Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 5, 1905

Chargé Hutchinson to the Secretary of State.

American Legation,
Caracas, November 26, 1904.

No. 368.]

Sir: I have the honor to acknowledge the receipt of the Department’s telegram of the 22d instant.

In accord with the above instructions I have the honor to report that I made an appointment with Señor Sanabria, minister of foreign relations, to receive me at the ministry on the morning of the 23d instant at 9.15 o’clock.

I passed three hours with him, in a perfect atmosphere of cordiality, during which time we discussed the principal question before us: “The prompt, impartial, and final trial and decision of the asphalt case.”

In substance I said I had received further instructions from the Government of the United States, in relation to the New York and Bermudez Company’s case. That my government dropped, for the present, the discussion on the removal of the order of sequestration, but reserved the point, if necessary, for the future. The Government of the United States now urged the Government of Venezuela to use its good offices in speeding a prompt, impartial, and final trial and decision in the courts. Tasked if his excellency’s government could not do something to bring about a prompt decision, and that he must see that every day that passed meant a great loss to the company and its interests. I asked if he could give me any idea when the final decision might be expected.

Señor Sanabria replied that his government could not interfere or make suggestions to the court in this respect, just as before, in the case of the removal of the order of sequestration, his government could not influence the courts, which had their proper functions and were carrying them out in accord with the strict letter of the law and as expeditely as possible. He said he could not speak to any of the judges, but he would approach the attorney-general of the nation and explain to him that the Venezuelan Government was anxious, and deemed it to its interests, to have a prompt, impartial, and final decision of the case, and that he would ask the attorney-general to say, so near as possible, by what date the desired result might be expected. Señor Sanabria said, further, that of course the gathering of testimony and presentation of it must be considered, and that the courts could not deny the parties asking for such time and postponements as the law allows.

I then took up the subject of the impartiality, without naming it to him as such. I mentioned the fact that the president of the federal and cassation court, where the final decision would be rendered was Señor José Arnal, and that (1) Señor Arnal had originally made the order for the sequestration of the company’s property; that (2) Señor Arnal had confirmed his order afterwards, as judge of first instance; and that, finally (3) Señor Arnal would have to render his decision again at the appeal, as president of the court.

Señor Sanabria replied that Sefior Arnal was a man of the highest character and reputation and perfectly fair and just. He said the President one day, in his presence, had brought up the subject of the New York and Bermudez Company to the judge, but that the judge replied to the President: “You must know, your excellency, that I must not talk about such questions,” and the President agreed.

I then mentioned Judge Carlos León, saying that I understood he was Mr. Garner’s attorney, and that he was formerly attorney for the New York and Bermudez Company, and that he had a seat in the federal and cassation court.

The minister replied that he did not know, and did not believe that Judge León was the receiver’s attorney, but he would make inquiries. He added that Judge León having been attorney for the company, he would better be able to render an able opinion.

I then pointed out to him that Judge Paúl, vice-president of the federal and cassation court, had resigned his seat in the present case because he had been a judge in the “Felicidad case,” which was decided in favor of the company some years ago.

The minister aptly replied that if any judge was not justly acceptable to the parties to the suit that there were legal means for having him changed. This I agreed to at once as being right and proper, but I very much doubt if a change of judges would be of any benefit to the company’s cause, and it is quite certain that the final decision will be against the company and that it will fail to be impartial unless the company has every opportunity to obtain and present its evidence.

The question of the stoppage of the company’s cables was then brought up, and I told the minister that in addition to Captain Wright’s two cables having been stopped by the Venezuelan authorities, one of November 5 from the company had been stopped, and that this state of affairs prevented the company properly preparing its defense.

He said he agreed that it was prejudicial, but that the company had sent cipher cables from here signed “Bermudez and Company,” which was not a proper identification. If the cables had been signed “Robert K. Wright,” or the real name of the company, they would have been transmitted. “Bermudez and Company” was not the name of any registered company in Venezuela. As regarded the stoppage of the cable from the company at Philadelphia to its manager here he felt otherwise inclined, and believed it was wrong to stop that, and he would make inquiries about the matter.

I then brought up the question of the commission which the court is sending to get evidence as to whether the company has canalized the rivers or not. I asked if the commission had yet left Caracas, or when it would probably leave, and how long he thought it would take for them to conclude their report.

He said he would inquire of the attorney-general and let me know everything possible in relation thereto.

I then reported to him, and showed to him a copy of an affidavit (copy inclosed) which states that one Scott went to Guanoco, in the employ of the company, to obtain testimony for the company’s case, and that he was not allowed to get testimony nor to remain, and that his life was threatened if he returned.

Señor Sanabria smiled’ incredulously at this, and said there was sufficient proof on the government’s side to show that many of these affidavits were mere perjuries. The same men who have sworn to affidavits in favor of the company have since sworn to affidavits stating they were forced (duress) or bribed to make affidavits in favor of the company. These contradictory affidavits were sworn to in Trinidad, where the Venezuelan Government could not have used influence.

I concluded by remarking to the minister that Mr. Carner, the receiver, had shipped, up to the present, 5,400’ tons of Bermudez asphalt to New York, consigned to the Pan-American Company, of which he is the president.

This information I got from Captain Wright and gave without comment.

Señor Sanabria made a note of this information, and then concluded by telling me that the New York and Bermudez Company had shipped very little asphalt from Venezuela, arid consequently had paid this government very little in export dues, but that, on the other hand, the company had shipped an enormous quantity of asphalt from Trinidad, calling it Bermudez asphalt, and for the reason that in Trinidad it must pay a duty whether any asphalt is shipped or not, while in Venezuela it only has to pay duty when asphalt is actually shipped.

Our first conference upon the above questions here ended, the minister again promising me to do all possible to speed the trial and I again reiterating the desire of my government to witness the final decision of the case in the courts.

Our second conference took place on Friday afternoon, the minister having called me up on the telephone in the morning, inviting me to come to the ministry at 3 p.m.

Señor Sanabria informed me that since seeing me on Wednesday he had met and talked with the attorney-general of the Republic and had also looked up the matter of the stoppage of the company’s cables and further questions.

As regarded the affidavit of the company’s agent, Scott, a copy of which I had shown him, he said it was all a lie. That Scott had gone to Guanoco with the company’s lawyer, Doctor Piñango, and that the latter had written a letter to Doctor Ponce, at Guanoco, the attorney-general’s agent, saying that he had been well and properly treated. Doctor Piñango went before the jefe civil with Doctor Ponce and swore to his signature on the letter in question. As for Scott, Doctor Ponce had asked him if he had any papers to show that he came as the company’s agent and not to stir up trouble, and Scott was unable to produce any document. Doctor Piñango is an old friend of Doctor Ponce’s.

The minister mentioned, further, that one Bartlett, and he believed Scott as well, were making trips to Guanoco whenever Mr. Carner, the receiver, went away, and that they went there for the purpose of inducing the negroes to give false testimony and to quit work, offering them better wages in Trinidad.

As regarded the position of Judge León, that judge had very recently resigned his seat in the court, so that he would not be one of the judges on the appeal.

In regard to the departure of the commission of experts to report upon the canalization, the minister said they had been unavoidably delayed by one of its members having to arrange his private affairs. The commission would leave by the very next steamer.

Respecting what I had informed him concerning the shipping of asphalt by Mr. Carner to the Pan-American Company in New York, Señor Sanabria said Mr. Carnar sold the asphalt to a broker at the lake, free on board at Guanoco.

As regarded the stoppage of the company’s cables, the minister said there was a law by which they could be stopped, unless the sender explained the contents to the minister of fomento. This was to prevent revolutionary messages being sent through commercial houses or otherwise. He had to admit, however, that in the present case there should be an exception made to the law, for the reason that the government is one of the parties to the suit and that it has no right to see what the other party is doing or to prevent it preparing its defense without hindrance. He said he would bring up this point with the attorney-general.

Finally, upon the principal question (the prompt, impartial, and final decision of the case by the courts), he said he had seen the attorney-general and that he had told him that the government desired and was very much interested in seeing the final settlement of the case. The attorney-general had replied that the case would be concluded with all expedition, and that the only possibility of delay was that the company would be the cause of it. He recommended that I should advise the company to have everything on its side in readiness.

This ended the second conference.

What strikes me as certain is that Señor Sanabria has a very bad opinion of the company and its methods, and, in fact, he has said as much to me.

In drawing this dispatch to a close I wish to say that the Department’s last instructions, taken alone, make it appear that the request for the removal of the receiver has been abandoned. I felt it my duty, without actual instructions, to impress the minister with the fact that my government did not drop its previous request, but only temporarily dropped discussion of it. However, I could see that it was difficult to impress the minister with this view. The position taken by the Department against the sequestration is so strong and unassailable that the mere fact of not pressing its request in that direction continuously and to the end comes as a relief to the Venezuelan Government, and it is over anxious to believe that the Government of the United States has conceded a point.

I may telegraph the Department for further instructions.

I have, etc.,

Norman Hutchinson.

[Inclosure.]

Affidavit of Philip Scott.

I, Philip Scott, a British subject, make oath and say as follows:

I have been employed by the New York and Bermudez Company for the last three years as timekeeper. I left Port of Spain on the 21st of October for Guanoco, and I am authorized by F. R. Bartlett, superintendent of the New York and Bermudez Company, to represent the company in his absence.

I arrived in Guanoco on the night of the 29th of October, and on my arrival was told by a number of friends that I was expected and that there was an order out for my arrest. I paid no attention to this, but proceeded to a house rented by the company off the company’s property. On the morning of the 30th I sent my respects to Doctor Ponce, whom I knew when he was employed by the company and who is at present the representative of the attorney-general of Venezuela, but my card reached Doctor Ponce on his way down to see me. He asked me what I was doing there, and told me that he had ordered the civil authority there to bring me to him, and that in case I refused to arrest me. On the afternoon of the same day Doctor Ponce paid me another visit, and asked me to go with him to the house of the jefe civil, which I did. On my arrival there I waited in a room outside while Doctor Ponce had a lengthy conversation with the jefe civil. When Doctor Ponce came out he began a very angry conversation with me. He said I was a bad element in Guanoco and that I had come over to make trouble among the workmen and the goverment was holding that property and that I must respect it; that I was not an official of the company, and that I was one too many in Guanoco. Moreover, that all the witnesses that had been cited by the company were his men and would do as he wanted them, and that it was his intention to make me a prisoner and send me to Carúpano or Maturin. Doctor Ponce left and I remained a prisoner. At 8 o’clock that night Doctor Ponce returned, and with the jefe civil and six armed men I was taken down to the house of Sisto Gil, who lives on the banks of the Guanoco River and keeps curiaras (small canoes). At Sisto’s house I asked for my baggage, and two soldiers were sent for it. While we were waiting Doctor Ponce talked considerably. He told me that a Mauser bullet from one of the soldier’s guns was liable to escape, and of course my family could put in a claim, but it would then be all too late; also that he was prepared to do the same with Doctor Pinañgo, our attorney, if Pinañgo did not do as he wished him to, and he would make him a prisoner. He called me a “Jodedor Carajo.” I wanted to make protest to the jefe civil, but it was denied me. I further asked for a written order of my banishment, but this was refused. I first went Caño-Colorado, and from there to Trinidad, where I arrived on the 6th of November. I must add that the accusations of Doctor Ponce are false, and that I went to Guanoco because I was ordered to do so and to get information for the company. I had about three weeks previously been ordered off the company’s property by the military authorities there, and have not been on the property since.

Philip Scott.

Sworn at No. 32 St. Vincent street, Port of Spain, in the island of Trinidad, this 8th day of November, A. D. 1904, before me.

Vincent Leon Wehekind,
Notary Public.

[Notarial seal.]

This is to certify that Señor Vincent Leon Wehekind is a notary public in this place, and that the foregoing bears his signature and seal.

Port of Spain, November 14, 1904.

Barceló.

[Seal. Consul-General of Venezuela at Trinidad.]