338 DIPLOMATIC CORRESPONDENCE. 



ill your note for a xirompt solution of the diftlculty wliicli iraperles the 

 conclusion of the Arbitration, he has thought it best to terminate the 

 discussion by proposing to you the follo^ying•, to constitute the text of 

 clause 7 : 



The respective goveniments having found tliemselves unable to agree upon a ref- 

 erence wliicli shall include the question of the liability of each for the injuries al- 

 leged to have been sustained by the other or by its citizens, in connection Avith the 

 claims presented and urged by it, and, being solicitous that this subordinate ques- 

 tion should not interrupt or longer delay the submission and deterjuination of the 

 main questions, do agree that either may submit to the Arbitrators any question of 

 fact involved in said claims and ask for a linding thereon, the questiou of the liabil- 

 ity of either Government upon the facts found to be the subject of further negotia- 

 tion, 



I auij etc.j 



William F, Wharton, 



Acting Secretary. 



8ir Julian Pauncefote to Mr. Wharton. 



British Legation, 

 Washington, October 23, 1891. 



Sir : I have the honor to acknowledge the receipt of your note of 

 yesterday's date in reply to mine of the ITth instant, in which I stated 

 the grounds on which Her Majesty's Government found themselves 

 unable to accept the form of clause relating to damages proposed in 

 your note of July 23 last for insertion in the Behring Sea arbitration 

 agreement. In that note I informed you that I had been authorized by 

 the Marquis of Salisbury, with a view to a prompt settlement of the 

 difficulty, to make the following suggestions, namely, that — 



the six articles of the arbitration agreement already accepted by both Governments 

 should be signed now, and also an article providing for the reference to the Arbitra- 

 tors of any questiou of fact which either Goverumeut may desire to submit to them 

 regarding the claims for compensation to which it considers itself to be entitled. 

 The application of international law to those facts would be left as a matter for fu- 

 ture negotiation after they shall have been ascertained, and might be subsequently 

 referred to the arbitrators, in whole or in part, if the two governments should agree 

 to do so. 



In your note under acknowledgment, in which you reply as to the above 

 suggestions, you advert to the discussions and informal conferences 

 which have taken place on the subject of the clause dealing with the 

 question of damages, and you state that the President is unable to see 

 how the seventh clause proposed in your note of the 23d of July last 

 can be held to imply an admission on the part of Great Britain "of a 

 doctrine respecting the liability of governments for the acts of their 

 nationals or other persons sailing under their flag on the high seas, for 

 which there is no warrant in international law." Those are, no doubt, 

 the terms in which I stated generally the objection of Her Majesty's 

 Government to the form of clause in question. But I am relieved from 

 explaining their objection in greater detail by the proi)osal of the Presi- 

 dent, with which your note concludes, to substitute a new clause, which 

 substantially carries out Lord Salisbury's suggestion. 



You state that the President has thought it best to terminate the 

 discussion by proposing to me the following, to constitute the text of 

 clause 7 : 



The respective governments having found themselves unable to agree upon a refer- 

 ence which shall include the question of the liability of each for the injuries alleged 



