Minister Furniss to
the Secretary of State
.
[Extract.]
American Legation,
Port au
Prince
,
October 4,
1906
.
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.,
[Inclosure 1.]
Minister Furniss to the Secretary of
Foreign Relations
.
Port au Prince
,
September 10, 1906.
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.,
[Inclosure 2.]
Minister Furniss to the Secretary of
Foreign Relations
.
Port au Prince
,
September 26, 1906.
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.,
[Inclosure
3.—Translation.]
The Secretary of Foreign
Relations to Minister Furniss
.
Port au Prince
,
September 27, 1906.
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.,
[Inclosure 4.]
Minister Furniss to the Secretary of
Foreign Relations
.
Port au Prince
,
October 4, 1906.
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.,
