No. 644.
Mr. Fairchild to Mr. Evarts.

No. 108.]

Sir: I have the honor to transmit herewith a copy, with translation, of a note from his excellency the minister of state to me, giving the results of the investigation ordered by the government of His Catholic Majesty of the circumstances under which the American vessels Ethel A. Merritt, Eunice P. Newcomb, George Washington, and Hattie Haskell were fired upon and visited by Spanish gunboats near the Island of Cuba in May, June, and July of last year.

That note is in answer to your instruction No. 52, of August 11, 1880, a copy of which I handed in person to Señor Elduayen September 11, 1880, as reported by my No. 74. I observe that all of the material statements made by those who were on board the American vessels are flatly contradicted.

I have, &c.,

[Inclosure in No. 108.]

Señor Elduayen to Mr. Fairchild.

Excellency: As I had the honor of stating in my note of 17th September of last year, in answer to that addressed to me by your legation, inclosing copy of the dispatch received by your excellency from the United States Secretary of State, dated 11th August last, relating to the detention and visit of four American merchant ships by Spanish gunboats, near the Island of Cuba, His Majesty’s Government hastened to send the proper orders, so that the superior authority of that island might, without any delay, make the fullest official investigation of the facts in the case, and in view of them do justice to the claims of the government so worthily represented by you in this court.

His Majesty’s Government’s orders having been carried out by the governor-general of Cuba, and this department having received the data resulting from said investigation, I have to-day the honor to answer the contents of the honorable Secretary of State’s dispatch, the copy of which you were pleased to transmit to me.

The importance attributed by the Hon. Mr. Evarts to the four cases of detention and visit of American ships on Cuban coasts, in which cases his excellency thinks he sees, should the report of facts which reached him prove accurate, not only an unlawful interference with the peaceful and honest pursuit of the commerce of the United States, but also an affront to the dignity of their flag, causes His Majesty’s Government, after having cleared up the facts, to be the more bent upon removing the just susceptibility of the Washington Government, restoring the truth of the occurrences, and rectifying the errors contained in the particulars of the evidence given by those concerned in this matter.

First of all, I must call your excellency’s attention to the official character of the service which, at the present time, and thanks to the restoration of peace in the Island of Cuba, is intrusted to our gunboats in the vicinity of that extensive coast, which, if it was intended as yet to watch and prevent the landing of filibustering expeditions [Page 1050] in our territory, it now devotes itself principally to the prevention of smuggling and to cause the enforcement of our customs regulations.

These remarks account, beforehand, for the interference of the Spanish men-of-war, and reduces it to its true proportions, divesting it of any other character, more or less connected with the measures formerly required by the state of insurrection which existed in a part of that island.

Therefore this question is reduced to the examination of the form and manner in which the commanders of the Canto and Blasco de Garay discharged their duty, and as to whether or not, in the discharge of the same, they infringed the stipulations of the treaties or the international practices.

From the scrupulous investigation ordered by the first maritime authority in Havana, it is verified that the gunboat Canto, on sighting the American merchant schooners Ethel A. Merritt and Eunice P. Newcomb, in accordance with the custom admitted by the navy of all nations, and with a view to ask for and get those ships to hoist their flags, which were not hoisted, she first fired a blank shot, which, having had no result, was followed by another firing with solid shot, fired from the stern, that they might stop their course, which she had a right to demand of both schooners, as they were within Spanish jurisdictional waters.

The Ethel Merritt was in latitude N. 19° 54′ 30ʺ, and longitude 68° 40′ 30ʺ de San Fernando, and consequently hardly four miles from the coast; it must be noticed that, having cleared at Jamaica direct for Philadelphia, she was sailing some 35 miles out of her natural course, which is easily verified. The currents which are so strong in those places, on coming from the south part of Santo Domingo, some of them take their course along the Cuban coast, and others by the front, between these islands; so that, on leaving Jamaica, the course turning south must be taken, in order to find the favorable current for the course; further, the winds south of Santo Domingo are east, favorable to the north course, and after sheering off “Punta Maisi” to sight the “Yagua,” from which place they must steer so as to cross the shoals as it may suit best.

On the coast of Cuba, the direction of the current to the west is adverse, and besides the breezes—llamando al primer cuadrante cierran el rumbo que conviene segnir. So that the course followed by the Ethel Merritt is contrary to practice, and it gave rise to the suspicion of the commander of the gunboat Canto, as it was an unusual one. The Eunice P. Newcomb was, according to notations, in latitude 19° 52′ 30ʺ, and longitude 68° 49′ de San Fernando, and two miles off the coast. This schooner, which was sailing from Jamaica to Boston, had also deviated 50 miles from her natural course, and the same arguments which have been adduced regarding the Ethel Merritt should be brought forward to see clearly that, through ignorance or obstinacy, both ships were sailing out of their course, causing themselves to be suspected.

With respect to the George Washington, detained for the same causes, her position was, when visited, latitude north 19° 59ʺ, and longitude west 68° 5′ de San Fernando, 4.8 miles off the coast. As this ship was sailing from Baltimore to Jamaica, the commander of the Blasco de Garay could not help having his attention called by this circumstance, the strange course followed by that ship inspiring him with suspicion, approaching the coast of Cuba, to loose the favorable night breeze which blows at midchannel, lengthening her voyage, and placing herself in a zone of calm, with an unfavorable current to her course.

The Hattie Haskell was, when visited, in latitude north 19° 57′ 20ʺ, and longitude west 68° 21′ de San Fernando, 4.8 miles off the coast. She was sailing from New York to Colombia, and, like the former, she also deviated from her natural course, for, while she ought to have passed to the windward of Jamaica, both on account of the winds and for the currents, she was out of her course by 24 miles, and which excited the suspicion of the Spanish cruiser.

All these ships were detained because their nationality was unknown, and afterwards visited on account of the suspicion which would naturally be provoked by the circumstance of their following a course contrary to their safety and to their shortening the voyage they had undertaken. But the statement that the cargo and holds of either of the vessels were searched is entirely inexact. The formality of the visit was performed in accordance with the usages of the sea, by an officer who only had his sword by him, as a part of his uniform, in conformity with the regulations of his service, and on the documents having been examined and found in order, they were allowed to proceed, without having been forced to lie-to only during the short time while their respective papers were being examined.

These facts are verified by the conclusive evidence of the commanders, officers, boatswains, cockswains, and yeomen, who all agree in their statements.

And that things could not have occurred otherwise is substantiated by the conduct of the respective captains, who did not verify their protests against the proceedings of the commanders of the Spanish ships, in performing the above mentioned formalities, nor did they require, as an essential and inexcusable procedure, that the corresponding notations should be fixed, to show the position of each of the ships the moment they were visited, and to ascertain whether or not, as they have afterwards declared, [Page 1051] the visit took place outside of the jurisdictional waters. In this way the erroneous statements abounding in the declarations of the parties concerned would not have been allowed to prevail; among others, that of the captain of the Hattie Haskell, who supposes that besides having been detained and visited twenty miles away from the coast, his vessel was likewise searched by armed people while the searching steamer had her guns and armed crew ready for action. Common sense is sufficient not to give any belief to the latter assertion, which is contradicted by our officers, since there could be no reason for such a display of force.

The honorable Secretary of State, in his note addressed to your excellency, above referred to, states that in the opinion of his government this question cannot be decided by the geographical position of the vessels only, but by higher considerations involved in the unwonted exercise of a right of search in time of peace and to a greater extent than in time of public war. With the fact substantiated in our official inquiry showing that in the cases at issue our cruisers have not made under any pretext whatever the search assumed, and which could not have been effected in the short time that the visit of each of the schooners lasted for the examination of their papers, the Government of the United States will be convinced that there was not the least infringement of article 18 of the treaty of 1795.

Besides, the remarks set forth at the beginning of this note, in regard to the kind of service intrusted at present to the Spanish cruisers on the coast of Cuba, show that it is quite foreign to the exigencies of war, and will dissipate the unfounded apprehension that our ships may claim, under specious pretexts, to have a right to impede the peaceful and honest trade of the United States, the freedom of which His Majesty’s Government respects as it does that of other friendly nations. But the honorable Secretary of State, both in these assumptions and in the application of his doctrine in regard to the limits recognized by international right to the maritime jurisdiction of each country, has not borne in mind that the actions of our cruisers in connection with these American vessels were caused, first, from their ignorance of the nationality of such vessels, inasmuch as, deviating from the general custom, none of them hoisted the flag, on the boats of our cruisers with the long flag coming alongside of them; and, second, from the necessity of ascertaining the nationality and the port of departure and destination of ships which were sailing in the vicinity of the Spanish coast and within the recognized maritime jurisdiction for the interception of smuggling.

If, then, these detentions and visits are the only ones which have taken place with the stated view, how can any affront be assumed, or even discourtesy, toward a flag which was not shown to our cruisers? Under such circumstances how was it possible to infringe the treaty stipulations or the international practices? What interest or what object could have induced the commanders of the Blasco and Canto to violate the instructions of their superiors to act with the greatest circumspection and prudence towards ships of friendly nations, and especially those of the United States, because they most frequently sail near our coasts? It would not be just to attribute gratuitously such rash designs to officers of the navy of any nation who, like those of the Spanish navy, consider as their first duty obedience to the orders of their chiefs.

His Majesty’s Government confidently trusts that this report of the facts above referred to, and the frank explanations which, in its name, I have had the honor to offer in this note, will be sufficient to give full satisfaction to the Government of the United States in regard to the character which may have been wrongly attributed to the occurrences at issue, and that they will be welcomed as the most sincere expression of the feelings, always loyal and friendly, which actuate the Madrid cabinet in its intercourse with that of Washington.

I avail, &c.,