Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 3, 1889
Mr. Lincoln to Mr. Blaine.
London , July 31, 1889. (Received August 10.)
Sir: I have the honor to transmit to you a copy of a note from Sir James Fergusson (on behalf of Lord Salisbury) and of an accompanying memorandum of the Government of Canada, which I have received in reply to Mr. White’s note of February 20, 1889, in reference to the American ship Bridgewater, a copy of which was sent to the Department of State by Mr. White in his No. 928 of the 23d of February last. It will be observed that the statement of the claimant, Mr. Allen, that he, on May 26, 1888, abandoned the suit begun by him in the supreme court of Nova Scotia against the officer who seized and detained the Bridgewater is expressly contradicted by the Canadian Government; it being stated that the action is still pending, although subject to be dismissed for want of prosecution and for failure to give the security for costs required of non-residents, but that the agent of the Department of Justice in Nova Scotia has been instructed not to ask for such dismissal until a reasonable time has elapsed after the transmission of the memorandum of the Canadian Government for security to be given and for the case to be proceeded with.
It will also be observed that the Canadian Government asserts that immediately upon the issuance of the adverse opinion of the minister of justice Mr. Allen was informed that the opinion was withdrawn as having been based solely on an erroneous statement of the date of beginning his suit and not upon the merits of the case.
I have, etc.,
Sir. James Fergusson to Mr. Lincoln.
Sir: With reference to my note to Mr. White of the 27th of February last I have now the honor to transmit a memorandum giving the reply of the Government of Canada to his note of the 20th of that month respecting the case of the United States vessel Bridgewater.
I have the honor to request that you will communicate this memorandum to the United States Government and point out to them that, as it is still open to Mr. Allen to take his legal remedy by proceeding in the suit already commenced and not discontinued in the supreme court of Nova Scotia, the case is not one for diplomatic treatment.
I have, etc.,
Memorandum.
The Government of the Dominion have had under consideration the note received through the foreign office from the United States chargé d’affaires stating that the law courts of the Dominion of Canada could afford no redress to the owner of the United States ship Bridgewater, and inclosing papers laid before the United States Congress relating to the case of this vessel.
The facts upon which the claim in relation to the ship Bridgewater is based appear to be as follows:
The ship put into Shelburne, Nova Scotia, in a damaged condition about the 5th April, 1887. An examination was made of the injuries which she had sustained with the result that the captain was advised to discharge his cargo and transfer it to another ship. The cargo was accordingly unloaded and transferred to another vessel, and went to its destination. The managing owner, John H. Aller, who has been active in promoting the present claim against the Dominion Government, arrived at Shelburne soon after the vessel put in there, and the decision seems to have been formed about that time to treat the vessel as a constructive total loss in consequence of the probable expense of repairing her, and to sell her as a wreck not worth repairing in order to bind the underwriters to pay for a total loss. In pursuance of this purpose the vessel was offered for sale, and was bought in by Mr. Allen on the 8th June, 1887. This attempted sale was abandoned at about the same time when the collector of customs made it a reason for exacting customs duty, and Mr. Allen proceeded to make the repairs which were required to put the ship in a seaworthy condition.
The collector of customs at Shelburne, assuming that the sale had been a bona fide one, claimed that a duty of 25 per cent, should be paid on the proceeds of the sale in pursuance of the act relating to duties of customs.
The collector does not seem to have relinquished, entirely, his control of the vessel until the 14th October, 1887. The owner claims damages from the Canadian Government and its officers by reason of his ship being delayed. The delay is claimed to have been from the date of the seizure, about July 27, until the date of the ship’s release, and is based on the vessel’s demurrage and loss of possible profits, together with delays and difficulties in making her voyages after the release. There is also a claim for injury and deterioration.
The Government of Canada do not deem it necessary at present to discuss the merits, or want of merits, of the various portions of this claim, but they desire to say generally with regard to it that the delay of the vessel was not caused by the seizure.
The repairs had been begun before the seizure took place. What the collector did was simply to place a watchman over the vessel to see that she was not removed without his knowledge. This watchman had distinct orders not to interfere in the slightest degree with the workmen who were carrying on the repairs. So that there might be no misunderstanding on that point, the collector informed the foreman of the workmen that there would not be the slightest interference with his work or that of his subordinates, and Mr. Allen, the managing owner, was also informed of the same fact by the collector.
Notwithstanding this Mr. Allen availed himself of the watchman’s having been employed by the collector to withdraw his workmen, cease all repairs, and commence the present claim for damages. Notwithstanding that the intimations that there would [Page 455] be no interference with the work of repairing the vessel were repeated to him, Mr. Allen, and the United States consular agent at Shelburne, both verbally and in writing, declared that the owner would not go on with the repairs and Mr. Allen used the expression that he would “throw her upon the customs.” His refusal continued until the final relinquishment of all control by the collector. After that the repairs had to be done at a most unfavorable season for them and for continuing the navigation of the ship.
Some injury is alleged to have been done to the outfit or apparel of the vessel, but as to this it seems at present that the customs officer is able to show that no injury whatever was done to the property belonging to the vessel or the vessel itself while she was under the care of the watchman. These matters, however, are rather for the authority or tribunal which may have to decide on the amount of compensation to be awarded if the principle be established that the owner of the vessel is entitled to compensation.
It is a preliminary point of some importance that neither Mr. Allen nor any other person connected with the vessel has made any application by petition of right to the Dominion Government, notwithstanding his assertions and those of the honorable Mr. Bayard to the contrary. If such a petition were presented it is not probable that a fiat would be refused. At the same time it must be stated that the Canadian law upon this subject is the same as that of England, and that it is not probable that a petition of right would be an available remedy for a tort such as the owner of the Bridgewater claims was committed with regard to that vessel. It by no means follows, however, from that circumstance that the owner is without redress in the courts of Canada. On the contrary, while the Crown (in right of Canada) is not liable for a wrong any more than the Crown is liable in the courts of Great Britain, any officer who commits a wrong against one of his fellow subjects, or against a foreigner, is liable to answer for that wrong in the courts of justice in the ordinary way.
If the Bridgewater was properly liable to customs duty and properly seized, there can be no claim against the Dominion Government or against its officers. If she was improperly seized or improperly detained, the officer who seized and detained her is liable to compensate those whom he has injured by such illegal proceeding. On these points Mr. Allen has no doubt been well advised.
The United States consular agent at Shelburne, who is likewise understood to be his solicitor, is a member of the bar, thoroughly practiced in the law, and of the highest character and attainments. It appears from the documents which have been before the government that Mr. Allen was early advised that a petition of right would not be an available remedy and he therefore commenced an action for damages in the supreme court of Nova Scotia, against the collector of customs, for all the injuries caused by and resulting from the seizure.
The late Secretary of State of the United States has been incorrectly informed as to what has taken place with regard to this suit for damages. Being, of course, familiar with the rule, which has been invariably followed in his own Department, as appears by the diplomatic intercourse of that Department with other countries, that a claim can not be entertained as a matter of diplomatic negotiation if it may be the subject of redress in the courts of justice, he intimates “no recovery can be had in any court against any officer of the Crown,” and that “it was finally ascertained that redress through the Canadian law courts or from the Canadian Government was not to be had.”
He professes to base these statements on the official opinion of the minister of justice of Canada, conveyed, it is said, by the minister of customs, on the 24th of May, 1888.
There can be doubt that the honorable Mr. Bayard was informed by Mr. J. H. Allen to that effect. It appears by Mr. Allen’s letter to Mr. Bayard, dated 19th January, 1889, that Mr. Allen made the statement that when the owner was in Ottawa he “made an application to the minister of customs for his permission to take the necessary steps (without which, so he was advised, no progress could be made), to the end that the cause could be tried in the Exchequer court, in which event the Government itself would be the actual defendant; but the application met with prompt and unequivocal refusal.”
The minister of customs has nothing to do with any such proceeding, and in this case his permission was not asked, nor was any refusal given by any person. Mr. Allen further states in that letter to Mr. Bayard that an action was commenced in Nova Scotia against the seizing officer, but that it was abandoned, as the Canadian authorities are well aware, on May 26, 1888, on receipt of the official letter of that date, stating that the claimant could not recover, etc.
The value of these statements will be presently seen, but it can not be regarded as otherwise than remarkable that Mr. Allen, regardless of the advice of his own counsel, should have abandoned his suit against the seizing officer on the mere opinion alleged to have been given by the minister of justice that he could not succeed.
Such a proceeding would have been remarkable if it had occurred, but the statement [Page 456] that it did occur and that the Canadian authorities are aware of it, is untrue. The minister of customs on the 24th of May, 1888, wrote a letter to Mr. Allen stating that he was in receipt, that day, of the opinion of the minister of justice as to the claim for damages, and that the minister of justice was of opinion that the claimant could not “recover against any officer of the Crown for damages sustained in consequence of the seizure.” The opinion of the minister of justice, referred to in this connection, was conveyed in a letter, dated 22d May, 1888, from the deputy minister of justice, in which, irrespective altogether of the merits of the seizure, it was stated, according to the information then in the possession of the Department of Justice, that the action against the seizing officer had not been brought within three months of the time when the action had accrued, as required by section 47 of the customs act, and in which was stated the opinion that the claimant could not recover; that opinion being based solely on the information then in the possession of the Department. It was also stated in the letter of the deputy minister of justice that the propriety of insisting on this limitation was a question of policy to be decided by the minister of customs.
Mr. Allen being then in Ottawa, was informed by the deputy minister of justice of the reason on which the opinion was based, and he in reply informed the deputy of the minister of justice that the action against Collector Attwood had been commenced within the time limited by law, and on the 25th of May, 1888, the deputy minister of justice informed the minister of customs by letter that Mr. Allen had corrected the statement on which the opinion of the 23d May had been formed. Mr. Allen had then received and had shown to the deputy minister of justice a telegram from his own solicitor stating that the date on which the action had been brought was within the requirements of the law, and assuring him that the case could be tried in September, 1888. This was at the time when Mr. Allen asserts that the suit was discontinued and that the Canadian Government well knew of its discontinuance.
So far from it being true, therefore, that Mr. Allen was in any way induced by the answer of the minister of customs to discontinue his suit, be understood before leaving Ottawa that the opinion communicated to him had been formulated on an erroneous statement of dates and had therefore been withdrawn, and he had been advised by his own solicitor that the action was entered in due time and that it could be tried if he pleased in September of that year.
It is untrue that he discontinued the suit against the collector or that any intimation that he had done so or intended to do so was made to the Canadian Government.
It is also a misrepresentation, to state that he finally ascertained that redress through the Canadian law courts was not to be had. The suit has never been discontinued. It is still pending in the supreme court of Nova Scotia, and can be tried whenever the plaintiff cares to carry it on to trial.
At present the proceedings have been stayed until security for costs shall be given according to the law of the province in regard to suits by persons living out of the jurisdiction.
The Canadian Government therefore are of opinion that the owner of the Bridgewater is not now in a position to assert any claim against the Government of Canada, but must proceed with the suit for redress which has been begun against the seizing officer and which is still pending, notwithstanding the statements to the contrary contained in the letter of Mr. Allen to Mr. Bayard, and in the letter of Mr. Bayard to Mr. Phelps, which have been previously referred to. It has been already stated that in such an action the legality of the seizure could be tested and damages awarded in full compensation for any illegal act which the officer may have committed. For reasons which it is not now necessary to enter upon, any judgment which would be finally recovered against the seizing officer would be sure of being responded to, and it is by no means certain, even if the statutory limitation were to apply as to the date when the action was brought, or if it should stand as a bar to the recovery by the plaintiff on the merits of the case, that such an objection would be insisted on. It probably would not be insisted on, although there is probably no sufficient reason why such a statute should not be made available, and the rule has always prevailed in the United States, even in cases in which the Government of that country was immediately concerned, to insist on a statutory limitation even against foreign claimants as a complete bar to redress.
It will be time enough, however, to consider the question as to insistence on the limitation when it appears that that limitation is a bar to the decision of the claim of the owner of the Bridgewater on its merits. At the present moment that does not appear to be the case, and the documents made public show that Mr. Allen was not so advised. The suit pending in the supreme court of Nova Scotia having been some time ago stayed until security for costs should be given, according to the practice of the court, it is now in a position to be dismissed for want of prosecution, but the agent of the department of justice in Nova Scotia has been instructed not to ask for such dismissal until a reasonable time has elapsed after the transmission of this report for security to be given and for the case to be proceeded with.
[Page 457]The Government of Canada are further of opinion that if Mr. Allen does not, after the United States authorities have been informed of their opinion and of the position of the suit at law, proceed with his action, application should be made to dismiss the suit, and no further application to the Government should be entertained; for the relinquishment of the suit, under all the circumstances, could only be regarded as a deliberate abandonment of the proper and legitimate mode of redress.
The delay which has occurred in bringing the suit to trial in face of the advice of Mr. Allen’s own counsel that it might have been tried in September, 1888, is incapable of explanation on any other ground than that Mr. Allen was aware that he had incurred the expense and the loss consequent on the ship’s delay by his own act only, and was unwilling to have the facts investigated, but preferred to make his claim the subject of diplomatic correspondence, in the hopes that he might thereby avoid an investigation of the facts on which his claim ought to depend.