No. 95.
Mr. Scruggs to Mr. Frelinghuysen.

No. 33.]

Sir: The records of this legation show that from the earliest recognition of her national independence Colombia has been almost constantly at issue with our diplomatic representatives here touching the custody of the register and papers of American vessels by our consuls in her ports. The legislation of the Republic relative to the formalities of entrance and clearance of foreign merchant vessels in her seaports is certainly a serious chapter in parliamentary literature; and whilst I do not doubt its general rectitude of intention, it has certainly been, as a whole, singularly at variance with recognized international usage.

This legislation finally culminated in law 60 of 1875, and that law was the occasion of the diplomatic agreement of 1876, in which our representative here seems to have taken the initiative. By that agreement the Colombian law, whereby the inspector of the port was made sole custodian of ships’ registers and papers, was held in abeyance, and the foreign consuls in the ports of the Republic were thenceforth to have the undisputed custody of the register, muster-roll, &c., of the ships of their respective nationalities. It was further specified in the “agreement” that the obnoxious law 60 should be repealed, or else so modified as to conform to international usage.

In August following, however, our national Legislature, in its desire, to economize public expenditures, abolished this legation. The obnoxious law 60 was lost sight of, and when the Colombian Congress convened in February, 1877, it, so far from repealing or modifying the law referred to, passed a supplementary act providing for its rigid enforcement.

This culminated in the unfortunate affair of the Lorine, at Aspinwall, and when this legation was restored the discussion of the subject of the custody of ships’ papers was resumed. That discussion resulted in the repeal of the law 60, in accordance with the “diplomatic agreement” of 1876, and in the enactment of law 40 of 1879, whereby the consuls’ right to the custody of ships’ papers was fully conceded.

But very soon thereafter the State authorities of Panama practically defeated the operation of the new law by a local edict requiring shipmasters to procure, at great delay and expense, collateral certificates from every petty State official in the place that the vessel owed them nothing and that it had their consent to go to sea.

This renewed the discussion at Bogota, and finally resulted in the federal law 109 of 1880, providing for the enforcement of law 40 of 1879, unembarrassed by the local or State law of Panama referred to, or by any other local law or edict wkatsoever. It was supposed, therefore, [Page 224] that the question had been thus finally settled, and that it would not again crop out for vexatious discussion at the Colombian capital.

What was my surprise, then, upon assuming the duties of this post, to find that, among other complaints against our consul at Aspin wall by the inspector of that port, was one that he persistently refused to respect this very local edict which the Colombian Congress had so expressly set aside.

This complaint was the occasion of my note of the 2d ultimo, addressed to the Colombian minister for foreign affairs, a copy of which is herewith submitted.

The minister’s reply thereto, dated the 25th ultimo (a copy and translation of which I inclose), shows that whilst he is desirous of asserting: the supremacy of the federal over the State law, he seems not to have realized that a federal official in Aspin wall had been persistently endeavoring to enforce the local edict over the consul’s just opposition. Hence my rejoinder of the 26th ultimo, a copy of which is herewith submitted, and which I trust may be the finale of a discussion extending through a period of more than half a century.

I have, &c.,

[Inclosure 1 in No. 33.]

Mr. Scruggs to Mr. Quijano W.

The undersigned, minister resident of the United States, presents his most respectful compliments to the Hon. Señor Don J. M. Quijano W, secretary for foreign relations of the United States of Colombia, and begs to invite the honorable secretary’s attention to the following considerations:

By the laws of the United States the master of any foreign merchant vessel must, within forty-eight hours after entry into any port of the country, deposit the ship’s register and other papers with the consular officer of the nation to which the vessel belongs; and he must deliver to the collector of the port the consul’s certificate that the papers have been so deposited. Failure on the part of the master to comply with this regulation, or failure on the part of the consul to retain the ship’s papers until a proper clearance is produced from the custom-house authorities, subjects the one to a fine of not less than $500 nor more than $2,000, and the other to a fine of not less than $500 nor more than $5,000. (R. S., sees. 4209 and 4211.)
This law, which is reciprocal in its application, extending to the vessels of foreign nations in whose ports United States consuls have like privileges, has been in force for more than sixty years, and is believed to be in accord with established international usage. A similar regulation exists in every maritime country of Europe, and also in many of the principal maritime and commercial states of Asia. Experience has shown that it affords ample protection to the national revenue and compels obedience to port regulations; and it is specially commendable for its simplicity and convenience.
The existing treaty stipulations between the United States and Colombia, whereby the consuls of each country in the ports of the other may demand from the local authorities the arrest of deserters from the vessels of their respective nationalities, is a specific recognition of the principle of reciprocity contemplated in the statute above cited. It is manifest, for instance, that unless the consul can have the custody of the ship’s register and muster-roll he can neither exhibit those papers to the local authorities nor make an intelligent or practical demand for the arrest of deserters from the ship. (See Art. III, Par. 2, of the consular convention between the United States and Colombia of May 4, 1850.)
The Colombian law No. 40, of June 24, 1879, was, as the honorable secretary may remember, the outgrowth of the “diplomatic agreement” of July, 1876. It repeals the obnoxious law No. 60 of 1875, and thus places Colombia in accord with international usage and in harmony with her treaty stipulations above cited. It provides, for instance, that the master of a foreign merchant vessel entering Colombian ports [Page 225] shall deposit her register and papers with the consul of her nationality and take a receipt for the same, and that this consular receipt or certificate of deposit shall he delivered to the inspector of the port. When ready for sea, the master of the vessel must obtain a clearance from the inspector, exhibit this to the consul, and receive back the ship’s register and papers. Failure on the part of the master to comply with these regulations subjects him to a fine of from $500 to $1,000; and failure on the part of the consul to hold the ship’s papers until the inspector’s certificate of clearance is produced to him is sufficient cause for revoking his exequatur.
This law, like that of the United States already cited, is in accord with the spirit of the consular convention between the two countries. It is likewise in accord with general usage; and when properly and faithfully executed can give no cause for complaint by maritime powers.
But, if the undersigned is correctly informed, its execution at the free ports of Colon (Aspinwall) is practically defeated by a local or State law of Panama, which requires the inspector (a federal officer) to withhold the certificate of clearance until the shipmaster shall have produced to him a certificate from each and every local or State official of the place that there is nothing pending before them to detain the vessel. It further provides that to each of these collateral certificates must be attached a stamp duty of 80 cents; and it imposes an additional fee of $5, usually paid to some clerk in the office, for preparing the certificates in the Spanish language, and for obtaining thereto the signature of some petty official of the State or district, who, in most cases, must be sought in the streets or elsewhere than in a known and convenient place of business, thus causing unnecessary and unauthorized expense, as well as great annoyance and frequent delays, to merchant vessels of the United States visiting that port.
The undersigned, therefore, respectfully submits, first, that this local edict or State law, by imposing additional taxes on foreign commerce, and by materially altering and amending a federal law of Colombia, is an assumption of powers which, under the Colombian Constitution, pertain exclusively to the national Government, and that it should therefore be held to be null and void; second, that it is in direct conflict with article 21 of the contract between the Colombian Government and the Panama Railway Company, which exempts vessels entering the free ports of Colon (Aspinwall) and Panama from the payment of tonnage and all other dues, taxes, contributions, or imposts whatsoever; and, third, that its enforcement against merchant vessels of the United States is in open violation of Article II of the treaty between the United States and New Granada (now the United States of Colombia) of the 12th of December, 1846, since it appears not to be enforced against British merchant vessels trading at the same port.
For these reasons therefore, as well as in accord with that spirit of friendliness and fairness which ought, to characterize the commercial intercourse of the two Republics, the undersigned ventures to express the hope that the Executive of the Union will adopt some measures to put a stop to these petty discriminations against American vessels in Colombian ports. The law No. 40 of June 24, 1879, never contemplated these unnecessary and vexatious conditions, and it should be enforced impartially, and without amendment or interference by the local or State authorities of Panama.

The undersigned improves, &c.,

[Inclosure 2 in No. 33.—Translation.]

Mr. Quijano W. to Mr. Scruggs.

Mr. Minister: The Hon. Mr. Dichman addressed a note to this office, dated the 24th of April, 1881, having in view the same object as that set forth in your excellency’s esteemed communication of the 2d instant, namely, that a local law of the State of Panama, and a decree for its enforcement, had subjected merchant vessels in the free ports of Panama and Colon to certain exactions of an extraordinary character.

The executive power accordingly asked of the State authorities of Panama copies of the law and decree referred to, in order that such steps might be taken in the premises as might he deemed necessary and proper. The reply received was that the State government had not expedited any such acts, nor any others that could affect the entrance and clearance of merchant vessels at the ports named; and that I such vessels were subjected only to the provisions of law 40 of 1879.

[Page 226]

With respect to the fees collected by certain officials, in conformity with article 421 of the fiscalcode, for issuing the certificates necessary to the clearance of vessels as prescribed by State regulations, article 15 of the law 109, of the 24th August, 1880, provides that thenceforth no such fees should be demanded; and that law was communicated to the Government of the State of Panama, in a note from this office dated December 7, 1881.

Everything relating to this subject was transmitted to Congress, together with the notes passed, in the annual report from this department for the year referred to.

I am, therefore, induced to believe that perhaps your excellency may not have been duly informed of the facts, since there is neither apprehension nor suspicion that the collection of those duties upon clearance certificates has been persisted in.

I improve, &c.,

[Inclosure 3 in No. 33.]

Mr. Scruggs to Mr. Quijano W.

Mr. Secretary: I had the honor to receive your excellency’s note of yesterday, in reply to mine of the 2d instant. I am quite familiar with the correspondence of 1881 to which your excellency refers. I was also aware that the inspector of the port at Colon had been instructed to execute the law 40 of 1879, unembarrassed by the local edicts complained of. I was, however, under the impression that those instructions had either been imperfectly understood, or else not very faithfully obeyed.

In a dispatch to this legation dated the 22d of January last, the United States consul at Colon says distinctly that the local edict referred to was still sought to be enforced against merchant vessels of the United States, whilst English vessels were exempted therefrom. I cannot believe that the consul would have made so explicit a statement had there been no foundation for it. Moreover, his statement is corroborated by that of the inspector himself, for in his note of the 20th of the same month to the honorable secretary of the interior, at Bogota, the inspector complains of the consul for refusing to comply with the local law and edict referred to. The inference is legitimate, therefore, that he was still trying to enforce those provisions, against the consul’s opposition to them.

The inspector, in his note referred to, also complained of the consul for having franked letters to the United States at half rates of postage. Investigation proved that complaint to have had some foundation, and immediate steps were taken to prevent a repetition of the offense. But the consul’s just and honorable refusal to respect an unauthorized local edict amendatory of the federal law 40, of 1879, was likewise made a cause of complaint. Hence the occasion of my note of the 2d instant, addressed to your excellency, which, however, seems to have been regarded as the result of imperfect information.

Nevertheless, I am gratified to observe that my opinion touching the validity of the local law, whereby vessels of the United States have been put to so much inconvenience, is fully concurred in by your excellency, and I have no doubt the Government whose foreign relations your excellency so worthily represents, will find prompt and effective measures for putting an end to such annoyances.

I improve, &c.,