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Gertrude Parker Massey (U.S.A.) V

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Gertrude Parker Massey (U.S.A.) V REPORTS OF INTERNATIONAL ARBITRAL AWARDS RECUEIL DES SENTENCES ARBITRALES Gertrude Parker Massey (U.S.A.) v. United Mexican States 15 April 1927 VOLUMEIV pp. 155-164 NATIONS UNIES - UNITED NATIONS Copyright (c) 2006 MEXICO/U.S.A. (GENERAL CLAIMS COMMISSION) 155 made which could warrant the Commission in reaching the conclusion that the reduction of the sentence resulted in a denial of justice as that term is understood in international law. The other point in the case, the fact that the accused did not serve the entire sentence of eight years imposed upon him raises more difficult ques- tions. These difficulties confronting the Commission result from the scarcity and vagueness of the evidence in the record. There is evidence of fault, but nothing more. Therefore, it is, as stated in the opinion of Commissioner MacGregor, impossible to fix precisely the degree of delinquency on the part of the respondent Government. The instant case, therefore, differs materially from other cases passed upon by the Commission in which there has been considerable evidence of negligence and in which the Commission has rendered larger awards. Decision The Commission decides that the United Mexican States are obligated to pay to the United States of America on behalf of Ida Robinson Smith Putnam $6,000 (six thousand dollars), without interest. GERTRUDE PARKER MASSEY (U.S.A.) v. UNITED MEXICAN STATES. (April 15, 1927, concurring opinions by Presiding Commissioner and Mexican Commissioner, April 16, 1927. Pages 228-241.) PROCEDURE, ADMISSIBILITY OF DEFENCE RAISED IN BRIEF NOT THERETOFORE RAISED IN PLEADINGS. It is questionable whether a defence raised for the first time in the brief, and as to which relevant facts have not been produced, may be considered by tribunal. Defence in question held not well founded in law in any event and hence unnecessary to be considered further. RESPONSIBILITY FOR ACTS OF MINOR OFFICIALS.—DIRECT RESPONSIBILITY. —DENIAL OF JUSTICE.—FAILURE: TO APPREHEND OR PUNISH.—MISCON- DUCT AS A BAR TO CLAIM. An American subject was killed by a Mexican, who was thereafter arrested and imprisoned. The assistant jail-keeper unlawfully permitted the accused to escape. Evidence was not shown that the appropriate authorities look effective action to apprehend the accused. Held, the fact that the jail-keeper allowed the escape of the accused entrained responsibility on the part of respondent Government without regard to whether the jail-keeper was subsequently punished. When misconduct of any official, whatever his status or rank, results in failure of a State to perform its international obligations, it is responsible. The circumstance that deceased American subject may have been guilty of misconduct held no bar to claim. Cross-references: Am. J. Int. Law. Vol. 21, 1927, p. 783; Annual Digest, 1927-1928, p. 250; British Yearbook, Vol. 9, 1928, p. 162. 156 MEXICO/U.S.A. (GENERAL CLAIMS COMMISSION) Nielsen, Commissioner : 1. Claim is made in this case by the United States of America against the United Mexican States on behalf of Gertrude Parker Massey, individually and as guardian of William Patrick and John Kilbane Massey, minoi children of herself and William B. Massey, an American citizen, who was killed by a Mexican citizen at Palo Blanco, Vera Cruz, Mexico. The claim is grounded on an assertion of denial of justice growing out of the failure of Mexican authorities to take adequate measures to punish the slayer of Massey. 2. On or about the fourth day of October, 1924, Massey, who was the terminal superintendent of the Cia Metropolitana de Oleoductos, S. A., was killed in a building which is described in the record as a "bodega" (apparently some kind of a store) belonging to the petroleum company, by a Mexican citizen, named Joaquin R. Saenz, who was also employed by the company under the direction of Massey. It appears that the slayer fired six shots into Massey's body any one of which was probably sufficient to cause death. After the killing Saenz fled. He was captured and placed in jail at Tamiahua, Vera Cruz. Subsequently he was confined in prison at Tuxpan, Vera Cruz, from which he escaped on December 26, 1924, and he was not apprehended. The record contains copies of correspondence from which it appears that the American. Consul at Tampico and the American Ambassador at Mexico City have from time to time urged that steps be taken to apprehend and punish the slayer. 3. It is stated in the Mexican Answer that Massey attempted to commit the crime of rape on the wife of Saenz, and that this offense on the part of Massey prompted Saenz to take the life of Massey. The record contains a mass of grave accusations against the character of the deceased. I am not convinced of the truth of these charges against Massey which I consider are not supported by reliable evidence. Whatever may be the facts in rela- tion to this point, I consider them to be entirely irrelevant with respect to the pertinent legal issues in the case. In connection with the charge of immoral and illegal conduct made against Massey, the contention is made in the Mexican brief that "Internationa] law, justice, and equity preclude a claim from being set up, on the general maxim ex dolo malo non oritur actio, when the alien from whose death the claim arises by his own immoral, negligent, or unlawful conduct caused or contributed to cause his own death." I am not entirely clear with regard to the argument that was made that in a case of this kind law, justice, and equity "preclude" a claim from being set up. Under Article I of the Convention of September 8, 1923, the United States has the right to present this claim to the Commission. The United States invoked the rule of international law which requires a government to take proper measures to apprehend and punish nationals who have committed wrongs against aliens. The legal issue presented to the Commission is whether or not the obligations of that rule were properly discharged with respect to the apprehension and punishment of the person who killed Massey. Neither the character nor the conduct of Massey can affect the rights of the United States to invoke that rule nor can they have any bearing on the obligations of Mexico to meet the requirements of the rule or on the question whether proper steps were taken to that end. In other words, the character and conduct of Massey have no relevancy to the merits of the instant claim under international law. 4. In the Mexican brief the contention is advanced that a State is not responsible for a denial of justice, when a private individual who is under MEXICO/U.S.A. (GENERAL CLAIMS COMMISSION) 157 indictment or prosecution for the killing of an alien is allowed to escape by a minor municipal officer in violation of law and of his own duty; if the State immediately disapproves of the act by arresting and punishing the officer, and reasonable measures are taken for the apprehension of the fugitive. It is asserted that an assistant jail-keeper unlawfully permitted Saenz to walk out of jail; that this minor official was arrested and strong action was taken against him; and that therefore no responsibility attaches to the Mexican Government for his misconduct. 5. No such defense with regard to the non-responsibility for the acts of the jail-keeper, and no facts regarding his conduct or steps taken to punish him for his wrongdoing are stated in the Mexican Answer. It is therefore very questionable whether the defense could properly be advanced as it was in the Mexican brief and in oral argument in which contentions were forcefully pressed by counsel for Mexico with respect to the non-responsibility of Mexico for the acts of a minor official of this kind, and whether it is proper for the Commission to consider it. However that may be, I am of the opinion that the argument made with respect to this question of respon- sibility for the jail-keeper is not well taken. 6. An examination of the opinions of international tribunals dealing with the question of a nation's responsibility for minor officials reveals conflicting views and considerable uncertainty with regard to rules and principles to which application has been given in cases in which the question has arisen. To attempt by some broad classification to make a distinction between some "minor" or "petty" officials and other kinds of officials must obviously at times involve practical difficulties. Irrespective of the propriety of attempting to make any such distinction at all, it would seem that in reaching conclusions in any given case with respect to responsibility for acts of public servants, the most important considerations of which account must be taken are the character of the acts alleged to have resulted in injury to persons or to property, or the nature of functions performed whenever a question is raised as to their proper discharge. As the Commission has heretofore pointed out, it appears to be a proper construction of provisions in Article I of the Convention of September 8, 1923, that uncertainty with respect to a point of responsibility was largely eliminated by the two Govern- ments when they stipulated that the Commission should pass upon "all claims for losses or damages originating from acts of officials or others acting for either Government and resulting in injustice." 7. The question which has been raised in the instant case, and not infrequently in cases coming before international tribunals, is not one that can be properly determined in the light of generalities such as are frequently found in the opinions of tribunals.
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