Legation of
the United States,
Mexico
,
January 2, 1884.
(Received January 22.)
No. 738.]
Señor Fernandez has not replied to my note, and I deem it proper to let you
see that your instructions have been carried out.
[Inclosure in No. 738.]
Mr. Morgan to Mr.
Fernandez.
United
States Legation,
Mexico
,
December 8,
1883.
Sir: I have to direct your honor’s attention to
the case of the schooner Daylight, which was sunk in the harbor of
Tampico by the Mexican gunboat Independencia, and with the details of
which your honor is familiar.
The Department of State at Washington, to which your honor’s note to me
of the 18th September was transmitted, does not find that the inquiry
which I made of his-excellency Señor Mariscal, in my note of the 11th
April last, has been explicitly answered by your honor, and I beg that
you will inform me whether the owners of the Daylight are entitled to
bring an action for damages resulting from the sinking of that vessel by
the Mexican gunboat Independencia against the Mexican Government, [Page 346] directly before the Mexican
federal tribunal, without a special permission having been given for
that purpose?
I am aware that in your honor’s note of the 18th September you say that
under article 8 of the federal constitution the right of petition is
declared to be inviolable, and that under article 97 of the same charter
cases arising under maritime law are under the jurisdiction of the
federal tribunals. But I do not understand that the right of petition
covers the right to demand compensation for damages, or that because
ordinary cases arising under maritime law are placed under the
jurisdiction of the federal courts of the country, therefore the Mexican
Government may be sued therein by any person who has a claim against
that Government. I believe the general rule of law to be that a
sovereign cannot be sued in his own court without express permission,
and I see nothing in either of the articles of the Mexican constitution
to which your honor has referred me which takes the sovereignty rights
of Mexico out of the general rule to which I have referred.
I am also aware that, in his excellency, Señor Mariscal’s note to me of
the 3d of March last, in reference to the claim, he said, “If Captain
Blair considered that the Mexican Government is responsible for the
disaster which his vessel suffered, he should apply to the department of
war and marine to whose jurisdiction the Independencia belongs. If that
department admits the responsibility of the Government in the matter all
difficulties will at once disappear,” and that the same sentiment is
reiterated in your honor’s note to me of the 18th of September last.
Upon this point my Government is of the opinion that it has presented
the claim in question in behalf of its injured citizen through the
ordinary and only recognized channel of communication between it and
that of Mexico, and that if, by the laws or administrative regulations
of that Republic, it is made essential that the facts should be first
investigated by the ministry of war and marine, it conceives that the
subject should be referred to that department by the minister of foreign
affairs, which would be the course pursued by my Government were a
similar demand to be made on it by that of Mexico.
The foregoing suggestions I have been instructed to make to your honor,
and I have also been instructed to say that upon a careful examination
of the facts the Department of State at Washington has reached the
conclusion that the Mexican Government is properly responsible for the
damages resulting from the disaster in question and to express the hope
that your honor will see the propriety and equity of an early adjustment
of the claim.
I renew, &c.,
