Mr. Powell to Mr. Hay.

No. 758.]

Sir: I have the honor to inclose the decision of the court of cassation in which it states the incompetency of Haitian courts to try civil cases when both parties are foreigners.

This is a matter I informed the Department in dispatch No. 687 of December 10, 1899. In view of the decision the minister resident from Germany proposes to recommend to his Government that it insist that there shall be established in this Republic an independent tribunal for the trial of such cases that the Haitian tribunals refuse to assume jurisdiction when both parties are foreigners, such tribunals to be under the control of the foreign powers having representatives here. It is to be further stipulated that the decisions of such courts are to be respected by the Haitian Government and that it be empowered to carry its decrees into effect.

I also inclose the correspondence between the German legation and this in regard to this subject.

I have, etc.,

W. F. Powell.
[Inclosure 1.—Translation.]

republic of haiti.

Extract from the minutes of the clerk of the tribunal of the Republic.

In the Name of the Republic.

The tribunal of cassation, civil section, competently assembled at the palace of justice has rendered the following decree: On the appeal formulated by the Messrs. Tippenhauer & Co., foreign engineers domiciled at Berlin, Germany, dwelling at Port au Prince, acting in their quality as proprietors and directors of the technical bureau established in this city, having for constituted lawyer Mr. Luc Dominique, against a judgment of the civil court of Port au Prince, of date of September 22, 1899, rendered contradictorily between them and Mr. J. B. Reimers, engineer domiciled at Berlin, Germany, having for lawyer J. B. W. Francis. Facts: For to have the payment of $181.30, final payment of the one-half of the percentage collected for the construction of a house belonging to the citizen P. Faine, the Messrs. Tippenhauer & Co., acting as proprietors and directors of the techinal bureau established at Port au Prince, have had a summons made to Mr. Reimers to appear before the civil tribunal of Port au Prince, to hear himself condemned by all the legal means to pay to them without delay, with interests and expenses, the above sum.

At the hearing of the affair by the above tribunal Mr. Reimers raised an exception of incompetence, tending to say that the Messrs. Tippenhauer & Co. are the same as himself, Reimers, foreigners, German subjects; the Haitian courts are incompetent to take cognizance of the civil litigation existing between the parties; that the tribunal should declare itself incompetent to take cognizance of the action that is submitted to it in the occurrence, and to give him an official certificate of the reserves that he makes both in regard to the form as to the foundation against the subpoena made to him on the 7th of September, 1898, and to condemn his adversaries to the expenses. To repulse this exception the Messrs. Tippenhauer & Co. have declared that in accord with the juris consuls of private international law the difficulties relative to the contracts that have origin in a determined territory should be judged and decided by the tribunals of that territory; that thus the request of incompetence should be declared badly founded and injunction should be made to their adversary to plead the basis with condemnation to the expenses. After having heard the public minister the tribunal ordered the documents to be deposited for deliberation and put off pronouncing of the judgment to another audience. The 22d of September last this tribunal rendered its judgment in these terms: For these motives the tribunal, after [Page 708] having deliberated, declares itself incompetent to take cognizance of the civil dispute existing between Messrs. Tippenhauer & Co. and Mr. Reimers, and send the parties to appeal to the proper person. It is against this judgment that was raised and notified after a summons made to that effect to the said Mr. Reimers by the said Tippenhauer & Co., foreign engineers, domiciled at Berlin, Germany, dwelling in Port au Prince, acting in their quality of proprietors and directors of the technical bureau, established in this city, having Mr. Luc Dominique for their constituted lawyer; that they have appealed and have notified their request containing the two means. First means:

Triple violation, say the plaintiffs, of article 148 of the code of civil procedure: In that there is, first, complete absence in the point of law of the question that has made the object of their claim against their adversary. Instead of asking themselves whether the court should condemn Reimers to pay to Tippenhauer & Co. the sum of $181.30 that they claim of him, the judges, say the plaintiffs, hastened to ask themselves the sole question, to wit: If the exception of incompetence proposed by the defendant should be accepted, thus proving in the most evident manner their ardent desire to give right to the said exception. Is it not in fact logic, say the plaintiffs, that in the case the first question to be asked was naturally that taken from the act introductory of the instance, and that that relative to the exception of incompetence could only come in second instance. The will of the law, moreover, say the plaintiffs, is that all the questions agitated at the outset should be determined and precised as much from the point of view of right as from the point of fact. It would surely be no violation of article 148, say the plaintiffs, if the first judges had simply committed the error of transposing the order of the questions, it being given that there is no sacramental form for putting that; but there is place to observe, say they, that the first, the claim is absolutely wanting in the point of law, and that under that title the judgment attacked should inevitably be broken. In vain, say they, they think that in the following phrase the tribunal has itself sufficiently “examined the leading point reproached. If on the contrary the said exception should be rejected as badly founded and the defendant appointed to conclude on the basis.” There is no doubt, say the plaintiffs, that this interrogation no wise makes known what was the nature of the basis, and of what it consisted. Second, moreover, this question, think the plaintiffs, on the declinatory proposed and accepted is it even of such an ambiguity and defect that it can not be advanced without hesitation that it does not exist properly speaking from the point of law in the judgment.

In fact, say they, the petition from the principle to which the judges delivered themselves in their wording, absolutely says nothing. “It is a question of knowing whether the tribunal should accept the exception raised, it being question in the case of two foreigners.”

This defect, say the plaintiffs, equivalent to an absence of the point of law, should bring on the decision criticised. Third. Their arguments, say they, repulsed the incompetence raised, itself reposing on the powerful consideration taken from authors competent in the matter of private international law (see, say they, Calvo, A. Weife, Asser, Leaine, etc., to wit, that the dispute to be judged having originated on Haitian territory (at Port au Prince), the place where is erected the Faine Building, for the fees of which a sort of partnership existed between the parties), the pretended principle, say the plaintiffs, of incompetence of the Haitian tribunals to take cognizance of civil suits between foreigners, weakens, and therefore the civil tribunals of the jurisdiction could in all rights decide the question that they submitted to it, against their adversary. Now, say the plaintiffs, the tribunal without examining the merits of this scientific discussion exerted itself in the exposition of its motives, to make no allusion thereto. “It says well in the preamble, that the defendant and the plaintiffs are foreigners, and that the dispute existing between them is purely civil, although the contract from which it emanates took place in Haiti.” But it is rational, they say, again, that this preamble explains nothing, and can not supply the reasoning that the judges were bound to make to avoid that series and important consideration and simply accepted the declination of incompetence. This abstention from elucidating a luminous point at the outset constitutes a want of motives sufficient to annul the work of the judges of the civil tribunal. Second means:

Excess of power, and violation of the rules of the competency, say the plaintiffs, because the civil tribunal declared itself incompetent, it being questioned in the case of two foreigners, but they see nowhere in the judgment, in virtue of what text of law it has thus decided. And they ask themselves, where has it drawn the elements of its decision? On the other part, what are the reasons and the considerations that have led it to pronounce itself in that manner? Why, it being a question of foreigners, the Haitian justice can not take cognizance of the difference that divides them.

[Page 709]

The judges on these different points have thought it their duty to observe an imprudent silence, say the plaintiffs. It is manifest, however, they say, that the tacit contract, which engaged their adversary toward them (contract, again say, of which there is no dispute in regard to the existence before the first judges, and which is even recognized by the latter in their judgment) taking place on account of the erection at Port au Prince of a building for Mr. P. Faine, that was to be done in that city and nowhere else, they still say, under these circumstances, the plaintiffs esteem how could German judges be able to decide such a claim, not having within their reach the special elements of the case. Wronged in their interest, they find themselves, say the plaintiffs, exposed to not being able to find anywhere a just reparation. This absence of a precise and formal text of the law refusing to foreigners in Haiti the justice which is due to all who work in the country, joined to the defaults of motives above cited, on the particular and special circumstances of the case deferred to the civil tribunal, say the plaintiffs, besides the vices in the form signaled, an excess of power and a flagrant violation of the rules of competence that should cause to be annihilated the work of September 22 last; and they conclude, that by these motives and others to be supplied by law and equity, to break the above judgment, order the remittance of the fine deposited, send back the case to another tribunal, and condemn Reimers for the expenses with abstraction to the profit of Mr. Luc Dominique, the lawyer, on the affirmation of law Mr. J. B. Reimers, engineer domiciled at Berlin, Germany, having for lawyer Mr. J. B. W. Francis, defendant against the said appeal, to repel the means of “his adversaries, as follows: Against the triple resolution of article 148. First, for to render account to himself of the emptiness of that criticism, says the defendant, and to convince himself that the Messrs. Tippenhauer & Co. are in complete error. It suffices to read over that portion of the judgment. It is, in fact, says he, conformable to the prescription of article 148 of the code of civil procedure that the authors of the judgment of September 22 last interrogated themselves on the question that they have resolved.

The text of articles 169, 170, and 171 of the same code makes it obligatory of all tribunals, after the exposition of the case, to question itself first on competency. It is only after having assured itself of the possibility of judging the case that is submitted to it, either on account of the matter that is permitted to a tribunal to retain and to interrogate itself on the pretensions of the parties contesting the basis. It is, therefore, wrong, says the defendant, that the Messrs. Tippenhauer & Co., in consequence of a regrettable ignorance of the rules of Haitian legislation on the competency of the tribunals reproached to the drawers up of the judgment criticised, of having questioned themselves at the commencement on the exception of incompetency that was proposed to them and which constituted its sole defense. Is there need, says the defendant, of a more ample demonstration for to prove the civil tribunal of Port au Prince could not and should not interrogate itself on that which the appellants to cassation reclaim of them, when, moreover, that they dispute the competency of that tribunal to decide on the claim of which in fact it could not recognize either the legitimacy or the illegitimacy, for reason of the nationality of the litigating party. It would only have been, says the defendant, in case that the parties having concluded all means, recognize the competency that they contest with it, deciding on the basis that the tribunal could interrogate itself on the claim of Tippenhauer & Co. This hypothesis did not present itself, says the defendant. To criticise in any manner is easy, says he, but to criticise in good right, in good knowledge, is another thing.

Second. The defendant declares that the interrogatory of the judgment which Tippenhauer & Co. incriminates is neither ambiguous nor defective. It is, says he, on the foreign origin of the parties that he bases himself to propose to the civil tribunal of Port au Prince to recognize and to pronouce its incompetency, to order the execution of the civil obligation coming between him and his adversaries.

Besides, says he, they have only to read over that interrogatory, which the plaintiffs in cassation have not had the loyalty to produce in whole, to assure that it concerns absolutely the question discussed by the parties and decided by the judgment, and he reproduces this as it follows this interrogation.

“It is a question of knowing whether or not the tribunal should accept the exception raised and to declare itself incompetent, it being a question in the case of a civil dispute existing between two parties, foreigners domiciled in Germany.” It conforms, says the defendant, with the provisions of article 148 of the code of civil procedure, and he asks himself with astonishment, where is the petition that it contains? It is only, says he, a solution, a vicious reasoning, that can contain a petition of principle and never an interrogation.

Third. The defendant thinks that Mr. Tippenhauer & Co. commit an error in believing to be the only ones who read the competent authors who treat of law, [Page 710] when they blame the drawers of the judgment of September 22 last because they had not admitted the serious and important considerations of the authors that they cite, and conclude the violation of article 148 of the code of civil procedure, in alleging that the judgment has no motive. The defendant thinks that the competent authors who have thought out the important and serious considerations in virtue of which his adversaries wish that his means of nonreception be rejected are but men; and therefore the considerations that they have alleged to elucidate the question debated can be contradicted by other men who like them think and make profession of studying laws and applying them.

If, says the defendant, the author cited by his adversaries are men, if in that quality, the opinions that they emit can be combatted by other opinions of persons who make a profession of studying laws and applying them, it must be said that the criticism of his adversaries is ridiculous. The defendant adds, whatever Calvo A. Weis, Laime, etc., may sustain tbey can not affirm that the motives of the judgment that admits that the civil tribunal of Port au Prince is incompetent to judge the civil dispute existing between him, a German, and his adversaries, equally Germans, why they may not be luminous are those required by article 148 of civil procedure. Moreover, says he, these motives which his adversaries have trumped up and which they find so denuded of science are accredited by numerous French authors, among others Demolombe, by the courts of justice of France, and by the tribunal of cassation.

Against the second means. In principle, says the defendant, the Haitian laws are only made for Haitians. They alone cooperate in the creation of those laws, and the delegates of the sovereign people have only legislated for them. It is only in particular cases that the Haitian laws are applicable to foreigners, and special text indicate these cases. Articles 7, 15, and 16 of the civil code, outside, therefore, says the defendant, of the cases foreseen by these texts it must be said, with the court of cassation of France, with Demolombe, with the tribunal of cassation of the Republic, that in civil matters the courts of a nation can only judge two foreigners when the law authorizes it.

Here is, says the defendant, in virtue of which principle, in virtue of which text, and in what company, the civil tribunal of Port au Prince, the 22d of September last, declared itself incompetent to take cognizance of the civil claim founded or not, made by the German plaintiffs, even that they be of Haitian descent, against the defendant, equally a German. This decision, says the defendant, contains no vice of form or any excess of power. Nevertheless, says the defendant, he is astonished, the tribunal can not fail without doubt of being equally astonished, that Tippenhauer, who is like him domiciled at Berlin, does not wish to submit to the German justice. “There are,” says the defendant, “judges in Berlin,” and he concludes, in that it may please you to reject the appeal of Messrs. Tippenhauer & Company in consequence, conformable to the decrees of the 14th of November of last year, and the 2d of February, 1895, maintain the judgment of the civil court of Port au Prince, of date of September 22 of last year, and condemn the adversaries to the costs, to the profits of his lawyer, who affirms to having made the advances. Such are the facts of the case, the respective means of the parties, to you it appertains to decide that which is right.

I hear at the audience of March 13, instant, Mr. the Judge Pollux Hyppolite in his report, Mr. Lue Dominique and J. B. W. Francis in their observations, Mr. E. Dauphin, commissary of the Government, in his conclusions.

Section 1, the judgment attacked; second, the declaration of appeal; third, the request of the parties; fourth, all the documents produced on the first means of the appeal.

Whereas, that for to conform to the provisions of that article, it suffices in that which concerns the point of law that it contains clearly sets forth the questions on which the judges are called to decide, in that which relates to the motives, that they express the reasons that have determined the judgments.

Whereas, that in the case that a declination, based solely on the foreign quality of the parties, has been proposed and fixed the limits of the debate, the defendant not having concluded on the basis; that henceforth the judges not having to decide only on that exception were not obliged to put the question relative to the principal request, that had not been discussed.

Whereas, that the second criticism made from the same point of law has not any more consistence, and for to be convinced it sufficed to remind that the incompetency raised is based solely on the qualities of the parties; Germans, plaintiffs and defendants, that is to say, foreigners.

Whereas, as to the motives, that those expressed are complete, sufficient, and explained clearly the decision, that it is to be strangely mistaken on the idea of the [Page 711] legislature to think for one single instance that he could have intended to obligate the judges to reason on the arguments whatever that might be produced by the parties in support of their respective pretensions; that in the matter of motives, it requires only that those expressed, true or not, be appropriate to the debate. Whereas, that it results from the observations above that the artice 148 of the code of civil procedure has not been at all violated. On the second means.

Whereas, that it is the rule that civil disputes between foreigners relative to the execution of obligations contracted in Haiti or otherwheres can be judged by Haitian tribunals only with the consent of the parties, and that because the laws that govern these matters are special to Haitians and can not be imposed on foreigners; that therefore when the latter do not think that they should accept the Haitian jurisdiction and raise, for to have it understood, the incompetency of our tribunals, the judges are obliged to give right to it. Whereas, that the first judges have thus understood it, and in deciding as they have done, in accepting the declinatory proposed, they have riot committed any excess of power, they have not violated, in any manner, the rules of competency.

By these motives the tribunal after having deliberated, reject the appeal formed by Messrs. Tippenhauer & Co. against the judgment of date of September 22, 1899, rendered by the civil tribunal of Port au Prince, contradictorily between them and Mr. J. B. Reimers, in consequence orders the confiscation of the fine deposited, and condemn the said Messrs. Tippenhauer & Co. to the expenses liquidated by the sum of $39.35, of which abstraction to the benefit of Mr. J. B. W. Francis, who affirms having made the advance, at that not including the cost of the present decree.

Given by us, H. Lechaud, president; Perigor Pollux Hyppolite, Bourjolly, and F. Baron, judges, in public audience of the 27th of March, 1900, in presence of Mr. E. M. Chancy, substitute of the commissary of the Government, and assisted by Mr. C. S. Benjamin, clerk of the court. It is ordered to all bailiffs on request, to put the present decree in execution, to the officers of the public ministry near to the civil courts to hold a hand to all commandants and other officers of the public force to lend a strong hand when they shall be legally requested.

In faith of which, the minutes of the present decree is signed by the president, the judges, and clerk of court.

(Signed)

H. Lechaud,

Perigor P. Hyppolite,

Bourjolly F. Baron,

and C. S. Benjamin.

For an expedition conform. Collated:

(Signed)

C. Les Benjamin.

For copy:

J. B. W. Francis, Lawyer.

Recorded at Port au Prince, April 2, 1900, folio 363, 364, Vol. C, 1318 of Reg. F., No. 4 of Judicial Acts. Collected for dues fixed, two dollars and fifty cents, and ppal., fifty cents. Twenty-eight words erased, null, eight references and two additions to the line, Good Dtr. ppal. of Records.

(Signed) Edward Coicou.

Seen by authorization of controller:

(Signed) Cyrus Saurel.

For copy:

J. B. W. Francis.

The year one thousand nine hundred, the eleventh of April, at the request of Mr. J. B. Riemers, engineer, domiciled at Berlin, empire of Germany, dwelling at Port au Prince, having for constituted lawyer Mr. J. B. W. Francis, at the cabinet of whom he has made election of domicile, I, Desir Alexander, undersigned, bailiff of the court of cassation of the Republic, sitting at Port au Prince, and there dwelling, has notified, and in head of these presents left copy with Messrs. Tippenhauer & Company, engineers, dwelling at Port au Prince, there being and speaking to the person of Mr. Rudolphe Tippenhauer, one of the associates, to one of them has thus declared of a decree of the tribunal of cassation of the Republic rendered the 27th of March last in favor of the plaintiff against the aforesaid Tippenhauer & Company, recorded and already notified to the lawyer of the accused by writ of the bailiff Cavalho, of the tribunal of cassation duly recorded.

And I to them being and speaking as above, left copy both of the decree above announced and of the present writ. Two acts, the cost of which is eleven dollars and sixty-five cents. One reference good.

D. Alexander.
[Page 712]
[Inclosure 2.]

Mr. Michahellis to Mr. Powell.

My Dear Colleague: I take the liberty to send you herewith the judgment by which the cour de cessation has sanctioned the decision of the tribunal at Port au Prince about the incompetence in civil cases between foreigners. As far as I remember, I have already told you that the minister of justice has declared his intention to elaborate a new scheme of law on this question, but, as I have no high opinion neither of his intelligence nor of his good will, I consider his promise of little value.

It would be more convenient that the interested great powers—the States, England, France, and Germany—should come to an understanding how to put an end to the actual state which can not last for a long time without compromising notable interests of our nationals residing in Haiti. With the next mail I will report in this sense to my Government.

If you like to take a copy of the judgment it is entirely at your disposal, only I shall be glad to get it back as soon as possible.

With best regards, believe me, etc.,

G. Michahellis.
[Inclosure 3.]

Mr. Powell to Mr. Michahellis.

My Dear Colleague: I have your kind favor with the accompanying documents. Accept my thanks for same. I shall take a copy and will endeavor to return them to you to-morrow.

The prevailing influenza has affected about one-half of my clerical force.

Again thanking you for this act of kindness, I remain, etc.,

W. F. Powell.