« AnteriorContinuar »
ship-master is subjected to penalties which he would have escaped if he had conspired with those whose connivance is essential to the success of revenue frauds.
I might point out several instances in which the requirements of one regulation cannot be obeyed without violating the provisions of another. One illustration of these contradictions will be sufficient to show the necessity of a further revision of these ordinances. Article IV requires the captain, at the end of the voyage, to note in the duplicate sobordo he retains, 1, any goods in the hands of the crew ; 2, the surplus ship's stores'; 3, arms and ammunition; 4, the coal on board, if the vessel be a steamer. And yet Article VIII denounces any amendment or alteration whatever in the sobordo or manifest as a forgery, for which the captain will be arraigned before the criminal tribunals.
It is extremely desirable that the uncertainty resulting from so many successive orders and decrees, and the various interpretations given to particular clauses at the several ports in Cuba, should be removed by an authoritative declaration of the supreme government.
Ist. Isa third manifest necessary besides the two required to be certified by the Spanish consul?
I have already shown that on the 9th of June, 1870, a decree was issued by the minister of ultramar, remitting all fines imposed in the island of Cuba for the non-presentation of a third manifest. This decree was published in the official gazette at Havana and communicated to the Department of State at Washington. Yet afterwards numerous fines were extracted from foreign vessels because they were not provided with a third manifest. Subsequently, on the 4th of February, 1871, the minister of state, Mr. Martos, in reply to a note from me on this subject said:
“Respecting fines inflicted on captains of vessels for informalities in their manifests, or for not having presented them, in addition to the cargo-list certified by the Spanish consul at the port from whence they sail, considering that in these omissions there was no intention to defraud, the said fines have been remitted in those cases in which the vessels had entered the ports of the island of Cuba since the 19th December, 186, that being the date when the order of the provisional government, of the 11th of November then last past, commenced to be in force."
Nevertheless, it appears that the customs authorities in Cuba continued to impose fines as well for not presenting as for informalities in the third manifest.
And now, according to the tenor of Article VII of the new regulations of December 1872, the captain must provide himself with a manifest besides the duplicate sobordo certified by the consul.
2d. Is it necessary that foreign vessels should state their tonnage according to Spanish measurement
Upon this point likewise, contrary decisions have been made since I had the honor to receive the note of the minister of state, Mr. Martos, dated February 4, 1871, in which his excellency said:
“Captains of foreign vessels are no longer required to declare the tonnage of their vessels in Spanish measure, it being sufficient on the first voyage for them to make such declaration in conformity with the builder's measurement, or according to the measurement of the respective nations to which they belong; being, however, obliged thereafter to show certificates of the measurement that shall have been used for the collection of tonnage-dues, as laid down in the order of 9th of July last."
Nevertheless, the new regulations of December 1872, Article XII, impose a charge on the captain who fails to declare the exact capacity of his vessel according to the Spanish standard.
On this point I may remark that the general customs ordinances of Spain (Article XLVI) do not require that the manifest of a foreign ship shall contain a statement of her tonnage in Spanish measurement.
3d. Is it enough that the manifest state generally the class of merchandise comprising the cargo, with the marks, numbers, and weight of packages, or must the contents of each and every package be particularly described ?
4th. It is respectfully suggested that whenever the manifest and billof lading agree. and the contents of packages are found on examination to differ materially from the description of the same in the manifest, the penalty thereby incurred shall be imposed on the goods and not upon the vessel.
5th. To the end that foreign ship-masters entering Cuban ports may be relieved from the hardship and vexation of so many penalties imposed for trivial informalities in the manifest, it is respectfully submitted that the certificate of the Spanish consul at the port of departure should be accepted as a sufficient authentication of the regularity of that document.
6th. A further regulation is respectfully proposed requiring the customs anthorities to make known to the captains or supercargoes of vessels ali fines for irregularities in ships' papers within forty-eight hours after said documents shall have been delivered to the proper officer.
7th. Lastly, I beg leave to observe to your excellency that long delays continne to
occur in the return of money collected for fines subsequently remitted. Fines imposed on American vessels in 1868, and which General Lersundi ordered to be returned more than four years ago, are still withheld by the intendency. Considering the facility with which penalties are inflicted and the difficulty incident to their remission, it would seem there should be no hesitation in the matter of restitution after a decision to that effect has been announced.
Respecting several of the foregoing suggestions, I may, in conclusion, cite in support of the views now presented, the decree of the government of the republic dated May 30, 1873, and Article XLVI of the general customs ordinances of Spain. For example, Article I of the decree requires the captain of a vessel coming from a foreign port to present one general manifest of the cargo, visaed by the Spanish consul at the port of departure, or by the local authorities if there be no Spanish consul. So much of the decree of May 30, 1873, as requires one manifest only, is identical with Article XLVI of the general customs ordinances. Articles V and VI provide that when the manifest and bill of lading agree in the description of the freight and in the statement of the gross weight, the consignees shall pay any fine imposed for errors in such description or weight that may appear in the further examination of the cargo by the customs officers. And if the captain has deviated from the bill of lading in making out his manifest, then he must pay the fine incurred by reason of any discrepancy between the cargo and the manifest. Article X forbids Spanish consuls certifying a manifest that is not drawn up in conformity with the regulations in force; and consular officers are required besides to note on manifests presented to them any mistakes or amendments made therein, and to advise the general customs office in Madrid, by post on the very same day, of all manifests they certify and the particulars thereof.
Appended to this note I have taken the liberty to transmit for your excellency's perusal several papers on this subject which I have received from my Government.
A is a copy of a dispatch from the consulate general of the United States at Havana, dated October 30, 1872, giving many examples of unjust fines imposed.
B is an extract from a subsequent communication from the consul-general, dated January 13, 1873.
C is a copy of a memorial addressed to the Secretary of State of the United States, dated New York, January 13, 1873, and signed by many respectable ship-owners trading between that city and the several ports in the island of Cuba; the same memorial is also signed, under date of January 28, 1873, by other firms of equal respectability residing in Boston.
I avail myself of this opportunity to repeat to your excellency the assurances of my most distinguished consideration,
D. E. SICKLES. His Excellency the MINISTER OF STATE.
Havana, October 30, 1872, SIR: I transmit herewith three copies of what are styled the “Regulations for the guidance of captains and supercargoes of Spanish as well as foreign vessels,” &c. These regulations are a recapitulation of the royal order of 1st July, 1859, put into force on the 1st July, 1867, which has so frequently been referred to in communications from this office. It seems unnecessary to call the Department's attention to the ambiguities, contradictions, and absurdities contained in this document. The so-called translation into English is quite as intelligible as the original in Spanish. Under these regulations fines are imposed for the following offenses:
For omitting to express class of vessel, whether ship, bark, brig, &c., $25.
For omitting the nationality of the vessel: it is not sufficient to state the brig – of Boston; the master must state the American brig — of Boston; the penalty of such omission is $25.
For omitting name of the vessel, $25.
For omitting to state in writing, as well as in figures, the quantity or number of packages or pieces, $25.
For omitting marks and numbers, although the packages may have neither, $25.
Por omitting to state the generic class of the effects manifested, such as wooden hoops; iron nails, &c., $25.
For omitting to state the gross weight of different items, $25; and other penalties for discrepancies in weights. If goods are to go into bond, or are in transit, and not so stated, $25.
For omitting to state at the foot of the manifest that the vessel brings no other cargo, although she may be in ballast, $25.
For omitting to give the weights and measurements in the decimal or French system, $25 each omission.
For omitting to manifest any goods that the crew may have in their possession, $25.
If the manifests have not been authenticated by the Spanish consul, a fine of $100 is imposed. In a case where the Spanish consul had neglected to impress his seal on the manifest, it was held by the customs officials at Matanzas that there was no authentication, and the vessel was fined accordingly.
For omitting in the manifest any of the requisites of rule 1, $25.
In addition to the consular manifest called "sobordo," another simple manifest, not authenticated, is required; this requisite is not clearly provided for in the royal order and only inferred from the second paragraph of rule 7; nevertheless a failure to produce it subjects the master to a penalty of $500. Numbers of our vessels have been subjected to these exorbitant fines. Any erasure, alteration, or interlineation, subjects the master to a charge of forgery.
I know of no instances where this penalty has been enforced. A fine of $25 is usu. ally imposed for each defect.
The presentation of the consular manifest is obligatory in all the ports of the island at which the vessel may touch, for orders or in distress.
Rule 12 provides that the master who does not declare the exact Spanish tonnage, shall pay the expense of admeasurement, should there result an excess of 10 per cent. This rule is inconsistent with the first paragraph of rule 1.
All goods omitted in the manifests are confiscated, and a penalty of double duties imposed on the master, and if the duties should exceed $400, the vessel, freight, money, &c., will be confiscated.
For every package missing, upon the discharge of a vessel, a fine of $200 is imposed.
For discharging goods without permits a fine of $1,000 is imposed.
Vessels coming from a port where there is no Spanish consular officer are required to have their manifests verified by three merchants, who will also certify that no such officer resides at the place, or within a radius of thirty kilometers ; if omitted, a penalty of $100 is imposed. There is no provision for this penalty in the regulations, but the fine is frequently imposed notwithstanding.
The mail-steamer Crescent City, of and from New York, arrived here on the 15th instant, the day upon which the circular of the intendente, referred to in my No. 123, went into effect. Her manifest comprises fifty-eight items, and a fine of $23 has been imposed for each, and one of $500 for want of the consular authentication, which, hitherto, has not been required of mail-steamers.
I availed myself of the opportunity to urge upon the intendente the suspension of the royal order of July 1, 1859, in view of the gross injustice it inflicts upon foreign commerce, while experience has shown the impossibility of ship-masters making out their manifests, in accordance with its provisions, and not incurring some one of its numerous penalties. I acquainted him with the instructions of the Treasury Department of the United States relative to fines upon foreign vessels for want of manifesta; that such fines were not enforced without consulting the Department, and I asked that the same considerations be extended to our vessels, in the out-ports of the island, where it had been customary to impose fines and exact their payment before appeal could be made to the central authority.
I also called his attention to the fines imposed on our vessels at Manzanillo in 1-A, which General Lersundi had ordered to be restored more than four years ago, and which had never been carried out by the proper department of the intendency. He took note of my suggestions and promised that they should have due attention.
It is due to this officer to state that upon his arrival here he found the greatest demoralization in his department, and that he is endeavoring faithfully to effect reforma therein. He makes, however, the usual mistake of his predecessors in supposing that any of these irregularities are to be attributed to the masters of foreign vessels.
(Inclosure B.] Mr. Torbert to Mr. Fish. UNITED STATES CONSULATE-GENERAL,
Havana, January 13, 1873.
This matter of fines is giving a great deal of trouble to the American shipping arriving in the island. The intendente has adopted the rule that the captains shall know and manifest every article, and the weight of the same, that he brings, and for every error or mistake they impose a fine of $25. If the bill of lading from which the captain makes his manifest is not correct, he would have (in order to comply with the rule here) to open every package and weigh the same. I told the intendente that he should not expect to make foreign ship-masters detectives for his custom-house, but that he should hold the goods and make the consignees responsible for any false entries in the custom-house. He says that would be better, but their law or orders puts the fine on the vessel.
Another annoyance is, that a vessel may arrive here with a cargo and be in port a month, reload, and when the captain goes to the custom-house to clear for sea, he may be told there is a fine on his vessel on account of some informality about his inward cargo. In many cases of this kind the fine (although manifestly unjust) has been paid rather than delay going to sea and knowing the time it takes to settle such things with the officials. A case in point I had recently: The American ship Marcia C. Day, of New York, arrived here from Cardiff on the 21st of November, with a cargo of coal; the captain's manifest called for so many tons, and that amount was entered by the consignees at the custom-house; the cargo discharged agreed with the captain's manifest. When the vessel was ready to go to sea, about the 4th of January, 1873, the parties were informed that there was a heavy fine on the vessel because the Spanish consul's certified manifest from Cardiff was one million kilograms less than the number of tons called for by the captain's and entered at the custom-house. The consignee informs me that he was told at the custom-house that the fine would be about $8,000. I at once addressed a note to the intendente, with a memorial of the consignee, which was never answered. After waiting six or seven days, the captain determined to discharge his crew and abandon his vessel. I informed the intendente of his determination in a personal interview. He asked me not to do that, and I told him such would be the case if some decision was not promptly given in the case. The next day the vessel was allowed to go to sea without the fine being exacted.
There is a case pending now at Sagua la Grande of the American brig G. de Zaldo, which has been fined one hundred and forty-nine times, at $25 each, for mistakes in manifest. One item on the manifest, one hundred kegs of lard, they say should be tierces, and they impose one hundred fines of $25 each. Another item of two hundred and thirty-five barrels of potatoes, thirty-five turned out to be beans, and they place thirty-five fines of $25 each, &c.
[Inclosure C.] Sir: We, the undersigned, citizens of the United States, and owners and agents of vessels trading between this port and the several ports of the island of Cuba, would respectfully state that the practice of imposing fines on vessels arriving in Cuban ports by the Spanish customs authorities thereof, for so-called errors in manifesting Fargo, has become so onerous and burdensome that we feel constrained to solicit the interference of your Department in our behalf.
The Spanish laws require that a vessel bound for Cuban ports shall make out manifests of cargo, the same to be certified by the Spanish consul residing at, or nearest to, the port of loading, in which manifest the captain must declare positively and withont qnalification, the several and different kinds of packages, their marks, the generic class of contents, as well as the weights and values of the same, and for every instance where, on arrival in Cuba, the examination of the cargo shows a difference between the packages and the weights, and contents of same as actually found, and the same as manifested, the vessel is fined, while the goods escape all responsibility.
That although the generic class of the goods is stated on the manifest, in compliance with the requirements of the Spanish laws, and said manifests accepted and certified to by the Spanish consul, yet the vessel is fined for not stating the specific class.
That we are entirely dependent on shippers of cargo for information as to weights, values, and contents of packages shipped, from which to make out manifests, and irresponsible parties often give erroneous description of their part of cargo, resulting in fines imposed on the vessels, at times greatly in excess of the freight, against which we have no redress.
That the customs authorities at the several ports in Cuba place different constructions on the laws relative to vessels, and the manifests of same, and fines have been imposed in one port for stating that for which fines were imposed in another port for omitting.
That the captain is only informed of any fines imposed on his vessel when he attempts to clear her at the custom-house, whereby he has either to pay the fines or detain the vessel indefinitely while contesting the same.
That although we are willing and endeavor to comply with the said laws regulating manifests, yet, under the conflicting constructions placed on same by the different collectors of customs in Cuba, we find it impossible to do so, or to avoid fines.
In cases where fines are imposed, an appeal to the superior authorities at Havana is permitted on payment, under protest, of said fines, but unless the amount of such fine is excessive, the delay occasioned by the detention of the vessel would exceed in most cases the amount of such fine, even if recovered.
We would respectfully represent to the Department that as the vessel, through her agents, is entirely dependent on the shippers of cargo for information necessary to describe on the manifest the contents and weights of packages shipped, the propriety of imposing fines on the goods erroneously described on manifest, instead of on the ressel, as then the shipper would have a sure remedy against the vessel in case of error on her part or on the part of her agents in making out manifests, while under existing reg. ulations it is in most cases almost, if not impossible, for the vessel to recover the amount of fines from the shipper.
Therefore your memorialists pray that the Department will take such action in the matter as may seem most advisable to obtain such relief in the premises as they may be equitably entitled to.
Waydell & Co.
Hand & Swan.
NEW YORK, January 13, 1873.
T. M. Mayhew & Co.
Bridge, Lord & Co.
Baker & Humphrey.
Peters & Chase.
Fowle & Carroll. Gammans & Co.
William Haskins & Son. Hinckley Brothers & Co. William McGilvery, Pendleton & Rose.
Isaac Coombs. Thayer & Lincoln.
Henry F. Lawrence. Hon. HAMILTON FISI,
Secretary of State, Washington, D. C.
Boston, January 28, 1873.