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.
Caracas, June 22, 1905.
Sir: I have the honor to confirm my cablegram to the Department, dated the 20th instant, and reading as follows: [Printed ante.]
As the exceptions taken by the company have been overruled, the case will be proceeded with.
I inclose copy and translation of the decision.
I have, etc.,
[Inclosure.—Translation.]
[From the Official Gazette 9491 of June 19, 1905.]
United States of Venezuela. In their name. The Civil Division of the Court of First Instance of the Eastern Section of the Federal District.
The court has seen the proceedings and heard the addresses of the representatives of the parties. On the day and hour fixed for taking the answer to the action instituted by the nation against the New York and Bermudez Company, an incorporated company which has its domicile in Philadelphia, United States of America, and also in this city, to the end that it satisfy the loss and damage occasioned through its participation in the late revolution, called “Libertadora,” Dr. J. B. Bance, the constituted attorney of the defendant company, took the dilatory exceptions of incompetency of the court, and defect in the form of the action, the first as a principal and the second as a subordinate objection, and he based them on the following grounds: The first, in that the principal act and the one from which the present action arises, is, according to two corresponding judgments delivered on the hearing of the preliminary objection of inadmissibility of the action by this court or by the superior court, that the defendant company had furnished funds and given moral and material support to the “Libertadora” revolution, from the beginning until the end of the struggle, and that this act, which had been so erroneously estimated by the judges who gave the judgments, and who disregarded the allegations put forward in defense of the company, took place, according to the terms of the declaration itself, beyond the territory of the Republic, and that the action having been admitted in that form, this court proves to be incompetent. The second exception is based on the following reasons: That the action has been instituted against the company to the end that it be condemned to pay the United States of Venezuela for the serious damage caused thereto by its participation in the late “Libertadora” revolution, adding that the amount for said damage should be fixed by experts from data to be furnished at the legal opportunity. And it is also stated in the declaration that the said revolution, besides the enormous sums which it obliged the government to expend for the quelling thereof, occasioned considerable hurt to the national treasury, as can be obviously supposed, and as will be proved during the course of the suit. That in treating of a personal action brought by the state for reparation for the like detriment, it is indispensable, in order that the object of the action and the reasons and documents on which it is based should be clearly expressed and determined by means of the necessary explanations and data, as is required by article 242 of the code of civil procedure, to know the amount of those enormous sums, and in what the hurt of considerable importance consists, and all the corresponding accounts should likewise be furnished; and that in the declaration there is not a single item of such expenses, nor is [Page 988] a single explanatory word given of the exceptional damage which can not remain subject to suppositions and conjectures for the defense; nor are there data which can be adduced at any other time or during the course of the suit.
In due time Dr. F. Arroyo Parejo, the attorney-general of the nation, joined issue on these exceptions, alleging that both are improper and contrary to law, and he asked that, as the matter of said exceptions constituted merely a point of law, they should be determined without taking evidence. The constituted attorney of the defendant company having made the like request, the court granted the same, and having, in conformity with the law, considered the motion, now proceeds to pass judgment thereon.
The incompetence of this court has been raised as a principal objection by the constituted attorney of the defendant company, by reason of which should be the proper territory to take cognizance of the action brought, and this being a point which should be made clear in the light of jurisprudence and legal teaching, the court, for the purpose of firmly establishing the present judgment, proceeds to consider it and observes:
- 1.
- That the principal act, that is to say, the “Libertadora” revolution, participation in which has been imputed to the defendant company, took place in this Republic, and that it was the result of the measures taken abroad by the representative of the New York and Bermudez Company, and the agreement made between the latter and the leader of the said revolution.
- 2.
- That in the declaration of the action it is not stated that the fact from which the action arises took place beyond the territory of the Republic, since it is therein said “that as the result of the measures of the defendant company in Europe the sadly celebrated steamer Banrigh, the history of whose piratical depredations is well known to all, appeared off the coasts of Venezuela, armed for war, with abundance of material, and having the leader of the revolution on board.
- 3.
- That that point was not submitted to the courts which passed on the exception of inadmissibility and therefore they could not have given any decision thereon; and
Whereas that act from which the action brought is made to be derived having been committed in Venezuela, this is the competent court to take cognizance of the action instituted by the nation against the New York and Bermudez Company;
And whereas in conformity with the second case of article 101 of the code of civil procedure, even those who are not domiciled in the Republic can be sued before the courts thereof when the acts in question took place within its territory, including, therefore, all responsibilities that arise from crimes or misdemeanors;
And as to the exception to the form of the action the court finds that the estimation of the loss and damage from failure to execute contracts or from the commission of crimes and misdemeanors should be made by the judge in accordance with equity and the evidence adduced, as is determined by article 185 of the code of civil procedure, and when he can not estimate them from the evidence the law provides that the estimation should be made by experts, which clearly indicates that the claimant in a suit should not and can not make the estimation beforehand, and that he is only obliged to prove them.
And whereas the exception of defect in the form of the action is only proper when some of the requisites prescribed by article 242 of the code of civil procedure have not been complied with; and in the present case all seem to have been complied with.
For these reasons, administering justice by authority of law, the court disallows the exceptions of its incompetence and defect in the form of the action taken by the constituted attorney of the New York and Bermudez Company and makes no special order as to costs.
- P. Hermoso Telleria.
- Vicente E. Velutini, Secretary.