No. 341.
Mr. Frelinghuysen to Mr. Baker.

No. 190.]

Sir: Your No. 570 of the 31st ultimo has been received. You therein report a conversation had with President Guzman Blanco, on the 28th October, concerning the matter of the custody of ships’ papers in the ports of Venezuela, in the course of which the President suggested that you obtain from this government a statement of the reason why a change in this respect is desired by us.

You have yourself already made known to the President several very convincing reasons why the practice in Venezuela of demanding that the custody of ships’ papers while in port be confided to the Venezuelan officers is not in consonance with the practice of nations or with commercial interests. Your grounds were good, as far as they went, but the principles underlying the question are broader, and involve the doctrine of reciprocity under treaty and international maritime laws.

In the first place, it is proper that the President should be disabused of any impression he may have formed that the matter is brought up as an innovation. It has for more than fifty years been the occasion of discussion and remonstrance with various nations of Spanish America; and if it be now revived in connection with Venezuela, it is because it seems necessary to the best interests of both countries that an anomalous practice should not exist between them in this respect.

The discussion with Colombia is in point. In 1876 a general movement of the foreign representatives at Bogota was made to secure the abrogation of a law which required the delivery of the papers of foreign vessels to the local port officers. An arrangement then concluded diplomatically set the matter at rest by recognizing the right of the consul of the ship’s nationality to have the custody of the ships’ papers of their national vessels, and the law has since been repealed.

I transmit, herewith, for your information, copies of two dispatches [Page 544] from Mr. Dichman, then our minister at Bogota, in which the merits of the demand are forcibly presented. Although the circumstances made the argument somewhat special, as applying to a specific law, and to the peculiar status of Colon and Panama as free ports, you will find in these dispatches ample material for fortifying your representations to the Venezuelan Government in the premises. You may, also, profitably consult the remaining correspondence on the subject, found in the volumes of foreign relations for 1875, 1879, and 1880, which are, or should be, in the library of your legation.

It may be convenient to note herein, briefly, a few points to which prominence should be given.

In the first place, the existing rule in Venezuela is deemed to be in contravention of the spirit of perfect equality and reciprocity of commerce and navigation between the two countries, as stipulated in the abrogated treaty of 1836, and as pervading the existing treaty of 1860. The law of the United States, following the usage of most civilized countries, provides that the custody of the papers of foreign ships shall rest with the consuls of their nations, and this because such custody is deemed essential to that consular control over national vessels which is stipulated in all our treaties. It cannot be expected that the United States will unreservedly yield to the authorities of a foreign state a measure of control over our vessels in their ports which is not permitted by our own law to be exercised by our own officers in our own ports, over foreign vessels, except as a retaliatory measure in the absence of reciprocity. In this connection it may be well for you to examine as to the provisions of Venezuelan law touching the custody of the papers of Venezuelan vessels in foreign ports. I make this suggestion because in the discussion of this question with Colombia it was found that the Colombian law was strangely inconsistent in requiring Colombian consuls abroad to take charge of the papers of vessels of their nation, while denying a reciprocal practice to foreign consuls in Colombia. If a like law should be found on the Venezuelan statute books, no stronger argument in our favor could be devised.

You should also, in this relation, call attention to the 26th article of the treaty of 1860, and ask how it is expected that an American consul can exhibit the register and crew-roll of an American vessel in proceedings for the arrest of deserters, if at no time he is permitted to have possession of those papers.

In the second place, apart from considerations of reciprocity founded on treaty, the sacredness of the principles of reciprocity as an enduring basis of international intercourse under the law of nations may be forcibly invoked to sustain our position. A vessel, under a civilized flag, on the high seas or in a foreign port, possesses a national life of which its papers are the strongest evidence. They are to all intents a part of the vessel itself. To assume that by the act of entering a friendly port, a vessel is to be stripped of that which is in a large measure essential to the proof of its nationality, and to await the pleasure of a local foreign officer before such part of its life can be restored to it, is inconsistent with international principles and usage. Hence, we find that the custom of nations (with but few exceptions in the Spanish American ports of South America) recognizes the consul of the vessel’s nationality as the sole guardian of all national rights appertaining thereto. The exceptions to which I refer (and which are happily growing fewer as the principles of international intercourse are better understood) rest on no broad principle of comity; they violate comity, on the contrary, by asserting a painful spirit of distrust. It is, as Mr. Dichman aptly expresses [Page 545] it in a dispatch of September 4, 1879 (Foreign Relations, 1880, page 313), much as though it were regarded by the local authorities as a more effective pledge to prevent a ship’s leaving a port to have material possession of her register “than if the rudder had been unshipped.” The form in which this distrust is expressed, moreover, seems to evidence a misapprehension as to the nature and value of a ship’s register. As I have said above, the register is the evidence of the ship’s nationality, and as such, with the ship itself, are properly within the continuous jurisdiction of the vessel’s nation, and, therefore, in a foreign port, within the jurisdiction of the consul of that nation. I commend to your consideration Mr. Dichman’s dispatches No. 62 of March 31, 1879 (Foreign Relations, 1879, p. 280), and No. 133 of September 4, 1879 (Foreign Relations, 1880, p. 312).

In the next place, a conclusive reason for the custody of a ship’s papers by the consul of her nation is found in the necessity of preventing frauds against individuals in connection with marine survey, repairs, bottomry bonds, the right of absent owners, &c., and protection of the rights of seamen. It is for these purposes that the legislation of nations provides that the register of a vessel while in port shall pass out of the control of her commander and into the custody of the consul. It is not at all necessary that these diversified rights should be subservient to the local police surveillance while in a foreign port, and yet the rule existing in Venezuela so subordinates them. Moreover, the exercise of these several rights over a vessel for which the laws of her nation make abundant provision is rendered almost impossible by the passage of the papers out of the control of the nation to which the vessel belongs.

Finally, in your conversation with General Guzman Blanco, you have set forth the considerations of convenience which should have weight in determining the question. The loss of important ship’s papers while in foreign custody has been only too common an occurrence in the countries where this obnoxious regulation obtains. The correspondence with Colombia shows that this was admitted as a powerful objection to the practice, and you can doubtless adduce examples occurring in Venezuela to strengthen your point. I must compliment you, too, on your aptness in meeting General Guzman Blanco’s objection that if any feeling of distrust were shown in this matter, it lay in an endeavor to take from the local officers the custody of a foreign vessel’s papers. We do not seek to take from Venezuela a recognized right because we distrust its exercise; we simply wish to retain for our own consuls a right which we deem pertains to them as the representatives of our national sovereignty, and one which is claimed and recognized as just among maritime nations.

I infer from the request of General Guzman Blanco that he is not tenacious, of the point but rather asks for so conclusive a statement of our position as would warrant him in bringing the matter to the consideration of the Venezuelan Congress, with a view to asking such modification of existing law as will put Venezuelan legislation in this respect in harmony with the legislation and usage of maritime countries throughout the world. You will, therefore, in presenting to him a succinct memorandum founded on this dispatch, set the question forth on its merits, as aiming to facilitate a needed reform rather than as aggressively combating an assumed intent to adhere to an obnoxious system.

I am, &c.,

FRED’K T. FRELINGHUYSEN.