itself, for the destruction of which the claimants can recover under the rule announced in Administrative Decision No. VII.

While there is no doubt that as between claimants and the owner of the cargo the former had a right to retain possession of the cargo pending the completion of the voyage and the payment of the freight, this was the extent of the claimants' rights. Under the express terms of the contract the freight was not earned or payable pro rata itineris. There never was a time when the claimants could demand the payment of the freight or any part of it. The contract was an entire contract under the terms of which the freight was to be earned and paid only on delivery of the cargo at destination.

The so-called lien for freight amounts to nothing more nor less than a right to hold the cargo until the freight when earned shall have been paid. Until so earned the lien to secure its payment does not mature. Such lien attaches only while the cargo remains in the possession of the shipowner. When it passes out of the shipowner's possession the lien does not follow the cargo, or inhere in it, or remain a charge upon it.

While, therefore, at the time the cargo involved in this case was destroyed, the claimants under their contract of affreightment had a right to possesss it for the purpose of performing their contract and to collect the freight due thereunder, if, and when, that performance should be completed, further than this their interest in the cargo did not extend. The contract was frustrated by the destruction of the cargo. The freight was never earned and the lien to secure its payment never matured.

It is further contended on behalf of the claimants that in destroying the ship and the cargo Germany in effect stepped into the shoes of the cargo owner and accepted full delivery of the cargo at the place of destruction, and hence became liable to the claimants for the full amount of the freight stipulated for in the contract. Here again the rules for determining Germany's liability laid down in the Treaty of Berlin are lost sight of in an effort to apply rules prescribed by municipal law. Under the terms of the treaty there is no room for the legal fiction that Germany accepted delivery of the cargo which she destroyed or that she assumed cum onere the contract which was frustrated by her act. Her liability is fixed by the terms of the treaty as applied to the actual facts, not to legal fictions, and the facts are that Germany destroyed the cargo upon which the claimants' lien never matured and frustrated the contract which was never performed. The sole question presented is, Was Germany's act in destroying the British-owned cargo, which resulted in frustrating the claimants' contract to carry and deliver it to destination, a damage for which Germany is liable under the Treaty of Berlin? For the reasons pointed out in Administrative Decision No. VII this question must be answered in the negative, as the American and German Agents have agreed that, measuring the damages suffered by claimants resulting from the act of Germany in sinking the William P. Frye on the basis of the fair market value of that vessel on the date of her destruction, the

claimants herein have suffered damages in the sum of $91,450.00 and no more, and as the National Commissioners on October 30, 1925, entered an award herein on behalf of the claimants for that amount with interest thereon at the rate of five per cent per annum from the date of the loss to the date of payment, the Commission decrees that the said award be, and it is hereby, in all things confirmed; and the Commission further decrees that the Government of Germany is not obligated to pay to the Government of the United States any further or additional amount on behalf of the claimants herein because of any loss or damage alleged to have been sustained by them connected with or growing out of the destruction of the William P. Frye. Done at Washington April 21, 1926.

EDWIN B. PARKER,
Umpire.

NI THE MATTER OF THE ARBITRATION BETWEEN THE REPUBLIC OF CHILE AND THE REPUBLIC OF PERU, WITH RESPECT TO THE UNFULFILLED PROVISIONS OF THE TREATY OF PEACE OF OCTOBER 20, 1883, UNDER THE PROTOCOL AND SUPPLEMENTARY ACT SIGNED AT WASHINGTON JULY 20, 1922

Order Allowing an Appeal from the Decision of the Plebiscitary Commission made on the 9th day of December, 1925

December 22, 1925

WHEREAS the Opinion and Award given in the foregoing matter on the 4th day of March, 1925, provided for the holding of a plebiscite as required by Article 3 of the Treaty of Ancon and to that end made provision for a Plebiscitary Commission which has since been duly constituted and is now engaged in the performance of its functions in the plebiscitary area; and

WHEREAS in and by said Opinion and Award the following provision was made for appeals to the Arbitrator from the decisions of the Plebiscitary Commission:

D. Appeal to the Arbitrator. 1. The Arbitrator reserves the power and right on his own motion to entertain an appeal from the Plebiscitary Commission on any question decided by it. The Arbitrator further reserves the power and right to entertain an appeal on the certificate of the Commission to the effect that the question decided involves the interpretation of the Award, the jurisdiction of the Commission, or some question of general importance in relation to the holding or result of the plebiscite and that one member of the Commission has filed a dissenting opinion in writing and requested that the question be certified to the Arbitrator.

In every case of appeal, the Arbitrator reserves the power and right to determine the time and manner in which, and the record upon which, the appeal shall be submitted to the Arbitrator;

AND WHEREAS at a meeting of the Plebiscitary Commission held on

November 21, 1925, the Chilean member of said Commission presented a resolution reading as follows:

MOTION TO FIX THE DATE OF THE PLEBISCITE

WHEREAS, the Arbitral Award provides that the primary duty of the Plebiscitary Commission shall be to proceed at once to formulate the regulations governing the plebiscite and to fix the date thereof; and

WHEREAS, nearly four months have elapsed since the Plebiscitary Commission began to function, a term which corresponds to that fixed by the Arbitrator for the appointment of its members and which, by analogy, can be considered as the maximum that the Arbitrator had in mind for the Commission to comply with the obligations imposed upon it in that very paragraph of the Award; and.

WHEREAS, the Plebiscitary Commission received on the 12th of August last, or nearly four months ago, the draft of registration and election regulations presented by the Chilean member, and in the first days of October, or nearly two months ago, the draft of registration and election regulations presented by the Peruvian member, and the member representing the Arbitrator has therefore had ample time to examine the points of view of the parties to the plebiscite and to decide upon election regulations that will guarantee the rights of both; and,

WHEREAS, the investigations which the President of the Plebiscitary Commission has thought fit to carry out through his field observers came to an end over two months ago and need not be pursued over an indefinite period of time, since in the entire territory there are but two cities, three small inhabited valleys and not more than eight or ten hamlets; and,

WHEREAS, as the result of the reports of these observers the Plebiscitary Commission adopted, at the meeting of the 2d of November, a "motion of prerequisites," and the resolutions incorporated in that motion have been and continue to be executed de facto by the Chilean authorities, although Chile has not recognized in the Plebiscitary Commission any legal power to demand their execution, thereby demonstrating the unalterable will animating Chile to coöperate in the labours of the Commission and to carry out the Award in its letter and spirit; and,

WHEREAS, whatever may be the conclusions to which the investigating committees shall have reached or may hereafter reach, it is a notorious fact that the incidents examined and the complaints presented are not of a character to prevent the Plebiscitary Commission from adopting for the entire registration and voting period all measures necessary to ensure to all qualified voters the free registration and the free casting of their votes to which end Chile has offered the most ample and effective support; and WHEREAS, the indefinite prolongation of the plebiscitary period cannot alter the electoral position of the parties and is leading to a needless and inconsiderate increase in the expenses the contesting parties are incurring, to the paralyzation of all the profitable activities of the inhabitants of Tacna and Arica, and to what constitutes a still graver injury, namely, the deepening of the animosity which the contest has awakened among those inhabitants; and,

WHEREAS, the object sought to be accomplished by the Washington Protocol was to reëstablish cordial relations between Chile and Peru by eliminating the main causes of discord; and

WHEREAS the dilatory proceedings prevent the realization of that object, give rise to new causes of irritation and frustrate, in fact, the noble purposes of the negotiations of that international pact; and

WHEREAS, if one of the parties to the contest resist, actively or passively, the ful

fillment and execution of the Arbitral Award it is the duty of the Arbitrator to take all necessary steps to accelerate fulfillment and execution of the Award, now therefore,

BE IT RESOLVED:

Numbered one. That the committee to study the registration and election regulations shall present its report, or, in case of difference of opinion, the reports of its members, not later than the 10th of December next and that the Plebiscitary Commission shall proceed to discuss and vote the proposals in successive meetings so that the registration and election regulations may be completed and enacted not later than the 15th of December, 1925.

Numbered two. That the registration boards shall start to function not later than the 20th of December, 1925, and remain open to claimants to the right to vote until the 10th of January, 1926.

Numbered three. That proceedings arising out of registration challenges may begin on the very day the registration board begins to function, namely, the 20th of December, 1925, and continue until the 10th of January, 1926, when the registration will be closed, and that all cases should be decided not later than the 30th of January, 1926.

Numbered four. That the plebiscitary vote shall be taken on the 1st of February,

1926.

AND WHEREAS the Plebiscitary Commission at a session thereof held on the 9th of December, 1925, rejected the foregoing proposed resolution of the Chilean member of said Commission and in substitution thereof adopted the following resolution by a majority vote of the Commission, the Chilean member voting in the negative:

THE PLEBISCITARY COMMISSION TACNA ARICA ARBITRATION

1. WHEREAS, since April 13, 1924, the date of submission of the counter cases to the Arbitrator, and March 9, 1925, the date of the promulgation of the Award of the Arbitrator, the Chilean authorities in Tacna Arica, in disregard of obligations arising from the submission and in violation of the Award, not only have failed and neglected so to exercise the powers of government as to render progress toward a fair plebiscite possible but have used those powers unlawfully to reduce, by means of expulsion and deportation, the number of Peruvian voters in the plebiscitary territory and to place and continue Peruvian voters remaining in that territory in a state of fear and subjection inconsistent with the free exercise of electoral rights.

2. WHEREAS, the Award of the Arbitrator conferred upon the Plebiscitary Commission "marks complete control over the plebiscite. subject only to the provisions of this Opinion and Award" (Award, page 55).

3. WHEREAS, in view of conditions actually existing in the territory and in the exercise of authority conferred by the Award, the Plebiscitary Commission on November 2, adopted a resolution, hereinafter referred to as the prerequisites resolution, enumerating certain prerequisites to a fair plebiscite in Tacna Arica.

4. WHEREAS, His Excellency the Chilean member of the Commission, at the session of November 6 and on other occasions, though refraining from expressing an opinion with regard to the prerequisites resolution, gave assurances that as a practical matter his government would coöperate in giving effect to the provisions thereof.

5. WHEREAS, the Commission has passed various resolutions designed to carry into effect the prerequisites resolution, including a resolution respecting entry into and departure from the plebiscitary territory.

6. WHEREAS, compliance by the authorities responsible for the government and

control of Tacna Arica with necessary demands made by the Commission in the performance of its duty has, when accorded at all, been formal rather than substantial. 7. WHEREAS, under date of November 21, 1925, in note number 100, addressed to the President of the Commission, His Excellency the Chilean member made statements as follows:

(A) That his government has given him "instructions to state that Chile will hereafter abstain from participation in any of the proceedings of the Commission or its subsidiary agencies unless they are directly and closely connected with the registration and election regulations and provide for fixed dates for the registration and voting. . . ." (B) That "as and when Plebiscitary Commission is prepared to proceed with the enactment of those regulations and with the fixing of the corresponding dates the Chilean Government will be very glad to coöperate in the adoption of all measures compatible with the exercise of its sovereignty over these territories which the Plebiscitary Commission may deem necessary to carry out a free and fair plebiscite."

(C) That "The Chilean authorities in Tacna and Arica have received instructions to ignore each and every one of the decisions of the Plebiscitary Commission or its subsidiary agencies which may require their coöperation until the registration and election regulations shall have been enacted and the dates for registration and the holding of the plebiscite shall have been fixed."

(D) That he would not resume his "attendance at the meetings of the Plebiscitary Commission until they shall include in their agenda the registration and election regulations and the dates for the opening of the registration and for the holding of the plebiscite."

(E) That accordingly he proposed a motion which provides in substance that the committee on registration and election regulations shall present its report not later than the 10th of December, 1925; that the Commission shall enact the regulations not later than the 15th of December, 1925; that the registration board shall begin to function not later than the 20th of December, 1925, and conclude their labor on the 10th of January, 1926, that all appeals from registration board shall be decided not later than 20th of January, 1926; and that the plebiscitary vote shall be taken on the 1st of February, 1926.

8. WHEREAS, in his note number 103, dated November 23, 1925, His Excellency the Chilean member, replying to a communication dated November 21 with which the President of the Commission transmitted an authenticated copy of a resolution of the Commission passed pursuant to the prerequisites resolution, for the purpose of carrying out said resolution and requesting the Chilean Government to remove from office, among others, Señor Don Juan Solis and Señor Don José Canales, stated that:

"Señor Don Juan Solis and Señor Don José Canales, subinspectors of Police, Tacna, will not in accordance with the stipulations of my note number 100 of the 21st be removed from office."

9. WHEREAS, under date of November 27, 1925, the President of the Commission addressed a communication to His Excellency the Chilean member in reply to the latter's note number 100 of November 21, in which the following statements, among others, were made:

(A) "If Your Excellency's statements are to be taken literally they are inconsistent with any intention to abide by the Treaty of Ancon, the Protocol of Arbitration, the Award of the Arbitrator, and the decisions of the Plebiscitary Commission."

(B) "If Your Excellency, or Your Excellency's Government, considers that the Plebiscitary Commission has made an incorrect decision, either affirmative or negative, either by way of doing something that it ought not to have done or by refraining from doing something that it ought to have done, and far more if it has exceeded its authority under the Award or failed to obey its prescriptions, the Award itself and the rules of the Plebiscitary Commission provide for appeal to the Arbitrator, whereby any error of