Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 6, 1880
No. 573.
Mr. Lowell
to Mr. Evarts.
Madrid, November 8, 1879. (Received December 1.)
Sir: Referring to your No. 168, I have the honor to report that on the 18th of December, 1878, and again, on the 5th of August last, I addressed the minister of state on the subject of the whaling schooner Edward Lee. From time to time, as occasion offered, I called his attention to the matter, but received no official reply till the 20th ultimo. I inclose a copy of my notes, and a copy with translation of the Duke of Tetuan’s reply.
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It is but justice to say that I have hitherto found the Spanish Government ready to take a just and even liberal view of such cases as I have had occasion to present, and I feel quite sure that no minister of state will recede from the position affirmed and reaffirmed by two of his predecessors.
I have, &c.,
Mr. Lowell to Mr. Silvela.
Madrid, December 18, 1878.
Excellency: I am instructed to call the attention of your excellency once more to the case of the American whaling schooner Edward Lee, which formed a part of the subject of my note to you of the 7th of December, 1877.
[Page 888]The owners of the vessel insist on their view of the case, which they have again laid before the President, strengthened by evidence of all the officers and crew, and from which it would appear that they suffered great and substantial loss by the violent proceedings of the Spanish gunboat. This loss they estimate at $10,000.
From the facts submitted to my government, it appears that the schooner was driven from her lawful fishing ground at a time when whales were abundant; that she was obliged indefinitely to prolong her voyage, and that in consequence she was exposed to dangers of the sea which she would otherwise have escaped, resulting in the loss of a suit of sails, and in great suffering on the part of the crew.
At the time when your excellency so readily made reparation for the wrongs of two other American whalers which had been the victims of a similar mistaken view of their rights and duties on the part of Spanish officers, you expressed a wish (while refusing to admit the justice of the claim of the owners of the vessel now again in question) to inform yourself more fully on the subject by the statements of the Spanish officers concerned. May I ask if your excellency is already possessed of that evidence; and, if not, that you will take the necessary measures to procure it?
Whatever new light may be thrown upon the affair by the statements of the officers of the gunboat, it will surely not avail to show that their action was not in direct contravention of the eighteenth article of the treaty of 1795 between the United States and Spain, and the question will remain substantially as now, not whether there be ground for any claim at all, but simply as to the amount of injury suffered and of reparation to be made for it.
I cannot admit your excellency’s suggestion that the date on which the owners of the schooner made their complaint should in any way affect the good faith or validity of their claim. The captain and crew were men ignorant of the law, and naturally desirous of reaching as soon as possible the more distant fishing grounds, to seek which they were driven by the hostile attitude of the gunboat. The question at issue, as it appears to me, is what the Spanish cruiser did, and not what the crew of the schooner did or left undone after the attack upon them.
Relying confidently on that sense of justice which your excellency showed in the two other similar cases I had the honor to lay before you, and on the good faith which the government of His Catholic Majesty has always shown in the performance of its treaties, I hope that the owners of the Edward Lee may receive an equal measure of justice, the more so that an act of the kind committed by the gunboat of His Catholic Majesty, if unredressed, is liable to irritate susceptibilities which it is the common desire of both nations to appease.
I gladly avail, &c.,
Mr. Lowell to the Duke of Tetuan.
Madrid, August 5, 1879.
Excellency: On the 18th of December last I had the honor to address a note to your predecessor in the office which your excellency so worthily fills, recalling his attention to the claim for damages of the owners of the American whaling schooner Edward Lee, on account of certain hostile and altogether unwarrantable proceedings against her on the part of a Spanish gunboat off the coast of the island of Cuba.
As the facts of the case are clearly set forth in my note above referred to (December 18), and in that of the 7th of December, 1877, I do not deem it necessary at this time to again enter into a further discussion of it, further than to repeat that when your excellency’s predecessor, Mr. Silvela, made reparation in the two similar cases (the Ellen Rizpah and Rising Sun), he expressed a wish to further inform himself in regard to the claim of the schooner now in question. I do not doubt that the necessary steps to this end have been taken, and that your excellency is now in possession of sufficient information on the subject to arrive at a conclusion in this case as satisfactory to the President as that of the two others.
I beg to add that I have been informed by my government that the owners of the Edward Lee are naturally anxious to know the decision of His Catholic Majesty’s government in regard to their claim. I therefore simply call your excellency’s attention to the subject, in the full assurance that nothing more is needful to secure a prompt answer to my note of the 18th of December last, thus enabling me to communicate to my government the information desired by the owners of the vessel in question.
I avail myself, &c.,
The Duke of Tetuan to Mr. Lowell.
Palace, October 17, 1879.
Excellency:
My Dear Sir: I have received the note of your excellency under date of the 5th of August last, in which you were pleased to request definitive action in the case of the whaling ship Edward Lee, which had already been treated of in the note of your excellency of the 18th of December of last year.
In reply I feel it my duty to inform your excellency that there being no later grounds or evidence which could lead to a modification of the opinion formed by the government of His Majesty, communicated to you by my worthy predecessor in the last part of the note directed to your excellency on the 16th of January, 1878, treating the case of the Edward Lee as coming under conditions essentially distinct from those which led to the reclamations of the two other vessels, Ellen Kizpah and Rising Sun, to whose owners was conceded, and at the proper time paid, a pecuniary indemnification, the government of His Majesty does not consider that the claim of the owners of the Edward Lee is well founded, but still insists on the arguments contained in the above-mentioned note of the 16th of January, which I shall not reproduce here, in order not to weary the attention of your excellency.
You will permit me, however, to insist anew that the alleged infraction of the treaty of 1795 could not have taken place, as the Spanish gunboat was ignorant of the nationality of the Edward Lee, and being authorized by Article XVIII of the treaty above referred to, to inquire into it, used, preventively, the only measure admitted by maritime customs of firing a blank cartridge, to which signal the fishing vessel paid no heed, but precipitately abandoned those waters without hoisting her flag, the gunboat not being able, therefore, to ascertain the nation to which she belonged.
This fact, acknowleged by the owners, destroys the base on which the claim is founded, since it was not possible to inflict wrong on a flag not carried or made known, nor was excess on the part of the Spanish gunboat possible in having employed a measure admitted in all the navies of the world to ascertain the nationality of merchant vessels who do not fly their flag or have some interest in concealing it. As to the damages alleged to have been suffered by its precipitate flight from the waters in which she was fishing, and her removal to others less favorable for her industry, the captain of the whaling vessel is himself to blame if he preferred to encounter such consequences rather than to comply with his duty in obeying the signal legally made by a vessel of the State in whose jurisdictional waters he was found, by hoisting the flag of his nation.
The example lately given by the government of His Majesty of the friendly sentiments which animate it in its dealings with that of the United States, in an affair closely connected with that of the Edward Lee, proves sufficiently the spirit of equity in which the Spanish Government always treats the claims of American citizens when founded on facts and rights duly justified, and that nothing is omitted, on its part, to contribute to the maintenance of the cordial relations which exist between Spain and the United States.
The undersigned believes, therefore, that the government at Washington, inspired by similar sentiments, will recognize that the government of His Majesty has only complied with its unavoidable duty in not deeming admissible the claim of the owners of the fishing vessel Edward Lee.
I avail myself, &c.,