The Secretary of State to the Chargé in Cuba (Winslow)

No. 1036

Sir: The Department refers to your despatch No. 2128 of June 23, 1927, and its enclosure, a note from the Cuban Foreign Office of June 22, 1927,22 in relation to the claim of Charles J. Harrah against the Cuban Government growing out of the alleged illegal demolition of his railroad and appurtenances located in the vicinity of Marianao, Cuba, and the consequent destruction of the business for which the railroad was built.

[Page 906]

The Department does not consider it necessary to reply to the oral statements made to you by Dr. Campa regarding this matter since presumably the Cuban Government would have advanced these arguments in its official communications had it placed any reliance on them. It may be stated, however, that the Department has received through Counsel for the claimant an affidavit by Dr. Aloysius C. Gahan, dated July 9, 1927, to the effect that careful examination of the volumes containing the annual reports of the Railway Commission from June 1912 to the end of 1917, which reports purport to contain the minutes of the meetings of the Commission and the resolutions adopted by it, fails to reveal any record of a resolution revoking, canceling, annulling or in any manner affecting the resolution of the Commission of June 25, 1912, by which Harrah’s railroad was approved and legalized. A copy of this affidavit, together with a copy of a letter dated July 23, 1927, from Counsel for the claimant, is enclosed for your information.22a

The Cuban Foreign Office in its note of June 22, 1927, alleges two reasons why, in its judgment, the claim is not entitled to consideration. The first consists of a statement that there exists in the files of the Foreign Office data which definitively evidences the lack of ground for the claim which Mr. Harrah has made; the second is to the effect that the railroad in question was a portable railroad for the transportation of sand and constructed under a provisional authority of the Cuban Treasury Department, and that the character of the road as a portable structure was proved in various lawsuits between Mr. Harrah and persons who had entered complaints in the courts regarding the alleged illegality of Mr. Harrah’s acts in connection with the extraction of sand on the beaches of Marianao and Santa Ana.

While this Government is, of course, not in a position to question the statement of the Foreign Office concerning the definitiveness of evidence contained in its files, it considers that, in view of the showing made by Counsel for Mr. Harrah in the memorandum enclosed with the Embassy’s note No. 948 of April 20, 1927, to the Foreign Office,23 it is entitled to specific information as to the nature of such evidence.

If the Foreign Office has in mind the evidence set forth in its note of July 13, 1926, it should be remarked that that evidence as shown by the memorandum enclosed with the Embassy’s note of April 20, 1927, to the Foreign Office, does not establish the contentions of the Foreign Office. It is not perceived wherein the note, No. [Page 907] 271 of December 10, 1914, from the American Minister to the Foreign Office, to which the latter has referred, supports in any way the contention of the Foreign Office, since it relates merely to a private litigation regarding the extraction of sand, and Mr. Harrah’s desire to obtain relief from gross injustices which were being perpetrated against him under cover of alleged rights of his opponents.

As to the second point made by the Foreign Office, namely, that the road was a temporary structure as proved in various lawsuits between Harrah and others in the local courts, this Government is not informed of any court decision holding that the road was “a portable or temporary structure”. On the contrary, it appears that the Court of First Instance of the East of Habana in the case of Charles J. Harrah v. “La Antillana” Company and Mr. Enrique Gomez, in a decision rendered July 10, 1917, specifically found that the road was a fixed railway built as a permanent structure. The court stated:

“Although the defendants have brought into the records of these proceedings, a permit granted by the Department of the Treasury to build a temporary, portable railway along the coast at the beaches of Marianao and Jaimanitas, it is no less certain that Mr. Harrah has proved that prior to said permit he had instituted in the Department of Public Works of the Government of the Province of Havana, a proceeding to enable him to construct on said coast a fixed railway as a permanent work; and that from the report appearing in the record of the Chief Office of Public Works for the District of Havana, it appears that the railway which the litigants are disputing in this suit, is a fixed railway built as a permanent structure, and that same is in process of being acted upon in the very proceeding which was brought by Mr. Harrah in the Provincial Government, the proceeding referred to being afterwards converted into a proceeding for the legalization and enlargement of the said structure; for which reason it is evident that the railway existing on the beaches of Marianao, Jaimanitas and Santa Ana, upon which the litigation turns, is the fixed railway which the said Harrah built in accordance with the project which he presented in his name in the Provincial Government,—something entirely different from the portable railway that was authorized by the Department of the Treasury.”

It will be observed that the statement of the Court appears to have been based in part at least upon a report furnished at its request by the Office of Public Works through its Chief Engineer. That report reads in part as follows:

“November 2, 1916. To the Judge of First Instance of the East of Havana: Dear Sir: I have the honor to reply to your communication dated October 20, last, in which you request to be informed whether upon making due inspection on the ground to report upon the project presented by Charles J. Harrah on May 27, 1916, it was possible to determine whether the railway existing on the shore of the [Page 908] beach of Marianao and Jaimanitas is a portable railway, or a narrow gauge railway. I take pleasure in informing you with regard to said point that on making the inspection referred to, it was evident that the railway in question was a fixed narrow gauge railway. Yours respectfully.”

In addition to the foregoing, the Foreign Office itself in its note to the Embassy dated July 13, 1926, admits that the road which was destroyed was “a fixed and permanent railroad”.

The Department finds it impossible to reconcile these various statements of Cuban authorities with the present contention of the Cuban Government that the road was of a temporary and portable character. The Department feels that the Cuban Government has not discussed the claim on its merits; that it has failed to give proper consideration to the arguments presented in the memorandum enclosed in the Embassy’s note of April 20, 1927; and that the issues which the Foreign Office now raises have already been adequately met by the claimant.

On the record as now presented to this Government it must conclude that the claimant has made out a prima facie case as to the following facts:

That he constructed a permanent narrow gauge railroad in 1908.
That said railroad was duly legalized under the laws of Cuba by the Cuban Railroad Commission in 1912.
That said legalization was never canceled, revoked, or modified.
That claimant was found by the competent Cuban Courts to have been the sole owner of said railroad from the time of its construction to the time of its destruction by the Cuban Government.
That said railroad was destroyed in 1917 by individuals protected by the National soldiers acting under the orders of the Cuban Government.

This Government considers that it is entitled to have this claim considered on its merits, which was not done in the recent note from the Foreign Office, and submits, that, if the Cuban Government is still disposed to insist that the claim is without merit, this Government is entitled to be furnished with substantial evidence to controvert the showing which has been made. If the Cuban Government is not in a position to furnish such evidence, there would seem to be no good reason why the claim should not be immediately adjusted. You are instructed to deliver to the Secretary of State a further note in the sense of the foregoing and at the same time to state orally to him that your Government feels that its representations in this case have been treated entirely too lightly; that the case is one which requires frank discussion and an earnest effort on [Page 909] the part of the two Governments to reach an understanding on the basis of the facts; that the Cuban Government having had ample season within which to bring forward any valid defense to the claim, and having failed to establish such a defense, it is the conclusion of your Government that justice requires that some immediate steps be taken to adjust the claim.24

I am [etc.]

Frank B. Kellogg
  1. Enclosure not printed.
  2. Neither printed.
  3. Neither printed; a copy of the memorandum, dated March 29, 1927, was transmitted to the Ambassador in Cuba by the Department in its despatch No. 943, April 14, 1927, p. 902.
  4. The substance of this instruction was embodied in the Embassy’s note No. 1094, August 11, 1927, to the Cuban Foreign Office.