Decision no. ... in the matter of fixing reasonable fees for attorneys or agents under the authority of Section 9 of the...

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1 57 25


THE AMERICAN COMMISSIONER

MIXED CLAIMS COMMISSION

UNITED STATES AND GERMANY


DECISION NO. 25
IN THE MATTER OF
FIXING REASONABLE FEES FOR ATTORNEYS OR
AGENTS UNDER THE AUTHORITY OF SECTION 9 OF
THE SETTLEMENT OF WAR CLAIMS ACT OF 1928 "

DOCKET NO. 6460


John Tayloir, Claimant
Peter' Baurmer, Attorney


CHANDLER P. ANDERSON,
American Comr nissioner


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MIXED CLAIMS COMMISSION, UNITED STATES AND GERMANY .

Established in pursuance of the Agreement between the
United States and Germany of August 10, 1922


CHANDLER P. ANDERSON
American Commissioner

(II)













THE AMERICAN COMMISSIONER
MIXED CLAIMS COMMISSION
UNITED STATES AND GERMANY

DECISION NO. 25

IN THE MATTER OF

FIXING REASONABLE FEES FOR ATTORNEYS OR
AGENTS UNDER THE AUTHORITY OF SECTION 9 OF
THE SETTLEMENT OF WAR CLAIMS ACT OF 1928"

DOCKET NO. 6460

John Taylor, Claimant
Peter Baumer, Attorney


The above named claimant has duly filed with the American Com-
missioner a written request that he fix a reasonable fee to be paid
by him to his attorney, Peter Baumer, of New York City, N. Y.,
as compensation for whatever services have been rendered by him
on behalf of and with the authority of the claimant, such services
being of the character described in the provisions of Section 9 of
the Settlement of War Claims Act of 1928."
The claimant has objected to the amount of the fee asked by the
attorney on the ground that it is excessive, and the attorney has been
notified of the filing by the claimant of this request that a reasonable
fee be fixed. The attorney, in response to a request by the American
Commissioner, has filed with him two affidavits giving the informa-
tion which he desires to have considered by the Commissioner as
showing the reasonableness of the fee asked, which information has
been brought to the attention of the claimant, who has filed two
letters in reply, copies of which letters have been communicated to
the attorney.
35105-29 (173)






174


In this case an award on behalf of the claimant was rendered by
this Commission on February 3, 1926, for $3,000, with interest
thereon at the rate of five per cent per annum from November 11,
1918, to the date of payment, which amount represents the value of
personal property belonging to the claimant lost through the sinking
on September 15, 1917, of the steamship Platuria" by a German
submarine. The claimant was a member of the Platuria's crew
in the capacity of Chief Engineer.
The amount of the fee asked by the attorney as compensation for
his services is $2,230.99, being fifty per cent of the amount of
$4,461.99, to be received by the claimant from the Treasury Depart-
ment, in payment of the award of this Commission on his behalf.
The aforesaid fee includes disbursements.
It appears from the affidavits and documents filed that on or
about July 22, 1925, the claimant retained this attorney to prosecute
and collect this claim. At that time he paid the attorney the sum
of $30 and agreed to pay for his services on a contingent basis of
fifty per cent of the award when paid. The attorney agreed that
all the expenses and disbursements in excess of the $30 paid as afore-
said were to be borne by the attorney and paid out of his fifty per
cent share of the award.
The services rendered by this attorney, as shown by his affidavits
and by the records of this Commission, began with several confer-
ences with the claimant. Thereafter, on July 24, 1925, this attorney
went to Washington and conferred with a representative of the
American Agency about this claim. Upon his return to New York,
at the suggestion of the Agency's representative, he obtained copies
of the claimant's certificate of naturalization, prepared a single page
affidavit which was signed and executed by the claimant, and at-
tached to it a list. of the alleged losses sustained by the claimant,
amounting to $6,923.40, for loss of personal property and wages and
for expenses incurred, including doctors' bills and maintenance dur-
ing a period of unemployment. These documents, together with a
power of attorney previously given him by the claimant, were for-
warded by the attorney to the American Agent on July 28, 1925.
When this claim was brought to the attention of the American
Agency by this attorney in July, 1925, the time fixed for filing
claims under the Agreement between the United States and Germany
establishing this Commission had long since expired. This diffi-






175


culty was overcome by the American Agent without the assistance
or intervention of this attorney solely on the ground that this claim-
ant's name appeared in the records of the Commission as a member
of the crew of the steamship Platuria," which had been sunk by a
German submarine. This information had been duly communicated
to the German Agent within the time fixed for filing claims, and
for that reason the German Agent consented to the filing of this
claim and its presentation to this Commission. This action was
taken on October 5. 1925, and was reported to this attorney in a
letter of October 7th from the American Agency. In reply to this
communication this attorney wrote to the American Agency on No-
vember 7th as follows, I want to say this case has been before your
good self and the German Agent for more than three months and
no definite action has been taken on it ", and he requested on behalf
of his client that the Agency use your good offices so that an award
can be made ".
Apparently this attorney again went to Washington on November
11th to discuss this case, among others, with the American Agency,
and he was informed that the case had already been tentatively taken
up with the German Agent but no reply or offer of settlement had
as yet been made, and the attorney was instructed to get additional
evidence or facts showing that the personal effects of the claimant,
for the loss of which he claimed damages, were actually in his pos-
session when the ship was sunk and were reasonably worth the
amount claimed. Within a few days thereafter the German Agent
notified the American Agency that in view of the fact that the only
evidence produced in support of this claim was the claimant's own
statement it was impossible for him to offer more than $3,000 with
interest from November 11, 1918, in settlement of this claim. This
offer was communicated to this attorney by letter of November 16th
from the American Agency with the request that he inform the
Agency at once whether or not it was acceptable to the claimant.
This attorney was again in Washington on November 18th, and
conferred with the Agency about this and other pending claims in
which he was acting as attorney, and on November 20th the Ameri-
can Agency wrote to him, stating that unless you forward addi-
tional documentary evidence by way of corroboration of claimant's
own statements, the German Agent will only settle the claim of John
Taylor on the basis of $3,000 with interest thereon at the rate of five






176

per cent per annum from November 11, 1918, to the date of pay-
ment". Thereupon, under date of November 28, 1925, the attorney
obtained from the claimant a final power of attorney authoriz-
ing him to accept on behalf of the claimant the offer of $3,000 with
interest as above stated in settlement of his claim, which power of
attorney was forwarded to the American Agency by this attorney
in his letter of December 11th notifying the Agency of the claimant's
acceptance of the settlement proposed. The American and German
Agents thereupon entered into an agreed statement of fact recom-
mending an award in accordance with the settlement thus proposed,
and on February 3, 1926, an award was entered by this Commission
in accordance with this recommendation.
In addition to the services rendered as above set forth, the only
other service which this attorney was called upon to render was to
correct an error which had been discovered in his original presenta-
tion of this claim, in which it was alleged that the Platuria was
sunk on September 13, 1918, whereas the records of the Commission
showed that she was sunk on September 15, 1917. The necessity for
correcting this error was called to the attorney's attention by the
Agency on December 22, 1925, and again on January 14, 1926. This
attorney forwarded on January 22, 1926, a brief affidavit, sworn to
by the claimant, correcting this error, and thereupon this Commis-
sion made its award as above stated.
The attorney alleges in his affidavit that he made another trip to
Washington on February 16, 1926, when he discussed this case with
the representatives of the American Agent, but inasmuch as the
award in this case was rendered on February 3rd, his trip to Wash-
ington nearly two weeks later cannot, strictly speaking, be regarded
as a service rendered by him in the prosecution of this claim.
After the award was entered this attorney seems to have devoted
considerable time and attention in trying to arrange to have his fee
paid out of it concurrently with the receipt of the Treasury check by
the claimant. The Treasury check in payment of the award was sent
to the claimant in care of this attorney, and was received by the
attorney on July 10, 1928. On the following day the attorney and
the claimant conferred with reference to the payment of the attor-
ney's fee in an endeavor to agree upon a mutually satisfactory
amount, but the claimant was unwilling to pay more than fifteen per
cent of the award, which was refused by the attorney.






177


The claimant apparently then appealed to the Treasury Depart-
ment to send a check in payment of the award directly to him,
because the attorney had refused to deliver to him the check sent
to him in the attorney's care. On July 21, 1928, the Undersecretary
of the Treasury wrote to this attorney, requesting him to give a full
explanation of his "h refusal to deliver the check to Mr. Taylor so
that the Treasury may promptly proceed with such action as may
be necessary." The check was finally returned to the Treasury the
latter part of September, and it is now held by the Treasury Depart-
ment pending a decision in these proceedings.
In fixing the attorney's fee for services rendered to the claimant,
the American Commissioner cannot take into consideration what
was done by the attorney with respect to the payment of the award
because the action taken by him in that respect was purely in his
own interest and not in the nature of services rendered on behalf of
the claimant. The attorney states in his affidavit that this case has
cost me in time and expenses incurred from twelve to fifteen hundred
dollars," but he does not submit any list of expenses in support of
this statement, and it appears from the records of this Commission
that the several trips, which the attorney made to Washington for
conferences with the American Agency, were not made solely on
account of this claim. This attorney acted as the attorney for claim-
ants in eight other cases in which awards were made by this Com-
mission, and the records of those cases show that several of them
were also discussed by this attorney with the Agency on the oc-
casion of his above mentioned trips to Washington, justifying an
apportionment among those claims also of the expenses incurred by
him for those trips.
It is unnecessary, however, for the reasons set out below, to ex-
amine any more fully the details of the services rendered or ex-
penses incurred by this attorney.
The above mentioned final power of attorney," executed by the
claimant on November-28, 1925, and filed with the Commission by
the attorney of -December 11, 1925, not. only authorized, as above
stated, the acceptance of the German Agent's offer of the award
which was finally made by this Commission, but also fixed the sum
of $1,500 as the fee to be paid to this attorney in full for all services
" rendered or to be hereafter rendered by him," which fee also
covered advances made and "disbursements incurred by him.






178


In order to make the meaning and intent of this power perfectly
clear it states in conclusion "the object and purport hereof being
that the said Peter Baumer, his executors, administrators, assigns or
designees, receive a lump sum of fifteen hundred dollars ($1,500)
out of the proceeds of the settlement hereinbefore recited, and the
rest, residue and remainder of the said fund, with all accrued interest
on the amount of settlement agreed upon as hereinbefore recited,
are to be paid over to me, the said John Taylor, or unto my heirs,
executors, administrators or assigns."
It is to be noted that this power of attorney was executed and
filed after it had been definitely settled what. amount was to be
awarded by this Commission, and after the services rendered by
this attorney in the presentation and prosecution of this claim had
been fully completed, and it was definitely known both to the claim-
ant and the attorney exactly the character and extent of the services
rendered. Accordingly, the amount of compensation fixed by them
in this power of attorney, which was prepared by the attorney and
executed at his request by the claimant, represents their deliberate
and informed opinion as to the value of such services.
The American Commissioner has held in three previous decisions
in similar proceedings (Decisions Nos. 1, 3 and 8) that when the
claimant is entirely competent to look after his own interests in
making a fee agreement, with his attorney, he falls within the group
referred to in the following extract from the Report of the Senate
Committee on Finance recommending this fee fixing legislation to
the Senate:
It is expected, however, that it will not be necessary to alter amounts fixed
by contract with large corporations and others fully capable of protecting their
own interests. In such cases the American Commissioner *
would undoubtedly be justified in fixing the amount specified in the contracts.
In those decisions the American Commissioner expressed his con-
currence in this view, and held that the word reasonable" as used
in the fee fixing provisions of the A.ct can properly be given this
interpretation.
In this case the record shows that the claimant was not merely a
sea faring man without worldly experience and knowledge. At the
time of. the loss of the S. S. "Platuria" (gross tonnage 3,445 tons
and net tonnage 2,205 tons) he was the Chief Engineer, and at that
time had been a licensed engineer for more than twenty-five years.






179


It appears in his sworn statement, attached to his claim, listing the
personal effects which he had on board the Platuria when she
was sunk, that he had equipped himself for this voyage through
the submarine zone in the Autumn of 1917 with a full dress suit. and
"tuxedo suit" with all the appropriate accessories, including silk
socks and white waistcoats, a pair of pumps for full dress use, and
a silver handled cane worth $22, three pairs of solid gold and mother
of pearl cuff links, one diamond ring, and a gold chain, in addition
to a very generous and elaborate supply of other wearing apparel
and paraphernalia for his personal use, all of which is set. out in
great detail, not omitting a. Gillette safety razor and two Sheffield
hand razors and silver mounted toilet articles.
It also appears from this list that he had surrounded himself on
this trip with personal belongings other than clothing, which in-
cluded two oil paintings worth $215, two solid silver candle sticks
worth $35, three water colors worth $78, a collection of Chinese
vases worth upwards of $1,100. and a full collection of Japanese
carved ivory gods worth upwards of $1,000, a solid silver fruit dish,
a Westminster cathedral chime clock worth $185, and numerous
other articles of artistic value, together with a full set of chemical
instruments for making tests of all kinds worth $460, and three
fountain pens, one of which was of a special kind for drawing.
He explains in his statement that he had equipped himself and
furnished his stateroom so lavishly because I like to surround my-
self with things that are harmonious with my trend of thought ".
It is true that the award made to this claimant for loss of personal
property was for considerably less than one-half of the alleged value
of the articles set forth in the above mentioned list because he was
unable to submit any corroborative evidence in support of his claim,
but his attorney states in his affidavit that although at the beginning
the claimant submitted to him a list of personal property lost valued
at less than one-third of the award, he had spent considerable time
with the claimant in refreshing his memory as to each item of per-
sonal effects and furnishings he had on board the vessel when she
was lost, and he states in a letter to the Agency that I have thor-
oughly investigated the list of personal effects alleged to have been
lost by Mr. Taylor and I believe that the sum of $6,923.40, which he
has asked for as reimbursement of his losses, is not unfair nor
excessive*".





180


In view of the claimant's standard of living and cultural interests
thus presented, and of the ability with which he has presented his
own case in this proceeding, the American Commissioner holds that
the claimant was fully capable of protecting his own interests in
making his final fee agreement, above mentioned, with this attorney;
and that the fee fixed by that, agreement was reasonable, not merely
for that reason but also because the payment of any fee in this case
was contingent upon securing and collecting an award, and, finally,
because the amount of the fee thus fixed included all disbursements
and expenses in addition to the $30.00 paid on account of expenses
when the attorney was retained.
It is understood by the American Commissioner in fixing the fee
for this attorney's services that no additional charge is to be made
by him for disbursements or expenses.
Now, therefore, in these circumstances, and in view of the con-
siderations stated in the general Jurisdictional and Administrative
Decision rendered by the American Commissioner under date of Sep-
tember 28, 1928, and after careful examination and full considera-
tion of the information furnished in this proceeding by the attorney
and the claimant, and of the information pertinent to the questions
involved in this case on file in the records of this Commission, and
after due deliberation thereon,
The American Commissioner decides and fixes as the reasonable
fee to be paid by the claimant, John Taylor, to his said attorney,
Peter Baumer, the fee fixed by agreement between them, as set out
in the final power of attorney executed by the claimant on Novem-
ber 28, 1925, namely, fifteen hundred dollars ($1,500), in addition
to the sum of thirty dollars ($30.00) already paid by the claimant
to this attorney, the said fee to be paid by the claimant, when the
award on his behalf is paid to him by the Treasury Department,
and received by the attorney as full compensation for all services
rendered in the prosecution and collection of this claim, as defined
in Section 9 of the Settlement of War Claims Act of 1928 ".
Done at Washington, D. C., this 24th day of January, 1929.
CHANDLER P. ANDERSON,
A merican. Commissioner,
MLxed Claims Commission.
United States and Germany.




































































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