in the course of the present year. As these engines have no distinctly military characteristics, and as no evidence has been adduced that they are for the use of the armed forces of Germany, this Government has not expressed disapproval of their exportation to Germany.

(5) On August 31, 1933, this Government was informed that the European representative of an American manufacturer of airplanes had received an inquiry from the German Government in regard to the possibility of purchasing in this country a fighting plane for police use. The Secretary of State thereupon informed the manufacturer in question that this Government would view the export of such an airplane from this country to Germany with grave disapproval. At the same time, discreet steps were taken with a view to a closer supervision of the exportation of airplanes from this country to Germany.

The Secretary of State regrets that this Government is not in a position to give favorable consideration to the proposal that the German Government be requested to furnish such written assurances of its fulfillment of its treaty obligations as are proposed by the British Government. He believes, however, that the procedure which has been followed and which is being followed by this Government in respect to the exportation of airplanes from this country to Germany conforms in all essentials to the procedure proposed by the British Government and described in Paragraph five of the aide-mémoire under acknowledgment, and that it will serve to accomplish the purpose which the British Government has in view.

WASHINGTON, October 27, 1933.

862.248/43

Memorandum by the Chief of the Division of Western European Affairs

(Moffat)

[WASHINGTON,] November 21, 1933. Signor Rosso 30 called this morning to ascertain whether the British Government had recently made any further proposals to this Government concerning the restriction of exportation of military airplanes to Germany. He stated that he had been informed by his Foreign Office that the British Ambassador in Rome had proposed to the Italian Government that it join with other governments-he specifically mentioned the British, French and Czechoslovak Governments-in entering into a treaty whereby they would bind themselves not to permit the exportation of airplanes to Germany, unless in each case the German 30 Italian Ambassador.

Government had presented satisfactory evidence to the effect that the airplane in question was not to be put to military or police use.

I replied that the British Government had made no such proposal to this Government and that our most recent communication to the British Ambassador on this subject was an aide-mémoire replying to the British aide-mémoire, of which I had spoken to him some weeks ago. I sent for Mr. Green and asked him to bring in a copy of the aide-mémoire of October 27, 1933, and I allowed the Italian Ambassador to read this copy. Signor Rosso expressed his satisfaction at being so fully informed and he stated that he believed that the position of the Italian Government would be identical with ours.

The conversation then turned to recent events in connection with the Disarmament Conference and I read the Ambassador copies of several recent factual telegrams from Geneva. He expressed the opinion that the newspaper reports prophesying Italy's withdrawal from the League did not accurately represent Mussolini's attitude in the matter.

PIERREPONT Moffat

PETITIONS FOR REHEARINGS IN THE SO-CALLED SABOTAGE CASES: BLACK TOM AND KINGSLAND 31

462.11 L 5232/377

The German Embassy to the Department of State

MEMORANDUM

Under the Agreements concluded between the United States and Germany on August 10, 1922,32 and December 31, 1928,83 the United States presented to the Mixed Claims Commission on behalf of its nationals approximately 20,400 claims against Germany. Among these claims there were two cases involving claims for damages on account of alleged destructions of property in the United States during the period of American neutrality by alleged agents of the German Government, the so-called Black Tom and Kingsland cases.

The facts and the theory of these claims.

One of these cases involved the fire which resulted in the destruction of, and damage to, property at and around the Black Tom Terminal in New York harbor on July 30, 1916. The second involved the fire at the Assembling Plant of the Agency of Canadian Car and Foundry Company, Ltd., at Kingsland, N. J., on January 11, 1917. These two cases and a large number of claims arising out of these disasters and amount

31 Continued from Foreign Relations, 1931, vol. п, pp. 322-329.

32 Signed at Berlin, August 10, 1922, ibid., 1922, vol. 11, p. 262.

33 Agreement by exchange of notes; for texts, see ibid., 1928, vol. п, pp. 895-898.

ing to between 25 and 40 million dollars, were presented to the Commission under the terms of the Treaty of Berlin. It was contended that these fires were set by German agents acting under the authority of the German Government, for the purpose of destroying the munitions and explosives assembled at these places.

The proceedings before the Commission.

The cases were most laboriously prepared by the claimants and the Agent of the United States and his staff. More than 1300 exhibits were filed by the American Agent alone, a large number of which again comprised numerous documents, affidavits, reports and other pieces of evidence. All of the records of the United States Departments, chiefly the files of the Department of Justice and the War Department, concerning the activities of German agents in the United States, Mexico and Canada during the period of the World War, their surveillance by the United States authorities and agents, the investigations conducted and the proceedings instituted against them were made available to the American Agent for use before the Commission. The records of the various official and private investigations made with regard to the disasters in question were brought before the Commission. Extensive investigations were made in this country and in European countries during the course of the proceedings before the Commission by the claimants, the United States Agency and the German Government. Innumerable witnesses were examined by both parties and their testimony presented to the Commission. In fact, all evidence and information having any bearing upon the questions raised and the broad contentions advanced in support of the claims, were presented to and accepted by the Commission without regard to any rules of evidence and without any restriction as to the nature of the evidence offered. Extensive hearings were held before the Commission and not until the Agents for the two Governments after more than four years' continuous proceedings-voluntarily submitted these cases to the Commission for final determination of the question of Germany's liability, did the Commission hand down a decision in the Black Tom and Kingsland cases.

Decision of the Commission.

In this decision, announced by the Commission on November 13, 1930,34 after oral arguments had been heard by the Commission at The Hague lasting almost two weeks, the three members of the Commission, two of whom were American jurists, unanimously found that Germany was not responsible for the disasters in question.

34 Mixed Claims Commission, United States and Germany, Administrative Decisions and Opinions of a General Nature and Opinions and Decisions in Certain Individual Claims, From October 1, 1926, to December 31, 1932, With Orders of March 25 and May 7, 1925, and Appendices (Washington, 1933), p. 994.

First petitions for a rehearing.

Thereafter, to-wit, in January, 1931, petitions for a rehearing in these cases were filed by the American Agent which, after renewed careful consideration of the voluminous evidence before the Commission were dismissed by a unanimous decision of the three members of the Commission, on March 31 [30], 1931.35

Second petition for a rehearing.

Thereafter, to-wit, on July 1, 1931, supplemental petitions for a rehearing were filed by the American Agent, based upon what was claimed to be "newly discovered evidence". Extended investigations were carried on and numerous witnesses were again examined by both sides in regard to the voluminous new evidence during the one-and-a-half years these supplemental petitions were pending. No restrictions were imposed upon the two Agents as to the nature of the evidence they desired to offer. Two oral arguments were held before the Commission in connection with these supplemental petitions for rehearing.

During these proceedings, viz. in March 1932, the Honorable Owen J. Roberts, Associate Justice of the Supreme Court of the United States, was appointed Umpire by the two Governments succeeding the late Roland W. Boyden.

Last decision of the Umpire.

The last oral argument was held before the Commission in November 1932, with Justice Owen J. Roberts presiding. The cases were again submitted to the Commission for final decision. The supplemental petitions for rehearing were dismissed by a decision of Justice Roberts of December 3, 1932,87 after the two national Commissioners had been unable to reach an agreement. In this decision most important documents upon which the American Agent relied in support of his supplemental petitions, were found to have been fraudulently prepared.

Thus the Commission was called upon three times to decide whether the German Government was responsible for the fires at Black Tom and Kingsland, that is, whether these disasters were brought about by German agents, and three times held that Germany was not responsible in these cases, the last decision, that of December 3, 1932, being rendered by a Justice of the Supreme Court of the United States.

Finality of Submission.

The rules of the Commission provide that, when a case is submitted, the proceedings before the Commission in that case shall be deemed

35 Mixed Claims Commission, United States and Germany, Administrative Decisions, etc., pp. 995-997.

36 Foreign Relations, 1931, vol. 1, p. 328.

37 Mixed Claims Commission, United States and Germany, Administrative Decisions, etc., pp. 1004-1029.

closed. The submission of a case by the Agents of the two Governments therefore is a submission for final determination of the claim or claims. involved.

When the supplemental petitions for a rehearing of the Black Tom and Kingsland cases were submitted at the close of the oral argument on November 25, 1932, it was clearly understood by the Commission and the Agents of the two Governments and so stated by the two Agents that the submission was final and that the decision would be accepted as final and binding upon the two Governments.

Finality of the decisions of the Commission.

In the Agreement of August 10, 1922, by which the Governments of the United States and Germany established the Mixed Claims Commission, it is expressly provided that

"The decisions of the commission and those of the umpire . . . shall be accepted as final and binding upon the two Governments."

Both Governments have thus mutually pledged themselves to accept the decisions of the Commission and those of the Umpire as final and binding upon them. Both the Black Tom and Kingsland cases were voluntarily submitted by the Agents of the two Governments to the Commission for final determination of the question of Germany's liability and consequently the decision of the Commission must be accepted by the two Governments as final and binding upon them.

The Act of Congress of July 3, 1930.38

The request made by the American Agent in the new-the thirdpetition for a rehearing of the Black Tom and Kingsland cases that the Act of the Congress of the United States of July 3, 1930, be made applicable to the proceedings before the Commission and that subpoenas be issued by the Commission for the purpose of taking the oral testimony of certain witnesses has also been finally decided by the Commission.

The identical request was made by the American Agent in his first petitions for a rehearing filed in January, 1931 and was submitted by him for a decision by the Commission.

The three members of the Commission unanimously denied that request and in their decision of March 30, 1931, held: 39

"A new jurisdictional question is raised in these petitions by the requests that subpoenas be issued by the Commission for the purpose of taking the oral testimony of certain witnesses. This suggestion is contrary to the unbroken practice of the Commission. The Agreement of August 10, 1922, between Germany and the United States, which established this Commission and is the foundation of its jurisdiction, does

38 46 Stat. 1005.

39 Mixed Claims Commission, United States and Germany, Administrative Decisions, etc., pp. 995-997.