19
70.
The Commission has repeatedly invoked in its submissions the precedent of
the “Lusitania”, a case that was resolved by a mixed Commission composed of the
United States and Germany. As regards the claims of the dependents, however, that
Commission held that compensation was only in order if the effectiveness and
regularity of the contributions made by the victim had been proved (cf. the cases of
Henry W. Williamson and others and Ellen Williamson Hodges,
administratrix of the estate of Charles Francis Williamson, February 21,
1924, Reports of International Arbitral Awards, vol. VII, pp. 256 and 257;
and, Henry Groves and Joseph Groves, February 21, 1924, Reports of
International Arbitral Awards, vol. VII, pp. 257-259).
71.
The Court has earlier made a distinction between the reparations due to the
successors and that owed to claimants or dependents. The Court will grant the
former the reparations requested, because of the presumption that the death of the
victims caused them damages. The burden of proof is therefore on the other party
to demonstrate the contrary (cf. supra, para. 54). As far as the other claimants
or dependents are concerned, however, the onus probandi is on the Commission.
And the Commission has not, in the opinion of the Court, provided the necessary
proof to demonstrate that the conditions have been met.
72.
The Court is aware of the difficulties presented by the instant case: the facts
involve a community that lives in the jungle, whose members are practically illiterate
and do not utilize written documents. Nevertheless, other evidence could have been
produced.
73.
In view of the foregoing, the Court hereby rejects the claim of compensation
for actual damages presented by the dependents.
XI
74.
The Commission also seeks compensation for moral damages suffered by
persons who, while not successors of the victims, were their dependents.
75.
The Court is of the opinion that, as in the case of the reparations for actual
damages sought by the dependents, moral damages must in general be proved. The
Court considers that in the instant case sufficient proof has not been produced to
demonstrate the damages to the dependents.
76.
Listed among the so-called dependents of the victims are their parents. The
parents of Mikuwendje Aloeboetoe and Asipee Adame have already been declared
their successors (supra, para. 66) and will obtain compensation for moral
damages. However, the parents of the other five victims are not in the same
situation. Nevertheless, in this particular case, it can be presumed that the parents
have suffered morally as a result of the cruel death of their offspring, for it is
essentially human for all persons to feel pain at the torment of their child.
77.
For these reasons, the Court deems it only appropriate that those victims’
parents who have not been declared successors also participate in the distribution of
the compensation for moral damages.
78.
The beneficiaries of the compensation for moral damages are as follows:
Daison Aloeboetoe