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Case of the Schooner

ernment of Brazil entertained a belief of their injustice; and it was therefore agreed that the whole of the claims presented up to the date of the con vention should be settled by an act-the payment to the Government of the United States of 530,000 milreis, and that the imperial government should be exonerated from all responsibility springing out of said claims, it being left to the United States to distribute said snm among the claimants according to the merits of their respective claims.

“To convey a proper understanding of the merits of each claim would require a statement in manuscript of at least 300 pages.

"Such a document I have now in my possession, and it will afford me much pleasure to submit it to you for your perusal, whenever you may find it convenient to honor me with a call either at this office, corner of 13th and I streets, or at my residence in 9th street above F street, after office hours. With perfect respect, I am, Sir, your obedient servant,

GEORGE P. FISHER." In several cases the grounds on which the awards

were based were stated in letters of the commissioner ** John S. Bryan."

to some of the interested parties. One of these cases was that of the schooner John S. Bryan, which was seized in the province of Para in June 1836. On October 15, 1842, commissioners were appointed by the government of Brazil and the United States legation at Rio de Janeiro, respectively, to determine the amount of loss and damage suffered by the schooner in consequence of her seizure and detention. June 12, 1843, the commissioners awarded the sum of 26 contos of reis, to be paid by the imperial government as “indemnification in full of the value of the schooner John S. Bryan, her cargo, freight, wages, expenses ordinary and extraordinary, exchanges, interest, etc.” The payment of this sum was withheld till May 20, 1846, a period of two years eleven months and eight days, when it was paid to the minister of the United States at Rio de Janeiro without interest from the day of liquidation. The claim in the present case was for interest, and for the expenses incurred in the prosecution of the original claim. On the facts thus presented, Mr. Fisher made the following decision ::

“I have awarded to the claimant T. Perkins. Pingree, out of the sum paid by the Imperial Government of Brazil to the Government of the United States, under the stipulations of the convention of the 27th day of January 1849, the principal sum of two thousand four hundred and forty-four dollars and ninety-one cents, it being the amount which had accrued as interest on the original award of twenty-six contos of reis from the day of liquidation till the day of payment; and the further sum of eight hundred and forty-seven dollars and sixteen cents as interest upon the aforesaid sum of two thousand four hundred and forty-four dollars and ninety-one cents (which last sum was due and should have been paid on the 20th day of May 1846) from said 20th of May 1846 until the 1st day of March next (1852), the day on which this commission will expire; making in the whole, the sum of three thousand two hundred and ninety-two dollars and seven cents.

The principle on which this sum is awarded is one which has long been settled and which the Brazilian Government, in this case at least, has not attempted to deny. Indeed, the officer to whom the claims of American citizens were referred by the minister of foreign affairs of Brazil for examinati n, shortly previous to the negotiation of the Convention of 1849. in speaking of the claim of Mr. Pingree, says that it, being a claim for 'interest on principal, appears to have grounds in equity.'

1

Mr. Fisher to Mr. Matteson, August 7, 1851. MSS. Dept. of State.

“With regard however to that part of the claim which is made for and on account of expenses incurred by the claimant in the prosecution of his original claim, I cannot make any allowance, as it would be establishing a principle which, if once generally admitted, would prove as dangerous as it is new."

In the case of the brig Aspasia, of Baltimore, William Case of the “Aspasia.” Massicott, owner and master, it appeared that during

the year 1830 the brig sailed from Baltimore for Cadiz, in Spain, with the proper and necessary documents for that port, a free port at which there was no consnlar representative of Brazil. On touching at Cadiz, Massicott found the state of the market unfavorable, and he then sailed for Rio de Janeiro, with a certificate from the health officer and harbor master at Cadiz in due form. It appeared that he arrived at Rio de Janeiro about the last of September or the 1st of October 1830; that he was permitted to land his cargo, according to the usual custom in that port, but that on applying for permission to reload his vessel with the produce of the country such permission was refused for thirty-ore days, during which time he was detained and prevented from receiving the yalue of his discharged cargo in the produce of the country; that after the lapse of this period the imperial government conceded that he had a right to take in a returu cargo of the produce of the country, but denied him compensation for his detention. On these facts the commission held:

“The detention and the final concession of the right to take a return cargo are admitted by the Brazilian authorities, but they refused demurrage on the ground that the thirty-one days were wasted in this controversy,' though it is added that the right was conceded to the vessel to tako in cargo.' It cannot with any shadow of reason be alleged that the mere detention of thirty-one days was necessary to perfect the captain's right to take in cargo; indeed this is not pretended by the imperial government. It is therefore clear that if he had the right to take in cargo after the expiration of that time, he had the right on his first applying for the permission; and the detention was no act of his but that of the imperial government, for which it is accountable. It is also shown by the correspondence between the United States legation at Rio de Janeiro and the minister of foreign affairs that the claim was duly presented prior to the negotiation of the convention of 1849 and formed a part of the basis of that convention." /

In the case of the schooner Hope, the statement of Case of the Schooner facts made by the commissioner was as follows:? "Hope."

"The memorial sets forth as follows, Viz: That in the month of August A. D. 1837, the said Samuel B. Harper shipped on board the said schooner Hope, of which he was then the sole owner, and of which Joseph C. Moore was master, at the port of Alexandria, an assorted cargo of merchandise, all the absolute property of him the said Samuel B. Harper, destined for Maranbam in Brazil and a market. That on the 10th day of that month the master of said schooner declared before the vice-consul of Brazil for the port of Alexandria to the truth of two duplicate manifests of said cargo valued at ten thousand seven hundred and twenty dollars and two cents. That on the day following the said master in compliance with the laws of the United States made oath to the truth of said manifests before the collector of customs for said port of Alexandria and cleared said schooner thence for Maranham and a market. That on the 12th day of the same month he the said master sailed for the said port of Maranham where he arrived on the 27th day of September following. That on arriving at Maranham a fine was imposed upon and the payment thereof enforced

Mr. Fisher to Mr. T. Collins Lee, January 28, 1852, MSS. Dept. of State. 2 Mr. Fisher to Mr. Snethen, June 16, 1851, MSS. Dept. of State.

against the said schooner, because he the said master (as he the said master was informed by the Brazilian authorities) had not brought with him from the Brazilian vice-consul for Alexandria a sealed-up copy of the manifest of cargo addressed to the collector of customs at aranham. That hav. ing applied to the collector of said port of Maranham for a remission of the fine upon the ground that he was ignorant at the time he sailed from Alexandria of the existence of any law or regulation of the empire of Brazil requiring a sealed-up copy of the manifest of cargo addressed as aforesaid the said application was refused, and that thereupon the consignees of said vessel and cargo having procured from the Brazilian authorities at said port of Maranham one of the said duplicate manifests forwarded the same to the said vice-consul of Brazil with information of the imposition and payment of said fine, and that the said vice-consul on the 19th day of July 1838 did certify under seal of his said consulate to the identity of said duplicate, and that he the said vice-consul had not on the 10th day of August aforesaid received from the Government of Brazil or from any of its officers any instructions whatever requiring him to seal up one of the duplicate manifests of cargoes of vessels destined to ports of Brazil and send the same by said vessels to the collector of the port for which said vessels were destined, and that in all respects he the said viceconsul had complied with such instructions as up to that time he had received from the government whose agent he was. That upon the receipt of the aforementioned certificate the consul of the United States for the port of Maranham, who was also one of the consignees of said vessel and cargo, submitted the same with an application to the proper officer of Brazil, praying for a restitution of said fine. That said application was rejected upon the ground that it was not made within the time limited by the imperial regulations. That after this refusal, but before the negotiation of the convention aforesaid, a claim for the restitution of said fine was presented not only to the Minister of the United States at Rio de Janeiro, but also to the Secretary of State of the United States at Washington, in order that the same might be demanded of the Brazilian Government. That neither the said Samuel B. Harper nor his representatives nor any other person for him or them nor the memorialist nor any person for him bas ever received any sum of money or other equivalent or indemnification for the whole or any part of saidreclamation.”

On these facts the commissioner, after a somewhat extended discussion, held:

“Under the circumstances of the case I cousider the imposition of the fine upon the schooner Hope to have been neither more nor less than the arbitrary exaction of a penalty from an innocent party by the imperial government for its own fault in failing to furnish its commercial agent in Ålexandria with information of the commercial regulations under which that fine was imposed. And the refusal of the application to refund the fine npon the presentation of the certificate of the Brazilian vice-consul of the innocence of the party from whom it was exacted, because the lapse of a few months from the imposition of the fine, was as ungenerous as the original exaction was unjust.”

The commissioner therefore awarded the claimant the sum of $606.06, with interest at 6 per cent from September 29, 1837, to February 29, 1852.

In the case of the brig Toucan a claim was made for Case of the Brig "Toucan."

the alleged unlawful detention by the imperial author

ities of the brig and her cargo at San Joze do Norte from February 13, 1836, to March 2 following, a period of seventeen days. It was alleged that the Toucan sailed from Boston on October 17, 1835, with a valuable cargo, for St. Catherines, Brazil, and a market; that she arrived in the course of her voyage at San Joze, where she discharged a part of her cargo, retaining the rest, valued at $28,000, on board; that she was ready to leave San Joze on February 13, 1836, when the master attempted to clear for Porto Alegre, Brazil; that he was refused a clearance for that port, and was prevented from going thither by the Brazilian authorities, on the ground that the port was in the possession of insurgents, and that he was not permitted to sail to Porto Alegre till March 2, 1836. On these facts the commissioner said:

“The question arises whether under the seventh article of the treaty be tween the United States and the Emperor of Brazil concluded at Rio de Janeiro on the 12th December 1828 and which was in full force and virtue when the facts are alleged to have occurred, the imperial government is liable to the claimants for damages and losses occasioned by reason of the brig and cargo remaining at San Joze do Norte.

"The seventh article of said treaty is in the following words, viz: "The citizens and subjects of neither of the contracting parties shall be liable to any embargo, nor be detained with their vessels, cargoes or merchandise or effects, for any inilitary expedition, nor for any public or private purpose whatever, without allowing to those interested a sufficient indemnification.'

"An embargo is a proclamation or order of state usually issued in time of war or threatened hostilities prohibiting the departure of ships or goods from some or all the ports of such state until further order.' In this case the Toucan was not subjected to any embargo, nor was this vessel or her cargo detained for any military expedition or for any public or private purpose whatever, save the private purpose of the master who for seventeen days insisted on carrying out his cherished object of going up to Porto Alegre, until he at length obtained permission to clear for that port.

"For it is nowhere alleged in the memorial or in either of the protests of the master that the Toucan and her cargo were not at any time during said seventeen days free to go from San Joze do Norte to any port in Brazil except Porto Alegre, or to any port in any other country.

"The preventing of the Toucan and other vessels by the Brazilian anthorities from going up to an interior port which had been closed on account of a civil insurrection existing there at the time, was but the exercise of a right incident to a sovereign state; and amounting to no enıbargo upon that ship or other vessels in San Joze; nor to a detention of her or them so long as they were free to go elsewhere than to said port of Alegre.

“With this view of the law touching the said claim for detention at San Joze, I should be compelled to rule out that part of the claim, however clearly the fact of the prevention of the brig from clearing for Porto Alegre by the Brazilian authorities might be established by the evidence.”

There was a second claim in the memorial for the alleged detention by the Brazilian authorities of the Toucan and her cargo at Porto Alegre from the 5th April to the 5th September 1836. In regard to this claim the commissioner said:

“This claim I divide into two branches.

“ 1st. That for the detention at Porto Alegre from the 5th April to the 15th of June 1836, at which last date that port was repossessed by the imperial forces; and the 2nd, that for the detention which is alleged to have continued from the 15th of June till the 5th of September. I make this division because, although it is nowhere alleged in the memorial that Porto Alegre was at this time retaken by the imperial powers, yet such is the well-authenticated historical fact.

Let us suppose, then, as in reference to the claim first set forth in the memorial, that all the material allegations contained in the memorial from the sailing of tbe brig from Boston till permission was granted to the master on the 2nd of March to clear her from San Joze to Porto Alegre; and further let it be granted for the sake of the argument that it is proved as laid in the memorial that the Toucan sailed for said Port of Alegre on the

Mr. Fisher to the Hon. H. Hamlin, May 22, 1851, MSS. Dept. of State.

4th of March 1836, and arrived there on the 15th of that month; and that in consequence of the communication between that port and the rest of the provinco being entirely cut off by order of the imperial authorities, the brig was detained there during the period alleged in the memorial, viz: from the 5th day of April till the 5th day of Septe:nber. Then, if the Brazilian Government had the right, which I am satisfied it clearly possessed, to close the port of Alegre to navigation so long as it should remain in possession of the insurgents, the question is presented whether, after having availed himself of the permission granted, by special favor and not as of right, to go up to Porto Alegre, the master of the Toucan can hold that government liable to heavy damages for the refusal to grant him the addi. tional special favor of again temporarily opening the uncommunicated port in order to allow him to return thence, so long as that port continued to be held by the rebel forces. In my opinion no such liability ever existed; for the permission to go up to Porto Alegre did not carry with it the liberty to return thence so long as the rebels retained possession of it. On the contrary, in availing himself of the privilege, yielded after much solicitation, to go to Porto Alegre, he assumed the responsibility for the consequences which followed, and voluntarily took upon himself to abide the chances of a speedy restoration of order there or of a second suspension in his favor of the decree by which that port was kuown to him to be closed.

“For these reasons I shall also be compelled to decide against that portion of the second claim contained in the memorial which is based upon the detention of the brig and cargo in Porto Alegre from the 5th of April till the 15th of June.

“But as the imperial decree of the 3rd of March 1836, ratifying the provisional order of the president of the province of Rio Grande, closed the port of Alegre only until order should be restored there, and as it is fair to presume that order was restored there on the 15th day of June, the day on which the imperial forces regained possession of said port, the Brazilian Government is in my opinion liable for all the losses and damages which the Toucan and her cargo sustained during the detention which occurred subsequent to that time, provided no offense against the laws of the empire was committed by the master of said brig to justify said detention. So far as I am at present advised the Government of Brazil in its correspondence with that of the United States in relation to this case has never alleged that any such offence was committed.” An award was made accordingly.

The master and crew of the American whale ship TarCase the Ship

quin, at great personal risk, as well as at the risk of "Tarquin."

losing their ship, saved a transport belonging to John VI. King of Portugal, Brazil, and the Algarves, then having his court at Rio de Janeiro, and succeeded in bringing the transport into the harbor of Santos, in Brazil. In consideration of this service, by which the Tarquin lost the chances of a whaling voyage, the King issued an order for the completion of her cargo of oil from the royal magazines at Rio de Janeiro-under all the circumstances a fair compensation for the service rendered. The order thus issued was, however, evaded by the officers of the Crown, who put on board only 229 barrels of oil, while her capacity was upward of 1,300 barrels. The ship waited at Rio for ten months, in the liope that the order of the King would be executed, but it was not done. She then returned with what she had on board, including the oil obtained at Rio, to Nantucket, her home port. On these facts the commissioner said: '

1 Mr. Fisher to the Hon. H. Hamlin, February 26, 1852, MSS. Dept. of State.

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