Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 2, 1902
Mr. Bowen to Mr. Hay.
Caracas, April 20, 1902.
Sir: I have the honor to forward some memoranda in regard to the firing upon of the steamer Viking. These documents were filed with me by the managing director of the New York and Bermudez Company, Mr. Rake.
I am, etc.,
Memoranda in matter of refusal of Venezuelan consul at Port of Spain to issue clearance papers to the steamship Viking, of the New York and Bermudez Company.
[April 3. Received 4.30 p.m.]
Cable from Major Rafferty advising that the Venezuelan consul had refused clearance papers to steamship Viking. After consulting American consul, Port of Spain, and the captain of the U. S. S. Hartford, the American consul signed papers. Requested us to notify the American minister at Carácas.
[April 3, 1 p.m.]
Cabled to Major Rafferty advising him that his complaint would be brought to the immediate attention of the American minister.
[April 5. Received 11 a.m.]
Major Rafferty cabled advising us that the steamship Viking had been fired upon by unknown parties in San Juan, Frances Rivers, at 2 o’clock in the morning. Revolution increasing and in possession of Caño Colorado; property and lives Guanoco great danger; requesting us to apply for protection to the American minister at Caracas. Reports U. S. S. Hartford, at Port of Spain.
[April 5. Sent 1.15 p.m.]
Cabled to Major Rafferty that we had advised American minister of Guanoco situation; after consulting with captain of Hartford to let us know as soon as possible if another war ship was needed at Port of Spain.
[April 5.]
Received letter of 2d from Port of Spain. Major Rafferty advises us that he is having difficulty with Venezuelan consul, who has refused to clear the steamship Viking for Caño Colorado on the ground that the latter place has been in the hands of the revolutionists. U. S. S. Hartford, at Port of Spain, and as the Viking must go to Guanoco, if necessary he will ask protection from the commander of the Hartford.
[April 6.]
Letter to Major Rafferty—probably received by him on the morning of the 10th. Acknowledged his cable of 5th instant and advised him that translation of his message had been handed to the American minister. We were uncertain from his message whether the danger at Guanoco was due to revolutionary disturbances or not, although we assumed that to be the case; that the American minister dreaded to send the Hartford to Guanoco in view of the fact that she was a training ship and carried such a large proportion of young men, and that a landing party might be compelled to remain there for a long time, until the revolution had subsided; that it had finally been decided that he should consult the captain of the Hartford and advise whether another war ship was necessary at Port of Spain, and since he was in touch with the Hartford the captain of that vessel would doubtless not hesitate to act in any emergency that might arise. We suggested further, in view of Mr. Bowen’s advices to the State Department, assuming that the captain of the Hartford would report to his Department, together with our cable report to the New York office, his proper relief ought to be close at hand.
[April 7, 10.40 a.m.]
Received cablegram containing errors in transmission that obscured the sense and were not able to determine contents of message until repetitions were received 6.25 p.m. Major Rafferty cabled acknowledging our cable of the 5th. Informs us of his conference with the captain of the Hartford and that the Hartford will sail for St. Croix the following morning; will require small war ship. Captain of Hartford has instructed American consul, who has notified Washington of Viking incident.
[April 7.]
Letter to Major Rafferty, probably received by him on 12th; acknowledging his cable of even date, and advising him that prior to receipt of repetitions enabling us to decipher his message, the American minister had called and stated that he had received [Page 1060] a communication from the State Department covering the Viking incident, and as soon as we translated his cable we had laid the contents before the American minister; that in view of the great difficulties surrounding cable communication between Port of Spain and Caracas, and the infrequency of mails, the American minister suggested that in such emergencies it would seem to be desirable that the American consul at Port of Spain should take the question up direct.
[April 12. Received 8.50 a.m.]
Major Rafferty cables acknowledging our letter of 6th and says we correctly understand Guanoco sitution to be due to revolutionary disturbances; will leave to-day for Guanoco, protecting ourselves, and return April 14; was detained by Venezuelan consul, who threatens seizure of steamship Viking; American war ships have left Port of Spain; American consul slow to act.
[April 12. Sent 1.45 p.m.]
Cable to Major Rafferty acknowledging his cablegram; have seen the American minister, advising him to make demand for all needful papers of the Venezuelan consul, in the presence of his lawyer as witness, making statement of cause assigned if he refuses; in case the American consul refuses to act, to cable New York for war ship.
[April 12.]
Major Rafferty’s letter of 10th received. Major Rafferty says that he has discovered that the Venezuelan consul proposed to send a gunboat to seize the steamship Viking if he left for Guanoco that day; he points out the necessity of going to Guanoco to provision our men there and to attend to important work under exploitation; he will consult the American consul and be guided by circumstances; calls attention to the gravity of the situation, and points out that the State Department should come to our relief by affording necessary protection, or permit us to properly arm ourselves to insure our own protection.
[April 12, 6.25 p.m.]
Cabled to Major Rafferty, cautioning him to act within the law. Advised him we were accomplishing everything possible in absence of his detailed report.
[April 13.]
Received the following letter from Major Rafferty, dated April 7, from Port of Spain:
Dear Sir: As reported in my letters by royal mail, Dr. Ponce and myself left here for Guanoco on the 2d of April.
It was on the same day that the consul refused clearance papers on the ground that Caño Colorado was in possession of the revolutionists.
He was particularly careful to spring this on us late in the day, after having kept us delayed on one pretext or another, and there is no doubt in my mind that the Warner & Quinlan people brought him his instructions and that he was trying to delay us all he could. As it was imperative that Dr. Ponce and I should go to Guanoco without delay, I appealed to the American consul at Port of Spain, who hesitated to act until convinced by the captain of the Hartford. American consul, Port of Spain, then signed the necessary papers. The Venezuelan consul is evidently of wrath at what he considers our lack of respect, and made a number of covert threats as to what would happen if his orders were disregarded. However, the captain of the Hartford told me to go ahead, and that he would take care of any side shows that might be tried on us.
On reaching Caño Colorado we found Gen. Horacio Ducharme in control of customhouse, and he entered and cleared us as chief of the revolution.
Dr. Ponce and myself reached our destination on the evening of the 2d, and made every possible arrangement to meet the Warner & Quinlan people if they came our way, and I left our place at 10 o’clock on the night of April 3, well satisfied that our people could hold down the situation. Everything went well until we reached the junction of the San Juan-Frances rivers, when I was suddenly called by captain of Viking, who reported that we were being fired upon, and he at the same time promptly seized a barker and fired back. I do not know who the parties were, but there were three rowboats with quite a number of men. We continued on our way, [Page 1061] and on my return here I immediately reported to the American consul and the captain of the Hartford. The latter advised the American consul to notify the American minister at Caracas, which he did by cablegram in plain words, of which I inclose you a translation into code. I also inclose copies of cables sent and received between your office and this.
In compliance with your last cablegram, I immediately consulted the captain of the Hartford and forwarded you a cablegram in accordance with his advice. He also instructed the American consul to notify Washington of the fact that the Viking was fired upon and that the manager of the company requested the Hartford’s protection.
Whether my action fits in with your views or not is difficult for me to know, but the fact remains that the country is in such a state that we need either direct protection from our Government or proper authority to defend ourselves, and such authority is not likely to be given from the only place where it could come, viz, Washington.
Yours, truly,
Malcom A. Rafferty.
J. L. Rake, Esq.,
Private Box W 390, Caracas, Venezuela.
[April 14, 1.15 p.m.]
Cabled Major Rafferty in order to avoid giving pretense for seizure of steamship Viking not to go to any Venezuelan ports until further advised.
Dr. Bance to Mr. Rake.
Dear Sir: Complying with your wishes, I have given my most special attention to the incident of the Viking, although we have not yet the necessary information as to exactly what has happened, which would serve as a sure guide for us to give an opinion in the matter.
The facts such as have been stated and on which I base my conclusions are as follows:
The steamship Viking was in absolute necessity of going from Port of Spain to Caño Colorado without any loss of time to carry one of our attorneys whose presence was indispensable there, as well as to carry provisions, as it always does, for the workmen and employees of the company at Guanoco. The Venezuelan consul at Port of Spain refused to give the vessel papers without stating his reasons for his action, and the vessel, compelled as it was for the urgent necessity of accomplishing its duty, and besides being under the American flag, received its papers from the American consul at that place and left Port of Spain. We do not yet know whether the steamer touched at Caño Colorado or at some other port nor if the provisions it carried were unloaded, but according to the information given to me it touched on the Venezuelan coast, and that on returning to Port of Spain was fired at in the Caño Frances, receiving some gunshots from land, from whom as yet unknown.
These are facts which I take as certain, save such change as further information may make.
It is a principle of universal legislation, also adopted by Venezuela, that ignorance of the established laws does not excuse its nonfulfillment, and, in what relates to revenue matters, Law XVI, chapter 13, article 226 of the Code of Hacienda, offers a weak attenuation to that principle. Moreover, article 24, chapter 1, of the same law imposes on the Venezuelan consuls in foreign countries the duty of informing whoever desires information on this point of the contents of revenue regulations and give any explanations he may be asked for on the subject, with the view of saving the interested parties from any damages that might be derived from its nonfulfillment.
The vessel could not have left legally from Port of Spain for Caño Colorado without papers having been given to it by the consular agent of Venezuela, and its having left without such papers can not be excused by the absolute necessity that was alleged, nor is it covered by papers given it by the American consul, which would only serve to prove that the steamer was not on a smuggling expedition, which is a most important fact; but the fact always remains that Law XVI, article 2, was not complied with, and, besides, articles 24, 36, 38, 47, 187, 190, 194, 195, and 223 of the same law are against us; also Law XXI of the above-mentioned code, article 1 (cases 4, 5, 6, 9, and 10).
[Page 1062]The consul having refused to give the vessel any papers, he would have been liable to responsibility for any damages (article 39, Law XVI) if the captain of the steamer had confined himself to obtaining some proof of such refusal as well as of the imperative necessity for his sailing. The responsibility of the consular agent might have been used against the Venezuelan Government. However, the fact of the steamer having left and returned in spite of such a refusal constitutes a violence that places us in a disadvantageous position.
It is obvious, on the other side, that the steamer, by leaving port without papers by the Venezuelan consular agent, did not in any way facilitate its trip nor cover the possibility of accomplishing the mission winch was alleged to be indispensable, since on its arrival it would legally be liable to bo stopped and seized, not only the steamer itself, but its cargo also, and in the case it had touched at some unopened port or a deserted island, in which cases the responsibility incurred would be still more serious. The alleged imperative necessity is entirely destroyed by these arguments.
It is a fact that the steamer touched the Venezuelan coast for the purpose of landing men and provisions (I do not know whether it succeeded), since on its return it was fired at in the Caño Frances. It is therefore unquestionable that, besides the steamer having left without the necessary papers, it illegally landed and returned.
Any damages that either the steamer or the company may have suffered on the former being fired at in the Caño Frances can not be claimed on solid grounds, firstly, because it was illegally navigating Venezuelan waters; secondly, because it is not known whether the attack came from public forces or revolutionary forces, and thirdly, because if it came from revolutionary forces (this is a point that has been discussed and maintained on good grounds by the Department of State of the United States), that a government can not be held responsible for damages caused within its territory to foreigners by a revolutionary party, and this theory would surely be invoked against the company.
The Venezuelan consul at Port of Spain was not in the right in refusing papers to the steamer without expressing the reasons he had for so doing, but, unfortunately, the company did not avail itself of this circumstance, which might have placed it in a good position to claim damages.
These considerations, founded on the lack of information that I have, may be changed by further and more accurate facts.
My impression (or opinion), as one of the company’s attorneys, is that the Viking should not return to Venezuela. If it did, it would be seized under the revenue regulations or laws.
Looking forth to new developments in this case and awaiting your orders, I remain, etc.,
Dr. Bance to Mr. Rake.
Dear Sir: I beg to confirm in all its parts my letter of the 14th instant, since it is still my belief that if the steamship Viking touches again the Venezuelan coast it will be seized under the revenue laws; but the further information that I now possess places me in a position to add to and to a certain extent to modify my previous impressions in a manner favorable to our position.
The new facts given to me are as follows: First, that the Venezuelan consul, on refusing to give the steamship Viking papers for Caño Colorado (Venezuela), gave as a motive for his refusal the fact that the region in which Caño Colorado and the custom-house are situated was in the hands of the revolutionists, and, second, that the Viking arrived at the custom-house and landed there one of the company’s attorneys and some provisions for the employees of the company, and that on its return it was cleared by the custom-house, which actually was in the hands of the revolutionists.
In my opinion, the grounds on which the consul based his refusal is not a legitimate one, Caño Colorado being, as it is, an open port to foreign commerce. The port had neither been closed nor blockaded, and foreign vessels are perfectly strange to the political convulsions the country is going through.
These facts once established, and taking into account that the Viking might be seized, the company would have a right to claim damages through diplomatic channels, basing its claim on international rules. There are several very important precedents [Page 1063] in our favor in the diplomatic records, not only of the United States, but also in those of Venezuela.
It is most important to obtain and keep at hand some evidence proving the grounds on which the Venezuelan consul based his refusal to let the Viking, on its trip or trips, sail as well as carry its cargo. It is important to prove the fact that it was given papers by the American consul, as well as its having been entered and cleared by the insurgents that were in possession of the customs-house at Caño Colorado.
I shall have the pleasure in due time to hand you a full report containing precedents of an international order, on which my opinion is based.