1546 AWARD OF THE FISHERY COMMISSION. 



aiii ami the United States as to the nature and extent of the claims referred to the tri- 

 I.IIMH! hv th,- M Arti.-ie of the Treaty of Washington. 



Thin misnnde Manding relates to the claims for indirect losses put forward by the 

 (lot-eminent 'f the United States, under the several heads of (1.) " The losses in the 

 transfer of tin- American commercial marine to the British flag." (2.) " The enhanced 

 paviiK-ntHof insurance." (3.) "The prolongation of the war, and the addition of a 

 large sum to the c.>st of the war and the suppression of the rebellion." Waich claims 

 fir indirect losses are not admitted by H^r M ijesty's Government to be within either 

 the wow or the intention of the reference to arbitration. 



HIT Majesty's Government have been for sometime past, and still are, in correspond- 

 ence with tin 4 ' Government of the United States upon this subject; and, as this cor- 

 respondence has not been brought to a final issue. Her Majesty's Government baing de- 

 ninms (if (mssible) of procee<ling with the reference as to the claims for direct 

 IIMXW-M, have thought it proper in the mean time to present to the Arbitrators their 

 Couuler-Ctt.se (which is strictly confined to the claims for direct losses), in the hope 

 that, before the time limited by the 5th Article of the treaty, this unfortunate niisnn- 

 dTHtainliiig may be removed. 



Hut Her Maj.-.sty's Government desire to intimate, and do hereby expressly and for- 

 mally intimate and notify to the Arbitrators, that this Counter Case is presented with- 

 out prejndice to the position assumed by Her Majesty's Government in the correspond- 

 ence to which reference has been made, and under the express reservation of all Her 

 M:tj-.sty'.s rights, in the event of a difference continuing to exis'. between the High 

 Contracting Parties as to the scope and intention of the reference to Arbitration. 



If circumstances should render it necessary for Her Majesty to causa any further 

 communication to be addressed to the Arbitrators upon this subject, Her Majesty will 

 direct that communication to be made at or before the time limited by the 5th Article 

 of the treaty. 



The undersigned, &c. 



TENTERDEN. 



Thereupon, after some further fruitless negotiations, the arbitrators, 

 of tlu-ir own motion, proceeded to decide and declare that the indirect 

 claims made by the United States were not within the scope of tue ar- 

 bitration, thus removing all misunderstanding by a decision eliminating 

 immaterial matters from the controversy. The decision was made and 

 put on record exactly in the method which we ask you to pursue here. 

 We say that we are entitled to have such a decision on the ground of 

 precedent as well as of convenience; and we say further that we are en- 

 titled to have it on the ground of simple justice. No tribunal has ever 

 been known to refuse to declare what, in its judgment, was the extent 

 of its jurisdiction. To \lo so, and receive evidence applicable to the sub- 

 ject as to which its jurisdiction is controverted, and then to make a gen- 

 eral decision, the result of which renders it impossible ever to" ascertain 

 whether the tribunal acted upon the assumption that it had or had not 

 jurisdiction over the controverted part of the case, would be the extrem- 

 ity of injustice. 



I an award were to be made under such circumstances, nobody ever 



know whether it embraced the matter respecting which ju'risdic- 



was denied or not. In illustration, I may mention the Geneva Ar- 



Suppose that it had gone forward without any declaration 



Mtrators that they excluded the indirect losses, and then sup- 



t a round sum had been awarded, would not Great Britain have 



t to assume that this round sum included the indirect claims 



it never meant to submit? So will it be here: unless there is 



i|n record the ruling of the Commissioners as to this point, it 



possible for us to know, or for the world to know, upon 



"1 you have proceeded whether you believe that we are to* 



mercial intercourse or not. No one will know how this is 



r motion you decide one way or the other. For our assist- 



ee, then, in conducting the case, for convenience, and for the iiiforraa- 



espective governments, we ask you to make this decision, 



itirely obvious that if no decision is made it must necessarily 



