441.11 W 892/95
Memorandum by Mr. Spencer Phenix, Assistant to Assistant Secretary of State Olds
Mr. Broderick of the British Embassy called yesterday afternoon and told Mr. Olds and me that the Foreign Office had telegraphed its approval of the text of the proposed note, with one minor change [Page 307] in the next to the last paragraph. The version as telegraphed to London was as follows:
“… as intended for the satisfaction of those meritorious claims of American nationals falling within the scope of paragraph (2) of Article I of the agreement, where the claimant has exhausted his legal remedies in the British courts, where no legal remedy is open to him, or where for other reasons the equitable construction of this agreement calls for such a settlement.”
The change suggested by the Foreign Office was as follows:
“… as intended for the satisfaction of those claims of American nationals falling within the scope of paragraph (2) of Article I of the agreement, which the Government of the United States regards as meritorious, and in which the claimants have exhausted their legal remedies in British courts, in which no legal remedy is open to them, or in respect of which for other reasons the equitable construction of the present agreement calls for a settlement.”
The reason for the proposed change was stated by Mr. Broderick to be that the Foreign Office wished to avoid any possible future construction of the agreement by students of international law to the effect that the British Government recognized that any of the claims in question were meritorious. Mr. Olds concurred in the proposed change and the final text of the note to the British Ambassador has been prepared accordingly. Mr. Broderick is to submit today the text of the proposed reply from the British Ambassador to the Department’s note. These drafts will then be laid before the Secretary for discussion with the President.
During his conversation Mr. Broderick referred again to the case of the Llama, stating that the Foreign Office had repeated its desire that some means be found to settle this matter out of court, in view of the insistence of the Admiralty, and that it hoped his suggestion of December 13th might afford a solution of the matter. He was informed that the examination which I had made since our last conference indicated conclusively that it would not be possible for the Department to adopt his suggestion. It is clear from “Tiverton’s Prize Law” that the Prize Court has jurisdiction over such cases, and an examination of the “Manual of Emergency Legislation, 1914” and its supplements, shows no change in the legal situation. Further evidence of this fact is found in the decisions by the Prize Court in the cases of the Oscar II, (Lloyd’s Prize Cases IX, page 267) and the Bernisse and Elve (Lloyd’s Prize Cases IX, page 243), in which the Prize Court took jurisdiction and awarded damages in similar circumstances.
Mr. Broderick made it clear that the approval of the Foreign Office was not conditioned in any way upon favorable action on its request with regard to the Llama, but expressed great disappointment [Page 308] that the situation was such that we could not undertake to make an effort to reach a settlement out of court. He then asked if the Department could refrain from stirring up the interest of the Standard Oil Company in this case for as long a time as possible and informally advise him before taking any affirmative action with respect to the case, either in response to a letter from the claimants, or of its own motion. This wag agreed to.