Now a final quotation. In the case of Whitney vs. Robertson, in the 124th U. S., on page 190, after announcing this same doctrine, that the courts are bound to enforce a statute even if it is in conflict with a treaty, the Court said, at p. 194:

If the country with which the treaty is made is dissatisfied with the action of the legislative department, it may present its complaint to the executive head of the Government and take such other measures as it may deem necessary for the protection of its interests. The Courts can afford no redress. Whether the complaining nation has just cause of complaint or whether our country was justified in its legislation are not matters for judicial cognizance.

Now if I may state for the record, the same views are expressed by the Supreme Court in these cases:

Sanchez vs. United States, 261 U.S. 167
Ward vs. Racehorse, 163 U.S. 504.

Lem Moon Sing vs. United States, 158 U.S. 538
Fong Yue Ting vs. United States, 149 U.S. 698
Chae Cham Ping vs. United States, 130 U.S. 581
The Head Money Cases, 112 U.S. 508

Now just a word further

The ARBITRATOR: Go right ahead.

Mr. ACHESON: The conclusion of that part of our answer to the defense of the United States is, thus, that even if this Swedish shipowner had had the hardihood and had taken the great chance involved in violating the law of the United States, had risked all these fines and penalties which the statute was going to impose on him, he would have had no opportunity to present to the court the question as to whether or not he was entitled, under the treaty, to leave the United States with his vessel. May I stop now?

The ARBITRATOR: We will recess now and meet again at half past two.

(Whereupon, at 12 o'clock noon, a recess was taken until 2: 30 o'clock p.m.)

AFTERNOON SESSION

The proceedings were resumed at 2:30 o'clock p.m., pursuant to recess.

The ARBITRATOR: You may proceed.

ARGUMENT OF MR. ACHESON-Continued

Mr. ACHESON: This morning when the Court rose we had just stated that the so-called remedies which the Agent of the United States says should have been availed of by the Swedish shipowners were no more than the penalties which the law imposed upon a violation of the Espionage Act. There was no legal procedure for recovery of those penalties. Even if the Swedish shipowner had had the hardihood to defy the United States, to be apprehended, to be taken into custody with his ship, he would not have been able in any court proceedings taken to enforce penalties to raise or have adjudicated his claims under the treaty. I have read to Your Honor the various decisions of the Supreme Court of the United States which hold that a law subsequent to a treaty is what must be enforced by the courts and that the courts have no power to consider rights under a prior treaty.

I wish now to point out to the Arbitrator that since 1917 there have been no remedies which this shipowner could avail himself of in order to present his claim for compensation against the United States. There were no courts of the United States into which he could go with his claim for damages and for adjudication. The laws of the United States specifically provide that no court, from the lowest to the highest, has jurisdiction to entertain a claim against the United States for damages founded upon a treaty. The law in which this is contained is title 28 of the U.S. Code, section 259. This part of the Code describes the jurisdiction of the Court of Claims and of the district courts of the United States to entertain claims against the United States, and it provides in section 259:

Jurisdiction of the said Court shall not extend to any case against the Government not pending therein on December 1, 1862, growing out of or depending on any treaty and stipulation entered into with foreign nations or with the Indian tribes.

That means that no court of the United States may entertain any claim against the Government which is founded upon a treaty. There was, therefore, no domestic tribunal of the United States to which this shipowner could have gone with his claim for compensation.

That this is the law was decided by the United States Court of Claims in the Zeelandia case, and I wish to explain to Your Honor that the Court of Claims in the Zeelandia case was sitting as an international tribunal. It was sitting by virtue of a special act of Congress which referred the claim of the Dutch shipowner against the United States to this particular court for its adjudication, just as the special treaty of December 17, 1930, has referred to this tribunal the claim of the Swedish shipowner against the United States. The Court of Claims was not sitting in accordance with its statutory, its usual jurisdiction. It was sitting by virtue of this special act of Congress, limited solely to that one case. It was sitting as an international tribunal.

The ARBITRATOR: I understand the case was a claim of the Dutch owners themselves and not of the Dutch Government?

Mr. ACHESON: The Dutch Government, Your Honor, presented the claim to the State Department. If Your Honor will turn to the decision of the court I think we can throw some light on that. First let me state the conclusion of the court, then we will look at its reasoning. On page 78 of the Swedish Answer, the paragraph in the middle of the page, the fourth line from the bottom, states the conclusion:

The position of the Court is not different than it would be if we sat as an arbitration tribunal, chosen by agreement of the nations involved, to decide the questions here presented upon the basis of the law of nations as applied to the facts of the case.

Now, in reaching that conclusion, the court, beginning on page 76, has this to say:

As we have heretofore pointed out, this case is before the Court by virtue of a special jurisdictional act providing that the claim of the plaintiff against the United States might be sued for in this Court, and that the Court should have jurisdiction to "hear and determine such suit to judgment." It appears that the claim of the plaintiff has been the subject of extended diplomatic correspondence between the Government of the United States and the Government of the Netherlands. Upon the authority of the President of the United States, the Secretary of State advised the Minister of the Netherlands under date of November 20th, 1925

Then he advises that the United States would be willing to submit the controversy to the Court of Claims and the Netherland Government, upon being assured that the court would have jurisdiction to consider international law, agreed to that proposal. So the court concludes with entire correctness that it was sitting not as a court created by the United States but as one designated under this agreement.

Turning, now, to the views of that court on the subject of local remedies, we find those on page 76, the first paragraph beginning on that page:

The extent to which the United States may be liable to the plaintiff under the treaties between the Netherlands and the United States and under the usage and customs of the law of nations, and the extent to which this Court may give consideration thereto, are matters which we will consider in due time, but for the purpose of determining the liability of the United States, under its own laws, to the plaintiff, for what are alleged to have been the illegal and unauthorized acts of its officers, it is necessary only to point out that the Government of the United States has never subjected itself to liabilities for the torts or wrongful acts of its officers.

It then cites cases. The court continues:

The plaintiff therefore, having no remedy under the Constitution or the laws of the United States (except in so far as modified by the international law), we have to consider the rights of the plaintiff under the principles of international law and the question as to what extent, if at all, this Court is authorized to give consideration. thereto in the instant case.

So the Court of Claims states there that if it were sitting as a purely domestic tribunal it would decide that there were no remedies, that there was no claim against the United States which one of its courts could entertain, but, it says that this has been referred to us in a peculiar and special way; we are sitting as an international court, and in that capacity the court adjudged that the United States was liable under the law of nations and found the damages which it should pay.

So, on this question of exhausting remedies, we point out simply there were no remedies to exhaust. That concludes what I have to say in answer to the defenses of the United States.

We come now to the last subject with which I have to deal, and that is the measure of damages, the amount of compensation, the factors which enter into that calculation. Before we discuss these factors I wish to explain to the Court that in general there are three methods, as the Court is undoubtedly advised, of chartering vessels.

There is first of all the ordinary, what is called "voyage charter". That is, a boat is hired to carry a cargo from New York to Bordeaux and it is paid so much per ton to do that. We need not concern ourselves with that type of charter because no figures of that sort enter into the evidence of this case.

The other types of charter are in effect leases and renting of the vessel for a specified period of time, and in that type of charter a monthly hire is paid. In one type, which is called the time charter, the vessel is leased, hired, or rented as an operating unit. It has its crew, its captain on board; they have all their supplies, and the only thing which the charterer has to do is to furnish the actual expense of going forward, the fuel oil and the cargo. That is all he does.

The other type of charter is what is called a bare-boat charter. In that type the charterer gets simply an empty ship. The owner of the ship simply turns over the physical hull to him with no crew, with no captain, with no