880 APPENDIX TO CASE OF GREAT BRITAIN. 
[Inclosure in No. 152.] 
Sir J. Pauncefote to Mr. Wharton. 
WASHINGTON, October 17, 1891. 
Sir: Immediately on the receipt of your note of the 23rd July last, relative to the " 
form of compensation clause to be inserted in the Behring’s Sea Arbitration Agree- 
ment, I transmitted a copy of it to the Marquis of Salisbury. Since then I have been 
in correspondence with his Lordship respecting the new form of clause on that sub- 
ject proposed in your note as Article 7. : 
I regret to inform you that Her Majesty’s Government, after the fullest considera- r 
tion, have arrived at the conclusion that this new clause could not properly be f 
assented to by them. 
In their opinion it implies an admission of a doctrine respecting the liability of 
Governments for the acts of their nationals, or other persons sailing under their flag, 7 
on the high seas, for which there is no warrant in the law of nations. Thus it con- 
tains the following words: 
“The Government of the United States having presented on its own behalf, as 
well as of the lessces of the privilege of taking seals on the Pribyloff Islands, 
claims for compensation by reason of the killing of seals in Behring’s Sea by persons 
acting under the protection of the British flag, the Arbitrators shall consider and 
decide upon such claims,” &c. 
106 These words involve the proposition that Her Majesty’s Government are liable 
to make good losses resulting from the wrongfui action of persons sailing out- 
side their jurisdiction under the British flag. 
Her Majesty’s Government could not accept such a doctrine. 
The Article dealing with the question of compensation is therefore likely to give 
occasion for lengthy negotiations, which must retard indefinitely the decision of the 
main questions of law on which the validity of the claims of either Government 
entirely depend. 
Both Governments being equally desirous to find a prompt solution of the difficulty 
which now impedes the conclusion of the Arbitration Agreement, Lord Salisbury has 
authorized me to make the following proposal: 
His Lordship suggests 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 Arbitrators of any question of fact which either Government 
may desire to submit to them regarding the claims for compensation to which it con- 
siders itself to be entitled. The application of international law to those facts would 
be left as a matter for further 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. 
The above proposal presents so logical and practical an issue out of the difficulty 
that I cannot but think that it will commend itself to the favourable consideration 
of the President, and I hope it will meet with his acceptance. 
Ihave, &c. 
(Signed) JULIAN PAUNCEFOTE. 
No. 153. 
Colonial Office to Foreign Office.—( Received October 30.) 
DOWNING STREET, October 29, 1891. 
Str: I am directed by Lord Knutsford to transmit to you, tobe laid 
before the Marquis of Salisbury, with reference to. previous correspond- 
ence, a copy of a telegram from the Governor-General of Canada stat- 
ing that the Behring’s Sea Commissioners are awaiting instructions at 
Ottawa. 
Iam, &e. (Signed) . JOHN BRAMSTON. 
{Inclosure in No. 153.—Telegraphic.] 
Lord Stanley of Preston to Lord Knutsford. 
OTTAWA, October 24, 1891. 
Baden-Powell and Dawson returned and await instructions here. 
