The argument from this premise is obvious. The penalty was either just or
unjust, and we have the most direct evidence that it was unjust, and a full
recognition of the bona fides of the transaction from
the very officers whose duty it was to administer the law for the benefit of
the Spanish Government. But while the Government derives no benefit from a
penalty admitted to be imposed without good reason therefor, the officers
who make that admission are benefited. The penalty cannot be just as to
one-half and unjust as to the other. As this question of the informer’s
moiety is one of those to be borne in mind in the pending negotiations, it
is deemed reasonable to send you this instruction.
[Inclosure in No. 377.]
Mr. Pierce to Mr.
Porter.
United
States Consulate,
Matanzas, July 8,
1885.
No. 4.]Sir: I have the honor to acknowledge receipt of
your instruction No. 75, of the 25th ultimo, addressed to my
predecessor, in respect to a tine imposed on the barkentine Ocean Pearl,
with its inclosures, in which I am informed that the Spanish Government
has remitted that part of the fine pertaining simply to the treasury,
viz, $1,000.
With respect to this, it will be sufficient to say that that part of the
fine was remitted practically as far back as February, 1885, by the
treasury department in Havana, and all the supreme Government seems to
have done has been to confirm the action of the authorities there.
The contention of the consul-general and my predecessor was to in chide
in the remission the part pertaining to the customs officials in this
port, as well as the part relating to the Government. This seemed only
fair and just in view of the facts that (1) the ten hogsheads were never
on board of the vessel, having been left on the wharf at Philadelphia—a
fact that all admitted here; (2) that in all similar cases no fines have
ever been imposed; and (3) that inasmuch as no fraud was either
attempted or executed against the customs regulations of Cuba, no
penalty should have been incurred.
Under these circumstances, therefore, it is a matter of profound regret
that in the remission the part relating to the customs authorities has
not been included, because if a vessel coming here under the conditions
under which the Ocean Pearl did can have fines successfully imposed upon
it, there will be little security in the future in cases where supposed
derelictions are legitimate subjects of controversy.
The facts of the case are already known, to the Department, and are
matters of record, and it is not necessary to refer to them, and, as a
personal criticism on the action of the authorities, I will simply
submit the following: that the customs rules and regulations are
measures adopted by a Government to provide punishment in cases where
these provisions have been violated; but in cases where no violation has
been effected or attempted I take it they are inoperative.
Now, the pretext of this Government in this case is that (according to
section 13, article 121) there appears on the manifest a certain number
of articles which are absent in the cargo; in other words, a discrepancy
appears, which constitutes a violation of a specific law, and in order
to collect the prescribed fine they place a literal and arbitrary
construction on the law. If this is allowed to prevail, Vessels will
frequently be subjected to fines in cases where a higher power than man
causes the apparent dereliction. For example, a vessel encounters a
storm and an unknown quantity of her cargo is swept overboard. The usual
practice is in such cases for the master to make out a protest before
the customs authorities in order that the discrepancies between the
cargo and the manifest may be accounted for, and the fine impending as
incurred in the article above referred to may not be enforced.
Why? Because no attempt has been made to commit a fraud. Is it any more a
question of culpability on the part of the Ocean Pearl that she should
have left her ten hogsheads on the wharf at Philadelphia than that they
should have been swept overboard in a storm? In the latter case the
master makes his protest, which may or may not
[Page 740]
be true; nevertheless it is accepted. In the case
of the Ocean Pearl the shippers make affidavit to the fact that the ten
hogsbeads were found on the wharf after the vessel left, before a notary
public, which is certified to by the Spanish consul at Philadelphia.
This was admitted here by the authorities themselves. Nevertheless a
fine of $2,000 was imposed, one-half of which is remitted by the
Government of Spain, thus acknowledging the weight and truth of the
evidence. If the supreme Government were so strongly impressed as to
remit their part of the fine, on what grounds of equity do they insist
on the payment of the other? This is all the more a legitimate subject
of inquiry in view of the fact that the insular chief of the treasury,
under whose exclusive administration and decision all these matters are
referred, has it in his power under sections 11 and 12 of article 26 to
accept the explanation or certificates of shippers or masters in cases
where derelictions are subjects of inquiry and to order all the
proceedings against these vessels to cease. It was he who accepted the
explanation of the master and the certificate of the shipper, and
recommended to the supreme Government at Madrid the remission of the
treasury’s half.
I cannot avoid the reflection that if he had been actuated by a
conspicuous spirit of equity he would have ordered all proceedings to
stop and the ease would never have been referred to Madrid.
It is proper, in conclusion, to inform the Department that the penalty
will eventually fall on the owners of the Ocean Pearl who have given the
consignee a bond for the full amount of the fine incurred. Should the
authorities here insist on payment, the bond will probably be
transferred to them and execution will be enforced on the vessel
whenever she enters a Cuban port.
I am, &c.,
