File No. 838.77/157
As I told you yesterday I received instructions, dated December 28, 1916,
from my Government last week which enable me to carry on negotiations
with the company without again referring to Port au Prince.
[Inclosure—Translation]
supplemental remarks concerning the national
railroad company of haiti
It appears from the discussion carried on in October 1916 over the
controversy between the Haitian Government and the National Railroad
Company of Haiti that the parties in the case are agreed in
principle on: 1st, reducing the length of the Port au Prince-Cape
Haitien, Gonaives-Hinche-Gros Morne lines; 2d, staying the
foreclosure proceedings instituted against the company; 3d, paying
the company its claims for transportation, requisitions, and loan of
implements.
As to its claim for damages it seems to have attached importance
solely to facts and circumstances pleaded from time to time with the
one object of obtaining numerous extensions of time and of standing
off forfeiture. At any rate a compromise implies reciprocal
concessions.
There remains in truth but one difference: the interpretation of
Article 12 of the specifications annexed to the Concession Contract
of September 12, 1906.
I. The company admits that the exemption from customs duties
stipulated by that article must be confined to the case for which it
is made, but agrees that its claim in this respect is conformable to
the meaning of the stipulation of the concession. It is easily seen
that the company is merely begging the question, for the point is to
know whether food, drugs, fodder, horseshoes, etc., are
indispensable for the construction, operation and maintenance of the
railway. That there is no direct necessary connection between those
commodities and a railway is not open to question. If the company
sees fit to undertake to feed, clothe and shelter its employees and
to purchase what it needs therefor abroad and not in Haiti, it makes
it its affair and cannot believe in earnest that this special
arrangement with its employees possesses the virtue of making the
above-mentioned articles requisites of the railway.
The truth is that the word approvisionnements
has, in connection with public works, a technical meaning different
from its acceptation in ordinary parlance. It applies to material,
or fuel, or oils and lubricants. Article 10 of the specifications
attached to the contract made with R. Deetjen on July 10, 1891, for
the construction and operation of a railway from Port au Prince to
Gonaives so declares in positive terms: “The approvisionnements intended for the operation, understood
to be coal, machine oil and tallow, may be imported free of duty.”
Article 13 of the Léogane aux Cayes Railway Contract and Article 9
of the annexed specifications dated March 29, 1911, are just as
explicit. (See the Traité des Travaux Publics
of Albert Christophle and the specifications adopted in France. See
also Art. 35 of the specifications of September 11, 1893, for the
Cape Haitien-Gonaives Railway, Art. 8 of the Deetjen Contract; Art.
11 of the illumination contracts made November 9, 1891, June 12 July
26 and September 14, 1894; Art. 10 of the specifications with the
National Railroad Company of Haiti; Art. 9 of the Port au Prince-Aux
Cayes Railway Contract and Art. 12 of the annexed specifications
dated August 27, 1906; Art. 17 of the Illumination Contract of St.
Mare dated September 7, 1906.)
Furthermore the very content of Art. 12 under consideration shows
that it contemplates not articles of food but all appliances and
supplies such as material, machinery, tools, cars, fuel, oils,
lubricants, that is, all that is directly and necessarily connected
with the construction, operation and maintenance of the railway.
And again even though the language of the article may be obscure or
equivocal, the doubt cannot be dispelled in favor of the company
since it bears on an exceptional clause which it stipulated in its
own interest.
II. In regard to the tonnage dues, they are classed by the law of
September 4, 1905 in the category of dues bearing on the hull of the
vessels. It cannot in any way imply that vessels, instead of
continuing to pay the dues according to their gross tonnage, will
pay in proportion to the imported merchandise. This modification in
favor of the vessel does not alter the nature of the dues; it only
affects the mode of appraisement, for the same persons are subject
to it under the law as they were before. The dues are to be paid by
the vessels which also pay the semaphore, pilot, health, water and
entry dues. And it goes without saying that in collecting freight,
they also bring those various dues into the account and that whether
these dues be rated according to their gross tonnage or to the bulk
of the merchandise imported by them, the freight is always
determined by weight or measurement. And for that reason bills of
dues payable by the vessels are not made out in the name of the
importers but in none other [Page 827] than that of the steamship agents or consignee of the vessels who
are responsible under Article 117 of the said customs law because
they represent the vessel. The consequence is that the company is
not exempted from the tonnage dues any more than from the semaphore
and other dues reckoned according to the gross tonnage of the
vessels.
It is further proper to add that whenever the Haitian Government was
willing to grant exemption from tonnage dues, it did so in express
terms as shown in Article 10 of the specifications of the Cape
Haitien-Grande Rivière Railway, dated September 1, 1898, which reads
as follows: The material, machinery, tools, all implements required
for the construction, operation and maintenance of the railway as
well as the ships bringing the same are exempted from all customs
duties and dues, except those which already come under a special
concession.
The same preciseness is found in the instruments hereinbelow named:
Contract of 1890 for the laying of the system of telegraphic land
lines, Art. 14;—Lanoue Sterlin Contract of September 25, 1891, Art.
4;—d’Aubigny and Co. Contract of December 18, 1891, Art. 16.—Osson
Contract of September 28, 1892, Art. 4;—T. Auguste Contract of July
18, 1891, Art. 4;—L. Laroche Contract of June 8, 1893, Art
9;—Rinchère Contract of July 26, 1894, Art. 3;—H. Blanchet & Co.
Contract of August 1, 1894, Art. 4;—Aduche Contracts of August 2,
1894, Articles 4 and 6;—Contract of August 21, 1890, for the
exploitation of Gonave, Art. 5;—Contract of July 12, 1900, with the
Northern Railway Company, Art. 6;—specifications of the Port au
Prince-L’Etang Railway dated May 23, 1899, Art. 10;—Contract of
September 5, 1906, of the G. C. S. Railway Company, Art. 6;—Contract
of August 29, 1906, of the Cape Haitien-Ouanaminthe Railway, Art.
10, amended specifications, Art. 12;—Durosier Contract, August 14,
1909, Art. 3;—Boucard Contract of July 16, 1910, Art. 5;—M. Sylvain
Contract of August 14, 1909, Art. 3.
