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The Department is transmitting a copy of this instruction to the American Consul General at Stuttgart. Very truly yours,

For the Secretary of State:

JAMES GRAFTON ROGERS

PETITIONS FOR REHEARINGS IN THE SO-CALLED SABOTAGE CASES:

BLACK TOM AND KINGSLAND 80

462.115232/186 The Solicitor for the Department of State (Hackworth) to the Assist

ant Secretary of State (Castle)

[WASHINGTON,] January 12, 1931. MR. CASTLE: I am informed by Mr. Martin, Assistant to the American Agent, Mixed Claims Commission, United States and Germany, that grounds for a new trial on the Black Tom explosion are based in general on

1. Newly discovered evidence. 2. Failure of the Commission to give proper weight to certain evi

dence submitted by the American Agent. 3. Action of the Umpire in taking part in the discussions and in

joining in the opinion. 4. Failure to give proper consideration to the fact that the United

States made out à prima facie case which Germany did not

refute. Mr. Martin states that the motion was filed this morning. 40

G[REEN] H. H[ACKWORTH]

462.11L5232/174

Memorandum by the Assistant Secretary of State (Castle)

[WASHINGTON,] January 15, 1931. The German Ambassador 41 came to the Department in a high state of excitement to discuss Mr. Bonynge's 2 motion for a retrial of the

* For correspondence concerning the establishment of the Mixed Claims Commission (August 10, 1922), United States and Germany, before which these petitions were heard, see Foreign Relations, 1922, vol. II, pp. 240 ff.

On October 16, 1930, the Mixed Claims Commission decided in favor of Germany in both of the so-called sabotage cases. For text of the decision, see Mixed Claims Commission, United States and Germany, Administrative Decisions and Opinions of a General Nature and Opinions and Decisions in Certain Individual Claims, from October 1, 1926, to December 31, 1932, with orders of March 25 and May 7, 1925, and Appendices (Washington, 1933), pp. 967–994.

* The petition for a rehearing in the so-called Kingsland case was filed on January 22, 1931.

« Friedrich W. von Prittwitz und Gaffron.
* Robert W. Bonynge, Agent for the United States.

Black Tom case. He had hoped to see Mr. Cotton, with whom he had talked previously. He said that he had repeatedly warned Mr. Cotton that Mr. Bonynge would introduce a motion very shortly and had urged him to ask at least to see the wording of this motion, since he felt that Mr. Bonynge was not acting as a private lawyer, but as the agent of the Government of the United States. He said that Mr. Cotton had refused to do this because the Department had nothing to do with the whole business, but added that Mr. Cotton had said he would send for Mr. Roland Boyden 44 to come to Washington immediately so that the whole question could be settled. The part of the motion which troubled him was the claim that the case had not been conducted in a legal manner in that the Umpire had taken part in the discussion. The Ambassador said he did not see how it is possible for the United States agent, considering the fact that the American representative on the Commission had made no protest and that the Umpire, who was an American, had accepted the situation, could, in behalf of the American Government, make a claim that all the 6,000 claims, with the exception of two, had been illegally conducted. He said that he felt it essential that Mr. Boyden should come promptly to Washington, in order that at least this part of Mr. Bonynge's notice should be decided immediately. The reason for this is because that it opens the way to a retrial of all but two of the 6,000 cases and applications for retrial have already begun to pour in. If the Commission will promptly decide, these applications for retrial will stop or if they come in can be refused immediately, should the Commission decide that the procedure has been legal. I quite see his point in this, since many applications are already coming to the Department.

I told the Ambassador that, of course, this was a matter I had not handled personally although I had been interested in it and that I would take it up promptly with the Secretary.

(I cannot find from Mr. Cotton's office whether he communicated with Mr. Boyden or not. The suggestion would be that he had not. If not, it seems to me that the Department should make the suggestion that the sooner this matter is settled, the better.)

W. R. CASTLE, JR.

462.11L5232/174

The German Embassy to the Department of State 45

The Motion of the American Agent to reopen the Black Tom Case is, among others, based upon the contention that "the decision was

Joseph P. Cotton, Under Secretary of State.
"Roland W. Boyden, Umpire for the Mixed Claims Commission.

Notation on original: “Left with me by the German Ambassador January 15, 1931. G[reen] H. H[ackworth)."

irregularly rendered”. The American Agent argues that the Umpire should not have "participated in the joint deliberations of the two Commissioners, or join with them, as he did, in their judgment of first instance”. “The United States”, he says, “was entitled to an independent deliberation of the case by the National Commissioners". (Motion p. 69). 16 The American Agent concludes (p. 70): "The United States never agreed to the procedure followed, nor knew that it was to be followed—and the United States submits that the irregularity of the procedure should be held to vitiate the decision, and render it null and void".

If this argument were sound it would follow that the vast majority of all the Commission's decisions rendered in the course of its proceedings are null and void, that thousands of American claimants have been deprived of their right to a regular procedure and that all these cases have—as a matter of right—to be reopened, reconsidered and redecided. For-in more than 5000 cases the Umpire, Judge Parker, 47 has joined in the deliberations of the two Commissioners and in their judgment in exactly the same way as the present Umpire joined with them in the sabotage-cases.

It is the German Government's opinion that this method of procedure was absolutely regular and in accordance with the Agreement of August 10, 1922 48 and with the Rules of the Commission. The Agreement provides in Article II as follows: “The two Governments shall by agreement select an umpire to decide upon any cases concerning which the commissioners may disagree, or upon any points of difference that may arise in the course of their proceedings”. This provision does not limit the activities of the umpire to passing upon cases certified to him after the commissioners have reached a disagreement, but permits him also to cooperate with them "in the course of their proceedings”, i. e. while a case is still pending before them, by deciding any points of difference arising at this stage of the proceedings.

The Rules of the Commission, apparently prompted by this proviso, provide, among others, that the decisions of the Commission may be signed “by the Umpire and the two National Commissioners" (Art. VIII sec. (d)).

The practice adopted in the sabotage-cases has been followed by the Commission in thousands of instances. All dismissals, with the exception of two, have been signed by the Umpire and the two Commis

** Mixed Claims Commission, United States and Germany, The United States on behalf of Lehigh Valley Railroad and Underwriters of the Black Tom Disaster against Germany: Docket nos. 8103, et al., Petition for Rehearing, Washington, D. C., January 12, 1931 (New York, 1931), p. 69.

" Edwin B. Parker, Umpire, died October 30, 1929. He was succeeded by Roland W. Boyden, appointed January 9, 1930.

** Foreign Relations, 1922, vol. II, p. 262.

sioners after joint deliberation and the same method has been observed in a number of cases where awards were rendered. Neither Agent has ever objected to this practice which was, of course, known to both of them.

It is certain, that the American Agent will raise the identical objection in the impending motion to reopen the Kingsland Plant-case.

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462.11L 5232/175
Memorandum by the Solicitor for the Department of State

(Hackworth)

[WASHINGTON,] January 16, 1931. Doctor Kiep ** called at the Department this afternoon in connection with the petition which has been filed by the American Agent with the Mixed Claims Commission for a rehearing in the so-called sabotage cases. He stated that the Ambassador had an appointment to see the Secretary tomorrow and he wanted to indicate in advance some of the matters which the Embassy has in mind.

He stated that Doctor von Lewinski, the German Agent, is compelled to leave the United States not later than January 21; that he is the only representative of the German Government familiar with these cases and in a position to present the German Government's point of view to the arbitrators. He stated that his Government, therefore, is very desirous of disposing of the petition, as far as possible, before the departure of Doctor von Lewinski. He understands that Colonel Boyden is coming to Washington the middle of the coming week, probably January 21, and thinks that it would be very helpful if arrangements could be made for him to come a little earlier than contemplated, namely, the 19th or 20th of January, in order that such hearing as the Commission may desire to hold may be held before Doctor von Lewinski sails for Europe.

Doctor Kiep also stated that there had been suggestions in certain quarters (not emanating from the German Government) to the effect that the decision on the point of procedure raised by the petition filed by the American Agent might be facilitated by a declaration of the two Governments on their interpretation of the claims agreement. The part of the agreement in question is contained in Article 2 and provides that:

“The Government of the United States and the Government of Germany shall each appoint one Commissioner. The two Governments shall by agreement select an Umpire to decide upon any cases concerning which the Commissioners may disagree, or upon any points of difference that may arise in the course of their proceedings.

* Otto Carl Kiep, Counselor of the German Embassy.

The American Agent in his petition for a new hearing contends, among other things, that it was improper for the Umpire to participate in the joint discussions of the case by the two Commissioners in the absence of a disagreement between them; also that it was improper for him to join with them in the decision which was rendered.

Doctor Kiep stated that it was his personal opinion that an interpretation of the agreement by the two Governments could not well be given without a request from the Commission; that if a declaration by the two Governments should be requested he believed that the German Government would have no objection to cooperating.

I told Doctor Kiep that I would inform the Secretary of his call and of the information which he had given me. I attach a memorandum on the same subject which the German Ambassador left with me yesterday.50

It is my feeling that if we could accommodate the German Government by inducing Colonel Boyden to come to Washington the early part of the coming week, it might facilitate an early settlement of the matter which, of course, would be to the mutual interest of the two Governments

I do not, however, feel that the two Governments should undertake an interpretation of the Convention since the Commission has authority to do this and any action by the two Governments, whether rightly or wrongly, would open the way to greater criticism by dissatisfied parties than would action by the Commission. I think the Commission should dispose of this case in its own way but that we might use our good offices in bringing about an early hearing.

G[REEN] H. H[ACKWORTH)

462.1

5232/187
Memorandum by the Assistant Secretary of State (Castle)

[WASHINGTON,] January 17, 1931. The German Ambassador came in to ask me whether it had been possible for the Department to do anything to assure Mr. Roland Boyden's presence in Washington prior to the date of sailing, of January 21st, of Dr. von Lewinski. I read the Ambassador a telegram to Mr. Boyden which Mr. Hackworth had just written for me, saying that the German Embassy had informed us that, since Dr. von Lewinski was leaving and it is very important that he should be able to testify before the Commission on the notice of rehearing of the Black Tom Case, that I hoped it would be possible for him to be in Washington next Monday. The telegram concluded by saying that the German Ambassador agreed with this for the reason, of course, that Mr.

o Supra.

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