Washington as soon as practicable. In faith whereof the respective plenipotentiaries have signed this agreement in duplicate and have hereunto affixed their seals. Done at Washington on the 20th day of July, one thousand nine hundred and twelve. CHANDLER P. ANDERSON [SEAL] THE ORINOCO STEAMSHIP COMPANY CASE THE UNITED STATES and VENEZUELA Decided October 25, 1910 Syllabus This claim originated in a concession from Venezuela to one Ellis Grell, granted on January 17, 1894,1 for the exclusive right to navigate the Orinoco River in steam vessels between Trinidad and Ciudad Bolívar. The contract embodying the concession contained the so-called Calvo clause, which provided that "questions and controversies which may arise with regard to the interpretation or execution of this contract shall be resolved by the tribunals of the Republic in accordance with its laws, and shall not in any case give occasion for international reclamations." By subsequent assignment the Grell concession came into possession of the Orinoco Shipping and Trading Company, a British corporation, the majority of the stock and bonds of which was held by American citizens. The Government of Venezuela became indebted to this company for approximately half a million dollars for services rendered. and damages sustained. An adjustment was effected on May 10, 1900, by which the concession was extended for a period of six years and the Government agreed to pay the company 100,000 bolivars ($19,200) in cash and a second sum of the same amount at a later date. The company, on its part, acknowledged as settled all its claims against the Government. The contract of settlement also contained the so-called Calvo clause. The first payment of 100,000 bolivars was duly made, but the second was not. On October 5, 1900, Venezuela opened the navigation of the Orinoco River to the commerce of all nations, thus destroying the monopoly claimed by the company as assignee of the Grell concession. This was done by repealing a decree promulgated on July 1, 18932 a few months before the original concession was granted, which closed the Orinoco to foreign trade. On December 14, 1901, the Venezuelan Government further cancelled the extension of the concession granted in accordance with the contract of settlement of May 10, 1900. The company's efforts to obtain relief from the Government of Venezuela being unsuccessful, the matter was brought to the attention of the American and British Governments. Later, the American stock1Post, p. 258. 2 Post, p. 253. holders of the British company organized an American corporation known as the Orinoco Steamship Company, which took over the business, assets and liabilities of the former company. The claims of the corporation taken over from the company for the payment overdue under the agreement of May 10, 1900, for damages arising from the annulment of the exclusive concession, for services rendered, imposts illegally exacted, for the use and detention of and damages to vessels, loss of earnings and counsel fees, amounting to approximately $1,400,000, were presented to the United States and Venezuelan claims commission under the protocol of February 17, 1903. The commission assumed jurisdiction of the claims under the wording of the protocol, which included "all claims owned by citizens of the United States," and the umpire, Dr. Barge, on February 22, 1904,2 made an award in favor of the claimants, amounting to approximately $28,000, covering the detention and use of steamers, goods delivered to the Government and passages furnished it. Although the protocol provided that the decision of the commission and of the umpire should be final and conclusive, the United States protested the award on the grounds that it disregarded the terms of the protocol and contained essential errors of law and fact such as invalidated it in accordance with the principles of international law. After several years of negotiations about this and other claims, in the course of which diplomatic relations were severed, a protocol was signed on February 13, 1909, which provided for the submission of the case to arbitration in the following form: The arbitral tribunal shall first decide whether the decision of umpire Barge, in this case, in view of all the circumstances and under the principles of international law, is not void, and whether it must be considered so conclusive as to preclude a reexamination of the case on its merits. If the arbitral tribunal decides that said decision must be considered final, the case will be considered by the United States of America as closed; but on the other hand, if the arbitral tribunal decides that said decision of umpire Barge should not be considered as final, said tribunal shall then hear, examine and determine the case and render its decision on the merits.* The tribunal, composed of three members selected from the Permanent Court of Arbitration at The Hague, none of whom could be a citizen of either of the contracting countries, was constituted as follows: Heinrich Lammasch of Austria, Auguste M. F. Beernaert of Belgium, and Gonzalo de Quesada of Cuba. Its sessions began September 28 and ended October 19, 1910, the decision being rendered on October 25, 1910. The tribunal held that, while on principle an arbitral decision should be accepted, respected and carried out without any reservation, in 1Ante, p. 74. 2 Post, p. 255. 3 Post, p. 235. Post, p. 236. this case the parties had admitted in the protocol of submission that excess of jurisdiction and essential error nullified an arbitral judgment, and called upon the tribunal to decide whether the judgment of umpire Barge was not void, and, if so, to reexamine the case on its merits. The tribunal further held that the nullity of one claim in an arbitral award embracing several independent claims does not nullify. the others. The tribunal then proceeded to examine each item considered by the former award and decided as follows: The decision upon the claims based upon the annulment of the concession was not vitiated by excess of authority or essential error, and was therefore not subject to revision. In view of the express provisions of the agreement of submission of February 17, 1903, that the umpire was to decide according to absolute equity and without regard to objections of a technical nature or the provisions of local legislation, umpire Barge exceeded his jurisdiction in rejecting the claim for payment due under the contract of May 10, 1900, because of the failure of the claimants to appeal to the Venezuelan courts, in accordance with the Calvo clause of the contracts, and to notify the Government of the assignment of the claim, in accordance with local law. The claim was declared to be well founded and accordingly allowed. The tribunal made the same holding with reference to claims for transportation of passengers and merchandise and for the retention and hire of steamers, which were disallowed by the former award because the claimants omitted to notify Venezuela of the assignment of them. The balance of the former decision with reference to the remaining claims was held not subject to reexamination or revision, except that a portion of the amount claimed for counsel fees and expenses of litigation was allowed. The claims allowed by the tribunal amounted to $64,412.59, in addition to the $28,224.93 allowed by the original decision, making a total recovery of $92,637.52, upon which interest was allowed at the rate of three per cent. With the above exceptions, the decision of umpire Barge was held to remain in full force and effect. AWARD OF THE TRIBUNAL Award of the tribunal of arbitration constituted under an Agreement signed at Carácas, February 13, 1909, between the United States of America and the United States of Venezuela.-The Hague, October 25, 1910.1 By an agreement signed at Carácas the 13th of February, 1909,* 1Official report, p. 64. For the original French text, see Appendix, p. 504. 2Post, p. 235. |