Daniel E. Sickles to José de Carvajal y Hué, October 16, 1873

General Sickles to Mr. José de Carvajal.

Sir: I have the honor to acknowledge the receipt of a note from your excellency, dated the 16th of May last, in reply to mine of the 27th of January preceding, respecting the onerous burdens imposed on the trade between the United States and Cuba by the customs authorities in that island.

I regret to have occasion to ask the attention of the government of the republic to some further representations I am instructed to make on this subject.

It appears, from sundry memorials recently presented to my Government by American ship-owners and masters of vessels, and also from the official reports of the consul-general of the United States in Cuba, that notwithstanding the assurances given me in the several communications received from the ministry of state under date of February 4, 1871, and of January 2, 1873, the reforms and ameliorations therein announced have been but imperfectly carried into effect in Cuba.

The memorialists, therefore, solicit the aid of their government in further efforts to obtain relief from grievances of which, I am persuaded, your excellency will admit that they justly complain.

It is, perhaps, unnecessary to assure your excellency that my Government disclaims any purpose of discussing the perfect right of every nation to establish and enforce such rules as it may choose to frame for the execution of its own revenue laws. It is to be presumed, however, that it cannot be the intention of this class of local ordinances to inflict needless vexation and loss on foreign vessels engaged in legitimate commerce between friendly countries.

That your excellency may see how difficult it has been for foreign ship-masters to inform themselves as to the requirements of the customs regulations in Cuba, I may be permitted to recapitulate the successive orders, decrees, and circulars which have been published from time to time within a few years past.

On the 1st of July, 1859, a royal order was issued in Madrid, prescribing numerous regulations for the government of foreign commerce with Cuba.

The order was suspended soon after its publication, and remained in abeyance until July, 1867. It was then promulgated anew, with important modifications respecting the manifest.

With the publication of the decree of 1867, appeared also in the Spanish, French, and English languages what purported to be identical “rules to be observed by the captains and supercargoes of vessels, in conformity with the royal order of July 1, 1859, the royal decree of March 1, 1867, and the rules in force according to the existing custom-house regulations.”

On the 18th of November, 1868, the last-named ordinances were suspended, and a fresh compilation of rules issued, in which it is to be especially noted that the requirements as to the manifest were again changed and made more exacting; and also that the Spanish original and the English and French versions, as published, differed essentially in the terms of the first rule prescribing the contents of the manifest.

On the 16th of May, 1870, the rules of 1868 were again promulgated with further modifications and interpretations, announced in a circular from the intendente-general de hacienda of Cuba.

On the 9th of June, 1870, the minister of ultramar ordered the remission of all fines imposed in Cuba for the non-presentation of a third copy of the manifest; forbidding the provincial authorities from changing the customs legislation; declaring them personally liable for damages caused by such transgression; and restoring to force and effect the royal order of July 1, 1859, as modified by subsequent orders. This decree was published in Cuba July 6, 1870.

On the 3d of November, 1870, the intendente general de hacienda, in an official communication, informed the consul-general of the United States at Havana that so much of last-mentioned decree of June 9 as remitted fines for the non-production of a third copy of the manifest had been annulled on the 21st of September.

On the 29th of December, 1872, another decree was published, containing a new code of regulations, modifying in various particulars those previously in force.

On the 2d of January, 1873, the minister of state informed the undersigned, in reply to sundry reclamations made by the United States Government: 1st, that hereafter no fine imposed by the customs authorities in Cuba upon captains or supercargoes of national or foreign vessels for errors, omissions, or inaccuracies in ships’ manifests or sobordos should take effect without previous approval of the intendente general de hacienda, the administrators and treasurers of the several custom-houses being required to exact, on their own responsibility, a sufficient guarantee to protect the interests of the treasury in case vessels put to sea before the payment of fines; 2d, that with all convenient speed the intendente should propose such separation as could be made between the facts and details now required to be stated in the sobordos, retaining such as served to prevent fraud and discontinuing those not important to the interests of the revenue; and 3d, that fines imposed on captains or supercargoes of vessels for error in their papers and subsequently revoked, as well as those spontaneously condoned by the supreme government, should be refunded within the fixed term of one year, counting from the date of the reception by the intendente of the order directing such restitution or declaring the penalty to have been improvidently imposed.

My Government is not informed that these dispositions have been published in Cuba, nor is it advised that they have yet been out in practice.

In my notes of July 16, 1870, November 27, 1872, and January 27, 1873, the attention of your excellency was invited to various clauses of the royal order of July 1, 1859, the decree of March 1, 1867, the regulations of November 11, 1868, and those of December 26, 1872, which seemed to my government unreasonably severe and punitory in their treatment of lawful commerce. It is unnecessary to recapitulate the views presented in those communications. I desire now, more especially, to bring to your excellency’s notice the representations made by the merchants of New York and Boston in a recent communication they have addressed to the Department of State at Washington.

They show, for example, that in making out their manifests they are entirely dependent on the shippers of cargo for information as to the weights, values, and contents of packages shipped; and that irresponsible parties sometimes give false or inaccurate descriptions of their consignments, resulting in fines imposed on vessels largely in excess of the freight received. It is, therefore, suggested that whenever the manifest and bill of lading agree, and the contents, weight, or value of any package be found on examination to differ from the description of the same in the manifest, the penalty thereby incurred shall be imposed on goods and not upon the vessel. In such cases, if it should be established on the part of consignees that the master of the vessel is in fault, they would have ample legal remedies against the ship-owner. On this point the consul-general of the United States at Havana reports, under the date of January 13, 1873, that he had suggested to the intendente, that it would be more just to hold the goods rather than the vessel responsible for any concealment or deceit respecting the contents of packages, and that the intendente replied that such a rule would be more equitable, but the regulations put the fine on the vessel.

It also appears that the customs authorities at the several ports in Cuba place different constructions on the laws and regulations prescribing the form and contents of a ship’s manifest. Fines have been imposed in one port for stating that for which fines were imposed in another port for omitting. Inasmuch as it is required in all cases that the manifest shall be certified in duplicate by the Spanish consul at or nearest to the port of loading, it is proposed as a just and convenient remedy for such irregularities that manifests bearing the certificate of a Spanish consul shall be accepted in any of the ports of Cuba as regular and sufficient in form.

I have observed that in nearly all of the cases I have had occasion to bring to the notice of the predecessors of your excellency, the manifest in duplicate had been exhibited to the Spanish consul at the port of departure, one copy of the document having been left with him to be transmitted to the port of destination and the other, approved under the hand and seal of the consul, returned to the master of the vessel to be afterward presented by him to the customs authorities. Surely it should be held sufficient to exonerate ship-masters from penalty if their papers are found to be in due form by the commercial agents of the country to which they are bound. If a ship-master arriving in Cuba does not produce the consul’s certificate, he is fined $500. If he does produce such a certificate and the manifest is nevertheless informal, he is fined for every oversight or neglect of the consul to point out informalities subsequently discovered by the more expert customs officers in Cuba. The blame, if any, in such cases is with the consul. And yet others who are blameless pay the penalty. And not only are ship-masters fined when consuls overlook mistakes in a manifest, which it is their duty to correct, but it has not infrequently happened that American vessels are made to pay a penalty because the certificate of the Spanish consul was informal. The brig Dexter Washburne, of Portland, was fined $100 at Matanzas because the consul at Charleston had neglected to impress his official seal on a manifest after verifying it. Spanish consuls may be presumed to know the customs regulations in Spanish ports. At least their official certificate and seal authenticating a manifest should be accepted as evidence of an honest intent on the part of ship-masters to respect and obey Spanish laws. And if the consul is excused for ignorance of the customs regulations of his own country, the foreign ship-master should not be punished for the fault of the official to whom he is compelled, under heavy penalties, to apply to certify the regularity of his papers.

It is likewise stated that ship-masters are only informed at the last moment before the departure of their vessels of fines imposed on them. This notice is usually received when application is made at the custom-house to clear their ships for another port, so that the vessel must be indefinitely detained if payment be contested, or else the fine must be paid, no matter how unjust it may be, in order to avoid the greater loss of detention. It would seem that a practice so unreasonable and inconvenient might be prevented by a regulation requiring the customs authorities to make known to the captains or supercargoes of vessels, within forty-eight hours after the ships’ papers shall be delivered to the proper officer, all fines inflicted for irregularities in the manifest.

Complaint is also made by fifty-five American ship-masters who had delivered cargoes in the port of Matanzas, and thirty-three captains of American ships which had made voyages to the port of Santiago de Cuba, that with the utmost desire on their part to conform to the requirements of the customs authorities, they had, nevertheless, found it impossible to fill up a manifest which had not afforded some pretext for fines ranging from twenty-five to five hundred dollars. So various and so frivolous are the grounds on which fines were imposed that it would be in vain, they say, to attempt to enumerate all of them. Informalities of the most trivial nature are deemed sufficient to impose on them the severest penalties. These ship-masters state: “It is never alleged that we intend to defraud the Spanish revenue. We are fined for an absence of the names of the shipper of the goods and the consignee; for a failure to express numbers, weights, and measures, in letters and figures; for a failure to state, after the enumeration of our cargo, that we carry nothing else; for a failure to make a similar statement when we come in ballast; for an absence of what is known as the asseveration, or the words ‘so help me God;’ for the slightest error in converting American weights and measures into Spanish denominations; for omitting, in the heading of the manifest, the nationality, class, and tonnage of the vessel, name of captain, place whence she comes and port whither bound; for consigning goods to order, although they may be so consigned in the bill of lading.”

Illustrations of the character of these penalties may be seen in the reports of the American consuls in Cuba. It appears that, although the regulations may have been followed in stating the generic class of freight, yet vessels are fined because a manifest does not also contain a specific description of the cargo. For example, fines have been imposed because hoops were not described as “wooden” hoops, and because nails were not stated to be “iron” nails. In other cases, extreme technicality is required in the terms used in stating the nationality of a vessel. It is held to be insufficient when the manifest shows the name of a ship and the port or place where she is registered, since, for example, fines have been inflicted when the manifest has described a vessel as “the brig Hudson, of New York,” because it was not stated that she was the “American brig Hudson, of New York.” Penalties have likewise been exacted for omitting to state the marks and numbers of packages which were neither numbered nor marked.

Two very remarkable cases are found in a late dispatch from the United States consul-general in Havana. He reports that the American mail steamer Crescent City, having arrived in that port on the 13th of October last, with a manifest containing fifty-eight items of cargo, was fined fifty-nine times; in other words, a fine of twenty-five dollars for each item in the manifest and five hundred dollars besides, for the want of the usual consular authentication of that document, although the consul’s certificate had never before been required of mail steamers; that is to say, the manifest having been filled up under a misapprehension of the regulations in force at the moment, and the same error having occurred in noting each item of freight, amounting at most to but one offense, if it could be called an offense, yet the penalty was repeated fifty-eight times, according to the letter of a rule not known to the master until after his arrival in port; And there is a case now pending at Sagua la Grande, that of the American brig G. de Zaldo, which has been fined one hundred and forty-nine times for mistakes in her manifest. One hundred of these fines are for a single item, noted in the manifest as 100 kegs of lard. The customs authorities say that these should have been called “tierces;” and for that misnomer they impose a hundred fines of twenty-five dollars each! It is scarcely too much to affirm that customs regulations executed in such a spirit tend toward the exclusion of foreign vessels from commerce with Cuba.

As a general rule, a ship’s manifest agrees in its description of the cargo with the bills of lading delivered; and these are made out from the data furnished by consignors in settling the terms and conditions of the contract for freight. This custom was recognized in the royal order of July 1, 1858, and in the royal decree of March 1, 1867. It is the general practice of commercial nations to regard the manifest as a means only of identifying the several shipments constituting the cargo. It is the peculiar office of the invoice, as distinguished from the manifest or bill of lading, to set forth the information on which duties are ascertained. The owner or agent entering goods in a foreign port for consumption or sale alone possesses full and accurate knowledge respecting his importation. The mere carrier, whether a ship-owner, or a railway corporation, or an express company, cannot furnish information respecting the contents of closed packages. Duties are never charged and collected upon the statements contained in a manfest. Port-charges do not depend upon the nature of the cargo. It is not, therefore, easy to discover what useful purpose is served by exacting in a manifest more than is necessary for the identification of the articles comprising the cargo and less than is required for the computation of imposts.

The payment of duties is seldom, if ever, evaded by means of combination between owners of vessels and owners of cargo. The risk incurred by the ship would be far greater than any gain derived from the transaction. And since ship-owners are not the accessories of consignees in defrauding the revenue, neither should they be made to suffer penalties for the conduct of others for whose acts they are not justly responsible. Nor can ship-masters, by collusion with parties at the port of destination, defraud the revenue without extreme peril to themselves and the vessels they command. It is a mistake to assume, as seems to be the practice in Cuba, that the revenue frauds said to be so common there are to be attributed to masters of foreign vessels. These practices on the part of unprincipled dealers in commercial towns generally depend for their success on facilities acquired by long residence, by confidential relations with subordinate customs officers, by false representations in invoices, and by various devices known to themselves in making up packages. The ship’s manifest neither aids a dishonest importer in consummating a fraud, nor assists a vigilant revenue official in detecting imposture. On the contrary, it most frequently happens that an upright 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, 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 by the supreme government.

1st. Is a 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 exacted 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 tines have been remitted in those cases in which the vessels had entered the ports of the island of Cuba since the 19th of December, 1868, 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 the 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. It is 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 bill of 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 on 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 authorities to make known to the captains or supercargoes of vessels all fines for irregularities in ship’s papers within forty-eight hours after said document shall have been delivered to the proper officer.

7th. Lastly, I beg leave to observe to your excellency that long delays continue 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 restituting 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 coining 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.