Papers Relating to the Foreign Relations of the United States, 1927, Volume III
312.115 Ol 41/21
The Ambassador in Mexico (Sheffield) to the Secretary of State
[Received March 10.]
Sir: Referring to my telegram No. 82 [83], 4 p.m., of today,91 I have the honor to transmit herewith a copy and translation of the memorandum received today from the Mexican Foreign Office with respect to the case of the Oliver Trading Company.
I have [etc.]
The Mexican Foreign Office to the American Embassy
Memorandum
In the courteous memorandum of the Embassy of the United States, dated February 15th,93 it is stated that on account of the claim presented in October, 1922, before the courts of New York against the Government of Mexico by the American Company styled “the Oliver American Trading Company”, which gave rise to the attachment of the properties in New York of the Consulate General, the Financial Agency, and the National Railways of Mexico, the Government of the United States, at the request of the Government of Mexico through its Embassy in Washington, used its good offices with the appropriate authorities that, as an act of international comity, the attachment might be vacated, and that this attitude, sustained during the various judicial proceedings, was of prime influence in the suit being settled in a manner definitely in favor of the Government of Mexico;
That, in view of the order of expulsion issued by the Mexican Government against Mr. Oliver, sole owner of the Oliver American Trading Company, he was deprived of the necessary means of defense, in spite of the fact that the American Government requested, without obtaining a favorable result, that said order be revoked;
That, when the informal suggestion of the Department of Foreign Relations was communicated to Mr. Oliver, that he might be able to treat with the representative of the Government of Mexico in the United States, either a resident of that place or one especially appointed for that purpose, Mr. Oliver, upon asking our Embassy in Washington for the name of the person designated, received the reply that his action should be exercised before the competent courts;
[Page 264]That, in view of the foregoing, the present status of the matter for the Embassy of the United States is as follows:
- That Mr. Oliver can not have his case tried on its merits before the courts of the United States;
- That he can not appear in person in connection with any litigation instituted in the courts of Mexico;
- That he can not negotiate with a special representative of the Mexican Government in the United States:
- That he can not negotiate with the diplomatic representatives of the Government of Mexico in the United States.
Under these circumstances the Department of State, without passing on the justice or merits of the controversy, believes that under present conditions Mr. Oliver is the victim of an injustice which deprives him of a personal hearing of his case, and expresses its hope that the Mexican Government may take into consideration the case of “the Oliver American Trading Company” with a view to arriving at some adjustment thereof.
The Department of Foreign Relations after having noted the contents of the memorandum of the Embassy of the United States and having examined the antecedents of the case, states that, with due appreciation of the attitude assumed by the Government of the United States during the various judicial proceedings instituted by “the Oliver American Trading Company”, with the known satisfactory result, does not cease to remember, and confirms the protest then presented to the Department of State, based upon the error of the decision of Judge Rokland94 of New York in the light of recognized principles of international law, that a Government can not be brought into a legal action except before its own courts, and of the immunities which the same law grants to the properties of a government located within the territory of a foreign State.
On the 1st of March, 1920, the American company, “the Oliver American Trading Company”, represented by Mr. Howard T. Oliver, signed a contract with the management of the National Railways of Mexico which permitted it the use of a special service of local engines and foreign freight-cars for hauling its freight. It was stipulated that the contract was for a term ending December 31, 1920. This contract was later extended to June 30, 1921, it being established in the extension that the contract would remain in effect “until further notice”.
As the said contract was contrary to article 92 of the railroad law, and as Mr. Oliver had not complied with the essential obligations stipulated therein, to the detriment of the interests of the railways and of the public, he was given notice that the agreement [Page 265] was null, a decision which he did not want to accept, on grounds too numerous to mention.
The management of the National Railways, demonstrating a conciliatory spirit, informed Mr. Oliver that it was willing to enter upon negotiations; but this proposition was rejected by him in offensive terms. The Board of Directors of the railways, in view of the attitude assumed by Mr. Oliver, and wishing to bring the matter to a conclusion, placed the facts before the Attorney General, who, through the Department of Justice and in representation of the Mexican Government and of the National Railways administered by it, brought civil suit against the Oliver American Trading Company, based upon the contract signed in 1920 and demanded the pecuniary adjustment of the case. The Oliver American Trading Company was notified through its representative, Mr. Oliver, of the above-mentioned suit on September 9, 1921, and not only was notice of said suit served personally on Mr. Oliver, but he also presented a demurrer on the 12th of the said month and year, stated that notices could be sent to Rooms 505–511, Edificio de la Mutua, Avenida 5 de Mayo número 2, and authorized his attorney to receive subsequent notices, according to the records of the proceedings of the case.
On the 15th of September, 1921, this same Oliver continued to deal personally with the lawsuit under reference, for on that day he presented and was granted an appeal against two writs issued by the Third Supernumerary District Court.
Later, on October 22, 1921, Oliver gave as his address for the receiving of notices, in place of the address previously indicated, casa número 13 de la 1/a calle de San Juan de Latrán of this capital, where said notices were thenceforth served.
Lastly, it is also shown that Oliver also personally intervened in the attachment of furniture which the Agent of the Department of Justice issued as a precautionary measure.
The foregoing, all based upon legal acts, shows that Mr. Oliver applied to the Mexican courts for the decision of the matter he had pending with the National Railways, not only taking personal part in the suit and bringing various writs of appeal in his own defense, but also naming his representative and his domicile, in accordance with requirements of article 1069 of the Commercial Code; and, as the notice of suit was served personally upon the defendant, he agreed, according to the provisions of articles 932 and 933 of the Code of Civil Proceedings, to continue the case before the judge who summoned him.
Therefore, Mr. Oliver had recourse to the Mexican laws and courts, being heard and having legal defenses at his disposal, since he had refused to negotiate with the railways with respect to the contract.
[Page 266]This being the case, Mr. Oliver removed to the United States, abandoning of his own free will the lawsuit under reference, the regular proceedings of which continued as indicated by the Mexican laws; and in place of continuing to handle his affairs in Mexico, he brought suit towards the end of October, 1922, in New York, against the Mexican Government for the same cause, which had already been placed before the Mexican courts (whose jurisdiction, I repeat, Mr. Oliver had accepted), attempting with said lawsuit to produce special consequences, and launching, moreover, a campaign of defamation and discredit against Mexico; supervening facts which, in accordance with the relative legal provisions, caused the order for his expulsion to be issued because his residence in Mexico was considered undesirable.
The foregoing unquestionably demonstrates that the rigorous and perfectly justifiable attitude which the Mexican Government assumed against Oliver was not for the purpose of depriving him of the necessary means of defense, for he made opportune preparations and could always name a legal proxy who would, in his name, continue the suit begun by the railways, or exercise the legal rights to which he might be considered entitled and defend himself in the suit brought against him. Therefore, the qualifying word injustice, applied to the expulsion of Mr. Oliver, must be attributed only to a deficient knowledge of the circumstances surrounding this case.
The Ministry of Foreign Affairs takes the liberty likewise to correct the statement that there has existed a suggestion on its part, official or unofficial, to appoint a representative who should come to an agreement with Oliver in the United States; for, aside from the fact that this Ministry is sure that such a suggestion was not made in any form whatever, it seems unusual that a Government should name an official representative who should go abroad to deal with an individual over a private matter—a matter, moreover, which was already before the Mexican courts and amenable to their decision.
In spite of all that has been stated above, the President of the Republic, not wishing in any case to be accused of committing an arbitrary act, has granted permission for Mr. Oliver to come to Mexico for the duration of a period which may be reasonably judged necessary for the exercise of the rights to which he may consider himself entitled with regard to the affairs of the company which he represents.
For this purpose, the necessary orders have been issued so that the competent authorities may permit the entrance into the country of Mr. Oliver, under the conditions indicated.