886 APPENDIX TO CASE OF GREAT BRITAIN. 
prove, an ineffectual disposition of the question of claims. But having failed in his 
efforts by modification and amendment to secure the acceptance by your Government 
of the clause for a full adjustment of these claims, and heartily participating in the 
desire expressed in your note for a prompt solution of the difficulty which impedes 
the conclusion of the arbitration, he has thought it best to terminate the discussion 
by proposing to you the following, to constitute the text of clause 7: 
“The respective Governments having found themselves unable to agree upon a 
reference which shall include the question of the liability of each for the 
111 injuries alleged to have been sustained by the other, or by its citizens, in con- 
nection with the claims presented and urged by it, and being solicitous that 
this subordinate question should not interrupt or longer delay the submission and 
determination of the main questions, do agree that either may submit to the Arbi- 
trators any question of fact involved in said claims and ask for a finding thereon, 
the question of the lability of either Government upon the facts found to be the 
subject of further negotiation. 
Thave, &e. 
(Signed) W. F. WHARTON. 
[Inclosure 2 in No. 160.] 
Sir J. Pauncefote to Mr. Wharton. 
WASTIINGTON, October 23, 1891. 
Sir: I have the honour to acknowledge the receipt of your note of yesterday’s 
date in reply to mine of the 17th instant, in which I stated the grounds on which 
Her Majesty’s Government found themselves unable to accept the form of clause 
relating to damaves, proposed in your note of the 25rd July last for insertion in the 
Behring’s Sea Arbitration Agreement. 
In that note, I informed you that I had been authorized by the Marquis of Salis- 
bury, with a view to a prompt settlement of the difficulty, to make the following 
suggestion, 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 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 future negotiation after they shall have been ascer- 
tained, 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 to the above suggestion, 
you advert to the discussions and informal conferences, which have taken place on 
the subject of the clanse 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 
23rd 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 
Iam relieved from explaining their objection in greater detail by the proposal of 
the President, 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 
reference which shall include the question of the liability of each for the injuries 
alleged to have been sustained by the other, or by its citizens, in connection with 
the claims presented and urged by it, and being solicitous that this subordinate 
question should not interrupt or longer delay the submission and determination 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 finding thereon, the question of the 
liability of either Government upon the facts found to be the subject of further 
negotiation.” ; 
Tam glad to be able to announce to you that I have received by telegraph the 
authority of Lord Salisbury to accept the above clause on behalf of Her Mijesty’s 
Government, and, in doing so, I beg to expressmy gratification at this satisfactory 
solution of the difficulty which has delayed the conclusion of the Arbitration 
Agreement. 
Ihave, &e. 
(Signed) JULIAN PAUNCEFOTE. 
