No. 197.
Mr. Dichman to Mr. Evarts.
Bogotá, September 4, 1879. (Received October 20.)
Sir: I have read with much attention your dispatch No. 51 of June 13, 1879, and accompanying inclosure, relating to the protocol on the subject of the custody of registers of United States vessels in the ports of Colombia. As this protocol, with the exception of the fifth article, may be considered as superseded by the law 40, of 1879, a copy and translation of which were forwarded with my No. 104 of July 2, 1879, and which embodies the same principles as the protocol; I beg to refer to the law just quoted in the observations which I shall make in this dispatch in compliance with the instructions contained in your dispatch above mentioned.
In answer to your especial inquiry, whether the law (protocol) is intended to apply to the regular mail (steamers of the United States, and, if so, whether its literal application would or does result in any disadvantage to such steamers as compared with like vessels of other nations entering the free ports of Aspinwall and Panama, I beg to state that, for reasons which I shall set forth hereinafter, the law is intended to be applied generally, at all the Colombian ports, and that its application does not result in any such disadvantage. On the contrary, before the passage of the law above mentioned, and under the provisions of the protocol, the consuls of the United States exercised their lawful jurisdiction over the custody of registers of United States vessels, while the consuls of other nations and the captains of their vessels were obliged to comply with the provisions of the Fiscal Code and those of the law 60, of 1875, by delivering the registers of such vessels to the local authorities, both in the free ports and customs ports of Colombia.
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During my stay at Aspinwall, I made myself familiar with all the facts of the case, and obtained copies of all the correspondence relating to the same on file at the office of the commercial agent of the United States at that port; but upon arriving at this capital I found that the legislation which had led to the difficulty at Aspinwall was a part of an objectionable system extending to all the ports of this republic, and which had given rise to trouble at different times during the course of nearly half a century.
I beg to refer in this connection to the inclosure with my No. 26 of December 14, 1878, and to No. 10 of October 14, 1878, from the Department. The annoyances arising from this legislation were, perhaps, more aggravating at a port like Barranquilla, which is frequented by much American shipping of the smaller class of sailing vessels, than at the free ports of Aspinwall and Panama, where powerful and wealthy corporations have always been able to enlist the support of foreign governments in correcting abuses to which their steamers may have been subjected. At Barranquilla registers were lost or mislaid and vessels were detained on this account, most of which cases were never reported, for it was a rare occurrence that the same vessel with the same commander would return to the port. Upon inquiring for the reason for this legislation, I found that not only in this country, but in some others of Latin origin, a practice had obtained of making use of the municipal laws of foreign nations, in order to facilitate the police supervision of their own ports.
[Page 313]An entirely erroneous idea prevailed here as to the nature of the instrument called a ship’s register. It was thought that the “register” was of international obligation, and that its absence from a ship brought the latter within the definition of a pirate; and this view was entertained by many who ought to have been better informed. It was, therefore, supposed that for the local authorities to have possession of a ship’s register was a more effective pledge to prevent a ship’s leaving a port than if the rudder had been unshipped.
This pledge the Colombian Government was reluctant to surrender. I realized that a change in the Colombian legislation on this matter, in order to be beneficial at all, would have to be thorough and general.
With this view, I brought the discussion of the subject under the stipulations of the treaty between the United States and Colombia, the result of which was the protocol signed by Dr. Arosemena, and myself. This constituted, as before stated, an exceptional position for the consuls and shipping of the United States in Colombian ports, which position was claimed immediately for the consuls of other nations.
As a natural consequence the legislation of Colombia had to be adapted to the principles of the protocol, and the law 40 of 1879, which was reported in my No. 104 of July 2, 1879, now takes the place of all previous legislation on the subject.
In that dispatch I also took occasion to allude briefly to the difficulties which had been met with in Congress, during the passage of the law.
It may also be well to state here, that in the draft of the same, Icon-suited with the attorney of the Panama Railroad Company at this capital, in order to avoid the possibility of any infringement upon the rights of the company.
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I discussed the advisability of inserting an article providing that the regular mail steamers or vessels touching at the free ports of Colombia in connection with the transit of the Isthmus, being represented by agents at either port, should be freed from all local restrictions, but upon a careful canvass of the House, and in view of the temper of that body, we arrived at the conclusion that it would be impossible to pass any measure containing such a provision. The most that could be obtained from Congress without endangering the passage of the bill was article 4 of the law, the effects of which have been explained in my No. 104.
In taking these steps I was solely guided by an anxious desire to carry out fully the instructions contained in your No. 6 of August 23, 1878, in which I am directed “to express the confident hope entertained by the President of the United States, that steps will be taken to complete the diplomatic agreement entered into on the 27th of July, 1876,” &c. By examining this agreement, a translation of which will be found in inclosure No. 4 with my dispatch No. 62 (marked A in the margin), it will be found that the pertinent part thereof reads as follows:
So that there might well he adopted the usual and legal practice in the United States of America, providing that the register be delivered to the consul of the nation to which the vessel belongs, or in his absence to the consul of a friendly nation. This officer shall return the register as soon as he is informed that the vessel is clear of all national dues, has not violated any law or regulation, and that neither the captain nor the crew have any criminal or civil suits pending, being able in consequence to leave the port, &c.
This is exactly what is provided for by the protocol and the subsequent law 40 of 1879, with this difference, that the diplomatic agreement of 1876 was only applicable to the free ports of Aspinwall and Panama, [Page 314] while the protocol and the law apply to all the ports of this republic, and the additional provision entertained in article 4 of the law.
Nor ought it to be forgotten in connection with the diplomatic agreement of 1876 that it was virtually annulled by the Colombian Congress, that body having passed resolutions in two different sessions (see inclosure No. 4 with my No. 62), requiring and insisting upon the enforcement of the law 60 of 1875, and that in the report of the secretary of the interior and foreign relations for 1878, in treating of this matter, he states the following conclusion:
The secretary in charge of this department conceives that this matter is partly one of the maritime police in our ports, and as such is an indisputable duty (right) of the government of the republic, whose jurisdiction cannot be delegated to foreign consuls, and that under this view Congress should legislate when the revision of that law is brought before it.
The department of Hacienda (finance), which has the direct charge of all matters pertaining to customs and the police of the Colombian ports, was also very much opposed to any change in the Colombian legislation, and in view of the difficulties just stated, I respectfully submit it to your considerate judgment if any more satisfactory result could have been accomplished.
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I know it as a fact that the foreign representatives at this capital have expressed their satisfaction at the enactment of the law just mentioned, and one of them read to me a dispatch to the consuls of his nation, enjoining a strict compliance with its provisions.
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The main issue in the matter is a conflict of jurisdiction between the Panama Railroad Company and the Colombian Government at the terminal ports of the railroad, Aspinwall and Panama. In the present instance this question of jurisdiction is raised by the conflicting positions of the harbor-master of the company and the inspector of the port of the Colombian Government at the port of Aspinwall. It is held by the Government of Colombia that the office of inspector of the port of Aspinwall is a necessity in order to pre vent smuggling with the customs ports of the country. On the other hand I take the position of the Panama Railroad Company to be, that the exercise of the office of inspector of the port at the free ports of Aspinwall and Panama is a hinderance to its business and an encroachment upon its chartered rights. The former is perhaps founded in reason; in regard to the latter I am not so certain. It appears to me that the readiest solution of the difficulty would be an understanding with the Colombian Government whereby no clearance should be required from vessels arriving at the free ports in connection with the transit of the Isthmus.
Such an understanding I shall endeavor to effect, but the reasons for the same must be sought for under a liberal construction of the guaranteed free transit in the treaty between the United States and Colombia.
It may be held with much reason that the words “shall be open and free” imply transit from ship to ship and freedom from all local restrictions. In my discussions on this subject the following query was also submitted by the Colombian Government: How are we to maintain the neutrality of the Isthmus, which is guaranteed by the United States, if we cannot exercise any police supervision over the vessels arriving at the free ports of Aspinwall and Panama? While I am free to admit that this view is entitled to some consideration, I am also of the opinion that its importance is more theoretical than practical.
[Page 315]If a case should arise when the neutrality of the Isthmus would be called into question, it would undoubtedly be the duty of the Colombian Government to come to an understanding with the Government of the United States, providing for a definition of the word “neutrality” and the manner in which the same shall be enforced. On this subject I shall express my views in a separate dispatch.
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Permit me to state in conclusion that the protocol (law 40 of 1879) applies to all the ports of this country and to the vessels of all nations alike; that in executing the protocol and procuring the passage of the law, I have endeavored to comply strictly and fully with the instructions contained in your No. 6, of August 23, 1878, and your No. 10, of October 14, 1878, acting under the conviction that the protocol and subsequent law would be a completion of the diplomatic agreement entered into on the 27th of July, 1876, which I was directed to accomplish; that in regard to the customs ports of this country I believe the law to be satisfactory, and in regard to the free ports I believe it to be a great improvement upon the previous legislation known as the law 60 of 1875; and that I shall endeavor to arrive at an understanding with this government providing for such modification of the port regulations at the free ports of Aspinwall and Panama as may be required by the exceptional position of their ports and the interests of the Panama Railroad Company.
I am, &c.,