This claim, as you will see, arises from the fact that the Federal
authorities at Manila believe themselves authorized to compel vessels
that touch at ports in the Philippines to leave the whole of their
cargoes there, even though it may be impossible to sell them.
In the opinion of my Government the pretension of the American
authorities at Manila seems contrary to the rules followed in all
merchant countries. Indeed, the principle which is constantly observed
in all policed States is that the master of a merchant vessel laden with
merchandise is permitted to discharge in the port for which it is bound,
or at which it may put in, such part only of the cargo as he may
designate for the purpose either of his own motion or under the orders
of his employers. Moreover, only that part of the merchandise so
designated that is entered for consumption is subject to customs duties,
and not such as may be warehoused in bond or manifested for transit.
The pretension to which Messrs. Marty & D’Abbadie object is so
clearly contrary to the prevalent usages that it seems to rest on the
personal decision of a customs official and not on any formal provision
of the new customs regulations of the Philippines to which it seems that
General Otis would not have failed to refer in a precise manner if the
possibility of such a reference had occurred to him.
I can but commend this claim to your kindly attention and embrace this
opportunity to renew, etc.
[Inclosure.]
M. Auguste Rafael Marty, a native of Porta (Eastern Pyrenees),
France, born August 16, 1844, and M. Jules Edouard d’Abbadie, born
at Tonnay, Charente (Charente-Inférieure), France, June 18, 1853,
partners, doing business under the name of Marty & D’Abbadie,
the said partnership having been entered into in pursuance of an
instrument under private seal dated September 11, 1886, and extended
by an instrument, likewise under private seal, January 1, 1897,
until December 31, 1906, shipowners, residing at Haiphong, Tonkin,
have the honor to address to the United States Government the
present reclamation, the object of which is to secure an indemnity
of 22,471 piasters,a by way of redress for the injury
done them by the arbitrary detention of the steamer Sullberg with a cargo of salt and rice on
board in the waters of Manila, from February 13 to March 2,
1899.
This indemnity would be payable to the firm of Marty & D’Abbadie,
charterers of the Sullberg, by way of redress
for the losses occasioned to them by paying for the use of the
vessel during her detention and by the expenses caused by the acts
of the American authorities, and also for the losses experienced on
the cargo and on the freight that would have been earned by the
vessel during the time of her detention.
The owner of the vessel, Mr. H. N. Struve, Hauptstrasse C. 63,
Blankenese, Germany, agent at Hongkong for Messrs. Siemssen &
Co., is not interested in the present claim, the amount of the
freight agreed upon in his favor having been duly paid.
No claim has been, and none can be, brought by any person whatever on
the ground of the acts that have given rise to the present claim for
indemnity. There is no reason for paying any attention to the
insurers of the goods, since the present petition has reference only
to the damage caused by the detention of the vessel during a period
of seventeen days. In support of this claim the claimants have the
honor to furnish the following detailed information:
The steamer Sullberg, carrying the German
flag, Mr. H. N. Struve, of Hauptstrasse C. 63, Blankenese, Germany,
being the owner, and Messrs. Siemssen & Co. being the agents at
Hongkong, and the vessel having been chartered by Messrs. Marty
& D’Abbadie, French shipowners, residing at Haiphong, Tonkin,
left Quinhone, Anam, on the 9th of February last, with a cargo of
rice and salt belonging to the charterers.
The rice was to go to Manila, while the salt was to be taken to
Iloilo.
At the time of its departure from Quinhone there was nothing that
could cause the charterers to suppose that the vessel could not make
the proposed voyage and land successively at Manila and at Iloilo
the goods which were intended for those ports.
The steamer arrived at Manila on the 14th day of February, and
effected the discharge of its cargo of rice with great difficulty.
The difficulties were such that the grain could not be warehoused
before the 28th of February. Consequently the rice remained in the
lighters for thirteen days, and during its stay the quantity of 94
piculs and 74/100 was removed (i. e., stolen).
As soon as the vessel arrived the captain of the Sullbery learned that, in consequence of the hostilities
between the United States Government and the Philippine insurgents,
the city of Iloilo had, in a great measure, been burned, and that
any commercial transaction there was impossible. He was therefore
compelled to renounce entering that port.
The captain then decided that he would leave Manila after discharging
the rice (evidently thinking that the discharge would be effected
within the normal period of from twelve to eighteen hours), in order
to go to Hongkong, where he hoped to be able to negotiate, in due
time, the sale of the 18,000 piculs of salt remaining on board of
his vessel. Contrary to all expectation, however, not only did the
American authorities create all possible difficulties in order to
prevent the landing of the rice, but they objected to the departure
of the Sullberg, and, furthermore, claimed
that the captain must be compelled to discharge his salt at Manila.
Feeling confident that the right was on his side, the captain
refused to do this.
Notwithstanding his energetic protest and the intervention of the
General Tobacco Company (which was the consignee of the vessel) and
of the consul of France, the American authorities maintained their
opposition.
This state of things continued until the 2d of March, when the
American authorities decided to remove the interdiction and to
authorize the departure of the vessel.
[Page 149]
The Sullberg had been detained at Manila from
February 13 to March 2—that is to say, for seventeen days.
Was this detention legal? Was it in conformity with the rules of
international law? Can it at least be explained by the necessities
of the conflict between the United States Government and the
Philippine insurgents? Evidently not.
In the first place, and even if a state of war were recognized
between the Philippine insurgents on the one hand and the United
States Government on the other, and even if the latter consequently
invoked belligerent rights in its favor, the fact is that no
proclamation of a blockade had been issued as regarded the coasts of
Manila. And no blockade could be established there, as Manila is now
under the de facto sovereignty of the American Government.
The entrance into and departure from the port of Manila had
necessarily therefore to remain free to all vessels carrying a
neutral flag.
No special notice had been given to the captain of the Sullberg, and when he entered the port of
Manila he had a right to suppose that he could trade there, freely,
as usual.
Even if a state of war had been proclaimed and a regular blockade had
been established subsequently to the Sullberg’s entrance into the port of Manila, that vessel
would have had a perfect right, recognized by all powers, to depart
free with her cargo, and a certain time should have been allowed to
her for that purpose.
Thus, even admitting that a state of war existed, the detention of
the Sullberg in the manner in which it took
place was absolutely at variance with the rules of international
law.
Furthermore, there was nothing to justify it.
Will it be said that the Sullberg was
suspected of having arms or munitions for the rebels on board? The
Sullberg had sailed from Anam direct to
Manila, which port is now under the high authority of the United
States Government. This circumstance was in itself sufficient to
show that there was no intention to commit fraud or to introduce
articles contraband of war.
If the captain of the Sullberg had had arms
for the rebels, he evidently would not have gone to Manila to
discharge them.
The ship’s papers were, moreover, in proper order; the manifest,
which had been viséd by the French authorities on her departure from
Quinhone, mentioned nothing but a cargo of rice and salt, and it is
a principle received in international law that a ship’s papers which
have been regularly viséd by the authorities of one power are
entitled to full faith and credit among the other powers.
Finally, even supposing that the American authorities had any reason
to suspect a fraud on the part of the captain of the Sullberg, they had no right to detain that
vessel for seventeen days in the waters of Manila.
If the United States Government invoked the rights of belligerent
powers, it could not exercise, on board of the Sullberg, anything more than a mere right of search, and
it could not hold the vessel any longer than was necessary to make
that search.
In no case can the right of search imply the right to require the
discharge of the goods.
These are well-founded principles, and the law of nations establishes
a right to indemnity when a search has shown the suspicions to be
unfounded and to have caused injury to the captain or the owners of
the vessel. With all the more reason this must be true in the case
of a prolonged detention which was wholly uncalled for, and which
was not justified by the allegation of any fraud.
Besides, other vessels have been in the same case as the Sullberg, and have been obliged by the
political situation of the Philippines to give up discharging their
goods. The local government, so far from detaining them, has
facilitated their departure.
Why was an exception made in the case of the Sullberg, and why were these vexatious measures taken
against her?
The captain of the Sullberg in no way objected
to admitting the local authorities on board of his vessel, and the
custom-house officers who were placed on board might easily have
ascertained that the vessel carried no arms or munitions of war.
If the American Government had been able, in the beginning, to
conceive the slightest suspicion, the loyal attitude of the captain
ought to have been sufficient to dispel it.
The charterers, whose commercial uprightness is well known, earnestly
protest against any such suspicion.
As soon as they were able to do so without subjecting themselves to
inadmissible demands, they made it a point to justify
themselves.
On the 6th day of March, when the Sullberg
arrived at Hongkong, Mr. A. R. Marty, their agent, wrote to the
United States consul-general, informing him of the vessel’s arrival,
and requesting him to send a representative to witness the discharge
of the cargo of salt.
[Page 150]
The consul-general was pleased to comply with this desire, and his
delegate ascertained that there were neither arms nor munitions of
war on board of the Sullberg.
Owing to the numerous obstacles placed in the way of the discharge of
the rice, and by the detention of the Sullberg for seventeen days at Manila, the United States
Government caused a serious loss to Messrs. Marty &
d’Abbadie.
This detention, as we have just shown, was in violation of the law of
nations, and can not be justified by any of the necessities which
are allowable in case of war, in favor of the belligerents. It took
place without any good reason, on a mere suspicion of fraud, which
had no foundation whatever.
The United States Government must itself have recognized this, since
it authorized the departure of the Sullberg
after she had been illegally detained for seventeen days.
It is, therefore, under obligations to furnish redress for the injury
which it caused.
It remains for us to establish the amount of the damage done.
This damage is composed of five elements, to wit:
- 1.
- Payment of freight during the period of detention, i. e.,
for seventeen days at 350 piasters per day, the sum of 5,950
piasters.
- 2.
- Payment of the expenses occasioned by the act of the
American authorities, cost of telegrams, removal
(defacement) of the captain, expenses of sojourn on board of
the Sullberg, etc.—that is to say,
the sum of 1,045 piasters and 65 cents.
- 3.
- The loss occasioned on the sale of the cargo by the
postponement of that sale. The 18,000 piculs of salt were,
as we have already remarked, to be taken to Iloilo, where
they were to be sold at one piaster per picul. The salt had
to be sent to Hongkong, where its average price per picul is
but 50 cents. On its arrival, however, it could find no
purchasers. In the interval which elapsed between February
10 (meaning 13th) and March 6 (meaning 2d)—that is, during
the detention of the vessel at Manila—the Hongkong market
had been supplied. It was therefore necessary to warehouse
it, and its sale will hardly be possible in less than three
or four months, while the cost of warehousing, etc., will be
about 10 cents per picul. The failure to earn in consequence
of the action taken by the American authorities at Manila is
therefore 5.60 (meaning 0.60) cents per picul, or a total of
10,800 piasters.
- 4.
- The damages for the freight which would have been earned
by the Sullberg during her detention;
this may be estimated at 3,000 piasters.
- 5.
- Finally, the refunding of the expenditures occasioned by
the numerous difficulties raised in connection with the
discharge of the rice, which might have been effected in one
day at most in ordinary times, whereas it was effected in
thirteen days. Furthermore, payment for the 94 piculs and
seventy-four one-hundredths which were stolen, making, in
the aggregate, 1,675 piasters and 35 cents.
The total amount of the claim of Messrs. Marty & d’Abbadie is
22,471 piasters.
By procuration of Marty & d’Abbadie.
(Signed) —— ——
.
Haiphong, November 20,
1899.
recapitulation
| 1. |
Payment of the price called for by the charter for
seventeen days, at 350 francs (piasters?) per day |
$5,950.00 |
| 2. |
Repayment of the expenses incurred during the aforesaid
detention at Manila, 466.57; at Hongkong, 579.08 |
1,045.65 |
| 3. |
Loss on the sale of salt, .60 per picul, i. e., on 1,800
piculs |
10,800.00 |
| 4. |
Damages for the freight that might have been earned by the
Sullberg during her
detention |
3,000.00 |
| 5. |
Repayment of the expenses incurred through the
difficulties raised in connection with the landing of the
rice and the quantity stolen |
1,675.35 |
|
Total |
22,471.00 |
On this 22d day of November, 1899, before us, Eugene Domergue,
resident mayor of the city of Haiphong, appeared Mr. Auguste Raphael
Marty, member of the firm of Marty & d’Abbadie, shipowners, and,
acting in the name of said firm, who, being called upon by us to
affirm the truth of the statements made by him in his demand written
opposite, bearing date of November 22, 1899, and having reference to
a claim for indemnity presented to the American Government for
damages occasioned to their chartered steamer, the Sullberg, in the waters of Manila, replied “I affirm, on
my soul and on my conscience, that the sum of 22,471 piasters, which
I claim for the damage done to us, is really and legitimately our
due.”
Of which affirmation, we, the resident mayor of the city of Haiphong,
have given
[Page 151]
a certificate
to the said Mr. Marty, representing his firm, and have drawn up the
present paper, which he has signed with us after it had been read to
him.
By procuration of Marty & d’Abbadie.
Domergue,
A. Marty.
Examined for authentication of the signature of Mr. Domergue,
resident mayor of Haiphong, and that of Mr. A. Marty above
affixed.
For the superior resident and by delegation.
The resident, head of the cabinet.
(Signed) —— ——.
Hanoi, November 25, 1899.
Examined for authentication of the signature, affixed opposite, of
the resident, head of the cabinet, for the resident superior of
Tonkin and by delegation, authenticating the signature of Messrs. A.
R. Marty, member of the firm of Marty & d’Abbadie, and Domergue,
resident mayor of the city of Haiphong.
For the consul of France and by delegation,
G. Goudereau, The Chancellor.
Hongkong, December 7,
1899.
