Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 6, 1886
No. 414.
Mr. Curry
to Mr. Bayard.
Madrid, October 26, 1886. (Received November 9.)
Sir: In continuation of the history of the agreement of February 13, 1884, I inclose a note of the minister of state, in the original text and a translation, together with my proposition for a new agreement. It will be observed that I was seeking to get rid of the present agreement, unquestionably ambiguous in its phraseology, and of the complications which render it’ partially nugatory so far as benefit to the United States is concerned, and a hindrance to a wider and more satisfactory engagement. The trade in American vessels between foreign ports and the ports of Cuba and Porto Rico was omitted to avoid troublesome demands by foreign Governments, and because this feature of our commerce had not been specially emphasized in recent instructions.
Nothing has come of the propositions, as the revocation of the proclamation of February 14, 1884, has given a new phase to the whole discussion.
I have, &c.,
Mr. Moret to Mr. Curry.
My Dear Sir: I have the honor to answer the notes which your Excellency has been pleased to send to me under date of 4th and 14th instant, and to memorandum of 5th, hoping that the answer which I propose to submit to your Excellency’s consideration will draw us in a definitive manner to the loyal solution of the present disputes, which, in spite of our mutual efforts, impede the mercantile relations of Spain with the United States of North America.
To that effect I begin by accepting without reserve of any kind the principles repeatedly affirmed by your Excellency in the notes already referred to and proclaimed by your predecessor, Mr. Foster. I think with your Exellency “that there is no room for differences of any kind in the agreement of 1884 between the flags of Spain and the United States, so far as the commerce between the North American States and [Page 820] Spanish Antilles is concerned.” I agree likewise that the suspension of all discrimination flag duty necessarily implies that the American flag he treated exactly as the Spanish flag in the ports of Cuba and Porto Rico; and for me an inevitable consequence of said agreement is that if a kind of goods shipped in the ports of the United States were admitted under the third column of the tariff because it was carried under Spanish flag, it would have to he received in the same way when it comes under the American flag. Hence, I affirm in the most emphatic manner that the Government of the United States, as well as that of His Majesty the King, concur in one identical point of view in affirming, without any reference as yet to any kind of merchandise, that the principle on which the agreement of 13 February, 1884, is founded, is that of a most absolute equality of flags, so that, as your Excellency affirms in his note of 4th, “the American flag will he subject precisely to the same conditions with the Spanish flag.”
With these preliminaries it is unnecessary for me to say, although I do it with a special pleasure because your Excellency suggests it to me, that in all our conversations, as well as in every document we have exchanged since your Excellency has been accredited near the Court of Spain, the same spirit has dominated and they have tended to obtain that the most absolute equality preside over the mercantile relations of the United States with the Spanish Antilles, and since your Excellency thinks that my testimony may corroborate in some way that of your Excellency, I offer it to you, so full and conclusive as your Excellency may wish it, to confirm everything set forth by you.
This being stated, I have to ask in my turn that your Excellency will state in like manner that on my part, and on every occasion we have discussed this point, your Excellency has found in me and in the Spanish Government the most absolute sincerity and the most lively desire to do justice to its claims, to interpret the agreement of 1884 in the most frank and loyal manner, and to remove every cause of displeasure or of irritation to the Government of the United States.
This testimony of your Excellency will be sufficient to answer the suppositions, extremely unjust, of which the last action of the Spanish Government has been the object in the United States.
With these antecedents it seems difficult to account for the reasons of the present conflict, which has reached its climax in the proclamation which, under date of 14th October, the President of the United States has been pleased to publish, establishing after the 25th instant the differential duty of 10 per cent, on the Spanish merchandise, a duty which had been suspended on 1st of March, 1884, but the explanation may be found, according to my opinion, in the course and the shape which the discussions have taken about the application of the agreement of that year, because the fact is that at first sight there is no difference between both Governments.
Your Excellency asked in his notes of May last, and the ministry of ultramar understood so on issuing the royal order of 22d June, the origin of the present controversy, the absolute equality of flags, and the Spanish Government offered it with the sincere intention of giving it without on my part seeing in all that discussion any concrete point which might give rise to any disagreement. But it happened that on applying the royal order of 22d June, the Cuban authorities, and on giving the constant interpretation that the Spanish Government has been giving to the tariff, the American merchants, saw that in the practice a differential duty resulted for their flag, and on this fact they based their complaints and protests. I must confess to your Excellency that if in that moment the claims had been formulated in the terms in which they now appear before the Spanish Government, the inequality denounced by your Excellency would not have been maintained for a single day, and the critical situation which we now are passing through would never have existed; but your Excellency will do the Spanish Government the justice to acknowledge that the question has not been presented to it in the terms in which I am now examining it.
From the data which are placed before me, and especially from the complaints which the American shipowners have formulated before the President, Mr. Cleveland, and the Secretary of State, Mr. Bayard—complaints which have been reproduced and commented upon by the newspapers—it results that in the traffic between the United States and the Spanish Antilles there is a class of products to which a different item of the tariff is applied if they are carried under American or Spanish flag. We denominate those products as foreign ones; that is to say, not produced in the two countries, although they proceed from them; and the complaint consists in the supposition that when those products are shipped in the ports of the United States they are made to pay in those of Cuba and Porto Rico under the fourth column of the tariff if they are carried under American flag, and only under the third column if they arrive under Spanish flag. Such is the concrete and only fact alleged to denounce the existence of differential duties between the two flags, and to base the resolution taken by President Cleveland re-establishing the differential duty of 10 per cent, upon the merchandise of the Spanish Antilles.
[Page 821]This being the fact, I do not hesitate on my part in affirming that the complaint would be well founded, and that if in that way the tariff were applied and if in the Cuba and Porto Rico custom-houses it were granted to the foreign products to the United States which are carried under Spanish flag a treatment different from that which is granted to equal products when they are carried under the American flag, there would have been an erroneous interpretation of the articles 1 and 2 of the agreement of 1884. And this stated, I need not add that the Spanish Government is and has always been disposed to immediately correct that inequality and to modify a state of things which it considers contrary to right. But it behooves me also, after expressing myself with this frankness, to put in doubt the legal exactness of the facts.
It is not declared in our legislation and in all the antecedents which are in this ministry; there is no order of any kind which establishes that difference. It is possible that in some custom-houses of the Antilles and in some concrete cases some isolated orders may have been given and some authorities may have cleared some cargoes with so different a criterion; but the Government cannot make itself responsible for it, and if a complaint would have been formulated to it in precise terms it would have been attended to at once.
But let it be allowed to me to say that the discussion has not borne upon these points nor the true claim of the United States been made clear until your Excellency, with the great clearness of language which characterizes all your writings, has set it forth in the notes which I answer.
Before receiving them, the ministry of ultramar, with the data which it had before it, must have thought that the question indicated was not concerned; but that the American merchants and shipowners understood that all the merchandise by the mere fact of having been shipped in American ports and to be carried to those of Cuba and Porto Rico under American flag had a right to the treatment of the third column, which was not now a question of equalization but of interpretation of the agreement of 1884 in most important points, and regarding which the department of ultramar has always had a uniform and fixed standard, and that has been, in my opinion, the cause of this misunderstanding which has risen, and which I am pleased in hoping will disappear after the explanations which I have the honor to submit to your Excellency. Because from the moment in which I have read your notes and have examined them in union with my worthy colleague, the minister of ultramar, both of us have seen that your Excellency, transferring the question from the narrow ground of the decisions of the customs, carried it to the more solid and safe ground of the principles which underlie the agreement of 1884, the terms of the question have been re-established and the solution cannot be doubtful, because the application of principles mutually accepted is never so.
It is needless, Mr. Minister, that after these considerations I should enter into a discussion of the royal order of 22 June, nor that I expatiate on any kind of reasonings respecting the interpretations which that legal order may have received on the part of the authorities of Cuba and Porto Rico. This question, as your Excellency states, is only incidental; above it, and above all those of like kind, is the fundamental principle of the agreement, eloquently set forth by your Excellency and acknowledged by me from the first moment with the same preciseness with which I acknowledge it today. What is of true moment to both nations, and what your Excellency wishes, is that said principle may have its full and immediate application, and that the moment may arrive when, every motive of disagreement having disappeared, those words which I had the honor to address to your Excellency on 18 May, and which you do me the honor to recall in your memorandum of 5th October, may be a real and effective fact; in which words t offered to your Excellency that the minister of ultramar would issue the necessary orders for the disappearance of every difference which now may exist between the American and Spanish vessels in the ports of the Antilles, your Excellency being able to inform your Government that any kind of differential duties such as those which your Excellency indicates shall be corrected without delay.
The proclamation of the President of the United States re-establishing the differential duties would have made difficult for me to give these frank declarations, if the explanation which your Excellency was pleased to give me in your note of 14th, and which verbally you have repeated to me in our interview of the 15th, had not given me the assurance that the conduct of the President has been the necessary consequence of legislation, according to which, from the moment in which it is shown that there are in any nation discriminating duties applied to the vessels of the United States or to their cargoes, the President is obliged to re-establish the discriminating duties of 10 per cent. For this same reason, and as a consequence of what your Excellency was pleased to state to me, the Spanish Government invokes that same legislation to claim the immediate suspension of that measure, because the case mentioned in the statute has arrived (volume 23, page 835), where it is said “that so soon as the products and articles proceeding from the United States which may be imported into the islands of Cuba and Porto Rico are exempted from differential customs duties, the articles and products which may be imported from Cuba and Porto Rico under the Spanish flag [Page 822] shall be exempted from the payment of the 10 per cent.,” a declaration made by President Arthur on the 14th February, 1884.
Spain finds herself, therefore, under the conditions prescribed by the laws of the United States, and in consequence I am authorized to declare to your Excellency that the equality of flags, Spanish and American, remains scrupulously respected, and that in the ports of Cuba and Porto Rico the merchandise shipped in the United States which arrives under Spanish flag shall not he granted any privilege which is not applied equally to the cargoes which proceed from the same place under the American flag.
And in order to make the facts more clear, and to avoid every interpretation in the concrete point which has produced so lamentable a disagreement, I submit to your Excellency the propriety of fixing the interpretation of the agreement of 13th September, 1884, in the following terms:
- (1)
- That all merchandise and products originating in the United States, shipped in American ports, and which go direct to those of Cuba and Porto Rico, whether under the Spanish flag or American flag, shall pay under the third column of the tariff; and
- (2)
- That foreign products in the United States which are shipped in North American ports and come to those of Cuba and Porto Rico shall pay the same under the American flag as under the Spanish flag, under the fourth column of the tariff.
I hope, Mr. Minister, that these declarations which I had the honor to verbally make to your Excellency yesterday, and which demonstrate the sincerity with which Spain desires to fulfill her engagements, will completely remove the difficulties which have arisen and re-establish the cordial relations which with so much sincerity and firm intention we have endeavored to consolidate. If such is the case, I have no doubt hut that President Cleveland will cancel the proclamation published on the 14th, and maintain the suspension of differential duties, as has been done up to the present, in the mutual benefit of the commerce and intercourse of both nations.
I avail myself, &c.,