71ST CONGRESS ) 3d Session

CLAIMS OF CERTAIN FOREIGN GOVERNMENTS

FEBRUARY 12, 1931.-Committed to the Committee of the Whole House on the state of the Union and ordered to be printed

Mr. TEMPLE, from the Committee on Foreign Affairs, submitted the

following

REPORT

[To accompany H. R. 16983]

The Committee on Foreign Affairs, to which was referred the bill (H. R. 16983) authorizing the appropriation of funds for the payment of the claims of certain foreign Governments under the circumstances hereinafter enumerated, having had the same under consideration, reports it back with the following amendments, and recommends that the bill do pass.

On page 1, line 6, after the word "China," insert the words "Dominican Republic,".

On page 3, line 10, substitute a semicolon for the period and add the following:

and for the account of Li Ying-ting (Li Ing Ding), a citizen of China, the sum of $1,500 as full indemnity for the deaths of Li Yuen Han (Li Yung-hang), Wang Sze (Li Hwang-shih), Chun Wo (Li Chen-Ho) and Foh Ling (Li Fu-lin), the son, daughter-in-law, grandson, and granddaughter, respectively, of Li Ying-ting (Li Ing Ding), resulting from a collision between the junk of Li Ying-ting (Li Ing Ding), and a United States Naval vessel on the Yangtze River on July 3, 1925, and for medical and burial expenses incurred by Li Ing-ting (Li Ying Ding) as a result of the collision.

Also on page 3, immediately following the above amendment, add the following amendment:

To the Government of the Dominican Republic for the account of Mercedes Martinez Viuda de Sanchez, a Dominican subject, as a recognition by this Government of the meritorious services rendered by her deceased husband in rescuing certain members of the United States ship Memphis on August 29, 1916, and to relieve her present financial condition, the sum of $500.

Amend line 6, page 4, by striking out "$11,864.64" and inserting in lieu thereof "$13,864.64."

The nature of the claims covered by this bill and the facts on which they are based are fully set forth in three messages transmitted to

HR-71-3-VOL 2- -9

Congress by the President, and the appropriate items are printed below as a part of the report of the committee.

(1) To the Government of Great Britain for the account of the Shanghai Electric Construction Co. (Ltd.). (S. Doc. No. 262, 71st Cong., 3d sess.)

To the Congress of the United States:

I transmit herewith a report of the Secretary of State requesting the submission to the Congress of claims against the Navy Department in the total amount of $4,657.20, United States currency, in behalf of Yao Ah-Ken and Chiang Ah-erh (Tsiang Ah Erh) for personal injuries received, the family of Ts'ao Jung-k'uan (Dzao Yong Kwer) for damages sustained due to his deatn, and in behalf of the Shanghai Electric Construction Co. (Ltd.), for property losses sustained by it as the result of a collision between United States Marine Corps truck No. 1130 and tram car B. 168, owned by the company, in Shanghai, China, on November 29, 1929. The total amount requested to be appropriated will be allotted as follows: To Yao Ah-Ken and Chiang Ah-erh (Tsiange Ah Erh), $1,500 each; to the family of Ts'ao Junk-k'uan (Dzao Yong Kwer), $1,500, and to the Shanghai Electric Construction Co. (Ltd.), $157.20.

I recommend that, as an act of grace and without reference to the question of the legal liability of the United States in the premises, an appropriation in the total amount of $4,657.20, United States currency, be authorized to effect settlement of these claims in accordance with the recommendations of the Secretary of the Navy and the Secretary of State.

THE WHITE HOUSE, January 26, 1931.

HERBERT HOOVER.

The PRESIDENT:

I submit, for your reference to the Congress, if you approve, the following report concerning claims against the Navy Department in behalf of Yao Ah-Ken and Chiang Ah-erh (Tsiange Ah Erh) for personal injuries, the family of Ts'ao Jung-k'uan (Dzao Yong Kwer), deceased, for compensation on account of his death, and the Shanghai Electric Construction Co. (Ltd.), all of these claims being the result of a collision which occurred in Shanghai, China, on November 29, 1929, between motor truck No. 1130, belonging to the United States Marine Corps, and tram car B. 168, owned by the company. The decedent was a Chinese civilian and the individuals who sustained the personal injuries are Chinese civilians. The Shanghai Electric Construction Co. (Ltd.), is a British concern. The claims on behalf of the Chinese mentioned were brought to the attention of the department in a dispatch dated April 19, 1930, from the American minister at Peiping. Accompanying the dispatch was a copy of a note dated March 11, 1930, addressed to the American minister by the Chinese Minister for Foreign Affairs, requesting that the matter of the payment of compensation for the injury and the death of the Chinese be referred to the Navy Department for a "fair settlement." The matter was thereupon referred by the Department of State to the Navy Department with a request for the views of that department in relation to the claims for compensation submitted by the Chinese Foreign Office. Under the date of June 19, 1930, the Navy Department transmitted a letter to this department, together with the original report of the court of inquiry, which was convened at headquarters, Fourth Regiment, United States Marine Corps, Shanghai, China, on November 30, 1929, to inquire into the circumstances of the collision.

The descriptive facts of the incident which resulted in the death of one Chinese, the personal injury of two other Chinese, and the property loss sustained by the company as disclosed by the report of the naval board of inquiry and the report of the Chinese court of inquest, which was convened on December 2, 1929, at Shanghai to inquire into the death of the decedent Chinese, are substantially as follows:

On November 29, 1929, at about 3.20 p. m. United States Marine Corps truck No. 1130 developed trouble on Avenue Edward VII and the driver called headquarters for assistance. Marine Corps truck No. 1193 was thereupon sent to the aid of the disabled truck. The damaged truck was started several times on its own power but kept pulling down so that it became necessary to tow it. While the truck was being towed from east to west alongside the tramway tracks

on Bubbling Well Road at an estimated speed of 6 or 7 miles an hour, the two trucks came side by side with tramcar B. 168 which was going in an opposite direction. Just after the first truck passed the tramcar the second truck suddenly veered to the south and came into collision with the front end of the tramcar. At the time, the three Chinese victims of the collision were standing on the front platform of the tramcar. Ts'ao Jung-k'uan sustained traumatic amputation of both ankles from which he died at the Lester Hospital at 12.25 a. m. November 30, 1929; Yao Ah-Ken sustained a compound fracture of both ankles both feet being amputated; Chiang Ah-erh sustained pressure of the right foot, with lacerated wounds of instep and ankle (his leg was amputated about the middle); and tramcar B. 168 was damaged to an extent which necessitated the expenditure of $157.20 in repairs.

The naval court of inquiry examined the various individuals who might be in a position to testify to their knowledge as to the facts, as did the Chinese court of inquiry, and the evidence as adduced before both tribunals does not vary in any essential particulars as to the physical facts. The drivers of the two American trucks were examined as well as a member of the Marine Corps who was acting as chief mechanic and who inspected truck No. 1130 after the collision, and evidence was produced regarding the actual physical facts of the collision and the damages sustained. All of the evidence adduced at the inquest as well as that brought out before the naval court of inquiry tended to establish that the collision was due to the jamming of the steering gear of truck No. 1130 while it was being towed to the American barracks and that the locking of the steering gear was caused by broken pieces of some worn parts of the steering gear which dropped into the gear mechanism and prevented the truck from going straight ahead. The American court of inquiry reached the conclusion that no one in the Naval Establishment, or outside thereof, could be charged with negligence in connection with this matter. The Chinese court asserted that the responsibility for the collision was attributable to faulty inspection of truck No. 1130 before it left the marine barracks as well as lack of proper inspection after it broke down and before the members of the Marine Corps undertook to tow it to the American barracks.

The testimony of the members of the Marine Corps who appeared before the American and Chinese courts was practically to the effect that no previous difficulty had been encountered in connection with the actual steering of truck No. 1130, and that the truck's steering gear apparently was all right the day before the collision and on the day of the collision up to its actual occurrence. The naval court of inquiry stated in its opinion that no blame attached "to anyone in or out of the naval service for the accident. The court observed, however, that "inasmuch as the injuries to the Chinese and the damage to the tramcar was caused by collision with a vehicle belonging to the United States Government, the said Government was liable for damages incident to the collision, and the fact that the Chinese were riding in a prohibited place, namely, the front platform of the tramcar did not remove the liability of the United States Government. This report was recommended for approval by the Major General Commandant, United States Marine Corps headquarters, Washington, D. C., on January 20, 1930, "subject to the remarks of the Judge Advocate General," to whom the report was transmitted for further attention.

The recommendation of the Major General Commandant was approved by the Acting Secretary of the Navy on January 27, 1930, "subject to the remarks of the Judge Advocate General." In his letter of June 19, 1930, to the State Department the Secretary of the Navy included a résumé of the facts adduced before the naval court of inquiry, and also informed the State Department that a claim had been submitted to the Navy Department by the Shanghai Electric Construction Co. (Ltd.), in the sum of $157.20 for the cost of repairing the damaged tramcar. Inasmuch, however, as it did not appear to the Secretary of the Navy from the report of the naval court of inquiry that there was the necessary element of negligence on the part of the employee of the Naval Establishment to bring the company's claim within the jurisdiction of his department for settlement pursuant to the act of December 28, 1922 (42 Stat. L. 1066), he requested another report from the Marine Corps headquarters at Shanghai for the purpose of developing that point.

From the two reports the Secretary of the Navy reached the conclusion that there existed considerable doubt that any legal liability rested on the United States for the damages sustained in this collision, although it was true that the accident resulted from the collision of a Marine Corps truck with a tramcar without any proof of contributory negligence on the part o the operator of the

tramcar, and he recommended that "in order that friendly relations with a foreign country might not be disturbed," the Department of State take such action as it might deem proper to procure compensation in such amount as it deemed appropriate, and that it include therein an amount sufficient to pay the claim of the company.

Notwithstanding that there is no evidence to indicate that any negligence can be attributed to any member of the Naval Establishment in connection with the physical towing of the truck, there is a serious question but that the members of the Naval Establishment failed to make a proper inspection of the machinery of the truck (a) before permitting it to leave the barracks the day before the collision and (b) before attempting to tow it in on the day of the collision.

In this connection the evidence adduced before the Chinese court of inquiry disclosed that an inspection of the injured truck after the accident showed "that the steering gear was broken, parts were jammed together; that this stuff getting down into the steering gear locked the gears, and that these bits of metal were found [indicating several bits of metal] inside the differential"; that "one cog wheel in the neighborhood of the front wheel below the second motor cog had left its original position and had jammed with the cog of the upper wheel, thereby causing the two front wheels to lose control; and that the car had to veer to the left and right and could not go straight ahead, thereby causing this collision." There is, moreover, some indication in the evidence presented to the Chinese court of inquiry from which it might be deduced that there might have been a cursory examination of the steering gear before the towing of the truck was attempted.

In this connection reference was made by a witness before the Chinese court to "worn parts in the steering gear." Also, in the findings of the American naval court of inquiry, it is stated that the accident was caused by the breaking of certain worn parts in Marine Corps truck No. 1130 which caused the truck to suddenly swerve into the tram car."

In the light of the findings of the American and Chinese courts it would be difficult for the United States to insist that an adequate inspection of the truck would not have disclosed a defective condition of the steering gear and thus have led to precautions which would have avoided the collision and the consequent damages to life, limb, and property. In the circumstances, and since the Secretary of the Navy has indicated that the question of the legal liability of the United States in the premises is not free from doubt, and inasmuch as the collision resulted in such serious damage to life and limb of the Chinese civilians, I believe that it would be most desirable, in the interests of good administration and as tending toward the maintenance of the friendly relations now subsisting between. the Government of the United States and the Government of China, to make substantial payments to the living victims of the accident and the family of the deceased Chinese as an act of grace and without regard to the legal liability of the United States for the dmages sustained.

It is agreed between this department and the Navy Department that a payment of $1,500 in United States currency to each of the injured Chinese and a like sum to the family of the deceased Chinese would be reasonable in all the circumstances. At the same time it is believed that the claim of the company for property damage in the sum of $157.20, United States currency, should be settled. Accordingly, I recommend that the Congress be requested to authorize an appropriation in the total amount of $4,657.20 to effectuate this purpose.

Respectfully submitted.

DEPARTMENT OF STATE,

Washington, January 24, 1931.

H. L. STIMSON.

(2) To the Government of Great Britain for the account of N. J. Moose, a British subject. (Item IX, p. 12, S. Doc. No. 252,71st Cong. 3d sess.)

Report and recommendation concerning a claim against the Navy Department in the sum of $15.59, United States currency, in behalf of N. J. Moosa, a citizen of Great Britain, for reimbursement of expenses of medical services and hospital treatment incurred by him as the result of a collision at Shanghai, China, on September 13, 1928, between a United States Marine Corps truck and a broker's trap in which he was riding.

The following description of the incident is taken from the report of the naval board of investigation, which was convened at Shanghai on September 22, 1928, to investigate the circumstances connected with the collision:

On September 13, 1928, at about 1 p. m., a collision occurred at the intersection of Burkill and Thibet Roads between broker's trap license No. CMF-354 and Marine Corps truck No. 1130. The broker's trap was being driven by a Chinese, name unknown, and the truck by Pvt. Oran Moeller, United States Marine Corps. Private Moeller turned his truck into Thibet Road from Burkill Road and in turning the truck it skidded on the wet pavement and struck the broker's trap. The right front fender of the trap was bent and Mr. N. J. Moosa was slightly injured about the nose and forehead and had one lens of his eyeglasses broken.

As a consequence of this collision, Mr. Moosa not only sustained personal injuries, for which the sum of $15.59 is claimed as reimbursement for medical and hospital expenses incident thereto, but he suffered the loss of personal property in the amount of $8 (Shanghai currency) as well. The latter item was taken care of by the Navy Department under the authority contained in the act of December 28, 1922 (ch. 17, 42 Stat. 1066), and an appropriation to effect its settlement has been made by the Congress.

The Navy Department adjusted the claim for the loss of personal property by Mr. Moosa upon the basis of a determination by the Secretary of the Navy that the United States was liable for the loss of such personal property within the purview of the act of December 28, 1922. In the circumstances it would seem to be equally desirable that a settlement of the claim arising out of the personal injuries suffered by Mr. Moosa be effected.

The Secretary of the Navy in transmitting the claim to the department recommended that the department initiate the appropriate steps to obtain an appropriation in the requisite amount to pay the personal injury claim. I concur in the recommendation of the Secretary of the Navy and request that the Congress authorize an appropriation of $15.59, United States currency, in settlement of Mr. Moosa's claim for personal injuries. I further recommend that this settlement be made as an act of grace and without reference to the legal liability of the United States in the premises.

(3) To the Government of Canada for the account of Miss Janet Hardcastle Ross, a Canadian citizen. (Item VI, p. 9, S. Doc. No. 252, 71st Cong., 3d sess.)

Report and recommendation concerning the claim of Miss Janet Hardcastle Ross, a Canadian citizen, for compensation for personal injuries resulting from the dropping of a dummy bomb by a United States Navy airplane near Coronado, Calif., on March 27, 1929.

The essential facts regarding the claim are succinctly stated in a letter dated September 20, 1930, received from the Secretary of the Navy, which reads as follows:

"On March 27, 1929, a 100-pound water-loaded dummy bomb was dropped from a United States Navy airplane which was engaged in target practice, and struck about 30 inches from the concrete highway running between Coronado and Imperial Beach, Calif. The missile, in striking, projected sand and water with such force against a passing Overland automobile owned and driven by Frank M. Gover, as to break the glass windows of the car and injure Mr. Grover and Miss Janet Ross, another occupant of the car.

"Claims were received in the Navy Department from both Mr. Grover and Miss Ross for compensation for injuries sustained as a result of the accident, and in the case of Mr. Grover for damage to automobile. On March 1, 1930, the Navy Department recommended to the Congress that special legislation be enacted providing an appropriation of $300 for payment to Mr. Grover as compensation for personal injuries and property damage resulting from the above accident. No recommendation was made in the case of Miss Ross due to the fact that no agreement had been reached as to the amount that should be paid in her case. The act approved July 2, 1930 (Private, No. 267, 71st Cong.), provided the sum of $300 for payment to Mr. Grover, and it is understood that payment of Mr. Grover's claim has since been made.

"A naval board of investigation was convened to inquire into the circumstances of the above accident and to determine the extent of the injuries sustained by Mr. Grover and Miss Ross. The evidence adduced before the board shows that Miss Ross received superficial cuts about the face and eyes and suffered severe shock. Evidence submitted by claimant to the Navy Department shows that at the time the accident occurred Miss Ross, who resides at 920 Dunsmuir Street, Vancouver, British Columbia, Canada, was in California recuperating