No. 481.
Mr. Mantilla to Mr. Evarts.
New York, June 14, 1878. (Received, June 15.)
The undersigned, envoy extraordinary and minister plenipotentiary of His Catholic Majesty, has the honor to address the honorable Secretary of State, with a view to obtaining from the Federal Government reparation for some of the consequences arising to several Spanish vessels from the strict enforcement of the provisions of the circular of September 7,1877, concerning the exaction of tonnage-dues from vessels which have entered the ports of the United States, and which do not belong to the nations expressly excepted in said circular.
The Spanish bark Los Amigos, Captain Echevarria, from Havana, entered the port of Pascagoula on the 19th of October, 1877, where, on the same day, the captain was required to pay the ordinary duty of 30 cents per ton, and also the extra duty of 50 cents, in pursuance of the [Page 816] provisions contained in the aforesaid circular of the Treasury Department. Notwithstanding the concluding period of the last paragraph of the circular in question, either Captain Echevarria was not specially notified of his right to protest and appeal, or, if he was, this was done in general terms, not within the scope of Captain Echevarria’s intelligence, he being unfamiliar with the laws of the country, and not even understanding the English language. At all events the vessel in question sailed for Bordeaux on the 20th of September, 1877, her captain not being aware of the right which he had to protest and appeal against the extra charge of 50 cents per ton which was exacted of him by the collector of customs of Pascagoula.
Meanwhile the note of this legation to the Department of State bearing date October 19, the telegram from the minister of the United States at Madrid of the 27th of the same month, and the other data collected by the Department of State and the Treasury Department, convinced the latter of the error which had been committed in excluding Spain from the list of nations exempted from the extra tonnage-duty, and by a circular to the collectors’ of customs and others, dated October 29, it was not only ordered that Spanish vessels entering American ports should thereafter be required to pay a duty of only 30 cents per ton, but the said collectors were instructed to forward to the Treasury Department certified lists of all exactions made in their ports of Spanish vessels at the rate of 80 cents per ton in order that the excess of 50 cents might be refunded.
Captain Echevarria, on his arrival at Bordeaux, was appraised of this, and on the 15th of January, 1878, he addressed a letter to the vice-consul of Spain at Pascagoula, requesting him to endeavor to obtain from the collector of said port the return of the $202.50 which was the amount of the charge of 50 cents per ton which had been unduly exacted of him. The aforesaid collector informed the vice consul in reply that he could not return the amount in question, inasmuch as the payment had not been made under protest, but that if the captain furnished evidence that he had been unable to protest, he would undoubtedly be entitled to the return.
As the honorable Secretary of State will see at once, the evidence required by the collector of customs at Pascagoula cannot be easily furnished, both because of the absence of the captain of the bark Los Amigos and because his failure to protest was due solely to his ignorance of the regulations then in force in this country, and of the English language; however, fortunately, no proof is necessary in this case, because the appeal which the undersigned has been instructed by his government to make to the sense of justice and equity of that of the United States is founded upon high principles of public law, and upon generally received international usage.
There existed between the government of the United States and that of Spain, if not a formal treaty, at least an express agreement, based upon diplomatic correspondence between Mr. Goñi, one of my predecessors, and the Department of State, which began in 1868 and resulted in the passage of a law in 1869, and the making of a declaration, which is contained in section 4231 of the Revised Statutes, and which provides that “in the ports of the United States no other nor any heavier tonnage-duty shall be imposed upon Spanish vessels than is imposed upon United States vessels in the ports of Spain.” That section, 4231, was left unchanged by the law of February 27, 1877, which, as is therein declared, was only intended to amend section 4219 of the aforesaid statutes.
Consequently, in the exclusion of Spain, in the circular of September 7, 1877 (which was issued to regulate the execution of the law of February [Page 817] 27), from the list of nations exempted from the discriminating duty of 50 cents per ton imposed by said law, a clerical error, but a serious one, was committed, the consequences of which the Treasury Department has hastened to repair by its circular of October 29, of the same year, and they should in no wise affect Spanish vessels whose captains, through absolute ignorance or an excusable error, neglected to protest or appeal, as they had a right to do, within the period established by law for ordinary cases. When governmental departments, as wary as that of the Treasury of the United States, permit grave oversights to occur—as when that department failed to include Spain among the nations enumerated in the circular of September 7, notwithstanding the express stipulation with the Government of Spain and of the express provisions of section 4231 of the Revised Statutes, it is natural and excusable for mere captains of vessels, ignorant of the laws and of the language of the country, to commit acts of negligence or errors like that committed by the captain of the Los Amigos and others of the same character which perhaps might be cited.
Basing his action upon these and other considerations of international justice, the undersigned, in obedience to instructions received, has the honor to request the Government of the United States to be pleased to adopt some regulation of a general character, in virtue of which the amount of the extra duty of 50 cents per ton which they were compelled to pay while the circular of September 7, 1877, was in force, may be refunded to the captain of the bark Los Amigos and to all other captains of Spanish vessels who may have been subjected to like payments under the same or similar circumstances, even though they may have failed, through ignorance, neglect, or for any other reason, to protest, as they are permitted to do by said circular.
This protest is a secondary requisite, the lack of which in inter-national matters cannot affect the essential fact that an undue exaction was made, contrary to the stipulations with Spain, by virtue of a measure whose inadmissibility with respect to Spain has been recognized by the Treasury Department itself, which adopted it. This renders it the duty of the Government of the United States to repair the error committed in all its consequences, without limitations of an internal character which are in strictness applicable to ordinary cases, but not to one so extraordinary and special as the one in question.
The undersigned avails himself, &c.,