Chargé Hutchinson
to the Secretary of State.
American Legation,
Caracas, October 14,
1904.
No. 341.]
Sir: I have the honor to inform the Department
that in a letter dated the 7th instant, Mr. Wright, the managing
director of the New York and Bermudez Company, informed me that the
judge of first instance of the Federal and cassation court had delivered
a decision against the said company, thus confirming the action of the
Venezuelan Government in taking the property of the said company [copy
of Mr. Wright’s letter inclosed].
I had already learned from the British minister of the decision, as Mr.
Wright had informed him some days previously, his letter to me having
gone astray.
The argument in the case was concluded on Monday, October 3, the judge
reserving decision, as he is allowed three days in which to render his
judgments. On the 4th, however, early in the morning, he gave his
decision against the company, and he could hardly have been expected to
have done otherwise, considering his previous connection with the case,
for I believe it was he who gave the order for sequestration.
The company have entered their appeal, which will be acted upon in due
course and reported to the Department.
Day before yesterday Mr. Wright sent me the decision of the judge,
appearing in the Official Gazette [copy and translation inclosed.] Mr.
Wright in his letter to me [copy inclosed] points out the fact that the
judge bases his decision in the paragraph following the last “whereas”
on very extraordinary grounds. He says the company have failed to prove
that the Hamilton concession is not a lease, thus ignoring the fact
that, the government being the plaintiff, the burden of proof is upon it
to prove to the contrary. He also ignores the fact that if the
instrument in question is really a lease, then no amount of argument can
change its character.
[Page 961]
The greatest weakness in the learned judge’s decision seems to me to be
his omission, probably intended, of reference to the papers giving the
company full proprietary rights in Guanoco, and I understand the company
is always making this their strong point. The Department probably has in
its possession copies of the definitive title to the mines, which was
signed by the former President of Venezuela, with the consent of
Congress. * * *
I have, etc.,
[Inclosure 1.]
Mr. Wright to
Chargé Hutchinson.
Caracas, October 7,
1904.
Dear Sir: I beg to inform you that on
Saturday, October 1, argument was begun before the judge of first
instance of the Federal and cassation court on the question of the
validity of the sequestration previously decreed in the suit against
the New York and Bermudez Company for the cancellation of the
Hamilton contract. The argument was concluded on Monday, October 3,
the judge reserving decision. He is allowed three days in which to
deliberate before rendering his decision. His decision was rendered
early the following morning and was against the company, confirming
the sequestration.
We have entered an appeal, which will be acted upon in due course,
and will advise you further at a later date.
I am, etc.,
Robert K. Wright,
Managing Director.
[Inclosure 2.]
Mr. Wright to
Chargé Hutchinson.
Caracas, October 12,
1904.
Dear Sir: I beg to inclose herewith two
copies of the Official Gazette of October 7, 1904, No. 9277,
containing the report of the decision of the judge of the hall of
the first instance of the Federal and cassation court confirming the
decree of sequestration of this company’s property in Guanoco,
together with two copies of translation of same. You will notice
from the last “whereas” that it is based apparently on the fact that
this company has not proved that the Hamilton concession is not a
lease, entirely ignoring the fact that the government being the
plaintiff the burden of proof is on it to show affirmatively that
the concession in question is not a lease, and also ignoring the
fact that the instrument must speak for itself, and if the
instrument is a lease no amount of argument on the part of the
defense could possibly change its character. These facts have been
entirely ignored in this decision, and the company has appealed to
the full court.
I am, etc.,
Robert K. Wright,
Managing Director.
[Subinclosure.—Translation.]
decision of the court.
Federal and Cassation Court—Hall of First
Instance—Caracas, October 4, 1904. 94th and 46th.
Inasmuch as the court has heard the oral addresses and seen the
written conclusions of the parties—
On the 20th of July, 1904, the attorney-general of the nation brought
an action against the New York and Bermudez Company, based on
section 7 of article 373 of the code of civil procedure, and
petitioned in his conclusions that the mine that said company
exploits in a place called Guanoco, with all machinery and all
accessories for the exploitation of same, should be sequestrated.
Cognizance having been taken of this petition and the proof on which
it was founded having been examined, the court, finding that all the
requirements of law had been complied with, decided on July 21,
1904, to agree with the terms of the petition, [Page 962] commissioning the judge of first
instance in civil causes of Cumaná to effect the sequestration,
appointing at the same time Mr. Ambrose II. Carner depositary. The
defendant petitioned on the 22d of July that the order be revoked,
but the court decided against on the the 25th of same month, on the
ground that the motives on which such decision was founded
subsisted. The court being informed by the return of the dispatch,
with inclosures, the 16th of September last, that the commission
given to the judge of the section of Cumaná had been fulfilled, the
parties were informed by notification dated and received by them the
same day. In the third sitting, as per article 378 of the code of
civil procedure, for answering the sequestration proceedings, the
defendant appeared before the court and Mr. Robert K. Wright,
assisted by Doctor Bance, filed an instrument in writing, on one
sheet, opposing the action of sequestration and reproducing the
petition of July 22, 1904, which he wanted to be read and held as
forming one part of his answer. The court declared the case open for
evidence, and the attorney-general of the nation, on the 22d of
September, produced the following ratification of depositions on
which his petition for the sequestration was based: A copy, No.
9075, of the Official Gazette containing the decision given by the
hall of sole instance in the litigation between Patrick R. Quinlan
and Charles M. Warner against the New York and Bermudez Company; a
certificate issued by the accountant of the hall of examination
proving that the company has been paying into the national treasury
for asphalt exported and obtaining at the same time exemptions of
duties on building materials, machinery, utensils, and accessories
imported; and that Doctor Bance, the constituted attorney of the
company, should be examined after being duly sworn. Doctors Manuel
A. Ponce and Tomas C. Llamozas ratified their former depositions,
the latter being cross-examined and Doctor Bance also. These
proceedings over the case was read and oral addresses having been
called for, both parties appeared, the attorney-general of the
nation filing his in writing, in six folios of paper, and petitioned
that the Official Gazette containing the Hamilton concession on the
main record should be taken into account. Doctor Bance, after some
oral explanations contradicting the plaintiff’s address, handed over
to the court his written conclusions, in four folios, and a copy of
the Official Gazette, No. 3000. The parties requested that time
should be given them to reply, which was accorded by the court, and
both parties presented what they considered most expedient in the
defense of their respective rights.
After the foregoing explanation, the court has to judge on the
incident debated and to discern the judicial points whereon to base
its decision; and
Whereas: If it is true that to determine the nature of some
conventions the will of both parties and the interpretation given by
them to it should be taken into account, such a principle can not be
admitted to the extent that conventions subject to certain legal
proceedings should lose the character given to them by law, since
this would go against the law itself as well as against the views of
legislators and fundamental principles.
Whereas: That taking into consideration the nature of the contract
which is being debated and the capacity as an administrator only in
which the National Government could have agreed to it, it results
that said contract is classed by the law itself among those of
limited duration, of a burdensome nature, and a fixed price is
therein stipulated.
Whereas: That to discuss the nature of the contract in judging on the
sequestration is not to prejudge the main subject in this
litigation—that is to say, whether the same should be annulled or
not—one point which has not yet been properly discussed and out of
which the court will get its conviction when it will decide.
Whereas: In the course of the proceedings the defendants have not
produced any evidence in their favor, therefore the reasons on which
the court ordered the sequestration remain in force.
In consideration whereof, administering justice in the name of the
United States of Venezuela, and by authority of law, the decree of
sequestration given the 21st of July of the present year is hereby
confirmed without any special order as to costs. Let it be
published, registered, and ultimately filed.
The President.
- S. T. Arnal,
- Juvenal Anzola,
Secretary.
