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at Lima, between the Minister of Foreign Relations of Peru and the Envoy Extraordinary and Minister Plenipotentiary of the Republic, a new protocol, approved by decree of February 12; whereas, this protocol provides in the first paragraph: “The French and Peruvian Governments have resolved to submit to an arbitral court sitting at The Hague, the claims of the French creditors presented in 1910 by the Banque de Paris et des Pays-Bas, in order that this court may decide whether the said credits are well founded and, if they are, their amount";
Whereas, by virtue of this text the preceding clauses have established the validity and the amount of the credit of Dreyfus Brothers and Company;
Whereas, since this credit is liquid and payable, interest at 5 per cent is due from the date of the payability of each of the sums composing it, the current interest up to June 30, 1880, being included in the sum of 16,908,564.62 soles (sixteen million nine hundred eight thousand five hundred sixty-four soles and sixty-two centavos), or £3,214,388.11.5 Sterling (three million two hundred fourteen thousand three hundred eighty-eight pounds sterling eleven shillings and five pence);
Whereas, on the other hand, it is not in order to admit the claim relative to the capitalization of the interest; whereas, in fact, the capitalization of the interest can result only from a stipulation or from circumstances of fact making clear the consent of the debtor to assume such an onerous obligation; whereas, the consent of the Government of Peru has not been given; whereas, moreover, if the capitalization of the interest, which would increase the debt considerably, had been provided for, the French Government would not have demanded only a sum of 25,000,000 francs, as appears from the second paragraph of the protocol.
With regard to the Financial and Commercial Company of the Pacific:
Whereas, the Government of Peru recognizes that it owes the principal sum of £104,000 sterling, 282,636 francs with interest at 5 per cent, but refuses in good law the capitalization of the interest;
With regard to the Widow Philon Bernal (Hautier):
Whereas, the Government of Peru recognizes that it owes the principal sum of 350,000 francs and interest at 6 per cent from July 1, 1875, after deducting instalments received by virtue of the award of the Franco-Chilean Arbitral Court, but refuses in good law the capitalization of the interest;
With regard to Gilliard:
Whereas, the Government of Peru recognizes that it owes the principal sum of 5,000 francs and interest at 6 per cent from July 1, 1875, but refuses in good law the capitalization of the interest;
Whereas, the second paragraph of the protocol provides as follows: "It is agreed that the two governments shall comply with the arbitral award, whatever it may be, and that if this award is favorable to the said French creditors, the Government of Peru will, within the period of delay fixed by the said award, pay the amount of the adverse judgment through the legation of France, it being understood that in no case the French Government shall demand for them from Peru a sum exceeding 25,000,000 francs, stipulated in the Guillemin-Porras protocol";
Whereas, according to the fourth paragraph of the protocol "the Peruvian and French Governments decide also to submit to the same arbitral court the other French claims covered by the Peruvian law of authorization of December 31, 1912";
Whereas, the claim of Eugène Robuchon, as well as that of Alexandre Coichot are not justified either in law or in fact;
Whereas, the claim of Charles Chasselon is not disputed;
Whereas, the claim of Duverneuil is recognized as being well founded with regard to its capital, but whereas, the Government of Peru disputes unjustly that it owes interest at 5 per cent from January 1, 1910, the debt being liquid and payable and the government having been ordered to pay it;
Whereas, the arbitrary detention which Momboisse suffered has caused him a loss which the arbitral court estimates at the sum of 25,000 francs;
FOR THESE REASONS Declares that it is not in order to render judgment on the claims of Remant and Ratouin which have been withdrawn; fixes the actual amount of the debts at the sums determined above in capital and interest; rejects the capitalization of the interest; decides that the sum of 25,000,000 francs shall be remitted to the French Government, which shall apportion it among the creditors of Dreyfus Brothers and Company, the Financial and Commercial Company of the Pacific, the Widow Philon Bernal (Hautier) and Gilliard, in proportion to the sums due them, and in view of the circumstances of the case, states that the payment shall be made in annual instalments of 5,000,000 francs; rejects the claim of the heirs of Robuchon and that of the heirs of Coichot; decides that the Government of Peru shall pay to Chasselon the sum of 2,943 francs with interest at 5 per cent, beginning with the month of January, 1908, to Duverneuil the sum of frs. 6,411.20 with interest at 5 per cent from January 1, 1910, to the assigns of Momboisse the sum of frs. 25,000; decides that the sums due shall bear interest at 5 per cent until their complete payment; rejects all other claims and motions;
Done at The Hague in the Palace of the Permanent Court of Arbitration, on October 11, 1921.
The President: OSTERTAG.
REPORT CONCERNING THE LOSS OF THE DUTCH STEAMER “TUBANTIA"
BY THE INTERNATIONAL COMMISSION OF INQUIRY AT THE HAGUE1
Report rendered February 27, 1922 Considering that by a convention of inquiry concluded at Berlin on March 30, 1921, the Government of the German Reich and the Government of Her Majesty the Queen of The Netherlands, respectively signatories of The Hague Convention of October 18, 1907, for the Pacific Settlement of International Disputes, have agreed to submit to an international commission of inquiry constituted in accordance with the provisions of Chapter III of the said convention, the question of ascertaining what was the cause of the loss of the Dutch steamer Tubantia which occurred on March 16, 1916;
Considering that according to the terms of the said convention of inquiry, the International Commission of Inquiry has been composed of:
M. Hoffmann, formerly member of the Swiss Federal Council, President;
Considering that the two governments have respectively named as agents and counsel, The Government of the German Reich: M. Karl von Mueller, Naval Cap
tain in Reserve; The Government of Her Majesty the Queen of The Netherlands: Professor
A. A. H. Struycken, member of the Council of State, member of the
Director of the Torpedo Factory, Counsel; Considering that the Dutch and German cases have been regularly deposited in the International Bureau of the Permanent Court of Arbitration on July 27 and 29, 1921, respectively;
Considering that the Dutch and German counter-cases have been regularly deposited in the International Bureau of the Permanent Court of Arbitration on September 23 and October 14, 1921, respectively;
Considering that the examination being closed, the International Commission of Inquiry, constituted as stated above, has met at The Hague in the Palace of the Permanent Court of Arbitration on January 18, 1922;
Considering that since the parties have presented all their explanations and proofs and the witnesses and experts have been heard, the President of the Commission has pronounced the inquiry closed;
The International Commission of Inquiry has drawn up the following report:
1 Translated from the official French text published by the Bureau International de la Cour Permanente d'Arbitrage.
1. On March 15, 1916, the steamer Tubantia, belonging to the incorporated company Koninklijke Hollandsche Lloyd, left Amsterdam with South America as its destination. It had eighty passengers on board; the crew was composed of two hundred and eighty persons. According to the manifest the cargo contained no explosives.
At 6:15 P.M. the steamer was in the open sea and steered for the light-ship Maas.
The vessel was sufficiently illuminated; beside the prescribed lights of position two arc lamps illuminated the name "Tubantia, Amsterdam" on the planking and two other arc lamps illuminated the name on the plate.
Furthermore, the illuminated plate had been raised between the two funnels and all the lights on the bridge and those in the cabins were lit as far as possible.
At 9:59 P.M. the vessel passed the light-ship Maas. The weather is indicated as follows: misty horizon, visibility from four to five marine miles, gentle east-north-east wind, choppy sea. The speed of the vessel maintained up to the moment of the explosion was from nine to ten marine miles.
2. At 2 A.m. the captain ordered everything prepared for casting anchor near the Nord-Hinder. At 2:15 the sounding was made. The captain went to the map room in order to control the sounding.
The fourth officer Van Leuven was on the port bridge near the telegraph, the first officer Vreugdenhil was at starboard occupied with giving his orders to the machine room. At 2:20 the fourth officer Van Leuven suddenly observed a streak in the water, approaching the vessel in a direct line at about six points. He thought that it was the wake of a torpedo and a moment before the explosion he cried: "Look there!” Immediately afterward the explosion took place.
The same observation of a white thin streak moving with great rapidity in the direction of the vessel was made by the lookout-man, P. Groot. He claims that he immediately recognized it as the wake of a torpedo, a phenomenon that he says he has seen repeatedly during the practice of launching torpedoes. He announced to the first officer immediately after the explosion that the vessel had been hit by a torpedo of which he had seen the wake moving toward the ship.
The exclamation:“Look there!”, was also heard by the first officer Vreugdenhil and the third officer De Vos, as well as by the captain, Wijtsma, who was in the map room on the bridge, the doors of the room being open.
It must be conceded to the agent of the German Government that the depositions of the witnesses do not agree on all points, and also that in different cross-examinations of the same witnesses a certain amplification may be noted in the addition of details. But neither this experience, which is frequent, nor the general consideration that in observations of this kind examples of autosuggestion are easily found, can, according to the opinion of the Commission of Inquiry, detract from their value. The depositions of the witnesses are clear and positive, they do not contradict each other, and what some say they saw is confirmed in a manner worthy of belief by what others heard immediately after the catastrophe.
3. According to the concurring depositions of the fourth mechanic Wouters and of Koger, who was in charge of the bunkers, the shock was terrible and caused the whole ship to tremble. Wouters, who was on guard in the engine room, had gone with Koger to the upper coal bunker at starboard in order to open the hatchway which was blocked by coal. He claims that he saw a faint light followed by a powerful detonation. A stream of water entered and drenched the two men, who rescued themselves through the hatchway, which they succeeded in opening after a great effort.
4. The ship sank at 6:53 A.M. The place of the wreck was fixed at 51° 48' 40" north latitude and 2° 50' 15" east longitude.
5. In several boats of the Tubantia there was found a certain number of scraps of metal which have been recognized as being parts of a torpedo.
Boats No. 15 and 20 were picked up on March 16 by the steamer Batavier III and were towed to Rotterdam, where they were anchored with the Batavier III at its customary wharf at Boompjes. One or two days later they were towed by the Brinio II to Schiehaven. There Captain Bustraan examined them and found among the fragments a piece of bronze which was recognized as forming part of a 45 centimetre torpedo (a piece of the Schwartzkopf compressed air chamber).
On April 1 and 12, 1916, two other boats of the Tubantia were found, No. 23 floating near Terschelling, and No. 17 cast ashore at Callandsoog. In these two boats there were found among other things two scraps of copper on which the number 2033 was impressed. As appears from the declaration of the Chief of the German Admiralty of May 11, 1916, these scraps have been recognized as being fragments of the bronze torpedo C 45/91 No. 2033.
The two boats No. 23 and 17 were immediately placed under guard.
The bronze torpedo C 45/91 No. 2033 was part of the armament of the submarine U. B. 13.
6. From the depositions of the officers and sailors of the Tubantia, according to which they saw the wake of the torpedo immediately before the explosion, and from the fact that the fragments of torpedo No. 2033 belonging to the armament of the U. B. 13, were found in the boats of the Tubantia, it appears that the U. B. 13 launched the torpedo which caused the explosion on board the Tubantia.
The agent of the German Government claims, on the other hand, that the submarine U. B. 13 was during the critical night from March 15 to March 16, 1916, at 3:35 A.M. at 51° 52' north latitude and 2° 23' east longitude, that is,