Mr. Gresham to Sir Julian Pauncefote.
Washington, March 24, 1893.
Sir: Adverting to the nothe addressed to you by my predecessor on the 28th of December last, in relation to wrecking privileges for American vessels in the Welland Canal, to which a reply has as yet not been received, I have now the honor to invite through you a more immediate and modified disposition of the matter, in view of the recent action of the Congress of the United States in so amending the United States act of May 24, 1890, as to omit the words “the Welland Canal.” The amendment will be found on the tenth page of the Legislative, Executive, and Judicial Appropriation Act of March 3, 1893, of which a copy is inclosed for your information. While this act leaves the President free to consider the reciprocal proclamation of the United States and Canadian wrecking acts without regard to the issues raised in respect to the rendering of assistance to disabled or distressed vessels in their passage through the Welland Canal, the President is of opinion that the discussion of the general question respecting such assistance has progressed so far toward reconciling the divergent views of the two governments as to justify an effort to reach a just and practical understanding in the general interests of the lake navigation.
It is unnecessary to review all the arguments heretofore adduced. It suffices that the United States have represented that usual and necessary assistance to vessels in any way stranded or disabled in passing through Canadian waters was greatly restricted or wholly forbidden to American vessels. Various cases were instanced, such as the stranding of a self-propelled vessel, the breaking of machinery or steering gear, the parting of a towline, the stranding of a barge while being towed, and the like. In the minute of the privy council of November 19, 1892, it appears that “the minister of railways and canals concurs in the view of the Secretary of State for the United States that distress of the temporary nature indicated should be within the purview of the intended reciprocity if it is not otherwise provided for.” This frank admission is most acceptable, as indicating a cordial desire for an agreement on this point.
It would appear from the same minute that the minister is of opinion that the contingency of distress during canal transit is already in great part provided for by section 6 of the Consolidated Orders in Council, Cap. 21, wherein, as he says:
It is expressly provided that the rule prohibiting foreign vessels having other vessels in tow and having parted with them in Canadian waters from again taking them in tow to move them further in Canadian waters shall not apply to an accidental parting of such vessel by breaking hawser or other temporary damages.
The section thus referred to was already known to this Government; but, taken in connection with the immediately preceding section 5, it was believed to have a more limited application than that assigned to it by the minister of railways and canals, and, indeed, to embrace a positive [Page 335] discrimination against a large part of the American traffic through the Welland Canal. For greater convenience the two sections in question are here quoted—
- Sec. 5. Foreign vessels may tow other vessels or things from a forein [sic] port to a Canadian port; but if they drop or part from any such vessel or thing in Canadian waters, they shall not again take such vessel or thing in tow for the purpose of moving the same further in Canadian waters.
- Sec. 6. Foreign vessels may tow other vessels or things from a Canadian port to a foreign port, but having parted from such vessels or things, or any of them, in Canadian waters, they can not again take such vessels or things in tow to move them further in Canadian waters; but this and the preceding rule are not to apply to an accidental parting of such vessel by breaking hawser or other temporary damages.
It thus appears that the case of a foreign vessel passing through Canadian waters from one foreign port to another is omitted, and this omission covers an important part of the American navigation of the Welland Canal.
It appears also that the cited rules do not apply to the case of a tug dropping and making up its tow anew as a frequent and necessary incident to the passage from the lakes to a narrow canal with locks.
The “special rules and regulations in respect of American wrecking vessels in the Welland Canal,” proposed by the minister of railways and canals, might, with suitable modification and liberal construction, meet the conditions of reciprocity in the Canadian canal as fully as this Government proposes to apply them in the American canals. As the proposed rules stand, however, they are expressly limited to the case of aid and assistance to be rendered to an American vessel by “American wrecking vessels and their appliances;” and, as was remarked in the Department’s note of December 28, 1892, they also, by omission, exclude the salvage of property wrecked, and in this important regard are not in agreement with the provisions of Canadian legislation respecting reciprocal wrecking. They do not apparently meet the case, which may readily be supposed, of one American tug (not being a “wrecking vessel,” fitted with wrecking “appliances”) aiding another disabled tug or assisting it to pull off or pick up its stranded or parted tow. It might even be held if strictly interpreted, not to permit an American tug to pull off a stranded barge in its own tow or reattach a parted towline if such towed barge happened to be of Canadian ownership.
It would seem clear from the quoted sections of the consolidated orders, and from the language of the proposed new rules and the minister’s observations thereon, that the subject is within the purview of regulation by an order in council, and in view of the minister’s cordial acquiescence in the propriety of including in the intended reciprocity cases of distress of the temporary nature indicated, I have the honor to invite you to move his excellency the Governor-General to frame a comprehensive order covering the ordinary disabilities to which self-propelled or towed vessels are liable in passing through inland canals, so that legitimate and timely assistance on the part of an American vessel may be freely rendered in such cases.
The reciprocal legislation of the United States and Her Majesty’s Dominion of Canada as it now stands is ample to meet the circumstances of storm and wreck and of peril to life and property on the exposed waters and shores of the Great Lakes. It is, in the President’s judgment, expedient that the evident intent of this concurrent legislation in its application to the dangers of open-water navigation should consistently extend to the lesser casualties to which tugs and tows and self-propelled vessels are liable in the confined and shallow waters of [Page 336] canals. The question, he thinks, should not be approached in any narrow spirit or inconsistent reasoning, which might on the one hand regard the intended reciprocity as inapplicable to the canals because “wrecking” in its ordinary sense can not occur therein, and on the other allege that so simple and usual an incident in confined waterways as the pulling off of a grounded tug or towed vessel would necessarily be “wrecking.” The President holds himself ready to issue his proclamation, coincidently with similar action by the Dominion Government, and thus put into operation the humane and beneficent legislation of the two countries, as soon as he may be assured that the application thereof in the territorial waterways of the Dominion to the commerce passing through the channels that connect the lakes will be as liberal as that proposed to be made in the American territorial waterways.
In view of the lateness of the season and the necessity of acting promptly for the benefit of the lake navigation, I have the honor to request that you will bring these considerations urgently to the attention of the Governor-General of the Dominion, with a view to a speedy and satisfactory understanding.
I have, etc.,