1

1174; 2 W. Rob. 205; Notes of Cases, 499; The Juliet Erskine, 6 Notes of Cases, 633; The Mellona, 3 W. Rob. 13; 11 Jur. 783; 5 Notes of Cases, 450; The Dura, 5 (Irish) Jur. (N. S.) 384.' "In order to establish a case of inevitable accident, he who alleges it must prove that what occurred was entirely the result of some vis major, and that he had neither contributed to it by any previous act or omission, nor when exposed to the influence of the force had been wanting in any effort to counteract it. The Despatch, 3 L. J. (N. S.) 220."2 "It is not a vis major which excuses a master, that his vessel had caused damages to another in a tempest of wind, when he had warning and sufficient opportunity to protect her from that hazard. The Lotty, Olcott, Adm. 329.” 3

"It is no excuse to urge that from the intensity of the darkness no vigilance, however great, could have enabled the vessel doing the damage to have descried the other vessel in time to avoid the collision. In proportion to the greatness of the necessity, the greater ought to have been the care and vigilance employed. The Mellona, 11 Jur. 783; 3 W. Rob. 13; 5 Notes of Cases, 450."

"It is necessary that the measures taken to avoid a collision should not only be right, but that they should be taken in time. The Trident, 1 Spink's Eccl. and Adm. Rep. 222."

"If circumstances arise evidently and clearly requiring prudential measures, and those measures are not taken, and the natural result of such omission is accident, the Court would be inclined to hold the party liable, even if such result were only possible. The Itinerant, 2 W. Rob., 240; 8 Jur. 131; 3 Notes of Cases, 5."

"The want of an adequate look-out at the time on board a vessel at sea, is a culpable neglect on her part,

1 Pritchard's Adm. Dig., 2d ed., vol. I, p. 133.

2 Ibid., p. 134.

3 Ibid., p. 134. (Note.)

Ibid., p. 135.

Ibid., p. 140.

Ibid., p. 141.

which will, primâ facie, render her responsible for injuries received from her. The Emily, Olcott, Adm. 132; 1 Blatch. Ct. Ct. 236; The Indiana, 1 Abb. Adm. 330."1

"To constitute a good look-out there must be a sufficient number of persons stationed for the purpose, who must know and be able to discharge that duty. The George, 9 Jur., 670; 4 Notes of Cases, 161."*

IV. In assigning a just force to the "due diligence," upon the presence of which, in the failure of Great Britain actually to prevent the injuries complained of, its exculpation by the Tribunal is to turn, we have had no occasion to insist upon any severity or weight of obligation too burdensome for the relation of neutrality to endure. On the contrary, both the sentiments and the interests of the United States, their history and their future, have made, and will make, them the principal advocates and defenders of the rights of neutrals before all the world. In pleading before this Tribunal for indemnity at the hands of Great Britain for the vast injuries which its non-fulfilment of neutral duties has caused, the United States desire no rule or measure of such duties to be assumed or applied by this Tribunal, that its enlightened and deliberate judgment would not assign as suitable to govern the conduct of each one of the equal and independent Powers which are represented in this Arbitration. The United States do not themselves undertake to become to other nations guarantors of the action of all persons within their jurisdiction, and they assert no such measure of responsibility against Great Britain. They lay no claim to perfection or infallibility of administration, or security against imposition, misadven

1 Pritchard's Adm. Dig, 2d ed., vol. I, p. 143. Note).

2 Ibid., p. 143.

ture, miscarriage, or misfortune, nor would they seek to charge Great Britain, or any other nation, upon any such requirement or accountability. But the United States do maintain that the disposition and action comporting with "due diligence," as reasonably interpreted, are adequate to prevent, and will prevent, but for extraordinary obstacles or accidents, violations, by a powerful State, of its duties to other nations; that when such prevention fails, the proof of this disposition and action towards prevention, and of the obstacles and accidents that thwarted the purpose and the effort, are demandable by the aggrieved nation, and that upon that proof the judgment of exculpation or inculpation is to proceed.

V. In conclusion, we conceive that the Arbitrators are unquestionably the rightful judges of what constitutes "due diligence," in the sense of the Treaty, and that this secures not only to the contending parties, but to the rights, duties and interests cared for by the law of nations, a reasonable, a practical, and a permanent rule and measure of obligation, just in its judgment of the past, and wise and beneficent in its influence on the future. We concur in the final considerations of the British CounterCase on this subject of due diligence, in leaving "the "Arbitrators to judge of the facts presented to them by "the light of reason and justice, aided by that know"ledge of the general powers and duties of administra"tion which they possess as persons long conversant "with public affairs."1

1 Brit. C.-Case, p. 125.

XII.

THE FAILURE OF GREAT BRITAIN

TO FULFIL ITS DUTIES, AS ESTABLISHED AND RECOGNIZED BY THE TREATY, CONSIDERED UPON THE FACTS.

Considerations of General Aplication.

It is assumed in the British Case, and argued in addition in the Counter-Case, that the only vessels which fall within the description of the first Article of the Treaty as "the several vessels which have given rise to the "claims generically known as the Alabama Claims, are the Florida, Alabama, Georgia and Shenandoah. to these vessels there is no contention in this respect, and they and their history and career are included, indisputably, within the jurisdiction conferred upon the Tribunal by the Treaty of Washington.

As

The Case of the United States sets forth a list of certain other vessels, which they understand to be embraced

within the jurisdiction of the Tribunal, and the circumstances of whose despatch and career bring them within the application of the Rules of the Treaty, and of the condemnation of Great Britain by the Tribunal for failure to fulfil the duties in this regard insisted upon by these Rules, and the principles of International Law not inconsistent therewith. Of these, three, viz. the Clarence, the Tacony, and the Archer, are described as tenders of the Florida; and one, the Tuscaloosa, as a tender of the Alabama. The others, the Sumter, the Nashville, the Retribution, the Tallahassee, and the Chickamauga, are independent vessels. In addition to the evidence furnished by the history of each of these vessels in the Case of the United States, the Counter-Case presents special considerations to show that all these vessels fall within the description of the Treaty jurisdiction of the Tribunal.'

The specific facts connected with these several vessels have been made the subject of comment in previous pages of this Argument, and they do not need to be further specially noted at present. Undoubtedly the "conside"rations of fact of general application," which now occupy our attention, have their most important relation to the Florida, the Alabama, the Georgia, and the Shenandoah, the principal agents in the injuries to the United States which enter into the subject of this Arbitration, and any special applicability to the circumstances of the other vessels, need not at present attract our attention.

We present now to the notice of the Arbitrators certain GENERAL FACTS which inculpate Great Britain for failure to fulfil its obligations in the premises, as assigned by the Treaty.

1 Counter-Case of United States, pp. 3, 4.