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Full Case Details
This Tribunal is constituted under, and its powers are derived from and limited by, the
Convention between the United States of America and the Dominion of Canada
signed at Ottawa, April 15, 1935, duly ratified by the two parties, and ratifications
exchanged at Ottawa, August 3, 1935 (hereinafter termed “the Convention”).
The duty imposed upon the Tribunal by the Convention was to “finally decide” the
following questions:
1) Whether damage caused by the Trail Smelter in the State of Washington has
occurred since the fiist day of January, 1932, and, if so, what indemnity should
be paid therefor?
2) In the event of the answer to the first part of the preceding question being in
the affirmative, whether the Trail Smelter should be required to refrain from
causing damage in the State of Washington in the future and, if so, to what
extent?
3) In the light of the answer to the preceding question, what measures or régime,
if any, should be adopted or maintained by the Trail Smelter?
4) What indemnity or compensation, if any, should be paid on account of any
decision or decisions rendered by the Tribunal pursuant to the next two
preceding questions?
In 1896 a smelter was started under American auspices near the locality known as
Trail. In 1906, the Consolidated Mining and Smelting Company of Canada, Limited,
obtained a charter of incorporation from the Canadian authorities, and that company
acquired the smelter plant at Trail as it then existed. Since that time, the Canadian
Company, without interruption, has operated the Smelter, and from time to time has
greatly added to the plant until it has become one of the best and largest equipped
smelting plants on this continent. In 1925 and 1927, two stacks of the plant were
erected to 409 feet in height and the Smelter greatly increased its daily smelting of
zinc and lead ores. This increased product resulted in more Sulphur dioxide fumes and
higher concentrations being emitted into the air; and it is claimed by one Government
(though denied by the other) that the added height of the stacks increased the area of
damage in the United States. In 1916, about 5,000 tons of sulphur per month were
emitted; in 1924, about 4,700 tons; in 1926, about 9,000 tons—an amount which rose
near to 10,000 tons per month in 1903. In other words, about 300-350 tons of Sulphur
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were being emitted daily in 1930. (It is to be noted that one ton of Sulphur is
substantially the equivalent of two tons of sulphur dioxide or SOZ.)
From 1925, at least, to the end of 1931, damage occurred in the State of Washington,
resulting from the sulphur dioxide emitted from the Trail Smelter.
Part II
The first question under Article III of the Convention which the Tribunal is required
to decide is as follows: (1) Whether damage caused by the Trail Smelter in the State
of Washington has occurred since the first day of January, 1932, and, if so, what
indemnity should be paid therefor.
The Tribunal has first considered the items of indemnity claimed by the United States
in its Statement (p. 52) “on account of damage occurring sincejanuary 1, 1932,
covering: (a) Damages in respect of cleared land and improvements thereon; (b)
Damages in respect of uncleared land and improvements thereon; (c) Damages in
respect of livestock; (d) Damages in respect of property in the town of Northport; (g)
Damages in respect of business enterprises”.
On the basis of the evidence, the United States contended that damage had been
caused by the emission of sulphur dioxide fumes at the Trail Smelter in British
Columbia, which fumes, proceeding down the valley of the Columbia River and
otherwise, entered the United States. The Dominion of Canada contended that even if
such fumes had entered the United States, they had caused no damage after January 1,
- The witnesses for both Governments appeared to be definitely of the opinion
that the gas was carried from the Smelter by means of surface winds, and they based
their views on this theory of the mechanism of gas distribution. The Tribunal finds
itself unable to accept this theory. It has, therefore, looked for a more probable theory,
and has adopted the following as permitting a more adequate correlation and
interpretation of the facts which have been placed before it.
A careful study of the time, duration, and intensity of the fumigations recorded at the
various stations down the valley reveals a number of striking and significant facts.
The first of these is the coincidence in point of time of the fumigations. The most
frequent fumigations in the late spring, summer, and early autumn are diurnal, and
occur during the early morning hours. These usually are of short duration. A
characteristic curve expressing graphically this type of fumigation, rises rapidly to a
maximum and then falls less rapidly but fairly sharply to a concentration below the
sensitivity of the recorder. The dominant influence here is evidently the heating action
of the rising sun on the atmosphere at the surface of the earth. This gives rise to
temperature differences which may and often do lead to a mixing of the gas-carrying
atmosphere with that near the surface. When this occurs with sufficient intensity, a
fumigation is recorded at all stations at which the sulphur dioxide reaches, a
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concentration that is not too low to be determined by the recorder. Obviously this
effect of the rising sun may be different on the east and the west side of the valley, but
the possible bearing of this upon fumigations in the valley must await further study.
Another type of fumigation occurs with especial frequency during the winter months.
These fumigations are not so definitely diurnal in character and are usually of longer
duration. The Tribunal is of the opinion that these are due to the existence for a
considerable period of a sufficient velocity of the gas-carrying air current to cause a
mixing of this with the surface atmosphere. Whether or not this mixing is of sufficient
extent to produce a fumigation will depend upon the rate at which the surface air is
diluted by surface winds which serve to bring in air from outside the contaminated
area. The fact that fumigations of this type are more common during the night, when
the surface winds often subside completely, bears out this opinion. A fumigation with
a lower velocity of the gas-carrying air current would then be possible.
The conclusions above together with a detailed study of the intensity of the
fumigations at the various stations from Columbia Gardens down the valley, have led
to deductions in regard to the rate of attenuation of concentration of sulphur dioxide
with increasing distance from the Smelter which seem to be in accord both with the
known facts and the present theory. The conclusion of the Tribunal on this phase of
the question is that the concentration of sulphur dioxide falls off very rapidly from
Trail to a point about 16 miles downstream from the Smelter, or 6 miles from the
boundary line, measured by the general course of the river; and that at distances
beyond this point, the concentration of sulphur dioxide is lower and falls off more
gradually and less rapidly.
The Tribunal will now proceed to consider the different classes of damagecleared and
to uncleared land.
(1) With regard to cleared land used for crops, the Tribunal has found that damage
through reduction in crop yield due to fumigation has occurred in varying degrees
during each of the years, 1932 to 1936; and it has found no proof of damage in the
year 1937.
(2) With respect to damage to cleared land not used for crops and to all uncleared
(other than uncleared land used for timber), the Tribunal has adopted as the measure
of indemnity, the measure of damages applied by American courts, viz-, the amount
of reduction in the value of the use or rental value of the land. The Tribunal is of
opinion that the basis of estimate of damages contended for by the United States, viz-,
applying to the value of uncleared land a ratio of loss measured by the reduced crop
yield on cleared land, has no sanction in any decisions of American courts.
(3) With regard to “damages in respect of livestock”, claimed by the United States, the
Tribunal is of opinion that the United States has failed to prove that the presence of
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fumes from the Trail Smelter has injured either the livestock or the milk or wool
productivity of livestock since January 1, 1932, through impaired quality of crop or
grazing. So far as the injury to livestock is due to reduced yield of crop or grazing, the
injury to livestock is due to reduced yield of crop or grazing, the injury is
compensated for in the indemnity which is awarded herein for such reduction of yield.
(4) With regard to “damages in respect of property in the town of Northport”, the
same principles of law apply to assessment of indemnity to owners of urban land as
apply to owners of farm and other cleared land, namely, that the measure of damage is
the reduction in the value of the use or rental value of the property, due to
fumigations. The Tribunal is of opinion that there is no proof of damage to such urban
property; that even if there were such damage, there is no proof of facts sufficient to
enable the Tribunal to estimate the reduction in the value of the use or rental value of
such property; and that it cannot adopt the method contended for by the United States
of calculating damages to urban property.
(5) With regard to “damages in respect of business enterprises”, the counsel for the
United States in his Answer and Argument (p. 412) stated: “The business men
unquestionably have suffered loss of business and impairment of the value of good
will because of the reduced economic status of the residents of the damaged area.”
The Tribunal is of opinion that damage of this nature “due to reduced economic
status” of residents in the area is too indirect, remote, and uncertain to be appraised
and not such for which an indemnity can be awarded…
(6) The United States in its Statement (pp. 49-50) alleges the discharge by the Trail
Smelter, not only of “smoke, sulphurous fumes, gases”, but also of “waste materials”,
and says that “the Trail Smelter disposes of slag in such a manner that it reaches the
Columbia River and enters the United States in that stream”, with the result that the
“waters of the Columbia River in Stevens County are injuriously affected”, thereby.
No evidence was produced on which the Tribunal could base any findings as regards
damage, if any, of this nature…
In conclusion, the Tribunal answers Question 1 in Article III, as follows: Damage
caused by the Trail Smelter in the State of Washington has occurred since the first day
of January, 1932, and up to October 1, 1937, and the indemnity to be paid therefor is
seventy-eight thousand dollars ($78,000), and is to be complete and final indemnity
and compensation for all damage which occurred between such dates. Interest at the
rate of six per centum per year will be allowed on the above sum of seventy-eight
thousand dollars ($78,000) from the date of the filirg of this report and decision until
date of payment. This decision is not subject to alteration or modification by the
Tribunal hereafter.
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As Professor Eagleton puts in (Responsibility of States in International Law, 1928, p.
80) : “A State owes at all times a duty to protect other States against injurious acts by
individuals from within its jurisdiction.” A great number of such general
pronouncements by leading authorities concerning the duty of a State to respect other
States and their territory have been presented to the Tribunal. These and many others
have been carefully examined. International decisions, in various matters, from the
Alabama case onward, and also earlier ones, are based on the same general principle,
and, indeed, this principle, as such, has not been questioned by Canada. But the real
difficulty often arises rather when it comes to determine what, pro subjecta materie, is
deemed to constitute an injurious act.
No case of air pollution dealt with by an international tribunal has been brought to the
attention of the Tribunal nor does the Tribunal know of any such case. The nearest
analogy is that of water pollution. But, here also, no decision of an international
tribunal has been cited or has been found.
There are, however, as regards both air pollution and water pollution, certain
decisions of the Supreme Court of the United States which may legitimately be taken
as a guide in this field of international law. for it is reasonable to follow by analogy,
in international cases, precedents established by that court in dealing with
controversies between States of the Union or with other controversies concerning the
quasi-sovereign rights of such States, where no contrary rule prevails in international
law and no reason for rejecting such precedents can be adduced from the limitations
of sovereignty inherent in the Constitution of the United States.
In the suit of the State of Missouri v. the State of Illinois (200 U.S. 496, 521)
concerning the pollution, within the boundaries of Illinois, of the Illinois River, an
affluent of the Mississippi flowing into the latter where it forms the boundary between
that State and Missouri, an injunction was refused. “Before this court ought to
intervene”, said the court, “the case should be of serious magnitude, clearly and fully
proved, and the principle to be applied should be one which the court is prepared
deliberately to maintain against all considerations on the other side. (See Kansas v.
Colorado, 185 U.S. 125.)” The court found that the practice complained of was
general along the shores of the Mississippi River at that time, that it was followed by
Missouri itself and that thus a standard was set up by the defendant which the
claimant was entitled to invoke.
In the more recent suit of the State of New York against the State of New Jersey (256
U.S. 296, 309), concerning the pollution of New York Bay, the injunction was also
refused for lack of proof, some experts believing that the plans which were in dispute
would result in the presence of “offensive odors and unsightly deposits”, other equally
reliable experts testifying that they were confidently of the opinion that the waters
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would be sufficiently purified. The court, referring to Missouri v. Illinois, said: “… .
the burden upon the State of New York of sustaining the allegations of its bill is much
greater than that imposed upon a complainant in an ordinary suit between private
parties. Before this court can be moved to exercise its extraordinary power under the
Constitution to control the conduct of one State at the suit of another, the threatened
invasion of rights must be of serious magnitude and it must be established by clear
and convincing evidence.”
What the Supreme Court says there of its power under the Constitution equally
applies to the extraordinary power granted this Tribunal under the Convention. What
is true between States of the Union is, at least, equally true concerning the relations
between the United States and the Dominion of Canada.
The Tribunal, therefore, finds that the above decisions, taken as a whole, constitute an
adequate basis for its conclusions, namely, that, under the principles of international
law, as well as of the law of the United States, no State has the right to use or permit
the use of its territory in such a manner as to cause injury by fumes in or to the
territory of another or the properties or persons therein, when the case is of serious
consequence and the injury is established by clear and convincing evidence.
Considering the circumstances of the case, the Tribunal holds that the Dominion of
Canada is responsible in international law for the conduct of the Trail Smelter. Apart
from the undertakings in the Convention, it is, therefore, the duty of the Government
of the Dominion of Canada to see to it that this conduct should be in conformity with
the obligation of the Dominion under international law as herein determined.
