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Special rules and regulations in respect of American wrecking vessels in the Welland Canal.

In the event of an American vessel being wrecked, disabled, or in distress in the course of a passage through the Welland Canal it shall be permitted to American wrecking vessels and their appliances, subject to the existing canal regulations and to the conditions hereunder, to afford assistance to such vessels, provided always:

(1) That such assistance be rendered within such time as the canal authorities consider reasonable in view of the necessity for freeing the canal from obstruction.

(2) That the operations of such wrecking vessels and their appliances shall be conducted to the satisfaction of and carried on within the time or times fixed by the superintending engineer of the canal or other duly authorized officer of the govern

ment.

(3) That in the event of delay occurring either in the rendering of the necessary assistance or in the completion of the necessary work of removal of the vessel the canal authorities shall proceed to take such steps as to them may seem necessary.

(4) The concession hereby made shall give no right to any American wrecking vessel or its appliances to lie in the canal except for the time during which it is employed in the actual wrecking operations, or in going to or returning from the same.

Mr. Herbert to Lord Stanley of Preston.

BRITISH LEGATION, Newport, September 9, 1892.

MY LORD: With reference to your excellency's dispatch No. 49 of the 25th ultimo, I have the honor to inclose a copy of a note which I have received from Mr. Foster in which he repeats that the President can not issue his proclamation until he is advised that the Canadian wrecking act can be construed to apply to the Welland Canal.

I have, etc.,

MICHAEL H. HERBERT.

Mr. Foster to Sir Julian Pauncefote.

DEPARTMENT OF STATE, Washington, December 28, 1892.

SIR: I have had the honor to receive your note of the 14th instant, transmitting an approved minute of the Canadian privy council in reply to my note of September 6 last, relative to the subject of reciprocal wrecking privileges in the waters contiguous to the United States and Canada.

Adverting to an observation contained in that note, the minute cites section 6 of the consolidated orders in council, chapter 21, to the ef fect 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."

Continuing, it then states that "the Secretary of State is mistaken if he supposes that assistance in any such case (viz, distress of temporary nature indicated) has ever been punished when performed in Canadian canals."

My observation was with respect to "Canadian waters" generally, and not particularly to "Canadian canals;" and it is believed to have been warranted by actual cases cited in Mr. Evarts's note to Sir Edward Thornton December 17, 1878. (Foreign Relations, 1879, p. 481.) While I am glad to be assured that such cases have never happened in the

canals, and that an American tug would not be prohibited from picking up its own tow, from which it had accidentally parted, I regret that assurance could not also have been given that it would be permitted to pull off its own tow if grounded or wrecked, for in that phase of the question rests entirely its pertinence to the present discussion.

As regards the real question at issue, I find it well stated in the minute of the privy council to be "whether the Welland Canal should be included in the reciprocal arrangement for wrecking." For the satisfactory adjustment of that question it submits a set of "special rules and regulations in respect of American wrecking vessels in the Welland Canal," which it hopes may be found available for the purposes contemplated. Having previously explained to you how under the act of Congress of the United States the President is constrained to insist upon the application of the arrangement to that canal, it only remains to determine whether the rules which are proposed will in effect accomplish that purpose. They begin as follows:

In the event of an American vessel being wrecked, disabled, or in distress in the course of a passage through the Welland Canal, it shall be permitted to American wrecking vessels and their appliances, subject to the existing canal regulations and to the conditions hereunder, to afford assistance to such vessels, provided, always, etc.

Then follow certain restrictions and regulations. The applicability of the rules is expressly limited to the case of aid and assistance to be rendered to an American vessel. It also, by omission, excludes the salvage of property wrecked. The act of Congress of May 24, 1890, proposes to give to Canadian vessels and wrecking appurtenances the privilege of rendering aid and assistance "to Canadian or other vessels and property wrecked, disabled, or in distress." The act of Parliament assented to May 10, 1892, fully recognizes the extent of the proposed reciprocal arrangement by providing in its first section that "United States vessels and wrecking appliances may salve any property wrecked and may render aid and assistance to any vessels wrecked," etc., in the waters of Canada. The rules, therefore, even apart from their conditions and limitations, do not purport to be coterminous with the act of Congress or the act of Parliament. Omitting entirely any provision for the rendering of aid to any other than an American vessel, or for the salvage of property of any vessel, they can not be said in any sense to extend in effect the proposed reciprocal arrangement to the Welland Canal.

The simplest way, and of course the most acceptable one to this Government, would be to have the applicability of the Canadian act, which, as far as it goes, has been accepted as satisfactory, extended by legis lation or by order in council, as may be possible, to the Welland Canal. This Government has not been disposed, however, to be strenuous upon the manner in which it is done. Indeed, trusting to a friendly and reasonable interpretation of the conditions and restrictions of the rules under discussion, this Government would accept them as tantamount to such an extension of the arrangement if they were made to apply to all cases of assistance by any vessel of the United States to all vessels and property wrecked.

Occasions for American wrecking vessels and their appliances to render assistance to other than American vessels or to salve property in the Welland Canal would probably be quite infrequent, and were the President not constrained by the positive terms of the act of Congress he might not be disposed to attach so much importance to their inclusion in the arrangement. As it is, he hopes that the probable in

frequency of such cases may contribute to remove any practical objection thereto on the part of the Canadian government.

The arrangement is one of much i aportance to the shipping interests of both countries, and I sincerely hope that an agreement may be 'reached and an arrangement put in force before the opening of navigation the coming season. May I ask you, therefore, to kindly give me a reply to this note as promptly as possible?

I have, etc.,

JOHN W. FOSTER.

Mr. Foster to Sir Julian Pauncefote.

DEPARTMENT OF STATE, Washington, December 31, 1892.

SIR: I have the honor to acknowledge the receipt of your note of the 10th instant, wherein, having reference to my note of the 24th of August last setting forth the reason which compelled the President to issue his proclamation of August 18, 1892, relative to the Sault Ste. Marie Canal tolls, you communicate to me a copy of an approved minute of the Canadian privy council concurring in a report or memorandum which Mr. Haggart, the Canadian minister of railways and canals, has drawn up on the subject of the Welland Canal tolls and my abovementioned note.

I regret to be again called upon to enter on the unpleasant controversy occasioned by the discriminations maintained against American commerce, but inasmuch as the Canadian minister's report has been embodied in the official communication you are pleased to address to me, it seems necessary that I should advert to certain statements therein, in the interest of a clear understanding, excusing myself, however, from a detailed reply to all the points discussed in the report.

It is true, as stated by Mr. Haggart, that prior to the issuance of the President's proclamation, I was informally advised that a proposition looking to the abandonment of the Welland Canal discriminations was on its way, but the chargé of the British legation, Mr. Herbert, expressly informed me that he was not authorized to make any official statement of its contents. The announcement of the action of the Dominion government as telegraphed by the United States consulgeneral at Ottawa and confirmed by the Canadian journals, if not "official," as averred by Mr. Haggart, proved to be exceedingly accurate on comparison with the note of Mr. Herbert. The report is incorrect in its allegation that the official announcement of the Canadian proposi tion was in my hands "on the very day on which the proclamation was issued." The proclamation was issued August 18, 1892, as is shown by the official copy herewith inclosed, and published in the newspapers on August 20th, while Mr. Herbert's note announcing the Canadian determination was dated "August 20, 1892, 7 p. m.," and (Sunday intervening) did not reach the Department until the 22d of August.

The attempt is made in the report to defend the Canadian government against the charge of neglect to respond to the representations made by the Government of the United States on the subject of canal tolls. It seems sufficient in reply to recall the statement made by the British minister in the conference of February last that the Dominion authorities were in default in this matter.

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Mr. Haggart repels with much spirit the intimation in my note of August 24, that in respect to the canal tolls the Canadian government was pursuing an "unneighborly course," and in contrasting the conduct of the two governments relative to the use of the canals, he alleges that full five years elapsed from the date of the treaty (of 1871) before Canadian vessels had the privilege of using the New York State canals," and that "during this period repeated representations were made by the Canadian government, but without avail." The events thus cited are given such gravity and throw so much light upon the present controversy that I deem it important to notice them somewhat in detail.

The use of the New York State canals was the subject of considerable correspondence during the five years following the conclusion of the treaty of 1871, and this correspondence has been published by the Canadian government in two parliamentary documents. It appears from the first of these (Return 111, 3d Sess., 3d Parliament, 1876) that in 1871, within a few months after the treaty had been proclaimed, President Grant addressed letters to the governors of the different States affected by the treaty, calling their attention to the provisions of Article 27. Under date of December 4, 1871, the governor of New York replied that there were "no restrictions now to be found in the laws of the State upon the equal use of the canals by British subjects and American citizens," and the British minister in Washington was so advised (Return 111, pp. 1, 2). Thus matters rested until November 18, 1874, when a complaint from the privy council of Canada was forwarded to Washington that Canadian vessels were excluded from the use of the Whitehall (Champlain) and Erie canals in violatiou of Article 27 of the treaty. (Ibid., p. 4.) But after considerable correspondence and a thorough investigation, a minute in council, approved by the governorgeneral of Canada, February 18, 1875, declared that no case of exclusion could be found, and "that the Canadian government no longer continues to be of opinion that Canadian vessels are excluded from the canals of the State of New York." (Ibid., p. 11.)

However, in August, 1875, the Canadian minister of customs submitted, through the privy council and the British minister, a complaint to Washington that the collector of the United States customs at Rouses Point refused to permit a cargo of lumber shipped at Brockville, Canada, to pass through the Champlain Canal to the port of New York, and, further, that the collector at Plattsburg had decided that Canadian barges would not be allowed "to pass from Rouses Point to New York with foreign merchandise in bond." The impelling motive of the complaint is found in the following statement of the report: "The principal vaine of the free navigation of the Champlain Canal to Canadian vessels consists in the right to carry cargoes by that route to the port of New York;" adding that the decision of the collector at Plattsburg "renders the provision of the Washington treaty, so far as the navigation of that canal is concerned, practically useless to Canada." (Ibid., p. 14.)

The subject was brought to the attention of the Secretary of State at Washington by the British minister on September 6, 1875, and on October 9 the Secretary of the Treasury, Mr. Bristow, replied that under Article 27 of the treaty of Washington, "the use of the Champlain Canal could be granted to Canadian vessels destined with cargoes to the southern terminus of the canal," but that it did not recognize "the right of Canadian vessels to transport cargoes in bond from Canada to New York." (Ibid., p. 24.)

This action of the Government of the United States is characterized in one of the documents transmitted to the Canadian parliament, as furnishing "another illustration (if any were necessary) of the extraor dinary propensity which seems inherent in the American statesmen to evade in every possible way the fulfillment of their treaty, or other obligations, whenever and wherever the people of Canada appear to be in the remotest degree concerned." (Return 104, 1877, p. 6.)

During the correspondence in 1876 it was developed that an old Treasury regulation, based upon a law enacted in 1799, required goods in Canadian vessels destined to an interior port of the United States to be unloaded at the frontier, but on attention being called to the fact the regulation was at once modified to allow of the unobstructed passage of such vessels and cargoes to the southern terminus of the canal at Albany. It does not appear that this regulation ever deprived a single vessel of the free navigation of the canal. It was the larger question of the navigation of the Hudson River which operated to the disad vantage of the Canadian vessels, and of this the Canadian government complained. The Government of the United States met this complaint with the frank statement that the treaty did not secure to Canadian vessels the use of the Hudson River; and this position has never been seriously controverted by the British Government or the Canadian authorities. It is, however, a significant fact that the discriminating tolls in the Welland Canal were not imposed on American commerce until after it became apparent that the free navigation of the Hudson River could not be obtained under the treaty of 1871; and it is further worth noting in this connection that the Canadian Government has offered to remove those discriminating tolls if the navigation of the Hudson River should be conceded to Canadian vessels.

It appears to be contended by Mr. Haggart that the opening of the New York canals to Canadian traffic, when accomplished, fell short of the intendment of the treaty of Washington, because "permission was given to Canadian vessels to pass through the Champlain Canal and to go as far as Albany, the first port below the canal, but no further, although the bulk of their cargoes was for New York." The minister ignores the salient fact that the Hudson River is a natural waterway, rising and lying wholly within the territory of the United States, and in no sense an international water course to which the riparian rules of international law are applicable. In the conferences which preceded the signature of the treaty of Washington, this question of the international right to navigate natural water courses belonging to adjacent States was fully considered, resulting in the stipulation of Article 26 for the equal use of the St. Lawrence, and the Yukon, Porcupine, and Stikine rivers, an engagement which fitly stands alone as the formal expression of a natural right, independently of the conventional rights created by other articles of that treaty. The use of the Hudson River does not appear to have been considered in this relation.

That Canada permits American vessels to enter and use the Ottawa River is not in point, for the right to do so is not claimed by the United States as flowing from the engagements of the treaty of Washington, or as a natural right. It may be more properly estimated as an interested act on the part of Canada for her own advantage by opening wider markets for Canadian products.

I note the minister's observation that, "It is plain to which country the great balance of advantage has accrued" from the engagements of the treaty of Washington. The statement of the protocolists of the Joint High Commission, which framed that treaty, shows that this ques

FR 92-22

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