Minister Furniss to the Secretary of State.

No. 105.]

Sir: I inclose herewith the correspondence which has been exchanged between this office and Secretary of Foreign Relations Sannon relative to some merchandise which recently arrived for an American merchant and about which there has been some trouble.

The facts of the case are these: Mr. Boutros had a large shipment of merchandise to arrive here on August 24, 1906, from New York on the steamship Prins Maurits. All of the merchandise included on his bill of lading and consular invoice, and also included on the ship manifest, was delivered except 75 small boxes of soap and 8 barrels of tobacco, which were evidently left behind on the wharf in New York.

In accord with article 60, page 12, of the Haitian tariff, copy of which was sent in my unnumbered dispatch of July 7, a merchant must enter his goods at the custom-house within twenty-four hours after the arrival of a steamer or the merchandise will be subject to exportation. The same section explicitly states that all goods appearing on the bill of lading, whether landed or not, must be entered.

Article 56 of the same law states that all packages upon the manifest and not landed must pay the duties, and makes provision that if the said goods should be landed within a month thereafter they will be delivered, otherwise the duties so paid will escheat to the state.

Mr. Boutros complied with all the requirements of the law, paid his duty on all the merchandise borne upon his bill of lading and the ship’s manifest, and withdrew from the custom-house that which had been landed. The first subsequent boat of the same company, arriving here two weeks later, brought the balance of the goods, but when he attempted to withdraw it he was stopped on the ground that then the duties were payable in gold. He was also told that he would forfeit the duties already paid and would have to pay again in gold on the same merchandise, as since he had paid the duties the new gold duties had become effective. He referred the matter to our consul, who referred him to me for an opinion.

After a careful examination of the facts in the case, I found that Mr. Boutros was in the right, and referred the matter to Secretary Sannon in my No. 84 of September 10, copy inclosed herewith. Failing to get an answer within a reasonable time, I called upon Secretary Sannon on September 22, 1906, and discussed the matter with [Page 886] him. He agreed with my contention and said that from his long experience as a chief inspector in the custom-house he could not see on what grounds the merchandise could be held by the Port au Prince custom-house, and that he would again call the matter to the attention of the secretary of finance for his speedy settlement. Failing to hear before September 26, I again called Secretary Salmon’s attention to the necessity of a prompt reply, copy of letter inclosed, and subsequently received the letter from him, copy of which is inclosed.

With these statements, my letter of the 4th to Secretary Sannon, copy inclosed, gives full information as to the case and should be enough to cause the Haitian Government to release the goods, but from past experience I am inclined to believe that even yet there may be a desire to discuss facts which have no bearing on the case, and for that reason I have decided to refer the matter to the department in its incomplete state, with the request that I be given instructions to insist on my demand for the release of the goods without further delay or further payment.

I have, etc.,

H. W. Furniss.
[Inclosure 1.]

Minister Furniss to the Secretary of Foreign Relations.

No. 84.]

Sir: My attention has been called by Mr. Nakhle Boutros, an American merchant of this city, to the fact that a part of a consignment of goods addressed to him, and for which Haitian consular invoice and steamship bill of lading were issued at New York for shipment by the steamship Prins Maurits, was through error left on the New York dock by the said vessel.

The rest of the cargo consigned to Mr. Boutros and included in the said invoice arrived by the Prins Maurits, and when he attempted to withdraw the merchandise from the custom-house he was forced to pay duty not only on that which arrived but that left in New York, as it was included on the same bill of lading and consular invoice. This was in accord with article 56, page 12, of the Haitian customs laws, which says: “All merchandise carried on the manifest and not landed shall pay the duties, etc. (“Tout colis porté sur le manifeste et non débarqué paiera les droits,” etc.)

The merchanise short shipped, consisting of 7 barrels of tobacco and 75 cases of soap, arrived by the first subsequent boat of the same company, the Prins der Nederlanden, and within the month allowed by the law, which explicitly states: “* * * when the agent proves that the merchandise has not been landed and agrees to have it brought within one month and to identify the goods. (* * * si l’agent prouve que le colis n’a pas été débarqué et prend l’engagement de le faire venir dans un mois et en établissant l’identité.)”

When Mr. Boutros attempted to clear the said merchandise, for which he had paid duty in full some two weeks before, the collector of customs of Port au Prince refused to allow him to withdraw it unless he would pay duties in full in accord with the new law which has gone into effect since he had paid the duties on the whole shipment.

This is a case that admits of no argument. I am sure that you will agree with me that the collector of customs must release the said goods without further payment. The full payment made was forced payment, made in conformity with the Haitian law, as already quoted, and the amount would not have been refunded had the goods not subsequently arrived even with the new law in effect, as the law states: “After this delay the duties paid shall be forfeited to the state. (Passé ce délai, les droits payés seront acquis à l’Etat.)” The goods did arrive within the limit established by law, and the new law makes absolutely no provision to exclude articles which have been short shipped and for which duty has been paid in accord with the then existing laws, and a reassessment of duties, therefore, appears both to be unjust and illegal.

I desire to have you call these facts to the attention of your honorable colleague [Page 887] of the department of finance, to the end that orders may be issued for the release of the merchandise without further embarrassment to Mr. Boutros.

I take, etc.,

H. W. Furniss.
[Inclosure 2.]

Minister Furniss to the Secretary of Foreign Relations.

No. 86.]

Sir: When at your office on the 21st I called your attention to the fact that I had received no reply as to the investigation of your colleague of the department of justice relative to the case of Mr. Backer, as submitted in my No. 80, of August 29, and also that neither had I received reply from your colleague, the secretary of finance, relative to the merchandise of Mr. Boutros, which I considered as being wrongly held, as pointed out in my No. 84, of September 10, 1906, nor had he, up to yesterday, been able to withdraw it from the customhouse.

I have further to state that until this date I have received no reply to either communication, and as particularly in the case of Mr. Boutros’s goods he is being put to considerable inconvenience and expense, I would thank you to again call these facts to the attention of your honorable colleagues, to the end that these matters may be settled without further delay.

Please accept, etc.,

H. W. Furniss.
[Inclosure 3.—Translation.]

The Secretary of Foreign Relations to Minister Furniss.

Mr. Minister: In reply to your letter No. 86, of yesterday’s date, and conformable to my dispatch of September 13 instant, acknowledging receipt of your No. 84 of the 10th of the same month relative to the claim of Mr. Nakhle Boutros, I have the honor to transmit the reply made to me on the subject by my colleague of the department of commerce.

My colleague, for reasons deduced below, regrets not being able to comply with your wish to have delivered to Mr. Boutros the goods that he has at present in the custom-house of this port, and for which he says he has already paid the regulation duties.

These goods, which arrived after the going into effect of the law of August 21, 1906, are subject to the duties foreseen by that law, and if Mr. Boutros has not been able up to the present to take them from the custom-house it is because he thinks that they are regulated by our preceding customs laws, at present repealed in so far as the duties to be paid.

These duties, as you know, should be paid now in gold or in its equivalent value in currency at the rate of 300 per cent. It has come to our knowledge that the greater part of the merchants of this place, and notably the merchants of Syrian origin, learning that the new law was to go into effect as soon as voted, planned, for the purpose of evading its provisions, to have entered in their name on the steamers’ manifests stocks of goods which they have declared short shipped, but which were in reality not yet even bought, since the captains would not have been able to take them on board. They hoped in that way to escape the payment of the duties on these goods that the law of August 21, 1906, imposed, by invoking article 56 of the law of September 4, 1905.

But this article 56 has not the interpretation that has been given it. It well permits that for a package carried on the manifest and which, through unforeseen circumstances duly proved, the captain may not have had the time to take on board of his vessel, the duties are paid in advance, and not then as a fine. In this case it is necessary for the agent to prove that the package has not been landed, and he takes the engagement to produce it within one month and to prove its identity. But such is not the meaning of article 56, when from a succession of facts it follows that the packages have not been landed, although carried on the manifest, because they were only entered on [Page 888] the manifest for the purpose of invoking the benefit of article 56 of the law of September 4, 1905, in their favor.

In fact, it is not one or two packages consigned to the address of Mr. Boutros and entered on the manifest of the steamship Prins Maurits that have been declared short shipped. It is a whole stock of various merchandise, in regards to which Mr. Boutros had no other object in view, from the information that has reached us, than to elude the provisions of the law of August 21, 1906; that is to say, not to pay the duties on these goods in gold.

Under such a condition, the duties claimed for the packages entered on the manifest and not landed is a fine against the consignee and remains forfeited to the State.

Besides, I beg your excellency to be persuaded that if Mr. Nakhle Boutros found himself in the condition that he says he is in the customs administration of Port au Prince would not have failed to especially please your excellency by taking his claim under consideration. But as I have already said above, from what has come to our knowledge and that which follows, and, moreover, from a succession of facts that your excellency may appreciate through the documents that I send you, Mr. Boutros had only in view, in the circumstance, the evasion of the provisions of the law of August 21, 1906.

Therefore I wish to believe that your excellency, appreciating the reasons that I have just submitted to his high spirit of justice and equity, will not hesitate to agree with me that the claim of Mr. Boutros wants entirely foundation, and that under the circumstance Boutros should pay the duties imposed on the goods that he has at present in the custom-house.

It is with these sentiments that I beg you, Mr. Minister, to kindly return to me the documents communicated and to accept, etc.,

H. Pauléus Sannon.
[Inclosure 4.]

Minister Furniss to the Secretary of Foreign Relations.

No. 90.]

Sir: I am in receipt of your note of the 27th ultimo, inclosing letter from the honorable secretary of finance and various documents submitted by him, on which you comment, and I have to state that after a careful study of the same I find greater reason to insist that the goods of Mr. Nakhle Boutros be delivered without further embarrassment.

I fear your excellency is in error when you state that it was notably the merchants of Syrian origin who attempted to rush goods in prior to the promulgation of the law of August 21, 1906, as a careful study of the ship manifests will show, and as was also mentioned at one of our recent interviews. However, I do not wish to discuss the matter on a line of race prejudice, but on the broad principle of right and wrong. On this line I wish to again call your attention to the unfair ruling (shall I say unjust discrimination?) made against an American merchant doing business in Haiti.

The facts were pointed out in my No. 84 of September 10, 1906, and to me they are so plain that I can not understand how they admit of discussion. They are these: Mr. Boutros has bills of lading showing that his merchandise was delivered at the wharf of the steamship Prins Maurits and on which his shipper had paid full freight—at least delivery can be implied, since his bills of lading are clean, i. e., without the usual indorsement placed on bills of lading when the party embarking fails to deliver all goods alongside. His Haitian consular invoice is in due form and contains the articles mentioned.

The very manifest of the steamship Prins Maurits, which your colleague of the department of finance submits, shows that when the said manifest was viséed by the Haitian consul, which is usually a short time before sailing or at least when all cargo to be embarked is alongside the goods must have been alongside, and it was the intention of the captain to embark them, or why did not the captain note either that they had not arrived or that he could not take them, as your colleague of the department of finance so aptly calls to my attention as having been done by the captain of the German steamship Alleghany, which entered here from New York on the same day with the other-mentioned boat. Indeed, the director of the Port au Prince custom-house mentions in his letter No. 140, of September 21, which you inclose, that there was no note on [Page 889] the manifest showing that the merchandise was not on the steamer and gives this to his chief, your colleague of the department of finance, as his excuse for allowing the importers to pay the duty.

The facts stated by your colleague of the department of finance that there were cases of soap invoiced and manifested by the steamship Alleghany and which were not delivered to that ship, as per the captain’s statement before the Haitian consul at New York, is no reason why soap sent by altogether a different merchant in New York, by a vessel sailing three days later to an altogether different importer in Haiti, must be made to suffer on the supposition that it was a like case, any more so than the fact that one American caught stealing would be reason to imprison all Americans on supposition for the same thing.

Again, as to this matter of fraudulent intent mentioned in both your excellency’s letter and that of your colleague, I have to say that as already stated the bills of lading, manifest, etc., give no grounds for such thoughts. I am loath to believe that the firm of Kouri Brothers, of New York, which recently came recommended to this legation by high officials of my Government, would be guilty of fraudulent practices, nor does careful inquiry show that any such accusation has ever been brought up against the firm of Boutros here. I have further to say that this legation regrets that they have been condemned on heresay evidence or supposition. At the same time, with such evidence I could not consent to protracted investigation, with a view to establishing fraud, unless it is your Government’s custom to pursue such investigation in all cases where goods manifested to arrive by one steamer arrive by a subsequent one of the same line. This, I know, has never been the practice. The certificate of the local agent of the line that the goods had failed to arrive by the steamer on which they were manifested and the certificate from him when they arrived by a subsequent steamer, has been all the formality required by the Haitian custom-house, and that has been the procedure in this case.

Your colleague of the department of finance says that article 56 of the tariff only applies in cases in which one or two packages fail to be delivered. He had doubtless been misinformed as to this, as I have been shown manifests of steamers which have entered here without landing a greater number of packages for one importer and which when they subsequently arrived were delivered without further trouble to the importers who had paid the duties. Indeed, I have been informed by the agents of the only lines of steamers calling here that many has been the time when quantities as large and more valuable than those now in question have been “short shipped,” or more properly “short embarked,” and subsequently arrived and were drawn from the custom-house under the section of the law above stated.

As to the law of August 21, 1906, I am perfectly conversant with all its provisions, and have already discussed them with your excellency. In the law is no mention of sections 56 and 60 of the law of September 4, 1905, having been repealed. In fact, both are still judged by the custom-house to be effective, only that now the duty on the missing cases is payable in gold, or paper at 300 per cent, which was the new law’s only provision.

The law of August 21, 1906, was promulgated on August 23, 1906, and became effective twenty-four hours afterwards, or virtually after the close of business on August 24, 1906. The duties in question were paid by Mr. Boutros on August 24, 1906, under the old law and prior to the going into effect of the new law.

In virtue of these facts I maintain that both legally and morally the customhouse had no further disposition in the matter other than to see that the goods arrived within the limit and to verify them when they arrived to see that they were as had been stated. The duties once paid under the old law, the new law can have no more authority than it could have on merchandise already landed and on the shelf of the merchant. For this reason I must continue to insist that the goods be delivered as per my No. 84 of September 10, 1906.

In reference to the decree of the director of the Port au Prince custom-house, said to have been posted on the door of the custom-house on the morning of the 24th, it would be establishing a strange precedent to admit that a part of the old law was in force on the day and another part was not, i. e., that for goods in the custom-house the old duties would be accepted and that sections 56 and 60 of the same law would be ignored. Further, by careful reading nowhere can I find, either in the Haitian constitution or in your laws, that the director of the custom-house is more than an executive officer; neither can I find that he or any other executive officer has any power by decree to set aside any law or part thereof which has been enacted by your Congress, signed and promulgated by your President.

[Page 890]

As the whole law of September 4, 1905, was legally effective the whole of the business day of August 24, 1906, I would have had to ignore the decree of your custom-house director and to have insisted that he accept the duties from Mr. Boutros in accord with sections 56 and 60 of the law of September 4, 1905, for the goods which did not arrive, had not the director spared me the trouble by his acceptance of the said duties, even though, as he says, by mistake.

Further, from your excellency’s note I would judge that not only is it the intention of your Government to keep the money already paid by Mr. Boutros as duties under the old law, but to insist on the apparently unlawful forced payment of the new gold duties enacted in the law of August 21, 1906. To this I can assure you that my Government will never consent.

In closing I would thank you to call your colleague’s attention to the fact that Mr. Boutros’s merchandise is rapidly deteriorating in the custom-house; that already it has been necessary to remove the soap some five times because of the rains leaking into the custom-house and running under the door, and an early compliance with my request would be much appreciated.

I return herewith the document kindly submitted for my perusal.

I take, etc.,

H. W. Furniss.