CLAIM

on behalf of

HAMPDEN O. BANKS ET AL.

DOCKET REGISTRY NO. 4

Syllabus

1. American naval patrols who were in the city of Panamá in 1921 at the request of the Panamanian Government were authorized to arrest and transfer to American jurisdiction, seamen charged with "minor offenses" against naval regulations, and they should not have been interfered with in the performance of their duties in this respect by Panamanian police, even though the latter might desire to arrest the same seamen for other "minor offenses " against local law.

2. "Although the action of the police toward the two patrolmen [who had arrested an American seaman for an alleged breach

of naval regulations] was reprehensible, the Commission does not feel that an award would be justified on that account." 3. An award was found to be due to an ensign in charge of a naval patrol because "there was a clear failure by the police to protect " him and "he was severely beaten by the crowd".

SUMMARY OF FACTS

The claimants, who were regular members of the United States naval forces, and attached to the U.S.S. Tacoma, suffered injuries and damages at the hands of a mob in Panamá City on May 11, 1921. Three of the claimants were on duty in Panamá City with the consent of the Government of Panama, as members of a United States naval patrol. As such patrol officers they wore distinguishing insignia along with their uniforms. One of them,

Golder, was patrolling the restricted Cocoa Grove section under orders to keep enlisted men out of that district. He had arrested Lee, a sailor, also a claimant in this case, whom he found loitering there, and had proceeded with him to a nearby street corner and was awaiting transportation to the wharf, when a Panamanian policeman approached Golder and demanded that he turn Lee over to him on the ground that charges of a petty assault had been made against Lee by a certain woman of the district. Upon Golder's refusal to relinquish his custody of Lee, the policeman fired his gun into the air, whereupon several other Panamanian police officers joined him, as well as a large number of civilians. The local police took Lee forcibly from Golder's custody and arrested both Golder and Lee. They were assaulted and kicked by the policemen and the uncontrolled mob, and received numerous injuries. Another of the claimants, Navy Patrolman Hiltbold approached during the disturbance and asked the cause of the trouble. He also was arrested by one of the Panamanian policemen and was marched to the police station with Golder and Lee, at the point of a gun. Ensign Banks, also a claimant, who was the officer in charge of the patrol, having been advised of the attack upon his men, endeavored peaceably to effect a passage through the crowd toward the group of police and prisoners, when he was set upon by members of the mob and beaten brutally. The police made no effort to disperse the mob and stood by indifferently while Banks was being assaulted. He freed himself and made his way to the police station.

No criminal charges of any kind were preferred against Banks, Hiltbold, or Golder. Lee was charged with creating an escandalo and was sentenced to 30 days' imprisonment or to pay a fine of $15, which he was unable to pay. He was incarcerated in the Panamá City jail until the following morning, when the fine was paid. While in jail he appears to have been robbed of a diamond ring and some cash. At a later date, the Panamanian police au

thorities transmitted to Lee, through the American Legation, a diamond ring. Lee maintained that the ring delivered was not the one lost and that it had much less value.

This claim was presented by the United States on the grounds that the Panamanian Government was internationally liable for undue interference by its officers with the performance of their official duties by three of the claimants as patrolmen of the United States naval forces (who were immune from local jurisdiction while exercising their official duties), for failure to exercise due diligence to prevent injuries to aliens, for injuries inflicted by Panamanian policemen, and for lack of proper prosecution and punishment of the offenders.

The Government of Panama alleged as a defense that the Commission had no jurisdiction over the claim and invoked article I of the claims convention between the United States and Panama, which provided for the submission of "all claims for losses or damage originating from acts of officials or others acting for either Government, and resulting in injustice, and which claims may have been presented to either Government for its interposition with the other, and which have remained unsettled". The Government of Panama contended that there was no injustice in this claim and that it had not remained unsettled, since the diplomatic correspondence regarding the matter had terminated in a general denial of liability by the Panamanian Government. Moreover, as a separate defense, it was urged that the claimants should have exhausted their local remedies by instituting action against those responsible for the alleged injuries. The Government of Panama, furthermore, contended that the claim had prescribed, citing article 1706 of the Civil Code of Panama, which limits to one year actions based upon injuries caused by fault or negligence.

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EXTRACTS FROM BRIEF OF UNITED STATES

IV. FUNDAMENTAL CONCLUSIONS OF FACT AND LAW 1. THE NAVY PATROLMEN HERE INVOLVED WERE ON OFFICIAL DUTY IN PANAMANIAN TERRITORY AT THE REQUEST OF AND WITH THE APPROVAL OF THE GOVERNMENT OF PANAMA.

Such service patrols as those of which Banks, Hiltbold, and Golder were members had been requested repeatedly by the Government of Panama and had, for several years prior to 1921, been frequently furnished by the Government of the United States.

The official attitude of the Panamanian Government in this connection is expressed in the following quotation from a note of September 25, 1913, from the Panamanian Foreign Office to the American Legation:

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I wish to insist that American sailors or soldiers be not allowed to land on territory of the Republic except when accompanied by persons who may watch their actions and prevent them from engaging in encounters either with private citizens or with our police. If this is not done, the Panamanian Government will decline any responsibility for such incidents as may occur." Brief, annex N-1.

In reply the Panamanian Government was advised by the American Minister in a note dated November 26, 1913, that:

... in no event will my government consider that Your Excellency's government can decline responsibility for incidents that may occur, if the patrols requested should not be furnished." Brief, annex N-2.

In the claims now under consideration the Panamanian Government disavows responsibility for injuries to such patrols even at the hands of its own police officers.

It is to be observed that the notice from the Panamanian Foreign Office, above quoted, was given serious attention, as is indicated in the following quotations from correspondence which was exchanged after the date of the letter from the Panamanian Foreign Office.

"The department commander further suggests that the Navy Department be requested not to permit enlisted men of the Navy