§ 300. Foreign Insurers of American Property.

Foreign insurers of American property have occasionally received the indirect protection of the United States through the claim made on behalf of the owners of the property. It is open to question, however, whether in the absence of a special treaty, they would be permitted directly to share in the distribution of any indemnity which might be received from the foreign government. Under their legal rights as insurers, they would, of course, have a right of action against the insured for any loss which they had paid, and for which the insured was indemnified by a foreign government. Under these circumstances, and considering that the flag of a vessel usually protects the cargo as well, it might conceivably happen that foreign insurers of foreign-owned cargo on an American vessel might indirectly share in the distribution of an international indemnity. The second court of commissioners of Alabama claims, under an Act giving standing to those who were entitled to the "protection of the United States in the premises," held that a British insurance company doing business exclusively in Great Britain could not appear as a claimant to the fund.1

Insurers have in most cases been given an independent standing before international commissions, based upon their own nationality, without having to prove the nationality of the assured. The insurers, therefore, have generally claimed in their own names. In the claim of Gerard before the British-American commission of 1871, a contention that the contract of insurance covered an illegal object was apparently not given consideration.4

Inasmuch as no written opinion was handed down, no explanation can be given for the disallowance by the Swedish-Venezuelan commis

1

1 Bischoff et al. v. U. S., No. 5693, class 1, Moore's Arb. 4672. Foreign insurers were excluded by their alienage from any participation in the fund under the treaty of 1831 with France, Moore's Arb. 4481.

2 The important exception made to this rule by the commissioners under the Florida treaty, who required proof of American citizenship by insured and insurer, has already been noted. Moore's Arb. 4516; supra, p. 648.

3 Hubbell v. U. S., 15 Ct. Cl. 546 (underwriters who had paid losses sustained by reason of the capture and plunder of a vessel and cargo by Chinese pirates participated in the Chinese indemnity fund); Holbrook, Adm., v. U. S., 21 Ct. Cl. 434, 442; The Sir William Peel, Gerard (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3935, 3948; The Mechanic (U. S.) v. Venezuela, Dec. 5, 1885, ibid. 3210, 3212.

Moore's Arb. 3935, 3946, 3948.

sion of 1903 of the claim of the Ydun Life Insurance Co., arising out of a policy paid to the widow of Captain Meling, who had been killed by an act of Venezuelan authorities, and for whose death the commission had made an award to the widow.1

§ 301. Provisions of Federal Statutes.

Special provisions as to the rights of insurers have been contained in various statutes permitting suits against the United States arising out of international claims. For example, § 12 of the Act of June 23, 1874, establishing the first court of Alabama claims, limited the right of recovery of an insurer to so much of his losses, in respect of his war risks, as "exceeded the sum of . . . his premiums or other gains upon or in respect to such war risks." 2 The Act of March 3, 1899,3 to the effect "that any French Spoliation claim appropriated for in this act shall not be paid if held by assignment or owned by an insurance company" was held to be a direction to and restriction upon the Secretary of the Treasury. This restriction has been renewed in the subsequent omnibus claims appropriation acts of 1902 and 1905, but there seems no valid reason why the claims of insurance companies should be excluded from payment in view of the fact that private insurers and underwriters have been paid, that insurance companies received payment under the appropriation act of March 3, 1891, and that insurance companies apparently received indemnities for spoliations under the treaty of 1819 with Spain, under the treaty of 1830 with Denmark, under the treaty of 1831 with France and under the treaty of 1832 with the Two Silicies.5

1 Meling (Sweden) v. Venezuela, March 10, 1903, Ralston, 954.

2 Davis' Rep., Sen. Ex. Doc. 21, 44th Cong., 2nd sess. (1877), 22-23, 115–117. The same rule seems to have been applied by the second court under the act of 1882. Moore's Arb. 4678. This same section 12 (18 Stat. L. 247), limited recovery to insurance companies lawfully existing at the time of the loss under the laws of one of the U. S. Nor was a claim admissible, when the injured party or his assignee or representative had received indemnity from an insurer, unless the loss exceeded the insurance.

330 Stat. L. 1205.

Ship Juliana, 35 Ct. Cl. 400. See 23 Op. Atty. Gen. (Griggs), 179.

'S. Ex. Doc. 74, 49th Cong., 1st sess., cited in Hearings before House Committee on Claims on H. R. 22534, 61st Cong., 2nd sess., March 30, 1910, statements of J. Henry Scattergood, pp. 45-46.

PART IV

LIMITATIONS ON DIPLOMATIC PROTECTION

It will now be proper to consider the various classes of facts, acts and considerations which operate as conditions, qualifications and limitations upon the right to diplomatic protection and the prosecution and recovery of international claims. These limitations on protection will be discussed under five broad divisions, namely, those arising (1) out of conditions prescribed by the claimant's own government; (2) out of acts of the party claimant; (3) out of the subject-matter of the claim; (4) out of public policy; and (5) out of the municipal legislation of the defendant government.

CHAPTER I

CONDITIONS PRESCRIBED BY THE CLAIMANT'S OWN GOVERNMENT

§ 302. Obligations of the Person Claiming Protection.

Before a person receives the protection of the United States, the Department of State must be satisfied that the individual is properly entitled to American protection, and has complied with the conditions required for its extension. Within the terms of the protocols and treaties under which they operate, international tribunals apply the same rule.

The first condition of protection is, obviously, proof of bona fide citizenship. The substantive elements of citizenship have received consideration in Part III, and attention will therefore be given here to the more formal conditions imposed by the government upon an applicant for protection.

The applicant for a passport, under the rules governing the grant

ing and issuing of passports of January 12, 1915,1 must meet various requirements, e. g., he must make a written application, in the form of an affidavit, to the Secretary of State, duly attested, setting forth the date and place of his birth, his occupation, the place of his permanent residence, and within what length of time he will return to the United States for permanent residence. He must take the oath of allegiance, and give a detailed physical description of his person. The applicant's identity must be established by the certificate of a credible witness. Further particulars are required from naturalized citizens and their children claiming citizenship through the parent's naturalization, from persons born in the United States of Chinese parents, or born abroad of native American fathers, from women, and from residents of an insular possession of the United States. A prescribed fee of one dollar must be paid. As already observed, the applicant for a declarant's passport must show that he has resided in the United State's at least three years, that he is not yet eligible for naturalization, that at least six months have elapsed since his declaration of intention, that he has not previously obtained a similar passport, that a special and imperative exigency requires his absence from the United States and that since his declaration of intention he has not applied to any other government for a passport.3

Before a diplomatic claim on behalf of a citizen is presented to any foreign government, the Department of State requires the claimant to make out a prima facie case warranting interposition. In first instance, therefore, the Department, upon receipt of a claim against a foreign government, acts in a quasi-judicial capacity, and it may be said that far more claims are rejected than prosecuted. The Department does not possess the facilities or machinery for a regular judicial inquiry into the merits of a claim, and has therefore prescribed certain rules of procedure for the submission by claimants of memorials invoking the Department's interposition in the prosecution of a claim against a foreign government.

1 Printed supra, § 219.

2 Supra, p. 501.

3 Rules governing the granting and issuing of passports to those who have declared their intention to become citizens of the United States, November 14, 1913. 'See Moore's Dig. VI, §§ 971-972.

For the information of claimants, the Department, on March 5, 1906, published a circular with which claimants are advised to conform as nearly as possible in the submission of memorials. This circular reads:

§ 303. Instructions for Claimants against Foreign Governments. "Citizens of the United States having claims against foreign governments, not founded on contract, in the prosecution of which they may desire the assistance of the Department of State, should forward to the Department statements of the same, under oath, accompanied by the proper proof.

The following rules, which are substantially those which have been adopted by commissions organized under conventions between the United States and foreign governments, for the adjustment of claims are published for the information of citizens of the United States having claims against foreign governments of the character indicated in the above notification; and they are advised to conform as nearly as possible to these rules in preparing and forwarding their papers to the Department of State.

Each claimant should file a memorial, in triplicate, properly dated, setting forth minutely and particularly the facts and circumstances from which the right to prefer such claim is derived by the claimant. This memorial should be verified by his or her oath or affirmation.

All subsequent communications to the Department in the nature of statements of fact, arguments, or briefs should likewise be furnished in triplicate.

The memorial and all the accompanying papers should have a margin of at least one inch on each side of the page, so as to admit of their being bound in volumes for preservation and convenient reference; and the pages should succeed each other, like those of a book, and be readable without inverting them.

When any of the papers mentioned in rule II are known to have been already furnished to the Department by other claimants, it will be unnecessary to repeat them in a subsequent memorial. A particular description, with a reference to the date under which they were previously transmitted, is sufficient.

Nor is it necessary, when it is alleged that several vessels have been captured by the same cruiser, to repeat in each memorial the circumstances in respect to the equipment, arming, manning, flag, etc., of such cruiser, which are relied upon as the evidence of the responsibility of a foreign government for its alleged tortious acts. A simple reference to and adoption of one memorial in which such facts have been fully stated will suffice.

It is proper that the interposition of this Government with the foreign government against which the claim is presented should be re