No. 95.
Mr. Scruggs
to Mr. Frelinghuysen.
United
States Legation,
Bogota, October 2, 1882.
(Received November 4.)
No. 33.]
Sir: The records of this legation show that from
the earliest recognition of her national independence Colombia has been
almost constantly at issue with our diplomatic representatives here touching
the custody of the register and papers of American vessels by our consuls in
her ports. The legislation of the Republic relative to the formalities of
entrance and clearance of foreign merchant vessels in her seaports is
certainly a serious chapter in parliamentary literature; and whilst I do not
doubt its general rectitude of intention, it has certainly been, as a whole,
singularly at variance with recognized international usage.
This legislation finally culminated in law 60 of 1875, and that law was the
occasion of the diplomatic agreement of 1876, in which our representative
here seems to have taken the initiative. By that agreement the Colombian
law, whereby the inspector of the port was made sole custodian of ships’
registers and papers, was held in abeyance, and the foreign consuls in the
ports of the Republic were thenceforth to have the undisputed custody of the
register, muster-roll, &c., of the ships of their respective
nationalities. It was further specified in the “agreement” that the
obnoxious law 60 should be repealed, or else so modified as to conform to
international usage.
In August following, however, our national Legislature, in its desire, to
economize public expenditures, abolished this legation. The obnoxious law 60
was lost sight of, and when the Colombian Congress convened in February,
1877, it, so far from repealing or modifying the law referred to, passed a
supplementary act providing for its rigid enforcement.
This culminated in the unfortunate affair of the Lorine, at Aspinwall, and
when this legation was restored the discussion of the subject of the custody
of ships’ papers was resumed. That discussion resulted in the repeal of the
law 60, in accordance with the “diplomatic agreement” of 1876, and in the
enactment of law 40 of 1879, whereby the consuls’ right to the custody of
ships’ papers was fully conceded.
But very soon thereafter the State authorities of Panama practically defeated
the operation of the new law by a local edict requiring shipmasters to
procure, at great delay and expense, collateral certificates from every
petty State official in the place that the vessel owed them nothing and that
it had their consent to go to sea.
This renewed the discussion at Bogota, and finally resulted in the federal
law 109 of 1880, providing for the enforcement of law 40 of 1879,
unembarrassed by the local or State law of Panama referred to, or by any
other local law or edict wkatsoever. It was supposed, therefore,
[Page 224]
that the question had been thus
finally settled, and that it would not again crop out for vexatious
discussion at the Colombian capital.
What was my surprise, then, upon assuming the duties of this post, to find
that, among other complaints against our consul at Aspin wall by the
inspector of that port, was one that he persistently refused to respect this
very local edict which the Colombian Congress had so expressly set
aside.
This complaint was the occasion of my note of the 2d ultimo, addressed to the
Colombian minister for foreign affairs, a copy of which is herewith
submitted.
The minister’s reply thereto, dated the 25th ultimo (a copy and translation
of which I inclose), shows that whilst he is desirous of asserting: the
supremacy of the federal over the State law, he seems not to have realized
that a federal official in Aspin wall had been persistently endeavoring to
enforce the local edict over the consul’s just opposition. Hence my
rejoinder of the 26th ultimo, a copy of which is herewith submitted, and
which I trust may be the finale of a discussion extending through a period
of more than half a century.
I have, &c.,
[Inclosure 1 in No. 33.]
Mr. Scruggs to Mr.
Quijano W.
United
States Legation,
Bogota, September 2,
1882.
The undersigned, minister resident of the United States, presents his
most respectful compliments to the Hon. Señor Don J. M. Quijano W,
secretary for foreign relations of the United States of Colombia, and
begs to invite the honorable secretary’s attention to the following
considerations:
- 1.
- By the laws of the United States the master of any foreign
merchant vessel must, within forty-eight hours after entry into
any port of the country, deposit the ship’s register and other
papers with the consular officer of the nation to which the
vessel belongs; and he must deliver to the collector of the port
the consul’s certificate that the papers have been so deposited.
Failure on the part of the master to comply with this
regulation, or failure on the part of the consul to retain the
ship’s papers until a proper clearance is produced from the
custom-house authorities, subjects the one to a fine of not less
than $500 nor more than $2,000, and the other to a fine of not
less than $500 nor more than $5,000. (R. S., sees. 4209 and
4211.)
- 2.
- This law, which is reciprocal in its application, extending to
the vessels of foreign nations in whose ports United States
consuls have like privileges, has been in force for more than
sixty years, and is believed to be in accord with established
international usage. A similar regulation exists in every
maritime country of Europe, and also in many of the principal
maritime and commercial states of Asia. Experience has shown
that it affords ample protection to the national revenue and
compels obedience to port regulations; and it is specially
commendable for its simplicity and convenience.
- 3.
- The existing treaty stipulations between the United States and
Colombia, whereby the consuls of each country in the ports of
the other may demand from the local authorities the arrest of
deserters from the vessels of their respective nationalities, is
a specific recognition of the principle of reciprocity
contemplated in the statute above cited. It is manifest, for
instance, that unless the consul can have the custody of the
ship’s register and muster-roll he can neither exhibit those
papers to the local authorities nor make an intelligent or
practical demand for the arrest of deserters from the ship. (See
Art. III, Par. 2, of the consular convention between the United
States and Colombia of May 4, 1850.)
- 4.
- The Colombian law No. 40, of June 24, 1879, was, as the
honorable secretary may remember, the outgrowth of the
“diplomatic agreement” of July, 1876. It repeals the obnoxious
law No. 60 of 1875, and thus places Colombia in accord with
international usage and in harmony with her treaty stipulations
above cited. It provides, for instance, that the master of a
foreign merchant vessel entering Colombian ports
[Page 225]
shall deposit her register and
papers with the consul of her nationality and take a receipt for
the same, and that this consular receipt or certificate of
deposit shall he delivered to the inspector of the port. When
ready for sea, the master of the vessel must obtain a clearance
from the inspector, exhibit this to the consul, and receive back
the ship’s register and papers. Failure on the part of the
master to comply with these regulations subjects him to a fine
of from $500 to $1,000; and failure on the part of the consul to
hold the ship’s papers until the inspector’s certificate of
clearance is produced to him is sufficient cause for revoking
his exequatur.
- 5.
- This law, like that of the United States already cited, is in
accord with the spirit of the consular convention between the
two countries. It is likewise in accord with general usage; and
when properly and faithfully executed can give no cause for
complaint by maritime powers.
- 6.
- But, if the undersigned is correctly informed, its execution
at the free ports of Colon (Aspinwall) is practically defeated
by a local or State law of Panama, which requires the inspector
(a federal officer) to withhold the certificate of clearance
until the shipmaster shall have produced to him a certificate
from each and every local or State official of the place that
there is nothing pending before them to detain the vessel. It
further provides that to each of these collateral certificates
must be attached a stamp duty of 80 cents; and it imposes an
additional fee of $5, usually paid to some clerk in the office,
for preparing the certificates in the Spanish language, and for
obtaining thereto the signature of some petty official of the
State or district, who, in most cases, must be sought in the
streets or elsewhere than in a known and convenient place of
business, thus causing unnecessary and unauthorized expense, as
well as great annoyance and frequent delays, to merchant vessels
of the United States visiting that port.
- 7.
- The undersigned, therefore, respectfully submits, first, that
this local edict or State law, by imposing additional taxes on
foreign commerce, and by materially altering and amending a
federal law of Colombia, is an assumption of powers which, under
the Colombian Constitution, pertain exclusively to the national
Government, and that it should therefore be held to be null and
void; second, that it is in direct conflict with article 21 of
the contract between the Colombian Government and the Panama
Railway Company, which exempts vessels entering the free ports
of Colon (Aspinwall) and Panama from the payment of tonnage and
all other dues, taxes, contributions, or imposts whatsoever;
and, third, that its enforcement against merchant vessels of the
United States is in open violation of Article II of the treaty
between the United States and New Granada (now the United States
of Colombia) of the 12th of December, 1846, since it appears not
to be enforced against British merchant vessels trading at the
same port.
- 8.
- For these reasons therefore, as well as in accord with that
spirit of friendliness and fairness which ought, to characterize
the commercial intercourse of the two Republics, the undersigned
ventures to express the hope that the Executive of the Union
will adopt some measures to put a stop to these petty
discriminations against American vessels in Colombian ports. The
law No. 40 of June 24, 1879, never contemplated these
unnecessary and vexatious conditions, and it should be enforced
impartially, and without amendment or interference by the local
or State authorities of Panama.
The undersigned improves, &c.,
[Inclosure 2 in No.
33.—Translation.]
Mr. Quijano W. to
Mr. Scruggs.
United
States of Colombia,
Office of
Foreign Relations,
Bogota, September 25,
1882.
Mr. Minister: The Hon. Mr. Dichman addressed a
note to this office, dated the 24th of April, 1881, having in view the
same object as that set forth in your excellency’s esteemed
communication of the 2d instant, namely, that a local law of the State
of Panama, and a decree for its enforcement, had subjected merchant
vessels in the free ports of Panama and Colon to certain exactions of an
extraordinary character.
The executive power accordingly asked of the State authorities of Panama
copies of the law and decree referred to, in order that such steps might
be taken in the premises as might he deemed necessary and proper. The
reply received was that the State government had not expedited any such
acts, nor any others that could affect the entrance and clearance of
merchant vessels at the ports named; and that I such vessels were
subjected only to the provisions of law 40 of 1879.
[Page 226]
With respect to the fees collected by certain officials, in conformity
with article 421 of the fiscalcode, for issuing the certificates
necessary to the clearance of vessels as prescribed by State
regulations, article 15 of the law 109, of the 24th August, 1880,
provides that thenceforth no such fees should be demanded; and that law
was communicated to the Government of the State of Panama, in a note
from this office dated December 7, 1881.
Everything relating to this subject was transmitted to Congress, together
with the notes passed, in the annual report from this department for the
year referred to.
I am, therefore, induced to believe that perhaps your excellency may not
have been duly informed of the facts, since there is neither
apprehension nor suspicion that the collection of those duties upon
clearance certificates has been persisted in.
I improve, &c.,
[Inclosure 3 in No. 33.]
Mr. Scruggs to Mr.
Quijano W.
United
States Legation,
Bogota, September 26,
1882.
Mr. Secretary: I had the honor to receive your
excellency’s note of yesterday, in reply to mine of the 2d instant. I am
quite familiar with the correspondence of 1881 to which your excellency
refers. I was also aware that the inspector of the port at Colon had
been instructed to execute the law 40 of 1879, unembarrassed by the
local edicts complained of. I was, however, under the impression that
those instructions had either been imperfectly understood, or else not
very faithfully obeyed.
In a dispatch to this legation dated the 22d of January last, the United
States consul at Colon says distinctly that the local edict referred to
was still sought to be enforced against merchant vessels of the United
States, whilst English vessels were exempted therefrom. I cannot believe
that the consul would have made so explicit a statement had there been
no foundation for it. Moreover, his statement is corroborated by that of
the inspector himself, for in his note of the 20th of the same month to
the honorable secretary of the interior, at Bogota, the inspector
complains of the consul for refusing to comply with the local law and
edict referred to. The inference is legitimate, therefore, that he was
still trying to enforce those provisions, against the consul’s
opposition to them.
The inspector, in his note referred to, also complained of the consul for
having franked letters to the United States at half rates of postage.
Investigation proved that complaint to have had some foundation, and
immediate steps were taken to prevent a repetition of the offense. But
the consul’s just and honorable refusal to respect an unauthorized local
edict amendatory of the federal law 40, of 1879, was likewise made a
cause of complaint. Hence the occasion of my note of the 2d instant,
addressed to your excellency, which, however, seems to have been
regarded as the result of imperfect information.
Nevertheless, I am gratified to observe that my opinion touching the
validity of the local law, whereby vessels of the United States have
been put to so much inconvenience, is fully concurred in by your
excellency, and I have no doubt the Government whose foreign relations
your excellency so worthily represents, will find prompt and effective
measures for putting an end to such annoyances.
I improve, &c.,
