Date of Filing December 1 1913.

AMERICAN AND BRITISH
CLAIMS ARBITRATION

CUBA SUBMARINE TELEGRAPH COMPANY

ANSWER OF THE UNITED STATES

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AMERICAN AND BRITISH CLAIMS ARBITRATION.

CUBA SUBMARINE TELEGRAPH COMPANY.

Answer of the United States.

The United States, in answering the Memorial of His Britannic Majesty's Government in support of the claim entitled "The Cuba Submarine Telegraph Company," admits that the Company is a British corporation; that the cables of the Company were cut and other property thereof destroyed by the military and naval forces of the United States during the prosecution of the war between the United States and Spain; that the cables were cut and other property destroyed in May, 1898, at the places named in the Memorial; that the cables were repaired subsequent to May, 1898; and that the executive branch of the Government of the United States has at various times, since the injury and destruction complained of, recommended to Congress the compensation of the Cuba Submarine Telegraph Company for such loss of property, and committees of Congress, to which the recommendations have been referred, have reported favorably thereon.

The United States denies, however, that it is liable in damages for the injury to the cables or property of the Company, since the cutting of the cables was a necessary war measure and the destruction of the property was incident to the conduct of hostile operations against the Spanish forces by naval vessels of the United States;1 that there is any evidence adduced in support of the claim as now presented sufficient to prove the cost of repairing the cables of the Company and the value of the property destroyed; that the British Government ever formally presented the claim to the Government of the United States prior to its inclusion in the schedule of claims annexed to the Special Agreement of August 18, 1910, but on the contrary stated that they only used their good offices to secure some measure of relief for the Company in view of the losses which it had sustained2; that the executive branch of the Government of the United States in recommending congressional action for the relief of the Company ever admitted a legal liability, but on the contrary stated specifically 1Appendix, p. II.

3 3 x 4 4

that it was recommended as an act of equity and comity; and that the British Government never complained of the legality of the acts of the naval forces of the United States resulting in the injury to the cables of the Company and the destruction of its property, but expressly disavowed any intention to make such complaint and requested that the executive branch of the Government of the United States recommend to Congress the compensation of the Company for its losses as an act of grace.

The note of the British Charge d'Affaires to the Secretary of State, dated November 6, 1899, annexed to the Memorial,* informed the Secretary of State that he had been instructed by Lord Salisbury to inquire whether the Executive would be prepared to submit the claim of the Cuba Submarine Telegraph Company for the consideration of Congress in the same manner as the claim of the Eastern Australasia and China Telegraph Company. The terms upon which this latter claim was recommended to Congress by the President for reimbursement were "as an act of equity and comity," and the President's recommendation to Congress was accompanied by a letter from the Secretary of State recommending that the claim be submitted to Congress, pointing out that Her Majesty's Government made no formal claim but that that Government submitted "whether as an act of grace, some pecuniary compensation might not be granted the Company" for the losses it had suffered.

The President's recommendation was also accompanied by a despatch from the American Ambassador at London' of an earlier date informing the Secretary of State that Her Majesty's Government sought compensation for the Eastern Extension Australasia and China Telegraph Company "as an act of grace."

In the course of the war between the United States and Spain, it became of vital importance, as a measure of military necessity, to interrupt the enemy's means of communication. The island of Cuba, the principal sphere of military operations during the war, was remote from the enemy's seat of government, being separated from it by the entire width of the Atlantic Ocean, and being also

3Appendix, p. 21.

"Memorial, p. 7.

5Appendix, p. 22.

"Appendix, p. 21.

"Appendix, p. 15.

separated by water from all other possessions of the enemy. It was, therefore, of prime military necessity to isolate this colony and field of military operations from communication with the enemy's seat of government. The cables of the Cuba Submarine Telegraph Company, which terminated in the enemy's territory, namely, upon the island of Cuba, were within his jurisdiction and subject to his control. It was not incumbent upon the authorities of the United States to notify the Company of the intention of its naval authorities to destroy the enemy's communication by cutting the cables as seems to be implied in the MemorialR since such notification would not have saved the property from injury. The act of cutting was one which admitted of no delay, and in the case of Cienfuegos was performed under the enemy's fire resulting in considerable bloodshed and loss of life and in the case at the Gulf of Guacanayabo was done preparatory to hostile operations.10 No sealing of the cables, discontinuance of their use, or guarantee of their closing would answer the purpose required since they would be still subject to seizure and use by the enemy. The terminals of the cables, being in the enemy's country, no neutralization of them as suggested in the Memorial was possible. The cutting of the cables was essentially a war measure, which was necessary to the proper conduct of the operations of the military and naval forces of the United States in the area affected by the war, and the property of the Cuba Submarine Telegraph Company, although that of a neutral, being permanently situated in the territory of the enemy and within the zone of hostilities, was impressed with the character of enemy property, and, as such, could, during the operations of the naval forces of the United States in prosecuting the war, be seized, destroyed or injured without imposing upon the United States any legal liability to compensate the owner for the damages which might be sustained by reason of such hostile operations.

That the Government of His Britannic Majesty did not regard compensation for the injuries sustained by the Cuba Submarine Telegraph Company as a matter of right, but sought such compensation only as a matter of comity, is shown by the despatch of the American Ambassador to England dated July 26, 1898,1

Memorial, p. 1. Appendix, p. 11. 10 Appendix, p. 12. 11Appendix, p. 15.

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