missions have held that a claim is not barred by prescription when there was no laches on the part of the claimant or his government in the presentation of the claim,' or where the reasons for invoking prescription do not exist.

The Department of State has often declined to bring to the attention of a foreign government a claim presented after such a long time that the difficulty of a proper investigation of the facts or the disappearance of evidence may reasonably be assumed. In 1885, Secretary Bayard wrote: "In view of the long delay which occurred in instituting the present proceedings, the injury having been inflicted in 1863, and the difficulty of arriving at the true state of the facts. . . the Department has considered it futile to institute proceedings." 2 Similarly, claims which have been allowed by claimants to rest or which have not been heard of for a great many years have been allowed to drop by the Department. Failure to avail oneself of a remedy and enforce one's right for an unreasonably long time gives color to a suspicion of fraud or bad faith, which only the clearest evidence may overcome.

§ 387. Decisions of International Tribunals.

International commissions have had frequent occasion to pass upon the effect of a failure to present a claim for a prolonged period of time. While they have not allowed municipal statutes or rules of limitation to bar an international claim 3 or considered any particular length of time as constituting a period of limitation, they have, nevertheless, recognized and applied the principle of prescription so as to bar numerous claims the presentation of which was inordinately delayed. They have acted on the doctrine that the "principle of peace" from litigation which lies at the basis of all statutes of limitation is as binding on an international court in its administration of justice as the statute 1 Stevenson (Gt. Brit.) v. Venezuela, Feb. 13, 1903, Ralston, 328.

2 Mr. Bayard to Mr. O'Connor, Oct. 29, 1885, Sen. Doc. 287, 57th Cong., 1st sess., 10. See also Mr. Bayard to Messrs. Morris and Fillette, July 28, 1888, Moore's Dig. VI, 1005.

3 Pious Fund Claim (U. S.) v. Mexico, 1902, U. S. Agents' Rep., Sen. Doc. 28, 57th Cong., 2nd sess., 17, 858, cited in Ralston's International arbitral law, § 563; Spader (U.S.) v. Venezuela, Feb. 17, 1903, Ralston, 162; Gentini (Italy) v. Venezuela, Feb. 13, 1903, ibid. 729. For other awards relating to limitation and prescription, see Ralston, op. cit., §§ 564-578 and Moore's Arb. IV, ch. LXIX.

is on a municipal court. The reasons for the application of the rule of prescription were tersely expressed by Umpire Plumley of the BritishVenezuelan commission of 1903 in the Stevenson case:

1

"When a claim is internationally presented for the first time after a long lapse of time, there arises both a presumption and a fact. The presumption, more or less strong according to the attendant circumstances, is that there is some lack of honesty in the claim, either that there was never a basis for it or that it has been paid. The fact is that by the delay in making the claim the opposing party-in this case the government-is prevented from accumulating the evidence on its part which would oppose the claim, and on this fact arises another presumption that it could have been adduced. In such a case the delay of the claimant, if it did not establish the presumption just referred to, would work injustice and inequity in its relation to the respondent Government."

4

International commissions have dismissed on one or other of these grounds claims in which no complaint had been made for fifteen or sixteen years after the date of the injuries complained of,2 and in other cases have barred claims unasserted or not presented for periods of twenty-three, twenty-six, twenty-eight, thirty-one, thirty-nine, forty-three or more years. Many of these cases, as will have been observed, came before the United States-Venezuelan commission of 1885, and two of the ablest opinions over written on the question of prescription are those by Commissioner Little in the Williams case and Commissioner Findlay in the Barberie case.

8

9

1 Stevenson (Gt. Brit.) v. Venezuela, Feb. 13, 1903, Ralston, 327, 328 (dictum).

2 Black and Stratton (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3138, 3139; Mossman (U. S.) v. Mexico, ibid. 4180, 4181 (dictum). See also the Horatio (U. S.) v. Venezuela, Dec. 5, 1885, ibid. 3027 (dictum).

3 Bettiker (U. S.) v. Venezuela, Dec. 5, 1885, Opinions, Washington, 1890, p. 92 (dictum, disallowed for lack of citizenship).

4 Williams (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 4181-4199, Opinion by Little, Commissioner.

5 Driggs (U. S.) v. Venezuela, Dec. 5, 1885, Opinions, 403; Forrest (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 2944, 2946.

6 Gentini (U. S.) v. Venezuela, Feb. 13, 1903, Ralston, 729.

7 Corwin (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 3210. 3220 (dictum, disallowed on other grounds).

8 Spader (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 162.

9 Barberie (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 4199-4203, Opinion by Findlay, Commissioner.

Prescription is a rule of inference and establishes a presumption. When actual facts disprove the inference and the presumption, which are founded in the highest equity-namely, the avoidance of possible injustice to the defendant1 because of ignorance of the existence of the claim the reason for the application of the rule ceases. In several cases, therefore, in which timely notice of the existence of the claim had been given to the defendant government, with full opportunity to examine witnesses and the evidence and to adduce contradictory proof, it was held that there was no danger of injustice to the defendant, and notwithstanding the fact that the claim had not, for one reason or another, been prosecuted for many years, the tribunals declined to apply the rule of prescripton.2 Similarly, where public records support the existence of the claim, the reason for the principle ceases. Again, where the impoverishment or the dilatoriness of the defendant government is responsible for the delay in prosecution or payment, the claim having been seasonably brought to its attention, the claim is not considered as barred by prescription.

5

The presentation of the claim at any time after its origin will interrupt the running of the prescriptive period, and if the circumstances themselves, particularly the absence of any presumption of waiver or abandonment, or the shortness of the time elapsed, do not operate to inflict injustice upon the defendant government, the defense of prescription will not be admitted. The existence of public records, as in the case of unpaid national bonds and claims for overcharged taxes and duties, which refutes any inference of injustice to the de1 Umpire Ralston's statement in Gentini (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 727; Giacopini (Italy) v. Venezuela, ibid. 767.

2 Gentini (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 720, 727; Giacopini (Italy) v. Venezuela, ibid. 765, 767; Tagliaferro (Italy) v. Venezuela, ibid. 764, 765; Stevenson (Gt. Brit.) v. Venezuela, Feb. 13, 1903, ibid. 327, 329.

3 Dictum in Gentini (Italy) v. Venezuela, ibid. 730; Williams (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 4194 (dictum).

Stevenson (Gt. Brit.) v. Venezuela, Feb. 13, 1903, Ralston, 329.

5 Roberts (U.S.) v. Venezuela, Feb. 17, 1903, Ralston, 142 (30 years elapsed between presentation and adjudication; the defendant government, if the rule of prescription had been applied, would have been allowed to reap advantage from its own dilatoriness); Stevenson (Gt. Brit.) v. Venezuela, Feb. 13, 1903, ibid. 327, 329. • Butterfield (U. S.) v. Denmark, Dec. 6, 1888, Moore's Arb. 1185, 1205; For. Rel., 1889, p. 159; Canada (U. S.) v. Brazil, March 14, 1870, ibid. 1733, 1745.

fendant government by reason of a belated demand for payment, better justifies the favorable award of the commission of 1853 between Great Britain and the United States, on claims for the refund of excess duties, than the ground upon which the decisions were apparently supported, namely, "that no statutes of limitation can be pleaded in bar of claims arising under treaties." 1

Long delay in the presentation of a claim has on occasion been held to stop the running of interest during the period of delay.2

In the Daniel case before the French-Venezuelan commission of 1902, it was held that the defense of prescription had to be pleaded, the commission being unable to take it into consideration of its own accord.3

In the case of the Macedonian against Chile, the governments took the precaution of stipulating that the question of prescription should be excluded from the consideration of the arbitrator.4

1 King and Gracie (U. S.) v. Great Britain, Feb. 8, 1853, Moore's Arb. 4179, 4180; Similar cases (Gt. Brit.) v. U. S. ibid. 4180.

2 Donnell's Executor (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 3545; Russia v. Turkey, July 22, 1910, Award of the Hague Court of Arbitration, Nov. 11, 1912, 7 A. J. I. L. (1913), 195, 199.

3 Piton (France) v. Venezuela, Feb. 19, 1902, Sen. Doc. 533, 59th Cong., 1st sess., 462; also reported as Daniel (France) v. Venezuela, Ralston, 507, 509.

▲ Macedonian (U. S.) v. Chile, Nov. 10, 1858, Moore's Arb. 1449, 1461.

CHAPTER VI

LIMITATIONS ARISING OUT OF SUBJECT-MATTER AND POLITICAL CONSIDERATIONS

§ 388. Subject-matter.

It has already been observed that claims arising out of contracts are not ordinarily pressed diplomatically, but that official assistance is confined to the use of good offices.1

Similarly, claims arising out of injuries received during belligerent operations are usually not recoverable, under the accepted principles of international law. The nature of the transaction in which the injury is received bars the claim. The limitations upon this rule have already been amply considered.2

The decision of the Spanish Treaty Claims Commission in the case of the Maine3 may be said to support the principle that the officers and seamen of a public vessel have no individual claims against a foreign government guilty of a national injury upon the vessel on which they serve, the individual claim being merged, and indeed lost, in the national claim. In view of the fact, however, that the United States has on various occasions successfully prosecuted claims against foreign governments arising out of injuries committed, in time of peace, upon the officers or seamen of a public vessel, the ground of decision in the Maine case seems unsatisfactory. It may with far greater reason be supported upon the ground set forth by Commissioner Maury in his concurring opinion, namely, that the war between the United States and Spain and the treaty of peace put an end to and extinguished all grievances and causes of difference connected with its origin.1

1 Supra, § 113, and exceptions to the rule noted in same chapter.

2 Supra, § 98, et seq.

McCann v. U. S., Final Rep. of Commission, May 2, 1910, p. 11.

Supra, p. 362. Opinion of the Commission, March 6, 1902, concurring opinion of