"To hold that such a claim can not be put forward by the United States because it grows out of the act of Germany in taking the life of a British subject would be to hold that Germany is not liable under the Treaty of Berlin for damages suffered by an American national during the war period and attributable to Germany's act as a proximate cause. Such a holding would be repugnant to the terms of the Treaty and the decisions heretofore rendered by this Commission construing it. It would amount to a denial to the individual survivor, because of his American nationality, of all right to compensation for a pecuniary injury suffered by him proximately caused by Germany's act, where, had he been a British national, Germany's obligation to make compensation would have been clear. Where the survivor is British the claim is British in point of origin and must be put forward by Great Britain. Where the survivor is American the claim is American in point of origin and must be put forward by the United States." Great Britain, as pointed out in note 5 at the bottom of page 210, applied substantially the rules applied by the Mixed Claims Commission in estimating the damages sustained by its nationals through the loss of civilian lives. The British reparation claim was based on the damages sustained by the survivors and not on the value of the life lost. It is believed that this decision of the Mixed Claims Commission will prove an important precedent and constitute a substantial contribution to the law governing international tribunals in dealing with pecuniary claims. The application of the rule announced in that decision was well illustrated in the claims presented on behalf of Hannah J. Seccombe, pages 551-552; Gladys Mary Baylies, pages 554-555; Philip and John Victor Klein, pages 556-559; and Dora Burke, pages 567-568. In the last case an award was made in favor of the claimant for $5,000 with interest for damages which she suffered growing out of the loss of her father, a British national, on the Lusitania. The claimant was six years of age at the time of her father's death. An award had been made by a British commission to her mother and sister, who were British nationals, but that commission declined to make any award to Dora Burke because of her American citizenship. To have denied this claimant the right to an award against Germany for the damages which she suffered proximately caused by Germany's act would have been to penalize her because of her American citizenship. On the other hand, as pointed out in the decision just reviewed, the Mixed Claims Commission has repeatedly denied to the United States the right to put forward claims on behalf of British survivors of American nationals lost with the Lusitania (See cases presented on behalf of Frankum et al., page 479; Estate of Evan Jones, Deceased, page 481; Estates of Elizabeth Marks and Georgina Marks, Deceased, pages 483-484; George Robshaw, pages 486-487; George A. Anderson, pages 487-488; Estate of John Ferguson, pages 490-491; Estate of Allan W. Robinson, Deceased, pages 491-492; Estate of William Mustoe Kinch, Deceased, pages 518-519; Estate of Eunice Kinch, Deceased, pages 519-520; and Estate of John Vance, Deceased, pages 528-529). OPINION IN LIFE-INSURANCE CASES. At pages 132, 133, and 134 this language was used: "This brings us to the enquiry, What claims for damages suffered growing out of losses of life on the Lusitania are within the Treaty of Berlin? "As heretofore pointed out that Treaty expressly obligates Germany to make compensation for damages suffered by the American surviving dependents of civilians whose deaths were caused by acts of war occurring at any time during the war period. "Nowhere else in the Treaty is express reference made to compensation for damages sustained by American nationals through injuries resulting in death. Looking, therefore, to the only provision in the Treaty of Berlin which expressly obligates Germany to make compensation in death cases, we find that such obligation is limited to damages suffered by American surviving dependents resulting from deaths of civilians caused by acts of war. ** Applying this test, it is obvious that the members of the families of those who lost their lives on the Lusitania, and who were accustomed to receive and could reasonably expect to continue to receive pecuniary contributions from the decedents, suffered losses which, because of the natural relations between the decedents and the members of their families, flowed from Germany's act as a normal consequence thereof, and hence attributable to Germany's act as a proximate cause. The usages, customs, and laws of civilized countries have long recognized losses of this character as proximate results of injuries causing death. Had there been any doubt with respect to such losses being proximately attributable to Germany's act, that doubt would have been removed by their express recognition in the Treaty of Versailles." Great Britain in making up her reparation claim, as pointed out on page 134 (note 27), applied substantially the same rules as have been applied by the Mixed Claims Commission in assessing damages suffered through the loss of life of civilians. At pages 138, 139, and 140 the Umpire said: "As this Commission has repeatedly held, the terms of the Treaty of Berlin fix and limit Germany's obligation to pay. That Treaty expressly obligates Germany to make compensation for damages suffered by the surviving dependents of civilians whose deaths were caused by acts of war, and by clear implication negatives any obligation on Germany's part to make compensation in death cases to life insurers or any class other than surviving dependents. * * "There are few classes of losses which have been more generally recognized by all civilized nations as a basis for the recovery of pecuniary damages than that of losses sustained by surviving dependents for injuries resulting in death. The draftsmen of the treaty of Versailles in putting claims of this class first on the list of ten categories in enumerating those for which compensation may be claimed from Germany adopted a rule long recognized by civilized nations. International arbitral tribunals, independent of any express provision in the governing treaties or protocols, have never hesitated to recognize this rule. The statement is frequently encountered in judicial decisions and in the writings of publicists that the civil law permitted such recovery in a civil suit. recognized such right. For many years past this rule has been recognized by Grotius the nations of western Europe. The German Code since 1900 expressly confers a cause of action for the taking of life, which, however, was merely declaratory of the liability as previously established by the German Imperial Court of Civil Jurisdiction. Forty years prior to the annexation of Hawaii to the United States its supreme court held that the natural law and the usages, customs, and laws of civilized countries quite independent of statute permitted a recovery by surviving dependents for injuries resulting in death. This decision has been followed by the Federal courts since the annexation of Hawaii to the United States. England established by statute enacted in 1846 such right of recovery, and her example has long been generally followed throughout the world in common-law jurisdictions.' "To the extent that the insured had they lived would, through their mental or physical efforts, have contributed to the production of wealth or have accumulated pecuniary gains which they would have passed on to American nationals dependent on them, such nationals have suffered losses flowing as a natural and normal consequence of Germany's act, and attributable to it as a proximate cause, for which Germany is obligated to pay." In those life-insurance claims numerous American life-insurance companies sought to recover from Germany alleged losses resulting from their being required to make payments under the terms of policies insuring the lives of civilians whose deaths resulted from Germany's acts. claims, the Umpire held (at page 138) that "the losses on which these claims are After analyzing the nature of the based are not in legal contemplation attributable to Germany's act as a proximate cause. That decision resulted in the dismissal of more than 2,300 listed claims aggregating in excess of $10,000,000. In the course of the opinion the Umpire said (pages 134-137): "The Lusitania was freighted with persons and with personal property. Germany's act in destroying her caused the loss of the ship, some of the lives, and practically all of the property that formed her cargo. and the property that was destroyed entailed economic losses to the world, to The lives that were lost the nations to which they belonged, and to the individuals owning or having an interest in the property or dependent for contributions upon the physical or mental efforts of those whose producing power was destroyed by death. "The aggregate amount of the property loss became fixed when the ship sank, and is neither increased nor diminished nor in any wise influenced by the amount of the insurance or re-insurance thereon. The insurance becomes material only in determining who really suffered the loss. or war-risk insurance is a contract of indemnity ingrafted on and inhering in the This is because a contract of marine property insured. The extent of the liability thereunder is limited by the economic loss suffered. The insured suffers no loss to the extent of payments made him by the insurer, who is the real loser to the extent of such payments not reimbursed by re-insurance. "But in a contract for life insurance the obligation of the insurer to pay, far from being one of indemnity, has no relation whatsoever to any economic loss which the beneficiary, the nation, or the world may or may not have sustained. It is a contract absolute in its terms for the payment of an amount certain on the happening of an event certain-death-at a time uncertain. The amount of in surance on the life of the insured has no relation to the economic value of that life or to the pecuniary losses resulting from the death. An individual who produces nothing, who earns nothing, who contributes nothing to any other individual or through mental or physical effort or otherwise toward adding to the wealth of the world, may carry insurance for a very large amount. On the happening of his death, the insurers are required to pay the amounts specified in the contracts of insurance to the beneficiaries entitled under such contracts to receive it, not because the latter have suffered any loss or because any loss has resulted from the death, but solely because they have bound themselves by contract to make such payments upon the occurrence of that death. Such losses as the insurers may sustain by reason of such payments are not substituted for and do not stand in the place of losses which would otherwise be suffered by the payee whose losses are reduced to the extent of the payment made, as in fire, marine, and warrisk insurance losses. "The insurers through subrogation or otherwise are not entitled to stand in the shoes of the representatives of the estate of the insured or of the beneficiaries and pursue their rights, if any exist, against the author of the death of the insured. This Commission in its Opinion in the Lusitania Cases sustained the contention of the Government of the United States that the amount of losses suffered by American nationals resulting from the death of a Lusitania victim who during life contributed to them was not subject to any deduction on account of insurance moneys paid them as beneficiaries under policies of insurance on the life of such victim. In so holding this Commission said that 'Such payment of insurance, far from springing from Germany's act, is entirely foreign to it.' The fact that Germany's act may have incidentally accelerated the maturity of absolute obligations to the advantage of the beneficiaries in the policies of insurance is not a circumstance of which Germany can take advantage, because she was not a party to, was in no wise interested in, or entitled to claim under, such contracts. Neither can Germany, on the other hand, be held liable for the losses resulting from such acceleration of maturity, because there is in legal contemplation no causal connection between her act and the obligations arising under the insurance contracts, of which she had no notice, and with which she was not even remotely connected. "The rights of the beneficiaries under the insurance contracts existed prior to the commission of Germany's act complained of and prior to the deaths of the insured. Under the terms of the insurance contracts these rights were to be exercised by the beneficiaries upon the happening of a certain event. There was no uncertainty as to the happening of the event but only as to the time of its happening. Sooner or later full payment must be made by the insurers, conditioned on the timely payment of such unpaid premiums, if any, stipulated for in the policies, the present value of which is embraced in these claims. They also embrace losses sustained by the insurers due to the enforced acceleration in the payments caused by the premature death of the insured. But it is obvious that precisely to the extent that the American insurers have sustained losses by reason of being prematurely deprived of the use of funds paid by them to American beneficiaries such American beneficiaries have been correspondingly benefited through the acceleration in the time of such payments to them. The losses here claimed are not economic losses to the American nation but only losses sustained by one group of American nationals to the corresponding benefit of another group of American nationals, growing out of their intercontractual relations, rather than out of any economic injury inflicted by Germany's act. To hold, as this Commission did in the Lusitania cases, that in arriving at the net losses suffered by American surviving dependents of Lusitania victims no part of the payments received by such survivors as beneficiaries under insurance contracts should be deducted from the present value of contributions which such victims, had they lived, would probably have made to such survivors, and at the same time to hold Germany bound to pay the insurers for all losses sustained by them due to the acceleration in time of payment, would obviously result in Germany's being held liable to the United States for losses which neither the United States as a nation nor its nationals as a whole had suffered but which one group of its nationals had lost to another group of its nationals." OTHER APPLICATIONS OF RULE ANNOUNCED IN LIFE-INSURANCE CLAIMS OPINION. In the Hickson case, pages 439-444, the claimant sought to recover for the deaths on the Lusitania of his two sisters. He claimed that one of them had bound herself to work for him the balance of her life for some $5,000 per annum but that her services were reasonably worth not less than $50,000 per annum. The other sister had a similar contract for a lesser amount, he alleged. He sought to recover damages which he claimed he had sustained by reason of the deaths of his sisters resulting in the termination of his contracts with them. These damages were purely consequential, growing out of the frustration of contract obligations caused by death. At page 443 this language occurs: * But the great diligence of claimant's counsel has pointed this Commission to no case, and it is safe to assert that none can be found, where any tribunal has awarded damages to one party to a contract claiming a loss as a result of the killing of the second party to such contract by a third party not privy to the contract without any intention of disturbing or destroying such contractual relations. The American courts, including the Supreme Court of the United States, have uniformly rejected such claims. The United States cannot now be heard to assert them against Germany. Certainly there is nothing in the Treaty of Berlin or in the records of these cases or of any of the cases before this Commission to indicate that claims of this class could have been within the contemplation of those who negotiated, drafted, and executed that Treaty." See also the Plamondon cases, at page 460; the Smith case, at pages 466 and 471; and the Klein case, at page 558. FRAUDULENT OR EXCESSIVE DEMANDS. As illustrating the care exercised by the Commission in scrutinizing the records and uncovering attempts to defraud or to exaggerate damages, attention is called to the following among numerous other claims: Louis Friedman et al., claimants, pages 607-614; Candlish et al., claimants, pages 544-546; Witherbee et al., claimants, pages 591-593; and Smith and wife, claimants, pages 465–474. D CLAIM OF UNITED STATES STEEL PRODUCTS CO. (Docket No. 103, Lists Nos. 3157 and 9454) Claim in this instance was made in the total amount of $215,941.51 plus interest. Claim involved the requisition by the German authorities at Antwerp of a large amount of material belonging to claimant, and it also involved depreciation in the value of certain bank balances belonging to claimant with Belgian banks, which balances claimant was prevented from using during the war. The property requisitioned had a value as claimed by claimants of about $204,000, while the bank balances depreciated about $10,000. Investigation of this matter was made abroad, and as a result thereof an award for $195,000, with interest from November 11, 1918, was entered by the commission under date of November 22, 1923. MIXED CLAIMS COMMISSION, UNITED STATES AND GERMANY, Hon. WILLIS C. HAWLEY, House of Representatives, Washington, D. C. MY DEAR CONGRESSMAN: I am handing you herewith a list of the claims withdrawn, together with the reasons therefor in each case and the amount thereof. This is information that was requested of me by the committee. I hope to be able to furnish you within the next day or two with the list of claims filed for death and personal injury that have been dismissed. I am, my dear Congressman, Very truly yours, ROBERT W. BONYNGE, Agent. List of claims withdrawn, together with the reason therefor and the amount thereof [A-Alien; B-Withdrawn by claimant: C-Settled between parties; D=Neither German Government nor German national involved; E-Frivolous; F-No liability under the treaty; G-Duplications: H-Alien property claim; I-General; J-Abandoned] |