BATES, Umpire: This claim arises out of the following circumstances: Messrs. McCalmont, Greaves & Co., being engaged in the trade to Mexico in the year 1846, prepared a large amount of goods for that market; but hearing of the declaration of war and blockade of the Mexican ports by the forces of the United States, they shipped their goods to Havana, there to wait the removal of the blockade and the order of their Vera Cruz partner. These goods were prepared for the Mexican market under the supposition that they would have to pay duties according to the Mexican tariff. Vera Cruz was captured by the American forces in March, 1847, and General Worth opened the trade, and issued, on the 31st March, a temporary tariff, to remain in force until further orders from the United States government at Washington. This temporary tariff established generally the same duties as were payable in the United States, with ten per cent. ad valorem in addition. Representations were made to General Worth, and he, in consequence, made some alterations in his temporary tariff. After these modifications, the claimants' partner at Vera Cruz sent orders to Havana for their goods to be sent forward. They were shipped per Susan and per George W. Randall, and were daily expected to arrive, when the new tariff (dated 31st March) was received from Washington. The provisions of this tariff were very injurious to the interests of the claimants, who remonstrated, and sent immediately to Washington, praying for modifications. The Susan and George W. Randall arrived on the 27th May. The collector of the customs at Vera Cruz permitted the goods to remain in deposit until an answer came from Washington to the representations of the claimants. On the 10th June an order came from Washington, altering the tariff, and left nothing to be desired. The claimants then proceeded to the custom-house to pay their duties, according to the improved tariff. The collector refused to receive such duties; but demanded the duties of the unmodified tariff of the United States, (of the 31st March,) which the claimants were compelled to pay, viz: On 54 bales woollen and worsted goods, amount paid Excess $11,106 58 2,344 00 8,762 58 2,961 00 The claimants demand an abatement of duty, in consequence of damage on their whole importation, of In all 11,733 58 It cannot be said that these duties were not levied according to law; nevertheless, as the modifications in the tariff were made at the suggestion of the claimants, it seems a hard case that they should be the only parties not allowed the benefit of the alteration. The documents appear to be in order, and certified by F. M. Dimond, collector. It is pretty certain that the authorities at Washington did not quite understand the case, or I think they would have allowed the claimants the benefit of the provisions of the modified tariff. I therefore award to Messrs. McCalmont, Greaves & Co., or their legal representatives, the sum of eleven thousand seven hundred and thirty-three dollars and fifty-eight cents, on the 15th January, 1855. The claim for $7,154 29, for over charge of duties on cotton goods, I reject, believing it not.right to select a particular kind of cotton goods from a large invoice on which to make a claim, when the duties on the other portion must have been far lower than they would have paid under the Mexican tariff. These duties, as before stated, were levied in conformity with the law; and it is only the peculiar circumstances and hardships in the case of the woolens that could justify this commission in granting any portion of the claim. KERFORD & JENKIN. The claimants were British merchants residing in Mexico, and, prior to the war between the United States and that country, had ordered goods, designed for the Mexican market, to be transmitted by the over-land route to Santa Fé, and thence to the interior of Mexico, with a right of drawback of duty, as provided by the laws of the United States. On the arrival of the goods at Philadelphia, war existed between the United States and Mexico, and application was made to the government for liberty to proceed with the goods, with right of drawback as before, stating the great hardship of a refusal. Special permission was given "under the peculiar circumstances involved, and without giving rise to any inferences as regards the condition of Santa Fé." Held that such a permission was a mere license of transmission of goods to the border, with full notice of the risks arising from a state of war, and, that a subsequent necessary detention of a caravan conveying the goods into the interior of Mexico, by an armed force invading the country, until after the success of such force was secured, was justifiable. The claimants are British merchants resident in Zacatecas, in Mexico, and had been many years engaged in trade in that country. By a law of Congress, of March 3, 1845, merchandize was authorized to be exported over land to Canada, and to Mexico, via Santa Fé, with the benefit of drawback on duties. In 1846, the claimants had purchased a quantity of goods in England, designed for the Mexican trade, and adapted especially for that market. These goods they had ordered to be shipped to Philadelphia, designing to take them by the over-land route to Santa Fé, and from thence transport them to the interior of Mexico. They had arranged to have mules and wagons in readiness in Mexico, to take on the goods on their arrival. The goods arrived in Philadelphia, in June, 1846, at which time war existed between the United States and Mexico, and commercial intercourse between the two countries was stopped. The claimants, however, made earnest application to the government to be permitted to proceed with their goods, with the accustomed allowance of draw back; and representations were made of the great loss which would accrue to them if this indulgence was not granted. The request was acceded to in a special order, in which the Secretary of the Treasury stated that it was granted "under the peculiar circumstances involved, and without giving rise to any inferences as regards the condition of Santa Fé, or to act as a precedent in other cases." The goods were forwarded from Philadelphia early in July, 1846, and arrived at Santa Fé, where a certificate was issued for the return of the duties, October 7, 1846. Before reaching Santa Fé, the caravan transporting the goods was overtaken by a military detachment under Colonel Price, and detained by him ten days. They were also delayed by a military force under Captain Walton. On the arrival of the caravan at Santa Fé, General Kearney was in command, and he permitted it to proceed on its way to Chihuahua; and afterwards it was detained by Colonel Doniphan, who had command of the forces then proceeding to the capture of the city and province of Chihuahua. The caravan was kept with the troops, as is alleged, some six or eight months, at great expense arising from loss of mules, consumption of provisions, damage of goods, and other injuries. At length a general battle was fought with the Spanish forces of the province, near Chihuahua, who were defeated, and the city and province were taken; after which the claimants received no further molestation. It was contended that the detention of the claimants was justifiable because they were proceeding directly to the enemy's country with a full knowledge of the numbers and design of the American forces. They had also merchandise which would be a valuable assistance to the Mexicans, and on which the duties to be paid would amount to a large sum. The duties paid in the United States, for which they received a drawback, were $53,108. The duties in Mexico would be a much larger amount. It appears that, notwithstanding all the detention, the goods sold so that the claimants realized a large profit, though much less than they would have done had there been no delay. HANNEN, agent and counsel for Great Britain. THOMAS, agent and counsel for the United States. THOMAS, Counsel and Agent for the United States: This is a claim of Messrs. Kerford & Jenkin, merchants, of Zacatecas, Mexico, who were domiciled in that city and carried on trade there, during the war between the United States and Mexico. The claim is for $300,000, damages alleged to have been experienced by the claimants in consequence of the detention of their caravan of goods by Colonel Doniphan, between Santa Fé and Chihuahua, in 1846. The declaration or memorial of the claimants states that they are British-born subjects, but that they have resided and been merchants at Zacatecas during the last eighteen years. I shall oppose the allowance of this claim on two grounds: 1st. The commission has no jurisdiction of the case, inasmuch as the claimants were domiciled in Mexico during the war, and by the law of nations were subjects of that country: and 2d. If they had the right to appear here as claimants against the United States, they have no just or legal ground of complaint. Every person domiciled in the enemy's country is regarded by the law of nations as a subject of that country. Kerford & Jenkin being domiciled in Mexico during the war, were not "British subjects" in the sense in which these terms are used in the convention, and hence have no right to appear before this commission. International law does not enter within a State to ascertain who enjoys the municipal rights in a higher or lower degree, but it is outside of all nations, and regards every person as a member of that society in which he is found. This is the rule for the intercourse of nations in peace as well as in war. The question now before you is, however, one which arose in time of war, and we shall, therefore, only be concerned with the law in regard to belligerents. On this point Chancellor Kent says: "If a person has a settlement in a hostile country by the maintenance of a commercial establishment there, he will be considered a hostile character, and a subject of the enemy's country in regard to his commercial transactions connected with that establishment. The position is a clear one, that if a person goes into a foreign country and engages in trade, he is, by Ex. Doc. 103-23 |