No. 558.
Mr. Foster to Mr.
Bayard.
Legation of
the United States,
San
Ildefonso, August 18, 1885.
(Received August 31.)
No. 389.]Sir: In my No. 327, of June 19 last, I reported my
action up to that date in the case of duty on old iron imported at Barcelona
by Mr. F. B. Hamel. I now have to report that on the 17th ultimo I called
informally upon the minister of finance and urged upon him a favorable
consideration of the question, with such arguments as I could adduce from
Spanish law and the equities of the case, and with his permission, on the
day following, I sent him a memorandum on the subject, of which I inclose a
translation herewith.
Having received no information of a decision, and, in view of my expected
early departure from Madrid, I, on the 11th instant, sent the minister of
finance a private note recalling his attention to the case, and expressing
the hope that he would be able at an early date to give it his attention. I
am how in receipt of an unofficial note from the minister, of which I
inclose a translation, in which he states that the representative of Mr.
Hamel having instituted a legal proceeding to test the question, it is not
possible for him (the minister) to intervene in the case, which must now be
settled by the judicial process.
In view of this reply it does not seem prudent for the legation to push its
efforts further for the relief of Mr. Hamel.
I am, &c.,
[Inclosure 1 in No.
389.—Translation.]
Mr. Foster to Mr.
Gayon.
My Dear Sir: I inclose to your excellency the
memorandum which I promised you in our interview of yesterday relative
to the old metals imported into Barcelona by the American citizen, Mr.
Hamel.
My Government has manifested much interest in this question, and I hope
that your excellency will be able to regard it from the same point of
view as I have in the said memorandum, and that you will decide the
matter as soon as it may be convenient.
With the assurances, &c.,
[Inclosure 2 in No.
389.—Translation.]
Old metal imported at Barcelona from
Cuba.
The notes of the legation of the United States to the minister of state
of December 10 and 12 and June 17 last ask for the return of the duties
collected at Barcelona on two shipments of old or useless metals made by
the American citizen, F. B.
[Page 750]
Hamel, from Havana, Cuba, on the ground that under the law of June 30,
1882, they were entitled to be admitted free of duties,
The simple question presented is whether the shipments made by Hamel were
products of Cuba in the sense of the law of
June 30, 1882.
(1)Article 317 of the customs ordinances provides the following:
“Useless and old pieces of all kinds of metals are also excepted from the
requirement of a certificate when they proceed directly from the said
ultramarine provinces, which pieces are considered for the effects of
the tariff as products of said provinces,
provided that from their character they can only be utilized as original
products.”
The shipping document certifies that the articles shipped were “worthless
articles of the railroads and foundries of the country.” (See documents
of custom-house of Havana, inclosed with a note of legation of December
12.) The first shipment by the corbeta Concepcion was passed free at the
custom-house at Barcelona as old metals, and no question is raised as to
the character of the articles—in the language of article 317, “from
their character they can only be utilized as original products”—and the
documents show that the shipments by the Concepcion were actually sold
to the foundries of Barcelona and used by them as such materials.
(2) If the products of one country are introduced into another by the
payment of duties, by that act they become nationalized, especially if
after their introduction they change their character by manufacture or
use. This is believed to be recognized in practice by the custom-houses
of all nations. It is expressly recognized in principle by article 6 of
the Spanish law of June 30, 1882.
By the affidavit of H. B. Hamel, agent of F. B. Hamel (inclosed with the
note of the legation of December 10), it is proved that the merchandise
shipped by Hamel “consist of old copper and iron, brass, and
yellow-metal clippings, and scraps of such metals that
have already been imported into this island (Cuba) and paid the corresponding
custom-house duties.”
With the note of the legation of June 17 is inclosed, among other
documents, a certificate from the inspector of customs of Havana that no
old iron or other metals have at any time been imported at that port,
the inference being that the articles shipped by Hamel to Barcelona had
paid duties in Cuba as new goods. The good faith of Hamel in his
business as an exporter of old metals and junk articles is fully proved
by other documents.
(3) It is shown that Hamel has been for years engaged in this business
and had sent other similar cargoes to Spain, which, by virtue of the law
of June 30, 1882, had been admitted free of duties. Justice and equity
would seem to require that if a new order of hacienda is issued changing
the practice as to the duties, he should have reasonable notice of that
order, and that the cargoes shipped before the order had been made
should be admitted under the former practice of the aduana.
It is therefore claimed: (1) That to be considered products of Cuba it is
only necessary (o show that the articles in question came directly from
that island and were useless (see article 317); (2) that by the payment
of duties on their first introduction into Cuba they became naturalized
products; and (3) that if the custom-house practice is to be changed,
Hamel should have reasonable notice before duties are collected from
him.
[Inclosure 3 in No.
389.—Translation.]
Mr. Gayon to Mr.
Foster.
Ministry of Finance,
August 16, 1885.
Private.]Dear Sir: Replying to your favor of the 11th
instant in reference to the metals imported at the custom-house of
Barcelona by Mr. F. B. Hamel, I have the honor to inform you that long
before the first private note which your excellency addressed me on this
subject, the representative of the party interested had made use of the
administrative methods afforded by our laws, and the appeal made by him
had been decided by royal order of March 17, and that it is not possible
to nullify the effect of this order without having recourse, as Mr.
Hamel’s representative has done, to the via
contenciosa in the corresponding department of our council of
state, before which his attorney can make use of whatever arguments and
evidence may appear effective, although in the administrative
proceedings they may have already been brought forward at length.
I give to your excellency, with great pleasure, all these details, since
it is not possible for me to interfere in a question submitted to the
via contenciosa; and
I avail, &c.,
