Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 8, 1885
Mr. Frelinghuysen to Mr. Reed.
Washington, February 27, 1885.
Sir: I inclose copies of dispatches from Matanzas and Havana, touching the imposition of a $2,000 fine at the port of Matanzas on the American barkentine Ocean Pearl, on account of shortage in a manifested [Page 689] cargo of ten empty molasses hogsheads, which were left on the wharf at Philadelphia.
It is unfortunate that so much correspondence is necessitated by an act of the local officer in a case where it seems evident to the most casual glance that no intention of fraud was presumable. Whatever technical ground may exist for the levy of a fine under such circumstances, it is plainly without moral basis; and this Government expects that the matter will be adjusted by the Government at Madrid in such a way as shall relieve the master and owners and all parties concerned in the vessel from unjust exactions.
You will please press the matter firmly, yet courteously, on the attention of His Majesty’s Government.
I am, &c.,
Mr. Williams to Mr. Davis.
Havana, February 13, 1885.
Sir: Referring to the dispatch, No. 115, addressed to the Department under date of the 11th instant, by Mr. Vickers, our consul at Matanzas, with regard to the fine of $2,000 imposed upon the American barkentine Ocean Pearl, of Portland, Me., by the customs authorities of Matanzas, for the non-delivery of ten empty hogsheads, from her last cargo brought from Philadelphia, I now beg to inclose, for the use of the Department, the sworn statement, dated the 10th instant, and made before Consul Vickers by E. S. Henley, master of the said barkentine.
I have, &c.,
Consul-General.
Affidavit of E. S. Henley.
Matanzas ——, ——.
On this the 10th day of February, 1885, before me, the undersigned, consul of the United States at Matanzas, personally appeared Mr. E. S. Henley, master of the American barkentine Ocean Pearl, of Portland, and deposed that he sailed from Philadelphia on the 11th of December, 1884, and arrived at this port on the 27th of the said month, laden with coal, cooperage, machinery, and empty hogsheads; that, after discharging his cargo, he received a communication from the collector of customs, elated the 13th day of January, 1885, informing him that there had resulted a short delivery in his cargo, as compared with the manifest, “ten empty molasses hogsheads;” that for said reason, and in accordance with paragraph 13, article 12, chapter 2 of the general regulations of custom-houses, he had incurred a fine of two hundred dollars for each one of the empty hogsheads not discharged, which sum, amounting to $2,000, should be paid to the custom-house, through his consignee, as soon as possible.
That on receipt of the foregoing communication he delivered it to the United States consul in this port, who assumed charge of the matter, as the correspondence will show.
That subsequently, on the 3d of February, 1885, he received another communication from the collector, informing him that his excellency the general intendente of the treasury, by decree of the 29th of January last past, had approved the proceedings against him on account of the short delivery of ten hogsheads from the barkentine Ocean Pearl, and at the same time indicated that a petition would be presented to the Government of His Majesty asking a remission of the fine as regards the part corresponding to the treasury, and ordering that the fine be deposited in the treasury vaults until such time as a decision should be taken. All of which he communicated [Page 690] to me for my information, with the indication that within the term of five days the $2,000 be paid into the office of this custom-house, and that incase that it be not done an execution (ejecutivament) would follow in the form prescribed by article 134 of the regulations of the custom-house.
The foregoing communication was likewise delivered to the United States consul in this port, who also stated that he would assume charge of it.
That on or about the 22d of January, 1885, he, the appearer, chartered his said vessel to Messrs. Melville & Co., American merchants, residents in this city, for a voyage to a port in the United States with a cargo of molasses. He commenced loading on the 26th of the same month, and finished on the 9th of February instant, on which day he, accompanied by the inward consignee and a member of the firm shipping the outward cargo, applied to the collector of customs for the clearance of vessel and cargo; that clearance was refused unless the fine be secured to the customhouse, either by cash payment or by a guarantee for the same to the satisfaction of the collector; that on this the inward consignee offered to give his guarantee for the amount in question. To this the collector replied that his signature was satisfactory, but that the guarantee would not be sufficient without an additional signature of a reliable and responsible party.
That the appearer has reason to believe that the refusal of clearance on delivery of a guarantee of the consignee only was not the real cause of declining to dispatch the vessel, but, owing to some fancied grievance, he, the collector, adopted a course which, as far as known to the appearer, and as far as he can learn, has not been heretofore the general custom of this port, is without precedent and arbitrary, and he does not deem it just or equitable that an imagined wrong should be used to interfere with a legitimate commerce to the detriment of himself, the owners of the vessel, and the owners and shippers of the cargo.
Master of American barlcentine Ocean Pearl.
Before me.
United States Consul.
Supplementary to the above, the deponent further deposes and says that from subsequent testimony, consisting of the certificate of the shippers, Isaac Hough Co., of Philadelphia, now in possession of the “intendente-general de hacienda,” the ten molasses hogsheads were accidentally left on the wharf at the aforesaid city.
Master of American barlcentine Ocean Pearl.
Before me.
United States Consul.
Mr. Williams to Mr. Davis.
Havana, February 14, 1885.
Sir: Referring to and in amplification of my dispatch No. 118, dated yesterday, in reference to the fine of $2,000 imposed at Matanzas upon the American barkentine Ocean Pearl, from Philadelphia, for short delivery of ten empty hogheads, I now beg to inclose, for the information and use of the Department, copy of my communication upon the subject, addressed to his excellency the intendant-general of the treasury of this island, and his reply thereto.
I have, &c.,
Consul-General
Mr. Williams to Mr. Ruiz.
Havana, January 30, 1885.
Excellency: Referring to the two interviews I had the honor to have with your excellency regarding the fine of $2,000 imposed at Matanzas upon the American barkentine Oceau Pearl, from Philadelphia, for having discharged ten empty hogsheads [Page 691] less than those specified in her manifest, I have now the pleasure to inclose the certificate made before the consul of His Majesty the King of Spain at the said port by the shippers, Messrs. Isaac Hough & Co., in which they declare to have shipped only two hundred and thirty-five empty hogsheads instead of two hundred and forty-five.
I have therefore respectfully to ask that your excellency may accept the certificate aforesaid as sufficient evidence of that fact, and that, in virtue thereof, you may be pleased to acquit the vessel of the penalty referred to, so that she can proceed to take in cargo without further loss of time.
I have, &c.,
Consul-General.
Mr. Ruiz to Mr. Williams.
Havana, February 4, 1885.
A communication will be addressed to-morrow to the ministry, asking for the remission of that part belonging to the treasury of the fine imposed by the customhouse of Matanzas upon the master of the American brig Ocean Pearl for being short, on discharge of cargo, ten empty hogsheads of those specified in his manifest; a penalty which is entirely in accordance with paragraph 13 of article 121 of the present ruling customs ordinances. At the same time orders have been sent to the collector of the aforesaid custom-house of Matanzas to admit a guarantee for the whole amount of the fine until the decision of the home Government shall be received. All of which I have the honor to inform you, in reply to your communication of the 30th ultimo upon the subject, having also to add that what has been done in this case is all that this intendancy is authorized to do.
God preserve you many years.
Mr. Vickers to Mr. Davis.
Matanzas, January 15, 1885.
Sir: I have the honor to inform you that on the 13th instant the American barkentine Ocean Pearl was fined $2,000, on account of being short ten empty molasses hogsheads in her manifested cargo. The fine has been imposed in obedience to section 13, article 121 of the customs regulations, which, being translated, says “that for each package which is expressed in the manifest and does not appear on board, he, the master, will pay $200.” The hogsheads were left on the wharf at Philadelphia, from whence the Ocean Pearl sailed on the 11th of December last past, arriving here on the 27th of the same month, loaded with coal, machinery, and empty hogsheads, and was consigned to John J. Dacosta, who, under the new regulations of September 17, 1883, is in reality the responsible party to the Government. Still, as the fault rested with the master, and as the consignee has the vessels’ freight money, I have remonstrated with the customs authorities against its collection and requested a suspenson of judgment until a certificate can be obtained from the shipper in Philadelphia proving that the hogsheads were left there on the wharf. This once obtained will relieve the vessel of any intent to smuggle or otherwise violate the customs laws of Spain. And I take it that if no fraud was intended or committed, no penalty for fraud can be imposed.
Although I communicated these facts to the collector of customs on the 14th instant, no reply has been received; still I understand that my request will be granted. If not I shall protest and instruct both the master and consignee not to pay it.
I will communicate further upon the subject when it is more fully developed.
I am, &c.,
Consul.
Mr. Vickers to Mr. Davis.
Matanzas, February 11, 1885.
Sir: In acknowledgment of your instruction No. 63, of January 31, respecting the fine of $2,000 imposed on the American barkentine Ocean Pearl for a shortage in her manifested cargo, I have the honor to report that she was cleared yesterday for Philadelphia on the bond of the consignee alone, upon my demand through shippers. The questions involved respecting the legality and justification of the fine imposed are to be referred to the Government at Madrid for its ultimate solution. My contention is, and always has been, that the collector had no legal justification or right to impose this fine under the attendant circumstances; and when the promise was made that a certificate from the shippers in Philadelphia would be presented (which was subsequently done through the consulate-general at Havana), verifying the explanation of the master that the absent hogsheads were left on the wharf in that city, all judgment should have been suspended, but unfortunately the collector suddenly conceived a prejudice against me, on account of my “officious interference,” as he termed my proper representation of the master in the case, and determined to precipitate the matter by a reference of the whole affair to Havana. This action had a twofold operation in it: It seemed to justify his recent appointment as a zealous official and (2) secured, as he hoped, the half of the fine to himself and associates; and inasmuch as none of them had been paid their salaries for nearly six months the prospect of securing something was not to be thrown away.
It is more than probable that the prejudice against me, which apparently inspired the collector, grew out of the recent controversy I had over the question of the Carrie Bertha, and under Which the custom-house still writhes. However that may be, I was determined not to be diverted from the plain path of my duty by any original and Dogberrian interpretations of the regulations or laws of Spain. I take it that if I have any official character at all it is that of the representative, or attorney, of the American vessels, crews, and masters.
I submit copies of the correspondence between the collector and myself, without other comment than to indicate that if the opinion of the collector, as expressed in his No. 4, is to be the future basis of action on the part of the authorities here American vessels will greatly suffer by the change.
Messrs. Isaac Hough & Co., of Philadelphia, the shippers of the goods on the Ocean Pearl, have been requested to make out a legal certificate before a notary public, certified to by the Spanish consul, and forward here at once. It is probably now on its way here. As soon as received I will return it to the Department, in order that it may accompany the reference to the American minister in Madrid.
With respect to section 13, article 121, of the customs regulations, under which the fine is enforced, I maintain that it has no permanent application as soon as it is proven that the goods were never on the vessel. In order that it should have effect I contend that there must be proven an attempt to violate it. This is not charged.
Suppose a vessel loses a part of her cargo by storm; there must be in that case a discrepancy between the goods landed and the manifest. What is the requirement under these circumstances? The master enters his protest in the custom-house and the discrepancy is at once pardoned. Why? Because there was no attempt to evade or violate that regulation or any other customs law of Spain. By the same token I have maintained that if the hogsheads were left on the wharf in Philadelphia there was likewise no attempt to defraud the customs laws; and I take it that if no attempt was made, or charged, no penalty for fraud can be imposed.
The section in question is as follows: Chapter II, article 121, section 13: “Por cada bulto que haya expresado en el manifiesto y no resulte á bordo pagará [el capitan] doscienlas pesos.”
After my No. 7 had been written (the matter having been referred to Havana) all further correspondence between the collector and myself ceased, though the former continued, semi-occasionally, to address the captain, ignoring me; but, inasmuch as the affair had passed out of my hands into that of the consul-general I preferred to let all questions of etiquette cease for the present, not wishing to embarrass the question of the fine.
I am, &c.,
I find, upon a rereading of my dispatch, I neglected to state that at first the customs authorities demanded a bond signed by one other acceptable name besides that of the consignee, This demand was unprecedented, It has always been the custom to [Page 693] accept alone the bond of the consignees of vessels when such a document was required, but the collector departed from that rule, not because he doubted the responsibility of the consignee, but, as he alleged, because it was a “personal” matter with him, inspired by my “officious interference” in the question. Subsequently, and upon the order of the intendente-general at Havana, this was changed to a demand that the full amount of the fine be deposited by the master. I thereupon again appealed to the consul-general, who had the order revoked, whereupon the demand was again made that two “acceptable names” be placed upon the bond ere they would dispatch her. Both the consul-general and myself contended that if the authorities allowed a merchant to accept consignments they were morally, if not legally, bound to accept his bond, especially in so simple a case as this, where no fraud was attempted, as they had repeatedly admitted. This was the condition of the case until yesterday a.m., when application was made for her dispatch, being then loaded, but it was refused. About 4 p.m. I again sent the shippers and the consignees formally repeat the request for the vessel’s discharge, and if refused to demand the reason in writing and bring to me, and that I would then officially demand her dispatch upon the bond of the consignees alone, and if again refused should place the responsibility of her detention upon the authorities here. The final visit was successful and she was dispatched at once, even without the bond being first deposited. In fact it has not yet been filed.
I am, &c.,
Mr. Vickers to Mr. Pueyo.
Matanzas, January 13, 1885.
Sir: I have the honor to inform you that the official communication addressed by you to the captain of the American barkentine Ocean Pearl has been referred to me.
All future communications respecting the fine imposed you will please direct to me.
I am, &c.,
United States Consul.
Mr. Pueyo to Mr. Vickers.
Matanzas, January 14, 1884.
Under date of yesterday this office addressed to Mr. E. S. Henley the following:
“In the discharge of the American barkentine Ocean Pearl there resulted short ten empty hogsheads, for which reason, in conformity with paragraph 13, article 121, chapter 2 of the general ordinances of the bureau, you have incurred a fine of $200 for each one of the packages which have not been discharged, which sum, amounting to $2,000, should be paid into this office as soon as possible, through your consignees.”
All of which I communicate to you, acceding to what you requested in your official letter of the 13th instant.
May God guard you many years.
Mr. Vickers to Mr. Pueyo.
Matanzas, January 14, 1885.
Sir: I have the honor to acknowledge receipt of your esteemed communication of this date, and I have to inform you, that since I addressed to you my official letter of the 13th instant, requesting that all communications in reference to the fine on the American bark Ocean Pearl be directed to me, I have had occasion to see the captain of the said vessel, who confesses that his cargo has really resulted short ten empty molasses hogsheads, which remained in the port of Philadelphia, all which is true and will be conclusively proven by a certificate of the shipper, duly legalized.
[Page 694]Inasmuch as this statement is reasonable and susceptible of proof, and as it is not charged that there was intended or attempted the perpetration of any fraud against the laws of Spain, it seems to me that all the moral conditions of the circumstances could be quite as fully complied with in regarding it as one of those unpleasant, though unavoidable, accidents which frequently happen in the loading of vessels, and pardoned accordingly. This will be apparent upon a more liberal reading of the article quoted in connection with its antecedents. In these the implication is that the bullos contain certain merchandise entered for consumption, like food, or silks, or opium, but in this case the articles or bullos found short were a part of an importation made necessary by the conditions of the trade of this port, and for your convenience and profit. There comes no attempt at smuggling and no charge of such attempt is made, and to place so literal an interpretation upon the intent of the regulations, added to such an enormous fine, is scarcely consistent or justifiable.
With regard to the immediate payment of this fine under the circumstances it is scarcely to be thought of. I have therefore instructed the captain not to pay it, and shall so instruct the consignee, pending the decision of the Government at Madrid, be-before which it will be presented by my Government.
I am, &c.,
Mr. Pueyo to Mr. Vickers.
Matanzas, January 16, 1885.
With the greatest pleasure I acceded to the wishes which you were pleased to indicate to me in your esteemed communication of the 13th instant, conveying to you what I had written to the captain of the American barkentine Ocean Pearl, under the supposition that what interested the consulate under your worthy charge was to be informed of all details and the course followed in the proceedings taken against the captain for the delinquency noticed in his vessel. But inasmuch as I observe in your esteemed favor of the 14th the intention to maintain, directly, on part of that -consulate, the rights of the said captain, I find myself forcibly compelled to call your respectable attention to the customs laws of Spam, which do not permit the personal and direct representation which you propose to exercise in the present case.
Article 48 of the ordinances in force makes, the consignees of vessels responsible for all dues, expenses, and fines which the treasury may have to collect; the second paragraph of article 127, and all the following ones of chapter 3 of the same ordinances, declare that proceedings must be instituted against the parties interested, and inasmuch as, in the matter which occupies our attention, the responsible party is the captain of the Ocean Pearl, according to article 121, paragraph 3, it follows that the proceedings should be taken against him, through the consignee of the vessel, who is in all cases, as already stated, the guarantor for the treasury.
For the reasons mentioned, I address to-day to the captain of the Ocean Pearl a. communication, through his consignees, requesting that he be pleased to say if he accepts as his own your communication in his defense of the 14th instant; and as soon as this requisite is complied with, and after obtaining further and proper information, I will determine the matter and forward the proceedings for decision to the general administrator of the treasury, binding myself to inform your respectable consulate of all the details of the case, the proceedings of which (expediente) will be also at the disposal of the consulate, that you may, as often as you may deem it necessary, examine them and obtain all the antecedents required.
By the foregoing 1 have the honor to reply for the present to your communication in question.
May God guard you many years.
Mr. Vickers to Mr. Pueyo.
Matanzas, January 16, 1885.
Sir: It will be sufficient reply to your communication of this date to inform you that the captain has been instructed by me to make no reply whatsoever to any communication which you may address him, except through this consulate, which is his proper representative.
[Page 695]With respect to the fine imposed I have likewise instructed both him and the consignee not to satisfy it pending the decision of the Government of Madrid, before which it will be referred.
I am, &c.,
Consul.
Mr. Pueyo to Mr. Vickers.
Matanzas, January 17, 1885.
The erroneous opinions advanced in the communication of yesterday, of your respectable consulate, compels this administration under my charge to leave to yon the sole responsibility for them.
May God guard you many years.
Mr. Vickers to Mr. Pueyo.
Matanzas, January 17, 1885.
Sir: If I understand your communication of yesterday correctly, you have attempted to eliminate my representation from the controversy over the fine imposed upon the American barkentine Ocean Pearl, from that of the master, by attempting to separate him from his consul and to obtain from him some explanation, either of the same character or different, or whatever it may be, from that which he had officially made through me, as communicated to you in my communication of the 14th instant. If this was your purpose it became my immediate duty to inform you that the master would be directed, as he already had been, to make no further or other explanations than had already been made, and only through this consulate, which is the proper and authorized representative. If you did not mean this, I beg leave respectfully to submit that you were unwise in the terms employed.
As to responsibility incurred through any erroneous impressions under which you charge I labor, I will assume it, though I confess my inability to understand or appreciate what you intend to imply in placing upon roe responsibility which, in your communication of to-day, you recognize, and which, in your communication of yesterday you assumed to deny. However that may be, I have to inform you that the whole circumstance of this case, with copies of our correspondence, will, in due time, be forwarded to my Government, which will, I doubt not, place it before that of Madrid for their joint agreement and decision. It is unfortunate that so simple a case, wherein no fraud was attempted, as I shall abundantly establish by a certificate of the shipper in Philadelphia, could not have been speedily and amicably settled here, without the trouble of a reference to higher authority.
I am, &c.,
Consul.