No. 36.
Mr. Reuterskiöld to Mr. Bayard
.
[Translation.]
Legation of Sweden and Norway,
Washington
,
March 9, 1887. (Received March
10.)
Mr. Secretary of
State:
Referring to my previous notes on the tonnage question, I have the
honor to address a few further considerations on this subject to
your excellency.
[Page 1901]
With a view to ascertaining (by documents forming part of the
correspondence exchanged at the time of the conclusion of the treaty
of July 4, 1827, between the United Kingdoms of Sweden and Norway
and the United States) the spirit in which that treaty should be
interpreted as regards the question now before us, his excellency
Count Ehrensvärd ordered a search to be made among the archives of
the royal ministry of foreign affairs at Stockholm. That search
brought to light three documents, which I have been instructed to
transmit to your excellency.
Immediately after the conclusion of the treaty in question a
difference of opinion arose with regard to Article VIII. This led to
an exchange of notes between Baron Stackelberg, chargé d’affaires of
Sweden and Norway at Washington, and Mr. Clay, Secretary of State of
the United States, and to another exchange of notes between Count de
Wetterstedt, minister of foreign affairs at Stockholm, and Mr.
Appleton, chargé d’affaires of the United States at that capital,
the two latter gentlemen having been the signers of the treaty.
Your excelleney will find herewith a copy of—
- (1)
- A note addressed by Baron Stackelberg to Mr. Clay under
date of April 3, 1828.
- (2)
- A note from Mr. Clay to Baron Stackelberg, dated April 28,
1828.
- (3)
- A note addressed by Count de Wetterstedt to Mr. Appleton
under date September 10, 1828.
I think it unnecessary for me here to recapitulate the question which
gave rise to the difference of opinion relative to the enforcement
of Article VIII, and to a reclamation on the part of the United
States Government.
That reclamation had reference to Norway alone. Tonnage duties in
Sweden were uniform for all arrivals and for all distances, while in
Norway there existed a classification with three schedules,
differing according to the port of departure. A distinction was made
between vessels which had sailed—
- (1)
- From any place outside of Europe except the
Mediterranean.
- (2)
- From the Mediterranean; and
- (3)
- From any European port. The tonnage duties levied upon
vessels arriving from ports outside of Europe, or from those
in the Mediterranean, were higher than those levied upon
vessels arriving from European ports.
Against this state of things, which was unfavorable to American
vessels coming from the United States, the Federal Government
remonstrated, asking the privilege of the lowest duty for its
vessels.
The Secretary of State replied, by his note of April 28, 1828, to the
argument presented by the chargé d’affaires of Sweden and Norway at
Washington in his note of April 3, 1828. which argument was similar
in many respects to the interpretation now given by the United
States Government to Article VIII.
The force and justice of Mr. Clay’s argument seemed to the Government
of the King to be of such a nature as to exclude any possibility of
a rejoinder, and I can do no better now than to make use of Mr.
Clay’s own words in support of the present claim of my
Government.
(Here follows a lengthy extract from Mr. Clay’s note, beginning with
the paragraph “The eighth article” and continuing to the end.)
The Government of the King did not even attempt, as I have already
had the honor to remark, to refute these arguments of Mr. Clay, but
yielded entirely to the opinion of the United States Government, and
granted all that the latter asked for, as is shown by the note of
September [Page 1902] 10, 1828,
which was addressed by Count de Wetterstedt to Mr. Appleton.
The Government of the King has thought that the sense of Article VIII
can not be better elucidated than by original letters from the very
persons who took part in the conclusion of the treaty to which that
article belongs.
In concluding this note, I can find no form better adapted to our
present solicitation than the one used by Mr. Clay at the close of
his note of April 28, 1828, and I shall confine myself to saying
that the Government of my august sovereign “hopes to obtain the
concurrence of Mr. Bayard and the United States Government in the
construction of the treaty which is now submitted.”
Be pleased to accept, etc.,
[Inclosure 1.]
Copy of a communication addressed by Baron
Stacketherg, chargé
d’affaires of the King, to Mr. Clay, Secretary of State of the United
States, dated Washington, April 3, 1828.
The undersigned, chargé d’affaires of His Majesty the King of
Sweden and Norway, having had the honor verbally to communicate
with his excellency Mr. Clay, Secretary of State of the United
States, in relation to the difference of opinion which has
arisen concerning the proper application of the text of Article
VIII of the treaty of commerce recently concluded between His
Majesty the King of Sweden and Norway and the United States of
America, has the honor, by order of his Government, to address
the present note to his excellency the Secretary of State.
Article VIII of the treaty reads as follows:
“The two high contracting parties engage not to impose upon the
navigation between their respective territories, in the vessels
of either, any tonnage or other duties, of any kind or
denomination, which shall be higher or other than those which
shall be imposed on every other navigation except that which
they have reserved to themselves, respectively, by the sixth
article of the present treaty.”
Basing his action on this article, Mr. Appleton, chargé
d’affaires of the United States of America near His Majesty the
King, claims for American commerce between the United States and
Sweden and Norway the privilege of the lowest rate of tonnage
duties, in case the latter are not uniform for all navigations,
but are regulated according to localities and the length of the
voyages; he excepts only trade* between Sweden and Norway.
Tonnage duties are uniform in Sweden for all arrivals of vessels,
and for all distances; this is not, however, the case in Norway.
The list of that country contains the following classification:
(1) Vessels coming from all places outside of Europe, excepting
the Mediterranean, pay per ton (commerce-lӕst) if they are
laden, 1 specie 11 skillings, and if they are in ballast or are
laden below one-fourth of their capacity, 66 shillings. (2)
Vessels from the Mediterranean, in which category are comprised
all ports that the vessel can not reach, and from which it can
not come otherwise than by passing through the Strait of
Gibraltar, pay, if they are laden, 105 skillings per ton, and if
in ballast or laden below one-fourth of their capacity, 53
skillings. (3) Vessels coming from all European ports, not
including those of No. 2, and excepting the ports of Sweden,
when Swedish or Norwegian vessels go thither or return
therefrom, pay, per ton, if laden, 53 skillings, and if in
ballast or laden below one-fourth of their capacity, 26
skillings species. It thus appears that, if this privilege were
to be allowed, American vessels would pay less than those of
Norway, which certainly can not have been the intention of the
negotiators when the article in question was inserted in the
treaty, since the system of equality with the natives forms the
general basis of the treaty, and is, at the same time, derived
from the immutable rules of justice. It also seems that the
sense and purpose of Article VIII of the treaty is to furnish a
guaranty against any increase of tonnage duties to the detriment
of the commerce concerned. The words on every other navigation
have reference solely to another foreign navigation, and
consequently the article in question made provision for the two
following cases only: First, that a Swedish or Norwegian vessel
going to America or returning therefrom should be subjected to
the [Page 1903] same tonnage
duties as an American vessel going to Sweden or Norway and
returning to the’ United States, and second, that no other
foreign vessel, engaged in the same trade and sailing by the
same route (exerçant la même navigation), should obtain more
favorable tonnage duties either in Sweden and Norway or in the
United States. The undersigned believes that every necessary
guaranty is shown by the foregoing statement to exist, in point
of fact, for American commerce, without the necessity of
claiming any exclusive advantage on the ground of Article VIII,
even at the expense of Norwegian citizens, under a forced
interpretation of the sense of that article; he therefore trusts
that his excellency the Secretary of State will think proper to
consider Article VIII of the treaty in the sense in which the
undersigned has had the honor to present it.
The undersigned has the honor, etc.,
[Inclosure 2.]
Mr. Clay to
Baron Stackelberg, April
28, 1828.
The undersigned, Secretary of State of the United States, has the
honor to acknowledge the receipt of the note of the Baron de
Stackelberg, under date of the 3d instant, in relation to the
construction of the eighth article of the treaty of commerce
lately concluded between His Majesty the King of Sweden and
Norway and the United States, respecting which a difference of
opinion appears to have arisen at Stockholm between the Swedish
Government and Mr. Appleton, chargé d’affaires of the United
States. The President has given attentive consideration, the
result of which the undersigned is now charged to communicate to
Baron Stackelberg.
It seems that a different principle regulates the tonnage duty
imposed in the ports of Norway from that which prevails in those
of Sweden. According to that of the former it is not a uniform
rate, applicable to the navigation of all countries, but is
graduated by the distances of commercial States from Norway,
those paying most which are most remote. This is a peculiar mode
of levying the duty, to which the practice of no other country
is known to conform. It is worthy of consideration, whether, if
any difference at all ought to be made in the rate of duty, a
rule directly the reverse of that of Norway would not be more
expedient and equitable. States situated remotely from each
other labor under a great disadvantage in their commercial
intercourse from the space which separates them. It increases
the charges on the objects of their commercial exchanges, and
consequently lessens the mutual consumption of their respective
commodities. Ought this disadvantage to be augmented by an
increase of tonnage or any other duty? Long voyages are
favorable to the acquisition of skill in mariners, an important
object with maritime powers. By taxing higher either the vessel
or the cargo employed in those voyages they are discouraged. But
these considerations belong exclusively to the wisdom of Norway;
the United States are only concerned in the just interpretation
and fair execution of the existing treaty.
The eighth article stipulated that the two high contracting
parties shall not impose upon the navigation between their
respecting territories, in the vessels of either, any tonnage or
other duties of any kind or denomination which shall be higher
or other than those which shall be imposed on every other
navigation, except that which they have reserved to themselves,
respectively, by the sixth article of the treaty. The
reservation in that article is of the coastwise navigation and
that between the ports of Sweden and Norway, and, consequently,
does not affect the question under consideration.
It is difficult to conceive any language more explicit than that
which is employed in the eighth article. It expressly forbids
either party from imposing on the vessels of the other any
tonnage or other duties of any kind or denomination higher or
other than those which shall be imposed on every other
navigation, with the exception which has been stated. This
language excludes altogether the office of interpretation, which
can not make the stipulation clearer than the words plainly
import. It leaves the parties but one inquiry to make, which is
into the state of their respective laws imposing tonnage or
other duties. According to the laws of the United States, of
which the treaty nowforms one, a Swedish or Norwegian vessel,
whether coming from the Mediterranean, from the ports of any
parts of Europe, or from those of any other portion of the globe
with the exception contained in the sixth article, is liable to
pay no tonnage or other duties higher or other than those which
an American vessel, or any foreign vessel, coming from the same
places is chargeable with. But according to the laws of Norway,
as stated by Baron Stackelberg, American vessels clearing from
the United States for the ports of Norway are liable on entry to
pay, if loaded, one species eleven schellings per ton, whilst
vessels entering the ports of Norway from [Page 1904] all parts of Europe except the
Mediterranean are charged only with fiftythree schellings per
ton if loaded. In other words, American vessels are hound to pay
in the ports of Norway both other and higher duties than the
vessels entering the same ports from all parts of Europe. This
condition of the laws of Sweden would seem to require that they
should he altered so as to place the navigation of the United
States on the footing which the treaty contemplated.
Baron Stackelberg argues that the object of the treaty was merely
to place the vessels of the United States and those of Sweden
and Norway, reciprocally, in their respective ports, on the same
equal footing in regard to duties, and that this object is
accomplished by the graduated tariff of Norway, since no higher
or other duties are exacted from an American vessel than from a
Norwegian vessel, when both vessels enter from the same place.
That is the object of the second article of the treaty, and
Baron Stackelberg would be right if there were no other articles
in it. But the eighth article of the treaty was inserted for
another and distinct purpose, which is to restrain either party
from demanding higher or other tonnage duties from the vessels
of the other than those which should be imposed on every other
navigation.
It is said that the view now presented of the eighth article
would have the effect of compelling a Norwegian vessel to pay a
higher duty than an American vessel. This effect would not
result from the treaty, but from the law of Norway; and the
obvious remedy is a modification of the law so as to adapt it to
the provisions of the treaty. The laws of the United States, if
they were to remain unaltered, would, also, create a different
rule for the vessels of Norway from that which is applicable to
the vessels of the United States. But the United States, always
faithful to their national engagements, never fail to
accommodate their legislation to the obligations which those
engagements import. The Government of the United States does not
desire that American vessels should pay, in the ports of Norway,
less tonnage duties than Norwegian vessels, but it does expect,
and thinks that it has a right to insist, that the vessels of
the United States shall not pay, in those ports, higher or other
duties than the vessels of Norway or any other navigation, with
the exception contained in the sixth article.
If it were necessary, the view now taken of the eighth article of
the treaty might be forfeited by considerations drawn from other
parts of the same instrument. It is stipulated, for example, in
the ninth article that no duties of any kind or denomination
shall be levied upon the products of the soil or the industry of
the respective countries than such as are levied upon similar
products of any other country. The object of this stipulation
was to secure in the consumption of the respective countries an
equality in the competition. But if a vessel laden with the
products of the United States is burdened on her entry into the
ports of Norway with higher duties than a vessel laden with
similar products and entering the same ports from any part of
Europe, that equality is as much disturbed in effect as if the
unequal imposition were directly upon the cargo instead of the
vehicle which transports it.
The undersigned hopes to obtain the concurrence of Baron
Stackelberg and his Government in the construction of the treaty
which is now submitted, and, in the mean time, requests him to
accept assurances of the high consideration which the
undersigned entertains for him.
H. Clay.
Department of
State,
Washington
,
28th April, 1828.
[Inclosure 3.]
Copy of a communication addressed by the
minister of foreign affairs
to Mr. Appleton, under date
of Stockholm, September 10, 1828.
I communicated, without delay, to the competent Norwegian
authorities the communication addressed by you to me, sir, under
date of the 7th of July last, and I now hasten to inform you
that, in obedience to the King’s command, the customhouses in
Norway have been instructed, by a circular dated August 9, to
refund to United States vessels, when they come directly from
said States, or sail thither directly from Norway, the
difference between the amount of tonnage duties computed
according to schedule La. C. of the
law of August 7, 1827, and that established by schedule La. C.
In accordauce with this principle, the customhouse at Bergen has
been instructed to refund to the firm of Herman D. Janson &
Son, of that city, the agents of the American vessel Magoon, the amount of tonnage duties paid
in April last for the said Teasel in excess of what is required
by the aforementioned schedule La.
C.