Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 1, 1879

No. 131.
Mr. Dichman to Mr. Evarts.

Legation of the United States,
Bogota, March 31, 1879. (Received June 2.)

No. 62.]

Sir: In answer to your No. 26, of the 4th of February, 1879, I have to inclose copies of notes exchanged between the minister resident of Her Britannic Majesty at this capital and myself, and also a copy and translation of that part of the report of the Colombian secretary of foreign relations which treats of the question of the custody of the registers “of foreign vessels in the ports of Colombia.” The honorable secretary * * * fully justifies his action in concluding the convention, a duplicate of which was forwarded in my No. 34, but he omitted to introduce a view of the subject which was distinctly presented to him for his consideration, and which, in my opinion, is a matter of importance.

The particular point to which I have reference may be stated as follows:

The exercise of the powers of consuls of the United States concerning the custody of the registers of United States vessels should not only be permissive, but the legislation of Colombia should also be modified in such a way as would enable consuls to avail themselves of the same or similar compulsory process to enforce the delivery to them of the registers and other official papers of vessels of the United States as is provided by section 4209, Revised Statutes of the United States, in the case of foreign vessels entering their ports.

In order to enable you to judge of the arguments in support of this position, which I presented to the honorable secretary on different occasions, I beg to submit a brief statement thereof.

The enrollment or registration of ships, in evidence of which a “register” is issued, appears to have originated in the navigation act of Charles II of England, and the great and perhaps the only object thereof was to facilitate the exclusion of foreign ships from those departments of trade in which they were prohibited from engaging by the navigation laws of Great Britain. As is the case with many other legal practices and instruments, the convenience afforded by the registration laws, and the “register,” made them applicable to other purposes when the original object no longer existed, and these present purposes constitute now the reason for such laws.

Aside from determining the national character of the vessel, the register is an instrument by means of which the Government of the United States is enabled to enforce its police and revenue laws over the vessels of the nation in foreign ports, and whereby frauds against the revenue of the United States or against individuals are prevented.

As to how frauds against the revenue of the United States may happen for the want of compulsory legislation such as in force in the United States, a very clear case is presented on pages 606, &c., Part I, Foreign Relations of the United States for 1875.

The object of this correspondence was fully explained to the Colombian secretary, and he agreed that, upon principles of comity and national self-interest, the Colombian executive should urge the passage of such laws upon Congress, under the conditions of reciprocity set forth in section 4210, Revised Statutes of the United States, as would enable his government to act in accordance with the same liberal spirit on this subject as has been the practice in the United States for nearly a century.

In further illustration of the necessity of making the delivery of the “registers” of the vessels of the United States to their consuls obligatory, in order to prevent frauds against individuals, the different subjects of marine survey, repairs, protest, bottomry bond, and others relating to the rights of absent owners of vessels, and the care with which such rights are protected by the laws of the United States, and the minute and careful provisions of the United States Consular Regulations, were presented to the Colombian secretary, with suitable illustrations concerning the provisions made for American seamen. The laws and consular regulations on this subject were also brought to the notice of the honorable secretary, the wisdom and beneficent effect of which laws he readily admitted, as well as the advantages which accrue to the seaports of his country if the consuls of the United States should be placed in such a legal position that, by compelling a delivery of the “register,” they could, by withholding the same, enforce a compliance with the laws of the United States on this subject.

In the course of my conferences with the honorable secretary, the views, of which the aforegoing is a brief outline, were fully brought to his notice, and several private memorandums embracing the same were left with him at his request, in order that he might embody them in his report. The reason for the omission thereof may be accounted for by the political excitement in which he was involved, and which had the result of suddenly terminating his official position, as reported in my No. 54.

My investigations on the subject of the consular power being entitled to the custody of the registers of vessels of the United States in foreign ports, have led me to the conclusion that its exercise is necessary for the purpose of promoting justice, enforcing a compliance with law, and preventing the possibility of frauds as herein indicated, and I am of the opinion that the efficacy of any measure for the exercise of this power is not complete without such legislation as will provide also for compulsory powers by which the demands of the consuls for the official papers of the vessels of their nation may be enforced.

Both the nation to which a vessel may belong and the one in the port of which such vessel may be, have a common interest in the maintenance of order and in providing for a compliance with the laws. An American vessel in the ports of this republic is subject to the municipal laws of Colombia, not in conflict with the treaties, while at the same time there is a concurrent obligation to the laws of the United States. In no way can these obligations be enforced better than by lodging the register with the consul of the United States; for the clearance issued by the Colombian authorities, which enables the consul to return the register, shows that the Colombian laws have been complied with, and by withholding the same the consul has it in his power to enforce a compliance with the laws of the United States.

In view of the correspondence had with Her Britannic Majesty’s representative at Washington, inclosed in your No. 26, and the correspondence between this and the British legation at this capital, I would respectfully suggest, if in your opinion a fitting opportunity has not arrived, for the maritime powers to establish, by treaties or otherwise, the following or similar provisions of international law, to which the consent of this government can be obtained, and which would make the principles of the legislation of the United States of general application:

1st. Every merchant-vessel shall be provided with a register or other document, issued according to the laws of the nation to which such vessel belongs.

The additional article to the treaty of 1846 appears to embody this principle, as applied to United States and New Granadian (Colombian) vessels, while nearly all the other treaties of the United States referring to registers of vessels make provision only for a time of war, and regulate the exercise of the right of search in this connection; the statements on page 279 of the case of Great Britain, Volume I, Geneva Arbitration, are not without interest.

2d. Upon the arrival of a foreign merchant-vessel, the register and other official documents of the same shall be produced to the local authorities, and shall be delivered within——hours after the arrival in port to the consul of the nation to which such vessel belongs.

3d. Penalties for enforcing the above.

* * * * * * * *

ERNEST DICHMAN.

[Inclosure 1 in No. 62.]

Mr. Mansfield to Mr. Dichman.

Her Britannic Majesty’s Legation,
United States of Colombia,
Bogota, March 20, 1879.

Sir and Dear Colleague: I have the honor to inform you that I have been instructed by Her Majesty’s Government to obtain, if possible, the co-operation of my United States, French, and German colleagues in pressing upon the Colombian Government the revision of the law of 1875 respecting the depositing of ships’ registers with the local authorities instead of in the hands of the consular agents in Colombian ports. I have perused with much interest the convention signed between yourself and M. Arosemena upon this subject, which indeed takes about the same ground as a somewhat similar arrangement entered into with the Colombian Government in 1876, when Mr. Ancizar was secretary of foreign affairs.

The arrangement of 1876, as indeed your recent convention with Mr. Arosemena, does not entirely meet the case. As long as the Jaw of 1875 remains upon the Colombian statute-book, grave inconvenience might arise at any moment, as a law ratified by Congress might be assumed and with justice to override any arrangement or convention entered into between the secretary of state and foreign diplomatic agents. I should therefore feel extremely obliged if you would inform me whether Mr. Arosemena has, in addition, given you any definite promise that the government will promote legislation in Congress with a view to the abrogation of the obnoxious law.

I beg to inclose a copy of a dispatch from Sir Edward Thornton, containing the views of the Cabinet of Washington upon this subject.

I have the honor to be, sir and dear colleague, your most obedient servant,

C. E. MANSFIELD.

The Hon. E. Dichman, United States Minister.

[Inclosure 2 in No. 62.]

Mr. Dichman to Mr. Mansfield.

Legation of the United States,
Bogota, March 21, 1879.

Sir and Dear Colleague: I hasten to inform you of the receipt of your note of yesterday, and to state in reply that under date of February 4, 1879, the Government of the United States forwarded the correspondence which took place between it and the minister of Her Britannic Majesty at Washington on the subject mentioned in your note.

According to instructions, I shall take pleasure in co-operating with you in effecting an adjustment of the question relating to the custody of registers of foreign vessels in the ports of Colombia which will be satisfactory to the maritime powers.

Referring to the convention executed by Mr. Arosemena and myself, I desire to state that it differs from the arrangement of 1876, in so far that while the latter was merely a diplomatic understanding, to the validity of which your observation is quite relevant (a position which I was anxious to avoid), the former is a plain recognition of the rights of the United States and their consuls under the provision of the 33d article of the treaty of 1846, and section 11 of article 3 of the consular convention between the United States and New Granada.

This makes the convention a recognition and explanation by the political power of the United States of Colombia of rights acquired by the United States of America under the treaties in force between the two countries, which makes the convention, in my opinion, paramount as a national obligation to any local law in conflict with the same.

I fully agree with you that the Colombian law of 1875 ought to be repealed, and, in answer to your inquiry on this point, I desire to state that there was a distinct understanding between Mr. Arosemena and myself to the effect that the Colombian executive should urge the repeal of the law upon Congress.

With this understanding Mr. Arosemena has fully complied, as you will see on pages 72–79 of his report, which has only just now been published in book form.

Reference was also had to the repeal of the law in executing the convention, the first four articles of which are substantially a translation, with a few modifications, of the law of the United States on the same subject. The object of this was that the first four articles might be used as a basis or draft for a law to be enacted by the Colombian Congress. I am also informed that the present secretary of foreign relations is preparing a note on this subject to be transmitted to Congress next week.

There is quite an extensive correspondence on file at this legation which has taken place on this subject, which I shall take pleasure in submitting for your perusal at any time you may be pleased to indicate.

It is, perhaps, needless for me to remark that any suggestion in relation to this matter which you may be pleased to make shall receive my immediate and careful consideration.

I have the honor to be, sir and dear colleague, your most obedient servant,

ERNEST DICHMAN.

The Hon. C. E. Mansfield,
Her Britannic Majesty’sMinister Resident,