File No. 21274/25–31.

Minister Brown to the Secretary of State.

No. 151.]

Sir: In continuation of my No. 144, of the 6th instant, I have the honor to transmit herewith copies of further correspondence on the subject of the interpretation and application of the Honduranean laws of navigation in the specific instance of the schooner George A. Lawry, of New York, owned by Consular Agent Glynn, at Trujillo.

As set forth in the notes from the ministry for foreign affairs, dated the 9th and 14th instant, respectively, replying to the legation’s notes on this subject, the question at issue would now seem to be satisfactorily and definitely settled, and that there will be no further difficulties encountered by American vessels owned by American citizens temporarily residing in Honduras.

I have, etc.,

Philip Brown.
[Inclosure 1.—Translation.]

The Acting Minister for Foreign Affairs to Minister Brown.

Mr. Minister: I have had the honor to receive, as I advised your excellency on the 6th ultimo, your courteous communication, dated the 2d instant, relative to the difficulties which have arisen concerning the new navigation laws contained in decrees Nos. 50 and 112, to which note, and with instructions from the President of the Republic, I have the honor to reply as follows:

Your excellency begins by alluding to the interview which you had on the 1st instant with the President of the Republic concerning the interpretation and application which should be given to the navigation laws enacted by the last National Congress in its last session, and reproducing a part of your excellency’s note of August 11 last, addressed to this chancellery, in which you state that it is to be presumed that the local authorities have misinterpreted the laws referred to, and, in order to avoid any misunderstanding, you state that it can not be admitted that foreign-owned vessels engaged in commerce between Honduras and other countries should be obliged to conform to the requirements of the laws as interpreted by the said authorities; and your excellency adds that on the same date you telegraphed in this sense to the consular agent at Trujillo, and in order that there may be no serious painful incidents in this matter you request my Government to confirm this comprehension of the laws in question, and to send immediate telegraphic orders, not only to Trujillo but to all the ports [Page 372] of Honduras, for the instruction and guidance of the authorities whose duty it will be to enforce the new laws of navigation. Further, your excellency states that the minister for foreign affairs, Sr. Dr. don José Maria Ochoa V., in his reply, dated August 14, to the note referred to, stated:

In deference to the wishes of your excellency my Government will give appropriate instructions to the authorities of the ports concerning the application of the above-mentioned legislative decree; instructions will contain the interpretation of the said law.

You further stated that in view of the friendly deference shown to your representations in this matter you felt confident that all danger of possible misunderstanding concerning the application of the laws in question had been definitely removed; that, however, on the 7th of September you received a telegram from the American consular agent at Trujillo stating that the comandante of that port insisted that the schooner George A. Lawry, of New York, should be nationalized in Honduras; that you immediately brought this incident to the attention of the minister for foreign affairs, who at once assured your excellency that he had ordered the authorities at Trujillo to in no way molest the ship in question, and furthermore, on September 14, the minister again assured your excellency that the incident complained of would not be permitted to occur again; that your excellency subsequently learned with surprise that on September 15 the President of the Republic telegraphed to the comandante de armas at Trujillo that he might grant clearance to the schooner Lawry, belonging to Consul Glynn, but that he should state in the same clearance papers that the permission was granted for this time only, and that the said schooner could not navigate Honduranean waters until she should be nationalized or matriculated as Honduranean, in accordance with legislative decree No. 112; and that, for the instruction of my Government, your excellency had received from your Government instructions which state. (Supra; instruction No. 59, Sept. 7, 1909.)

Your excellency concludes by stating that in view of the facts and antecedents in this case and in the belief that my Government will not wittingly adopt measures incompatible with the friendly relations which exist with the Government of your excellency, or would fail to comply with the assurances given, you have the hope that orders will be sent without delay to the comandantes of the ports to the effect that no obstacles shall be placed in the way of American vessels registered in the United States and engaged in commerce between ports of Honduras and other foreign ports; and referring to the difficulties which President Davila stated the Government was encountering in suppressing the contraband trade on the north coast of Honduras, that it would afford the American legation much pleasure if your excellency were to receive suggestions as to how it might aid in the suppression of this illicit commerce.

In reply I have the great honor to inform your excellency that Honduras has always been distinguished by its faithful observance of the treaties which it has signed with other countries; that it has succeeded and is now successful in maintaining the best of international relations, particularly in what concerns the United States of America, which form the principal market for the imports and exports of Honduras, and, which is still more important, has always used and continues to use their good offices in favor of the peace and welfare of these countries of the Isthmus.

The Government of Honduras has not had, either before or after the promulgation of decree No. 112, the intention of failing, in the slightest degree, to comply with the treaty of July 4, 1864, signed with the United States. Since the time of the conclusion of that international instrument, American vessels registered in the United States have touched periodically at ports of Honduras on the Atlantic, and my Government has never denied them free entry and exit in its waters.

However, the National Congress, in view of evasion of the customs duties which individuals of various nationalities commit upon our coasts with the aid of small vessels capable of escaping from the action of the marine police, issued decree No. 112, of which carticle 1 states in a clear, natural manner, without leaving room for doubts or interpretations, that—

All vessels constructed in the shipyards of the Republic or of foreign construction, for the service of individuals resident in the Republic, natives or foreigners, will be considered as Honduranean, and, therefore, can not fly any other flag.

In the only concrete case which has thus far arisen concerning “the ships and cargoes,” the reciprocal liberty of commerce and “the ships of the United [Page 373] States and of Honduras, respectively,” it is first necessary to establish whether my Government failed, through this decree, in its fulfillment of the treaty, or whether it was Mr. Glynn who, acting in full knowledge, sought a means for evading the observance of a written law.

The National Congress had, of course, no intention to give to this decree an absolute effect, and if we examine one by one the articles which constitute it, neither in its essence nor in a literal reading can we deduce that congress sought to prevent the arrival and departure of registered vessels of any nationality whatever. The only thing which is observed in its provisions in the indication of the cases which may arise concerning the vessels which residents in the Republic, natives or foreigners, may have built for their own use in the shipyards of any nationality.

On the other hand, and in conformity with the provisions of international law, Mr. Glynn, from the moment of his arrival in this country, contracted the tacit duty of submitting to its laws, and had, from that time, to conform to the privileges and restrictions which they indicate. Thus it appears from article 1 of decree No. 112 that it is he who has failed to comply with the restrictive provisions of a law in force.

If my Government granted clearance to the schooner George A. Lawry, it was an act of pure courtesy, in deference to the friendly representations of your excellency, and not because it has, of itself, the right to derogate a law which emanates from a constitutional power of the State. The Executive finds itself in the presence of a law which it must respect in conformity with the political constitution of the Republic.

My Government laments the misunderstanding which has arisen through the case of the schooner Lawry, and I venture to express the hope that your excellency, in view of the laws of the Republic and of the good intentions of the Government of Honduras, may be convinced that this is not a failure to comply with an agreement or with international law; on the contrary, upon the assembling of the National Congress, I can assure your excellency that my Government will present for its consideration the difficulties which have been encountered in the application of the law referred to, in order that it may be modified if such action be deemed advisable. However, in the meantime, as my Government desires to give further proof of its deference to the friendly representations of your excellency, it is disposed to grant clearance to the schooner referred to each time that it may be requested in order to trade with foreign ports, but under no circumstances when it desires to engage in cabotage or comercio de escala in the minor ports.

Before concluding I will inform your excellency that my Government appreciates sincerely the courteous offer made by your legation to aid in the suppression of smuggling upon the coasts of Honduras, and will bear it well in mind, in order to avail itself of your valuable assistance in case of necessity.

I avail, etc.,

Jesus Bendana.
[Inclosure 2.]

Minister Brown to the Acting Minister for Foreign Affairs.

No. 54.]

Sir: Referring to your courteous note of the 9th instant in reply to my note of the 6th, regarding the interpretation and application of the laws of navigation to American vessels, I Would greatly appreciate the favor of an elucidation of the meaning of the expression used in the penultimate paragraph of your note, namely, “comercio de cabotage o ascala en puertos monores,” referring to the permission which should be given to the schooner Lawry and to other boats of the same category.

If, by the term escala is conveyed the idea that the Lawry and other vessels of the same class would not be allowed to take on cargo at various Honduranean ports and, vice versa, to bring cargo from foreign ports for various Honduranean ports, I am sure you will appreciate that such a restriction, apart from the question of its legality, would have the practical result of driving the vessels in question out of business, a lamentable consequence which it would naturally be to the interest of the Honduranean Government to avoid.

[Page 374]

Cabotage, or coastwise trade, would appear to refer definitely to commerce in merchandise, products of the country, etc., taken on at one home port and disembarked at another, and in no way impedes a foreign vessel from touching at various ports for the purpose of discharging cargo from foreign ports, and, in turn, from taking on cargoes at various home ports destined for foreign ports.

I therefore conclude that it could not be the intention of the Honduranean Government to seek to restrict American vessels from touching at more than one Honduranean port, but in order that there may be no possible misunderstanding on the subject I would ask you to be good enough to indicate if I have rightly understood the attitude of your Government in this respect.

I avail, etc.,

Philip Brown.
[Inclosure 3.—Translation.]

The Minister for Foreign Affairs to Minister Brown.

Mr. Minister: Replying to your excellency’s courteous note of yesterday’s date, in which you were pleased to request an elucidation of the phrase employed in the penultimate paragraph of the note from this chancery dated the 9th instant, relative to the case of the schooner Lawry, “comercio de cabotage o escala puertos menores,” it is a pleasure to inform you that in using the phrase above quoted it was not the intention of my Government to restrict the right which is conceded to foreign ships to take cargo on board in Honduranean ports or, vice versa, to bring cargo from foreign ports to those of Honduras, seeing that such an act would be prejudicial to the interests of the country; consequently your excellency’s interpretation of this point is exact.

I avail, etc.,

Jose Maria Ochoa V.