Mr. Hay to Mr.
Choate.
Department of State,
Washington, February 26,
1900.
No. 315.]Sir: I have to acknowledge the receipt of your
dispatch No. 251, of the 10th instant, and for your information to
transmit herewith copies of the following letters: From G. F. Lough
& Co., dated February 14, 1900; Pennsylvania Milling Company, dated
February 16, 1900; Arkell & Douglass, dated January 30, 1900, and
February 14, 1900; W. H. Crossman & Bro., dated January 30, 1900; C.
C. Abel & Co., dated January 27, 1900, and February 14, 1900; Norton
& Son, dated February 13, 1900.
With reference to the suggestion contained in the last paragraph of your
dispatch, it is the view of the Department that, in order to support a
claim for indemnity against the British Government for the seizure of
the goods, it must appear both that the claimant was an American citizen
and that he was the owner of the goods when seized, within the rule of
the prize jurisdiction, that the consignee on whose account and at whose
risk the goods were shipped is considered such owner during the voyage.
The rule would seem to suggest as a corollary that the right to claim
for damages caused by the illegal seizure would be in the owner.
On the interesting question whether there may be a basis for a claim for
“indirect loss sustained by the American shippers growing out of a sale
on credit to citizens of the Transvaal,” the further question might
arise whether the consignor might, notwithstanding the seizure, be able
to recover at law the full contract price from the consignee; and, if
so, whether the seizure could be considered legally as a wrong against
the consignor, and, on the other hand, if unable to recover at law,
whether, under all the circumstances of the case, such inability would
be legally imputable to the act of the British Government in making the
seizure. In view of the possible considerations of fact and
[Page 597]
law involved in the question,
the expression of any opinion thereon is reserved until a claim shall be
presented on a case stated by the shippers to the Department.
You will observe from the inclosed correspondence that C. C. Abel &
Co. have withdrawn their claim, for the reason that the consignees are
pressing their claim through their own Government; that W. H. Crossman
& Bro. have likewise cast the burden of settlement upon their
consignees, British subjects; that Norton & Son, shipping agents for
some of the shippers, are of opinion that most of the flour was sold at
the time of shipment, and that the shippers have received pay for the
same.
From the recent correspondence of the shippers, the Department is hopeful
that other claims may proceed to an acceptable solution. Nevertheless,
the Department would be pleased with the continuation of your efforts
until a final solution satisfactory to the American shippers is reached
in all of the cases.
The Department has forwarded to the Pennsylvania Milling Company that
part of your dispatch relating to their claim, with the request for
further evidence to strengthen your hand. Their letter (copy inclosed)
names prices for the sale of the flour. The Department has instructed
the consul-general at Cape Town to cooperate as requested.
I am, etc.,
[Inclosure 1.]
G. F. Lough & Co.
to Mr. Hay.
New
York, February 14,
1900.
Dear Sir: We are in receipt of your favors
of the 10th and 13th instant, dealing with the cargoes per
steamships Beatrice and Mashona, which we have read with attention.
We thank you for your offer to instruct the United-States
consul-general at Cape Town, to act in our behalf in the sale of any
of our goods which may have been seized, but in view of the points
laid down in your letter of the 3d instant, “That in order to
maintain a claim for indemnity it should appear both that the owners
of the goods were American citizens and that they were such owners
at the time of the seizure,” we do not see that we can at present
ask you to act. The shipment in which we are interested per
steamship Mashona was made by us, American
citizens, in fulfillment of an order received from a British
subject. Owing to the detention of the Mashona the goods deteriorated and our customer declined
to accept our draft. These are the facts, as received by cable, but
at an early date we expect letters giving fuller details. The bills
of lading drawn “to order” were attached to the draft and would not
be given up without acceptance. These documents should be sufficient
proof of ownership. We have instructed our agent in South Africa,
who is the holder of our power of attorney, to act in this
matter.
Thanking you for the interest you have taken in our case, we are,
etc.,
G. F. Lough & Co.
[Inclosure 2.]
Pennsylvania Milling and
Export Company to Mr. Hay.
New
York, February 16,
1900.
Sir: Your favor of the 12th instant duly
received. We delayed replying to same until we got some more
definite information concerning value of flour at Delagoa Bay about
the period at which our flour would have arrived there had it not
been seized.
[Page 598]
From what we can learn, flour was bringing in the neighborhood of £1
per bag on dock at that time. This, of course, not inclusive of
either the Portuguese regular duty or the ordinary transit duty,
which is charged there for flour going to the interior. However, as
our flour has been sold at prices ranging from 10 shillings to 11
shillings ber bag, having been sold much earlier in the season than
the time of shipment, we would be satisfied to have the flour taken
off our hands by the British authorities at the different points
where the flour has been landed, provided they pay us, say, 15
shillings per bag, free of all charges for storage, landing, and any
other expenses that may have accrued through the action of the
British authorities in the matter.
We hereby authorize you to instruct the consul-general at Cape Town
to act in our behalf in the sale of all the seized flour on the
different vessels at price of 15 shillings sterling per bag net to
us—that is, no expenses for storage or other charges to be deducted
from same. The freight on the flour was prepaid at this end, as was
also the insurance.
For your guidance we will recapitulate lots of flour that were
seized.
On the steamship Mashona 3,254 bags marked “
M Delagoa Bay,” and branded “Johannesburg.” This lot, we
understand, is at Cape Town.
On the steamship Beatrice 4,349 bags marked “
M Delagoa Bay,” and branded “Johannesburg;” also 1,340
bags marked “
S” and branded “Goldfields.” This lot, we understand, is
at East London.
On the Maria there were 2,000 bags marked “O.
& Co. Delagoa Bay,” and branded “Speria;” also 1,512 bags marked “
S Delagoa Bay,” and branded “Gold-fields.” These lots, we
understand, are at Durban.
Each bag of flour weighs 100 pounds, and the quality of all is alike,
being the very best grade of spring wheat patent manufactured in
this country.
If you require any invoice or anything of that kind to be made out we
shall be pleased to furnish you with all the necessary detail.
We thank you for your interest in the matter, and remain, etc.
Pennsylvania Milling and Export
Company,
Per A.J.
Toomey, President.
[Inclosure 3.]
Arkell &
Douglas to Mr. Hay.
New
York, January 30,
1900.
Dear Sir: We have pleasure in acknowledging
your further letters of January 25 and January 26, and we observe
what you say in reference to the South African status, and the
issues you raise are those we have had in our mind, as you will have
noted by our letters to you, and that there are considerable
complications for us to settle before we could make any specified
and definite claim.
We have received word from our house in South Africa that a few of
the shipments have been taken up by the parties who originally
ordered the goods, so that those cases are removed. There are,
however, a very considerable number of the shipments which we do not
look for any settlement on, and we think we should be able to claim
as absolutely our property, but we have not been able as yet to
reach definite conclusions.
Your telegram also received, with thanks, and as you may have
observed from our bills of lading sent you, we have a shipment of
flour on this steamer. This shipment, we consider, is absolutely our
property, and we anticipate receiving advices to that effect daily.
We shall, acting on your telegram, as soon as we have information,
cable our house at Cape Town to put a claim in, and, if necessary,
to consult the American consul there.
We presume you will kindly keep us posted with such further details
as you may receive, and we remain,
Faithfully yours,
[Page 599]
[Inclosure 4.]
Messrs. Arkell &
Douglas to Mr. Hay.
New
York, February 14,
1900.
Dear Sir: We beg to acknowledge your favors
of February 10 and 13, and we thank you very much for the
information which you have given us. We observe what you say in
reference to cargo having been found at bottom of the steamer Beatrice probably belonging to the Transvaal
government. We would state that we doubt very much the accuracy of
any such information. Of course the flour may have been marked for
some firm in the Transvaal who had been in the habit of importing,
but this does not follow it was not for legitimate business.
Regarding the steamer Mashona, we cabled our
house at Cape Town to put in a claim for the damage we had sustained
by reason of flour shipped by this vessel not having gone to Delagoa
Bay, and to consult with the United States consul as might be
necessary.
In reference, however, to the sale of any of our goods, while
thanking you for the offer, having our own houses at both Cape Town
and Port Elizabeth, we naturally can look after any such issue
without troubling the consul; but advised our people to see the
consul at either place in case it would be necessary to secure the
discharge of the goods.
We are, etc.,
[Inclosure 5.]
W. H. Crossman &
Bros, to Mr. Hay.
New
York, January 30,
1900.
Sir: We beg to thank you for your favor of
26th instant, also telegram of 29th instant, and to express our high
sense of obligation and thanks for the valuable particulars and
advice given us therein in respect to the Maria,
Mashona, and Beatrice cargoes.
As indicated per our previous advices the conditions under which all
our shipments were made (none of which seem to us to be susceptible
of being considered contraband), makes the question of the seizures
purely a matter as between Great Britain and the property of her
subjects, our obligations in respect thereto having ceased at the
moment they were put on board the respective ships here in
accordance with orders to us from the importers at the other
end.
Notwithstanding this position, we are, of course, keenly interested
in anything that transpires in respect to this matter, which may be
01 service to us later on or instructive in the meantime, and we
shall highly appreciate further advices from you in the premises
should it please you to favor us with same.
With respect, etc.,
W. H. Crossman &
Bros.
Jas. W.
Smith.
[Inclosure 6.]
C. C. Abel & Co.
to Mr. Hay.
New
York, January 27,
1900.
Sir: We beg to acknowledge the receipt of
your telegram of the 18th instant and of your letter of the 26th
same, and we again thank you for your kind efforts in our behalf. As
our correspondents, the East African Company, of Rotterdam, have
since paid us for the 400 cases petroleum of Beatrice, we have informed them that their protest against
the British Government will have to be made through the Dutch state
department at the Hague.
Whether a claim on us for nondelivery of goods at Delagoa Bay will be
pushed by the East African Company remains to be seen. If it is we
may be compelled to address you again on the subject.
We are, etc.,
C. C. Abel & Co.
[Page 600]
[Inclosure 7.]
Mr. C. C. Abel &
Co. to Mr. Hay.
New
York, February 14,
1900.
Sir: We have again to thank you for your
various communications regarding the seizures in South African ports
of merchandise shipped from United States ports, and beg to inform
you that we have definite information from Rotterdam to the effect
that the claim relating to the 400 cases petroleum per steamship Beatrice is being pushed by the Dutch state
department, as the property has been paid for by the Dutch company,
and we consequently withdraw our claim in the matter.
We are, etc.,
C. C. Abel & Co.
[Inclosure 8.]
Norton & Son to
Mr. Hay.
New
York, February 13,
1900.
Sir: We beg to acknowledge the receipt of
your valued favor of the 10th instant, and thank you very much for
the information contained therein, which is about as we
expected—that very little, if any, of the flour shipped from the
United States to South African ports was owned by bona fide American
citizens. We think most of the flour was sold at the time of
shipment, and the shippers here received pay for same.
Yours, very respectfully,
Norton & Son.
