No. 239.
Mr. Morgan
to Mr. Frelinghuysen.
Legation of
the United States,
Mexico, September 21, 1883.
(Received October 13.)
No. 690.]
Sir: Referring you to your dispatch No. 361,
January 31, 1883 to my dispatch No. 583, March 6, 1883, and the inclosure
therein, all relating to the schooner Daylight, sunk in the harbor of
Tampico by the Mexican gunboat Independencia, and the claim for damages
resulting therefrom, I have to inform you that on the 11th of April last, in
obedience to instructions contained in your No. 382, March 24 last, I
addressed a note to Señor Mariscal, in which I asked further information on
the subject discussed by him in his reply to my note of the 15th February
last, a copy of which is inclosed in my No. 583.
On the 14th August last, not having received an answer thereto, I addressed a
note to Señor Fernandez asking for one. This answer I have this day
received, dated the 18th instant. A copy and translation thereof I
inclose.
Señor Fernandez recalls to me that the principle has been invariably
maintained by the Mexican department for foreign affairs that diplomatic
intervention on behalf of foreigners is not admitted except in cases where
there has been a denial of justice. He says that the case of the Daylight
is, primarily, one of the competence of the department of war and marine,
before which the parties in interest should present their claim, taking
occasion to inform me that before that department the claim cannot be
presented through this legation, as foreign ministers can only address the
Government to which they are accredited through the department of foreign
affairs. If that department, he says, does not admit the responsibility of
the Government in the premises, [Page 341]
they have their recourse in the courts. He finds authority for this in
article 8 of the federal constitution, which provides: “Es inviolable el
derectio de peticion ejercido por escrito, de una manera pacifica y
respetuosa.” (The right of petition by writing, couched in peaceable and
respectful terms, shall be inviolable.) And as the succeeding phrase in the
article above quoted from qualifies the above right, as follows, “pero en
materias politicas solo pueden ejerculo los ciudadanos de la Republica” (but
in political affairs this right can only be exercised by citizens of the
Republic), he assumes that foreigners may bring the Mexican Government into
court; in other words, that the right of petition for a redress of
grievances includes the right to sue a nation in its own courts.
The question which I propounded to him, as suggested in your dispatch No.
382, viz, whether an individual has the power, in Mexico, to proceed at law
against a national vessel of war for damages inflicted upon him, he does not
consider it necessary to discuss, as he finds an answer thereto in article
97 of the constitution, which confers jurisdiction on the Federal courts,
“De las que versen sobre directio maritimo” (small cases arising under
maritime law).
Therefore, according to Señor Fernandez, because cases arising under maritime
law come under the jurisdiction of the Mexican federal courts, a national
vessel may be brought into court to respond for damages inflicted by
her.
From his note it results, first, that a claim for the reparation of damages
caused to a citizen of the United States by the running down of his vessel
by a Mexican man-of-war, in a Mexican port, must be first presented for
adjustment to the department of war and marine; second, in case the decision
of that department is adverse to him, he must appeal to the courts of the
country for redress; and, third, that diplomatic intervention in his behalf
is not to be admitted except in the case of a denial of justice.
I am, &c.,
[Inclosure 1 in No. 690.]
Mr. Morgan to Mr.
Mariscal.
Legation of the United States,
Mexico, April 11,
1883.
Sir: I duly communicated to the Department of
State at Washington my note to your excellency of the 15th February last
and your excellency’s note to me of the 3d March, relating to the claim
for compensation presented against your excellency’s Government by the
owners of the American schooner Daylight, for the sinking of that vessel
in the port of Tampico by the Mexican gunboat Independencia.
Your excellency declined, as you will remember, to consider the claim on
two grounds—
- (1)
- Because if the captain of the schooner thinks that the
responsibility of the collision rests upon the Mexican
Government, he should apply directly to the department of war
and marine for redress.
- (2)
- If that department denies its responsibility, you (I) know
that in cases of maritime disaster, giving rise to controversies
between parties, it is for the tribunals of the country having
jurisdiction over the waters where the disaster occurred to
declare whether the disaster occurred through neglect or not,
and upon whom the responsibility falls, and therefore the claim
cannot, at the present stage thereof, be considered
diplomatically.
My Government is. at a loss to understand the first point assumed by your
excellency, as, by the custom of nations, a complaint of an alien, when
not cognizable by the courts of law, can only be presented in the mode
recognized by diplomatic usage, [Page 342] through the proper officers of his own Government, and he is not
permitted to appeal directly to any of the political departments of the
Government against whom the complaint is made.
The propriety and the reasons for this course are so apparent and are so
well known to your excellency that my Government presumes that there is
some peculiar feature in the administrative powers of the Mexican
department of war and marine of which my Government is ignorant which
caused your excellency’s suggestion, which, on its face, does not seem
to be in harmony with diplomatic usage and precedents.
If your excellency’s second point is intended to intimate that an alien
may proceed in the courts of Mexico against a national vessel in the
usual form prescribed for suits against private vessels owned by
individuals, not used for the national protection but in the peaceful
operations of commerce, my Government may be disposed to concede that
the owner of the Daylight must in this, as in other cases of collision,
first exhaust his judicial remedy, after which the case might, or might
not, become a proper one for diplomatic representations. My Government,
however, considers that your excellency’s statement is not so explicit
as to leave the subject entirely without doubt, and as such a power in
an individual to proceed at law against a national vessel of war does
not exist in the United States, nor, so far as is known, elsewhere,
unless in Mexico, my Government would be glad to receive further
information on the subject, and this information I have been instructed
to ask from your excellency.
I renew, &c.,
[Inclosure 2 in No. 690.]
Mr. Morgan to Mr.
Fernandez.
Legation of the United States,
Mexico, August 14,
1883.
Sir: I beg to call your honor’s attention to a
note which, on the 11th of April last, under instructions from my
Government, I addressed to his excellency Señor Mariscal, relating to
the case of the American schooner Daylight, and to express the hope that
I may be favored with an answer thereto.
I renew, &c.,
[Inclosure 3 in No.
690.—Translation.]
Mr. Fernandez to
Mr. Morgan.
Department for Foreign Relations,
Mexico, September 18, 1883.
Mr. Minister: Your excellency’s note of the
11th April, in reply to one addressed to you by Señor Mariscal on the 3d
of March, with reference to the reclamation made by the owners of the
American schooner Daylight, who allege that said vessel was run down in
the port of Tampico by the Mexican gunboat Independencia, was duly
received by this department.
Your excellency’s note of the 14th of August upon the same subject has
been also received. Your excellency is pleased to observe, in the first
place, that a foreigner has no recourse to any of the political
departments of the Government for the presenting of a claim which is not
of the competence of the tribunals of justice, except through the medium
of the Government of which the foreigner is a citizen, and that there
does not exist in the United States, or in any other country that you
are aware of, the right in an individual to proceed judicially against a
national vessel; for which reason your excellency’s Government desires
further information upon these points.
Complying with your request I proceed to make such additions as are by
this department considered pertinent in confirmation of the decision
which it has heretofore announced to your excellency in the case.
In respect of the first observation, your excellency will permit me to
recall to you the principle which has been invariably maintained by this
department, that diplomatic intervention on behalf of foreigners, except
where there has been a denial of justice, is not admitted.
In conformity with this principle, and considering that the department of
war and marine is the department which has jurisdiction over cases such
as the one under [Page 343]
consideration, I have to say to your excellency that the parties in
interest may make their claim directly to that department, and that if
that department dues not admit the responsibility of the Government,
then it will devolve upon the tribunals to decide the controversy.
In any event I may say this, that the owners of the Daylight cannot
present their claim through your excellency, the department under my
charge not ignoring that foreign ministers should only address the
Government to which they are accredited through the department of
foreign relations.
Article 8 of the constitution of this Republic gives to citizens of the
country, as well as foreigners, the right of petition done by writing
and in respectful terms, and therefore the second (foreigners) have free
access to the different departments of the public authority to seek for
justice when they consider themselves aggrieved by its agents or
subalterns.
I do not consider it necessary to examine your excellency’s assertion
that according to the customs of nations an individual cannot take
judicial proceedings against a national vessel; it is sufficient for my
purpose to say that, according to article 97 of the political
constitution of the Republic, tribunals of the federation have
jurisdiction, among other matters, of controversies arising under
maritime law, and of those to which the federation is a party, and that,
in consequence thereof, not only because of the marine disaster which
occurred to the Daylight, but because of the responsibility of the
Government, more or less affected in this case by reason of the
intervention therein of a war vessel, a double reason exists why the
parties complaining should submit their case to the said tribunals, if,
having first applied for redress to the department of war, they have not
had a decision in their favor.
I renew, &c.,
