823.00 Revolutions/354

The Ambassador in Peru (Dearing) to the Secretary of State

No. 1938

Sir: I have the honor to confirm my telegrams Nos. 101, July 11, 9 a.m., 104, July 12, 4 p.m., and 106, July 13, 1 p.m., concerning the requisition of Pan American Grace Airways airplanes and pilots during the recent revolutionary troubles.

[Page 951]

The Government bases its right to utilize these airplanes and pilots on the contract between the Peruvian Government and the Huff-Daland Dusters, Inc., of May 28, 1928, wherein the ninth section states “in case of serious internal disturbances, the airplanes, elements, and personnel of the Company shall be placed gratuitously at the disposal of the Government”. The Peruvian Airways Corporation succeeded the Huff-Daland Dusters, Inc. in the operation of Peruvian air lines, but the airplanes are owned by the Pan American Grace Airways and not by the Peruvian Airways. It is felt that employment by the Peruvian Government of these airplanes during local revolutions would lead to unfortunate results. It is felt that if the Government should find itself in a tight position, it would welcome injury to a Panagra plane or an American pilot, if such injury could be proved to have been inflicted by the rebels and could consequently be used as an argument for American aid. With American planes flown by American pilots and dropping air bombs, any transient Government in Lima could maintain itself indefinitely against almost any possible opposition in Peru, and I believe that the Government desires now to establish an uncontested precedent whereby it can employ Panagra planes whenever revolutions or political disorders occur in Peru. The Government would be in a position to say which of these disorders would be considered within the meaning of their contract with Peruvian Airways, and such action would place Panagra in the position of an auxiliary to Peruvian military aviation. It was believed by Captain Harold E. Harris, Vice President and General Manager of Panagra with residence in Lima, that it was not policy to bring up at this stage the point that the airplanes are not owned by Peruvian Airways. This point has never been mentioned to the Peruvian Government.

On July 7th the Government requested, a Panagra plane to carry a cargo of gasoline from Lima to Chimbote. An American citizen, with Captain Harris’ consent, piloted the plane. The gasoline was turned over to Peruvian military aviators at Chimbote and the plane returned to Lima. This trip was considered to be a purely commercial one.

On the night of July 11th, Captain Harris was called to the Palace for a conference with the President. The latter peremptorily stated his intention of enforcing the Government’s contractual rights in taking over such Panagra planes and personnel as were needed during the existing revolution. The President specifically stated that he wanted a Ford tri-motor plane to go North early July 12th. Both the President and the Minister of Marine assured Captain Harris that they would endeavor to have the plane carry only material of a non-military [Page 952] nature, and both of them gave the assurance that the planes would not be taken into the zone of hostilities, which at that time was confined to the immediate vicinity of Trujillo.

Panagra maintains two reserve Fords and two reserve Fairchilds at the Lima air port. Peruvian military aviators cannot fly Ford planes but can fly Fairchilds which are single motor planes.

Captain Harris requested the advice of the Embassy and stated that he was extremely reluctant to turn over either their planes or pilots to the Peruvian Government. The reasons for this attitude were obvious.

Mr. Burdett informally and unofficially advised Captain Harris to allow the Government to requisition the reserve planes and to refrain from basing opposition to such requisition on the point of non-ownership by Peruvian Airways, reserving this point for use later if it should be necessary; to permit pilots to fly under military orders but not to order them to do so; to inform the American pilots that they must volunteer freely without pressure from any source and understand distinctly that they were making trips under Government orders at their own risk and without responsibility by Panagra; also to impress fully on the pilots that in going under Peruvian military orders they would forfeit their rights to protection from the American Government.

Mr. Burdett further informed Captain Harris that in the event the international mail service suffered delay or interference, or in the event the planes were used for air raids or ordered into the zone of fire, the Embassy would immediately make formal protest.

On the morning of July 11th Captain Harris accompanied by Mr. H. V. Farris, Chief of Operations of Panagra, informed pilot Thomas Jardine, an American citizen, of the desire of the Government to use a Ford plane and repeated the conversation he had had the night before with Mr. Burdett. Jardine stated that he understood the conditions and would assume the risk. He left Lima July 11th with a Peruvian Army officer and several packing cases believed by Jardine to contain ammunition.

Mr. Jardine reports that he was ordered to Chimbote, thence to Casa Grande, and thence to Trujillo, where he was ordered to land at the Faucett aviation field which is on the edge of the city. He obeyed military orders in making the landing at Trujillo and was not aware until he landed that the field was under rifle fire. After landing, he was ordered to move the plane behind an adobe wall in order to protect it from the flying bullets proceeding from the center of the city which was at that time in the hands of the rebels. Two military planes were also on the field and the headquarters of the attacking [Page 953] infantry were at this same field behind some buildings. It is clearly established that the landing of Jardine at this exposed position during a military engagement endangered his life and safety. The feeling in Trujillo against aviators was most violent, and it was only two days after the bombing of the city by Government flyers had so infuriated the people that they murdered many prisoners in a most atrocious fashion. If Jardine had been forced down in any territory controlled by the rebels he would have been shockingly murdered.

On July 12th Mr. Burdett sent a note of protest to the Minister of Foreign Affairs, a copy of which is attached. The expression “presence of American citizens” in the fourth paragraph of this note referred to sending American citizens to the territory of military operations and was not intended to cover those American citizens who happened to be in hostile territory, as for example, the Americans in the Northern Peru Mining & Smelting Company camps. It was not, of course, intended to cause the Government to try to remove such Americans. This ambiguous expression in the note will be taken care of in case the note is discussed further with the Foreign Minister.

In the third paragraph of the note the inclusion of “any of” just before “the several republics” would have made the text clearer.

The Minister of Foreign Affairs replied to this note under date of July 13th, copy of which with translation is herewith attached.

In addition to sending the note to the Foreign Office, Mr. Burdett informed Captain Harris that he should instruct his American personnel that the Embassy strongly advised them against further flying under military orders during the progress of the revolution. Captain Harris communicated this advice to the pilots, who thereupon declined to make further trips under military direction.

On July 13th the Government requested a Ford plane for July 14th, stating that it was necessary to carry cigarettes and supplies to the troops in Trujillo and to return to Lima with wounded. Captain Harris replied that the Embassy had cautioned the pilots and had declined to authorize Americans to fly to the zone of hostilities. Shortly afterwards the Foreign Office called Mr. Burdett and requested him to go to see the Minister. The Minister stated that the Government wished to exercise its rights under the contract with the Peruvian Airways and to take over a Ford plane for the early morning of July 14th; that it was to carry the Minister of Government to Trujillo and that he did not understand the Embassy’s attitude in declining to allow the pilots to make the trip, inasmuch as the Government could take over the personnel of Panagra in the event of internal disorder. Mr. Burdett reiterated the position taken in the Embassy’s note and stated that the Embassy could not view with [Page 954] indifference the placing of American citizens in a position of danger; that he had advised the American pilots to desist from entering the zone of hostilities and that he could not do otherwise. The Minister said that he would at once inform the President of Mr. Burdett’s attitude and that very probably the Panagra contract would be amended in a manner that would require the planes being flown by Peruvian pilots. The Minister likewise threatened the cancelation of the entire contract.

The Embassy has no faith in any of the Government’s promises as to where they would take a plane once it was requisitioned. If the Government feels that ammunition is needed in an attack on Huaraz, for example, it is believed that they would not hesitate to send a Ford plane to that point.

A Fairchild single-motor plane was taken over by the Government on July 14th and was flown North by a Peruvian pilot. It returned in good shape July 15th. The Minister of Marine sent Admiral Spears, Chief of the American Naval Mission, to the Embassy to state that the Government was surprised at the attitude of the Embassy, in view of the contract with the Peruvian Airways. The Minister of Marine intimated to Admiral Spears that the Government would force Panagra to train Peruvian pilots and fly their planes with a Peruvian in each ship on commercial trips. Admiral Spears asked Captain Harris, who was present at the interview with Mr. Burdett, whether Panagra was prepared for the contingency of Peru canceling the contract altogether and not allowing Panagra planes to land in Peru. Captain Harris said that Panagra was not so prepared but that it wished to insist against impressment of its pilots for military purposes; that while he regretted the present controversy, it could not be helped. He would not consent to the drafting of his pilots in what the local Government chooses to term local disorders.

Captain Harris further stated the position of Panagra in declining to train Peruvian pilots; that use of American pilots in every little Peruvian war would prevent the Company from obtaining the kind of men they want; that the precedent would quickly be followed by other Latin American countries, lay the Panagra open to heavy damage suits, and that the whole question of immunity of international air line planes from seizure by the countries through which they pass was recognized by European countries and should be brought up for settlement at the next Pan American Congress.

The Department is informed, with reference to its telegram No. 33, July 13, 6 p.m., that any further representations necessary will be made informally on broad grounds of policy. The Embassy believes [Page 955] that in addition to citing interference with the carriage of mail, the point should be stressed that Americans must not in any way interfere in domestic troubles even though the Government may wish them to do so.

The Embassy will appreciate an instruction from the Department as to whether it views the contract provision cited above as being similar to those clauses in various contracts which waive the right of Americans or American companies to diplomatic intervention. A statement from the Department is requested as to whether it still holds the position that no American or American interests can contract away any part of the right of the American Government to extend protection if it feels necessary to do so. It is requested that the Department confidentially instruct the Embassy as to its position on the above points, in order that when quick action is necessary the Embassy will be in a position to know how vigorous the protest can be made.

Respectfully yours,

Fred Morris Dearing
[Enclosure 1]

The American Chargé (Burdett) to the Permian Minister for Foreign Affairs (Freundt Rosell)

No. 281

Excellency: I have the honor to express the viewpoint held by the Embassy regarding the employment on a military mission by Your Excellency’s Government on July 11th of a Panagra airplane with an American citizen as pilot. A report of the matter has been transmitted to my Government and its instructions to the Embassy will be communicated to Your Excellency.

It was understood when the airplane was requisitioned that it would be employed exclusively for the transport of material, and that the orders under which it was operating would preclude its entry into the zone of gun fire, whereas, in fact, it was ordered to land at Trujillo at a point subjected to rifle fire. The Embassy protests against the placing of an American citizen in danger and cannot acquiesce, even under the present extraordinary circumstances, in waiving the protection to life and safety to which these peaceable American citizens are entitled while they are under-the jurisdiction of Peru.

The disturbed conditions in the North are a source of profound regret to the Embassy which, of course, has no desire to interfere with the efforts leading to a restoration of tranquility, but expresses [Page 956] its confidence that Your Excellency will at once perceive the urgency of avoiding the employment for military purposes of the equipment and personnel of the Pan American Grace Airways by any of the several republics which it serves.

These pilots are American citizens domiciled temporarily in Peru for the sole and primary purpose of operating an international mail and transport service, and I beg to point out to Your Excellency the advisability of avoiding a situation which unintentionally might endanger the security of these persons, and to urge Your Excellency to put forth every effort to prevent the presence of American citizens in the territory of military operations. It is the duty of foreigners in Peru to refrain from exposing themselves to such risks and I particularly request that Your Excellency’s Government will enjoin upon the appropriate authorities the desirability of abstaining from further employment of citizens of the United States for military purposes.

I avail myself [etc.]

William C. Burdett
[Enclosure 2—Translation]

The Peruvian Minister for Foreign Affairs (Freundt Rosell) to the American Chargé (Burdett)

No. 61

Mr. Chargé d’Affaires: I have the honor to acknowledge receipt of your note No. 281, dated yesterday, outlining to me the point of view of your Embassy with respect to the use by my Government of a Panagra airplane, on military service with an American pilot, concerning which matter you have informed your Government and whose instructions you offer to convey to me.

The ideas which you express concerning the object of the requisition of the above-mentioned airplane; the protest against the risk to which you say an American citizen has been exposed; and the confidence that you express that I will appreciate the urgency to prevent the employment, with military objectives, of the equipment and personnel of the Pan American Grace Airways can only be explained by the strange circumstance that you have not been informed of the terms under which the proposal was accepted and permission given on the 28th of May, 1928, to establish the aviation service proposed by The Huff Daland Dusters, Inc., of Louisiana, subsequently replaced by the Peruvian Airways Corp., Inc. (Panagra), under the authorization given by my Government on the 26 of November, 1928. Among the conditions under which this proposal was accepted is [Page 957] the ninth article which states: “In the event of grave internal disorders, pestilence or whatever other public calamity, the planes, equipment, and personnel of the Company will be freely placed at the disposition of the Government.”

It is, then, in the exercise of a right emanating from the stipulations of the agreement willingly entered into, and which my Government is not disposed to renounce, that a Panagra airplane with its pilot is being utilized for the transportation of equipment to be used in the quick reestablishment of order in a circumscribed territory in which are established valuable interests belonging to American citizens, who were seriously endangered by the disturbances which occurred there.

I avail myself [etc.]

A. Freundt Rosell