Mr. Uhl to Messrs. Goodrich, Deady & Goodrich.
Washington, April 10, 1894.
Gentlemen: I have received, together with your letter of the 3d instant, a memorial of the owners, officers, and crew of the schooner Henry Crosby, requesting the Department to assert a claim for damages in their behalf against the Government of Santo Domingo.
The facts to be gathered from the memorial and affidavits accompanying it, from the affidavits taken before the American consular agent at Azua, and from the reports made by Commander Heyerman, of the Kearsarge, and Mr. John E. Meade, late consul at Santo Domingo, are as follows:
The Henry Crosby left New York the latter part of November last, bound for the port of Azua in Santo Domingo.
On the 9th of December following she reached a place which her officers supposed to be Azua, and came to anchor about 400 yards from the shore. The place was not Azua, however, and was not a port of entry.
About a week before this time the governor of Azua had been assassinated by revolutionists, and strict measures had been taken by the authorities of the country to prevent the escape of the assassins, orders being given to watch every vessel touching on the coast.
The Crosby remained where she had anchored (as above noted) during the balance of the day—the 9th of December—and during that night and the following morning. A little while before noon of the 10th of December the master, Captain Stubbs, seeing some persons on the shore, ordered the mate, Brooks, and two seamen (one named Smith and one named Johansen) to take the yawl boat and approach near [Page 230]enough to shore to inquire of the persons seen there whether the place was Azua. Brooks and his companions pulled the boat to within 150 or 200 feet of the shore, and asked in English if that was Azua, Answer was given, which they understood to be in the affirmative, though as none of the parties in the boat spoke Spanish, they could not have been clear as to the meaning of the reply they received. Understanding, however, that they were at Azua they started back to the vessel, and as they started back a number of soldiers, who had been concealed in bushes on the shore, emerged from their hiding place and opened fire upon them. Numerous shots were fired. One of them penetrated the side of the boat and slightly wounded Brooks, another seriously wounded Smith, while Johansen, dropping in the bottom of the boat to protect himself as far as possible, escaped unhurt.
The soldiers not only fired upon the boat and did the damage which has been mentioned, but they also fired numerous shots at the vessel, which at the time was flying the American flag, plainly visible from the shore. No damage, however, seems to have been done the vessel, the balls passing through the rigging or striking harmlessly about her sides. That evening a pilot came aboard, and it was ascertained that the vessel was not at Azua, but at what was called “Old Port,” the present port of Azua being some 10 miles distant. The next morning the Crosby was taken up to Azua, anchored in what seems to have been the usual place, and her unloading proceeded with by means of lighters. This was Monday, the 11th of December. The process of unloading and taking on cargo continued there until about the 17th of January following, when the Crosby sailed for Macoris.
Smith (the badly wounded man) was left at Azua, and the vessel seems to have incurred some expense there on his account. He was subsequently sent to New York by a steamer. Brooks was for a time somewhat, but not very seriously, incapacitated for work by the wound he had received in the firing.
It is stated in the memorial that the vessel was detained at Azua two or three days longer than she should have been by the action of the authorities, who were endeavoring to get Captain Stubbs to sign a paper exonerating the Government from any liability for the occurrence of the 10th of December. But it is also stated that the captain was sent for with this object in view, after the vessel had partly discharged her cargo and while she was still lying at anchor off the port of Azua. It is not clear, therefore, that even this trifling delay was due to the action of the authorities.
It further appears that after the schooner arrived at Macoris she was delayed for some twelve days because a steamer had arrived there ahead of her, and had precedence in receiving cargo over the Crosby, which was a sailing vessel.
In the statement of expenses which is filed with the memorial, one of the principal items is for twelve days’ damage, which evidently relates to the delay at Macoris. After this delay at that point the Crosby appears to have taken on her cargo and returned in due course and without further trouble to New York.
I am unable to see that the owners of the vessel have any claim for damages, except to the limited extent hereinafter indicated. True, some shots were fired at her, but there is no charge that any real injury was done. If there had been nothing in the circumstances of the country at the time to warrant unusual fears and suspicions on the part of the authorities and the soldiers, a case might be presented for demanding some pecuniary payment from the Dominican Government, [Page 231]though no actual damage had been done to the vessel; but I am of opinion that, while the soldiers acted in a very indiscreet way and without proper precautions, the state of excitement which existed on account of the recent assassination of the governor should be considered in extenuation of their act. So far, therefore, as the firing is concerned, I do not think the owners have any claim. It does not appear that the occurrences of Sunday, December 10, caused any delay in the time of the vessel’s arrival at the present port of Azua. She got there quite as early as she would have done had no trouble of that sort occurred. Nor do I think that the short delay of a day or two at Azua, just before the vessel sailed for Macoris, even if it was due directly to the detention of the captain by the authorities (which is not clear), furnishes a ground for damages. Neither was this delay so directly connected with the subsequent delay at Macoris (arising from the previous arrival of a steamer there) as to make the latter a proper item of claim.
I am, however, of opinion that whatever expenses the vessel was put to directly on account of the action of the soldiers in firing upon it should properly be reimbursed by the Dominican Government; such expense, for instance, would embrace the injury done to the yawl boat, medical attention upon Smith, money paid for his board, care, and attention at Azua, the injury to bedding which is alluded to, which I suppose happened in the dressing of his wounds, or any other matters of expense which were necessarily incurred by reason of the attack which the soldiers made upon the boat. Beyond this I do not see that the vessel or her owners can set up any claim.
If Smith were an American citizen I should say that he was entitled to the intervention of this Department to secure an indemnity for his injuries. He is not, however, an American citizen, nor does he come within that statute which provides that a foreigner serving as a seaman on an American vessel shall be entitled to American protection, if he has declared his intention to become a citizen; for it does not appear that he ever made such a declaration. Mr. Brooks is, perhaps, entitled to a small indemnity, though I may observe that no certificate of his naturalization is filed with the papers, as is required to be done when claims are preferred by naturalized citizens. I am unable to see that any other of the officers or crew are entitled to any damages.
The unfortunate occurrence grew out of the mistake made in anchoring the Crosby and sending a boat toward the shore at a place which was not a port of entry, and at a time when, by reason of the recent assassination of the governor and the expectation that an attempt would be made to effect the escape of the assassins by sea, this conduct could not fail to excite suspicion and fear in the minds of the authorities.
I may observe that Consular Agent Hardy suggests that this mistake might have been avoided had Captain Stubbs provided himself with the United States hydrographic chart of 1886, or the sailing directions from the same office, published in 1892.
It is clear that no insult to the flag was intended, since the governor of Azua, when called upon, expressed great regret at the occurrence, and Minister Smythe has reported that ample apologies were made.
On the whole, after careful consideration, I am conceited to say that the Department can not present the claim to the Dominican Government in the shape in which it is now formulated, or present it at all, except to the limited extent which I have above indicated.
I am, etc.,