No. 769.
Mr. Boker to Mr. Fish

No. 162.]

Sir: I have the honor to say, in reply to dispatch No. 139 from the Department of State, relating to the form of the invitation which was extended by the Ottoman government to that of the United States, to send delegates to the international tonnage commission now sitting at Constantinople, that, after diligent inquiry, I find that no other invitation, notification, or communication of any kind was received by any other foreign power, that was not also addressed to the Government of the United States, viz: the communication of January 1, 1873, and the notification of the time at which the first meeting of the commission was to take place, dated August 13, 1873. The following extract from a private note addressed to me by the British embassador near the Sublime Porte, exhibits the manner in which the Department was misled, owing to a misapprehension on the part of Sir Edward Thornton as to what communications had been received by the British government regarding the convening of the commission:

My government never received any other invitation to the tonnage commission than that of the 1st of January, and the one, afterwards, fixing the day of meeting. Some time before the invitation of the 1st of January was sent, I had told my government that the Porte proposed to suggest an international commission, and the foreign office chose to assume this to be an invitation, and recommended its acceptance upon the other governments. It was then that Sir E. Thornton asked your Government to join, and Mr. Fish answered that they would; but at that time no official intimation of any kind had been received from the Porte on the subject, and if you have had the two notifications that I have alluded to, you have had as much as any one else.

I can understand that Sir E. Thornton’s communication must have conveyed the impression that an invitation had then been sent by the Porte to us, but such was not the case.

* * * * * * *

I trust that the foregoing will place the matter of the invitation to us to participate in the tonnage commission in a clear light, and will assure the Department that I never have failed, and never shall fail, to insist that the same privileges and courtesies shall be shown by the Sublime Porte to the Government of the United States as may have been, or may be, accorded to that of any other great power.

Thedoubt expressed by Mr. Goodenow and myself in previous dispatches as to whether the proposed international commission would ever be convened, was shared by the representatives of the other foreign nations at the time our communications were made. It was hoped that a decision by the Ottoman commission, that was then sitting, would settle the whole question of the tonnage charges of the Suez Canal Company and thus dispense with the necessity of convoking an international commission. The Sublime Porte was, however, intent on avoiding responsibility for the increased charges which had been paid under protest, and hence its reluctance to complicate itself either by justifying or condemning the course of the canal company, and the last chance for escape from the difficulty which it endeavored to obtain by the assembling of an international commission.

The Sublime Porte assumed that proper ground had been laid for convening the commission by the communication made to the powers by its foreign ministers under date of January 1, 1873, and that the notification as to the time of meeting, furnished August 13, 1873, was a sufficient completion of the ceremony of invitation. If His Excellency [Page 1137] Blacque Bey did not give to the instruction of January 1, 1873, the form of an invitation to the Government of the United States to be represented in the commission, he failed to fulfill the intention of his government, and also to act in accordance with the course pursued by the other representatives of the Sublime Porte in foreign countries. I trust that the Department will be satisfied with the above explanation, for the suggestion that any form of courtesy could have been omitted by the Ottoman government in its intercourse with that of the United States has been a matter of deep chagrin to the Ottoman minister of foreign affairs, whose whole course in his official relations with me has been one of exceptional respect and of unfailing kindness. The objection made by the Department that the shortness of the notice given for the meeting of the commission was an insuperable obstacle in the way of appointing delegates on the part of the United States, is certainly unanswerable. All the information that I received from the Sublime Porte as to the determination to convene the commission, and as to the time for its meeting, was the sudden announcement made in the official note of August 13; a note written, as I understand, without any previous consultation with the representatives of the foreign governments, and which was sent to me some days after it had been communicated to the other powers by telegraph through the Ottoman diplomatic representatives, who had already arranged the acceptance of its terms with the various governments of Europe. If I had received an intimation that this arrangement was about to be made, I should have insisted that such a time should have been fixed for the meeting of the commission as would have been convenient for the sending of delegates by the Government of the United States. I shall make such representations to the Sublime Porte as will secure consideration to our geographical position when hereafter it may be proposed to hold any international conference at Constantinople. As yet nothing definite has been accomplished by the tonnage commission. In such test votes as have been taken, France and Russia have invariably voted on the side of the pretensions of the Suez Canal Company, and all the other powers on the side of the commercial interest, the vote standing two to ten.

I understand that a compromise, the terms of which have not been agreed upon, is in favor with a majority of the delegates, and that unless such an arrangement be made, the canal company will probably endeavor to repudiate the authority of the commission, as a body by whose decisions the canal company never agreed to abide. I herewith inclose a copy of the instructions issued by the Sublime Porte to the Ottoman delegates in the commission, together with a translation of the same.

I have, &c,


Instructions for the delegates of the Ottoman government.

The idea of the imperial government in convoking the international tonnage commission was set forth in a circular of the ministry of foreign affairs, dated January 1, 1873, of which I think it useful to record here the text.

“The wish of the imperial government to assure an equal treatment to all vessels, without distinction of the flag, which frequent the ports of the empire, and the difficulties which arose in consequence of the recent modification introduced into the gathering of the navigation-taxes paid by the vessels crossing the Suez Canal, gives us the assurance that a step aiming to lead to the adoption of a uniform tonnage will he received with favor by the maritime powers. Thanks to the development of the ways [Page 1138] of communication, the relations of the people among themselves have been greatly extended. From this has resulted a solidarity of interests which, considered from the point of view of maritime commerce, tends to the extinction of the measures of protection established in favor of the national flag. On the other hand, the progress of science is such in our days that we may determine with precision the dimensions of a vessel and its capacity employable for the transport of goods.

“Nordoes the imperial governmentdoubt that a commission of learned and experienced persons will succeed in finding a uniform mode of measuring vessels and fixing a standard tonnage, serving at the same time as a base for commercial transactions and for the levying of the tolls to which navigation is subject. The imperial government instructs, in consequence, you to ascertain how the government to which you are accredited will view the institution of such a commission at London, the center of maritime commerce, or at Constantinople.”

This was then the idea of the imperial government, and the event which succeeded only confirmed the consideration on which it had relied for requesting the co-operation of instructed persons of the principal maritime states in order to regulate this question, which is of so general an interest. The promptness which these powers showed in responding to the invitation which has been addressed to them would alone suffice to show the justness of the ideas which induced such a step. Yet Ido not find it inopportune to insist here with some detail on the particular circumstances which justify the initiative taken-by the Ottoman government, and which explains the perseverance shown by it in demanding this re-union.

On the 2d Zilhidjé, 1282, (19th March, 1866,) the Ottoman government accepted and approved with an imperial firman the contract concluded the 22d February, 1866, between his highness the Khedive on one side, and Mr. de Lesseps on the other side, in regard to the construction of the Suez Canal. This contract confirmed among others the act of concession accorded previously to Mr. de Lesseps on the 5th January, 1856, and the seventeenth article of which contains, textually, what follows:

“In order to indemnify the company for the expenses of construction, of keeping in repair, of operating, which are at its charge, by these presents we authorize it from this day and during the continuance of its privileges, as determined by the first and third paragraphs of the preceding article, to establish and to collect charges for the passage of the canal and the dependent ports, the rights of navigation, pilotage, towage, moorage, or stationing, according to tariff, which it may modify at any period, under the express condition—

  • “1st. To collect these tolls, without any exception or favor, on all ships in identical conditions.
  • “2d. To publish tariffs, three months before their enforcement, in the capitals and principal commercial ports of the countries interested.
  • “3d. Not to exceed for the special toll of navigation the maximum rate of 10 francs per ton of capacity for the vessels and per head of the passengers.”

In execution of the above-cited article the company published on the 17th day of August, 1869, the first regulation of navigation of the Suez Maritime Canal, of which article 11 is as follows:

“The payments are calculated on the real tonnage of the vessels, as to the duties of transit and the expenses of towing and of moorage. This tonnage is to be determined, until further notice, according, to the official papers of the vessels. The transit duty from one sea to the other is 10 francs per measured ton and 10 francs per passenger, payable at the entry at Port Said or at Suez. The tonnage expenses are fixed at 2 francs per ton.”

In consequence, the duties of navigation collected by the company since the inauguration of the canal have been calculated on the tonnage as shown by the papers of the vessels. But on the 4th of March, 1872, the company published a new act of navigation, of which the twelfth article established the manner in which these duties would be collected from the 1st day-of July, 1872.

The article is as follows:

“From the 1st day of July, 1872, the universal company of the Suez Maritime Canal will collect the special toll on navigation of 10 francs per ton on the real capacity of vessels.

The gross tonnage inscribed on the papers of the ships, measured according to the English method now in use, will serve as basis for this collection.
The vessels of any nation whose papersdo not exhibit this tonnage according to the aforesaid method will be measured by the means of the method annexed to the present regulation.
Vessels which have no official papers, or those which have but incomplete ones, will be measured by the agents of the company according to the rule now in use in England to measure loaded vessels.
All spaces covered permanently or temporarily, which are not included in the [Page 1139] official tonnage of the vessels, will be-measured by the agents of the company according to the rule now in use in England. The tonnage obtained will be liable to taxation.
National vessels will be treated for the collection of dues to the company conformably to the rules applied to commercial vessels. The dues of 10 francs for each passenger, as well as the dues for transit, will be payable in advance, on entrance at Port Said or at Suez.

“The dues for moorage or anchorage at Port Said or at Ismailia and before the terreplain of Suez are fixed at 02 centimes per ton for each day, after a stoppage of twenty-four hours at the position assigned by the harbor-master, and whatever the length of the stoppage may be. These expenses are payable every ten days.

“Errors in the declaration of tonnage or in collecting the dues shall be rectified during the month which follows the passage of the vessel. After this delay rectifications will not be allowed. No erroneous application of the tariff shall be invoked as a precedent against the company.

“N. B.—Although adopting as a basis for the collection of the tonnage-dues the mode of measurement according to the method indicated, the Suez Canal Companydo not renounce for the future the application of any new mode of measurement which may be presented with advantages of precision superior to those of the present method.”

In order to justify the abandonment of the previous system of collections the company alleges, first, the insufficiency of the valuations shown in the official papers; second, the inequality of treatment which certainly could not fail to result from it to the express stipulations of the act of concession.

As to the correctness of the mode of measurement adopted by the company, it was backed by the advice of a commission of competent men, which the company took care to consult before its new publication. This measure of the company, which charged vessels with a taxation higher than that which they had paid until then, provoked certain claims. The different marines interested asserted that the tolls collected in that way surpassed the maximum limits indicated in the act of the concession. The company on its side, in numerous communications which it forwarded to the Sublime Porte by means of Mr. de Lesseps, did not cease to invoke the act of concession in order to prove the legitimacy of its proceedings. Soon after, and without stopping for an examination of the process of measurement adopted by the company, several powers addressed themselves to the Sublime Porte in order to obtain from it at first the official interpretation of the words of the act of concession which served as basis to the tolls collected by the company. As author of the concession, the Sublime Porte did not think it advisable to refuse the interpretation which was asked with urgency from it, and this interpretation has been set forth in the vizieral letter addressed on the 17th Djemaziul-Ewel, 1290, to his highness the Khedive, and the tenor of which is as follows:

“As your highness knows, since the opening of the Suez Canal up to the 1st of July, 1872, the company collected as passage-dues from the vessels traversing the canal 10 francs for each ton inscribed on the official papers, without that collection being confirmed by the imperial government. But since the 1st of July the company proceeded, always without previous authorization of the government, to the collection of the same tolls according to the new system adopted by it for the measurement of vessels. This proceeding did not fail to induce reclamations on the part of certain powers. The latter as well as the company addressed themselves to the imperial government for the interpretation of the clause of the act of concession accorded on the 2d Rebbi-ul-Ewel, 1292 (1282) by the Egyptian administration to the Suez company, and confirmed by the imperial firman of the 2d Zilcadé, 1282, stating that they will not exceed in the tolls for navigation the maximum rate of 10 francs per ton of capacity. In consequence, and seeing the necessity of removing the existing claims by fixing the interpretation of that clause, the council of ministers deliberated on that question, and submitted it to an attentive and profound examination. Now, in ratifying, as heretofore is said, the act of concession before mentioned, the imperial government did not mean really the expression of ton of capacity, which occurs in a passage of that act, in any but an absolute sense; it had not in any way in view the tonnage inscribed on the official papers of the ships of such and such powers. In fact, the vessels of every flag cross the canal; they ought, according to the disposition of the act of concession, to submit to an equal taxation. But as the different governments have not yet adopted an identical system of tonnage, it was necessary to use the expression of ton of capacity in general, in such manner as that expression could be applied to the tonnage which might later be adopted by all governments and by the imperial government for its commerce. In this order of ideas it would be natural to adopt the tonnage which affords nearest to the truth the employable capacity. Now, as among all official systems now in usage the Moorsons system is evidently that which most approaches it, the Subline Porte is of the opinion that the net tonnage fixed according to this system should be chosen. But, in case the powers or Mr. de Lesseps should not wish to continue maintaining this [Page 1140] system, it would be necessary to convene an international commission in order to determine the employable capacity. It is evident that the imperial government cannot fix a definitive mode of measuring which has not yet been fixed and adopted by other governments. This was the result of the deliberations of the council of ministers; and His Majesty, to whom the affair was submitted, having ordered me to act conformably, I give your highness notice of the preceding decision, in order that you may consequently take the necessary measures.”

Soon after, new explanations having been demanded, his highness the grand vizier sent, under the date of 6 Djemazi-ul-Akhir, 1290, to his highness the Khedive the following letter:

“I had the honor to receive the letter which your highness was so kind as to send me, under date of the 22 Djemazi-ul-Ewel, demanding explanations in regard to the decision of the Sublime Porte mentioned in my letter of the 17th of the same month on the system of tonnage which is to serve as the base for the collection of taxes on vessels which pass the Suez Canal. As your highness knows, the company has referred the solution of this affair to the decision of the imperial government. The opinion and decision expressed in my above-mentioned letter being in conformity with equity and justice, we may hope that the company will regulate itself accordingly. I beg your highness kindly to notify the contents of the same letter to the company of the maritime canal, informing it at the same time that it will take upon itself all responsibility for the consequences resulting from its conduct if it were opposed to the just and legal decision and opinion of the Sublime Porte.”

Solicited to interpret the words ton of capacity of the act of January 5, 1856, the Sublime Porte has therefore hastened to ascertain that its idea has been one of justice and equality. Considering as a starting point the incontestible tenth that the tolls of the canal must be kept at a point in proportion to the utility which results from it to those who make use of it, that this utility itself is in a direct proportion to the importance of the vessel considered as a machine of transport and to its commercial abilities, which are represented by its trute capacity, the Sublime Porte asserted, as it still asserts to-day—1st. That, under whatever flag they may sail, two vessels having the same capacity must be taxed equally, as the first principle; 2d. That two vessels of an unequal capacity must contribute in the exact proportion of their employable capacity, as the second principle. Every more or less arbitrary convention was in this way removed, in order to adhere to the reality of facts: and it was this that the two vizieral letters endeavored to establish, giving as the base of the tolls the true capacity, and nothing but the true capacity, of the vessels. As to the enterprise of examining technically the proceedings of the company, and to appreciate their merits in order to confirm or to reject them, as to stating precisely the scientific forms by which the employable capacity might be obtained, the Sublime Porte would not have hesitated todo it if it could have found rules, the exactitude of which are universally acknowledged. Unfortunately this was not the case, and amid the animated discussions to which the different formula employee! in the measurement of vessels furnished the object, the only thing it coulddo was to leave to the company the responsibility for its measurement, and to recommend the adoption of the Moorsons system, the one which among all seemed to unite until now the most voices, and the exactness of which the parties in conflict agreed to acknowledge in principle. The Sublime Porte had the satisfaction to see its intentions duly appreciated by the interested powers; and the letter of Mr. de Lesseps, a copy of which is inclosed here, and which we have received lately, shows to what point the views of the Sublime Porte have been partaken by the company. The discussion raised by the navigation act of March 4 consisted in stating precisely, and in a scientifically exact manner, the means by which the really employed capacity of a vessel may be obtained. The official question submitted to the judgment of the Sublime Porte was then reduced to the general question of the rectification of the method of estimating tonnage. But it did not depend on the Ottoman government to have it otherwise, and the work of administrative interpretation was necessarily obliged to stop at a limit beyond which positive data failed.

It is to-day the task of the international commission to furnish the elements which may enable the Sublime Porte to give to its interpretation the completion necessary for its practice. It is chiefly in anticipation of this result that the Sublime Porte thought it useful to take the initiative of convoking the commission by the above-cited ministerial circular. A more recent ministerial circular, of the 13th August, 1873, explained that idea as follows:

“The decision of the imperial government concerning the Suez Canal tolls, which I communicated to you by my dispatch of July 19, foresees the case where, on account of want of agreement, in regard to the application of the principles set forth by the Sublime Porte, it would be necessary to recur for a definitive solution to the intelligence of an international commission. From this point of view this question is now naturally added to the attributes of the commission in the convocation of which the imperial government took the initiative by its circular of the 1st January, 1873.”

[Page 1141]

The work which united the Mediterranean to the Red Sea, opening a new way to maritime navigation, will have, among other results, that of placing upon practical ground a question which, though it is not quite new, had remained until now in the region of speculation. This explains, also, the initiative of the Ottoman government in regard to the realization of an idea the priority of which it could not claim. This idea is not a new one, indeed. The ratification of the method of measurement and the determination of a tonnage corresponding to the reality of facts has already been for years in the West the object of continual research. Apart from the theoretical importance connected with the exact measure of vessels and of the scientifically true solution of the cubature of those bodies which, almost always ending in curved surfaces, are infinitely diversified by the exigencies of navigation—apart from this scientific problem, we say, an interest of justice and of equity arises which is easily understood. Among all nations there are to be found charges established upon vessels and calculated according to their relative sizes.

The first idea was to proportion the tax to the ton-weight, and the progress of ideas on that point consisted evidently in abandoning more and more the system of weight-taxation in order to adopt a system of bulk—of volume taxation. In that way, considering the extreme difference between the weight and the burden which the same vessel may contain, it was tried to establish an average unity of weight, to which was to correspond the unity of volume, the ton of capacity, which was almost exclusively adopted without any regard to the idea of the weight. The diversity of weights, the difficulty, or rather the impossibility, of establishing in a logical manner the average unity of weights, to which the unity of bulk was to correspond, the imperfection of the methods of measuring were more than sufficient to complicate the problem. But this is not all. We only ascertain a truth, established by competent authorities, in saying that, in order to favor the national flag, the administration of different states often perverted the calculations of science (which otherwise were imperfect enough) to the desire to diminish, by means of insufficient statements of tonnage, the tolls which the vessels are to pay for their entry and moorage in foreign ports. From all this resulted a deplorable confusion in ships’ papers which, usually rendering impossible the reduction to a common standard of the official tonnage of the different countries, ended with a consequence just as vexatious, as it infallibly led to an overburdening of vessels, the measurement of which approached most nearly to the truth. This injustice was never more felt than at the day when great public works were undertaken in order to favor navigation, and the revenues of which were to be calculated exactly on the dues payable by every vessel in proportion to its capacity. We closed our eyes to the inequalities which we just pointed out as long as the navigation-tolls presented a purely fiscal character, but it became quite impossible to continue in this way, when in regard to the artificial bridges docks, light-houses, and channels, created by the hands of men, and with the capital of private individuals, the necessity was felt to determine as exactly as possible the dues to be paid in proportion to the service rendered, which is calculated itself in direct proportion to the true capacity of vessels. Thence comes the necessity, universally felt in these latter times, to make use of the progress realized in thedominion of science, in order to rectify the ancient systems of measurement, and at the same time the valuation of tonnage; thence results, moreover, the idea of the, at least theoretical, unification of tonnage, which this commission is called to provide with its sanctiop. The duty, then, of the commission is to show the mode for the valuation of tonnage, which, in the present state of mathematical science and of nautical experience, approaches most nearly the truth, and in a subsidiary manner, and as a natural consequence, to establish the relation existing between the tonnage rectified in this way and the different official tonnages which are actually in use. Now, without any intention of prejudicing the deliberations of the commission, I think that I may remark that, as to the scientific part of the methods of measurement, there exists a solution as satisfactory as possible. To judge by the favorable acceptance of it by most of the states the rule of measurement known in England under the name of Moorsons seems to unite in principle all the conditions of a good scheme. It is accordingly by this rule that the total capacity of a vessel may be obtained. But this abstract formula is not sufficient, and it is maritime experience which must provide it with modifications without which it could not fulfill what is demanded of it, which is nothing but the truly employable capacity of the vessel. It is on that point that the controversy is most animated. To take the example of England, for instance, are all the exceptions and the deductions applied to the formula of Moorson, in order to get the net registered tonnage, equally correct; are they founded on any principle, or are they but a mode of calculation more or less conventional? That, at all events, is what was maintained, what is still maintained principally in regard to ships moved by steam, and it will be especially on this point that the commission will have to throw the light of its knowledge, of its experience, and of its authority.

There evidently exist some points difficult of estimation, but at the same time essential for the correction of the rules of measurement which it will be necessary to prescribe. Ido notdoubt that the commission will show in this delicate part of its functions [Page 1142] that largeness of views which is so necessary to comprehend as a whole the complex mechanism of modern commerce. As the question is to impose taxes on vessels, an appeal is often made to the interest of navigation. There is nodoubt that this interest has a claim to every respect. But the objection which is intended to be made is true only so far as arbitrary taxes are in question, taxes which, as I said above, have a purely fiscal character. It is not the same with taxes having a remunerative character, and which are imposed only in consideration of the work executed in the interest of navigation itself.

The great works undertaken with the intention to facilitate and to secure maritime circulation really augment the utility, and consequently the value, of vessels. The interests of shipping and of enterprises facilitating navigation are identical, and it is not possible to prejudice the one without’ at the same time prejudicing the other. In order to decide between each of these two interests it is essential to hold an impartial balance to be just; and it is sufficient for this purpose to be exact and truthful. Just as it would be unjust to tax those parts of a vessel which form its dead weight or rather its unproductive and useless volume, we think it would not be just to exempt from taxation any portion of the active parts of a ship constituting its truly productive and employable capacity. It naturally follows from this that the commission will have also to examine whether the mode actually employed in the collection of the Suez Canal tolls is in harmony with the conditions of the act of concession and of the imperial firman, according to the interpretation given to them in the two vizirial letters addressed to His Highness the Khedive.

So much as to the substance of the question. As to the form, I have nodoubt that the commission will consider it its duty to avail itself of all the light within its reach, and that, if necessary, it will not refuse to hear the testimony of men who are able to furnish it with the most correct and the most precise information. I close-by adding that the deliberation of the commission in which your excellency is invited to participate will have a weight the importance of which cannot be exaggerated. The interests depending upon the estimation of tonnage are so numerous and so important, that we cannot foresee the practical extension which the divers powers will sooner or later deem it expedient to give to the conclusions of the commission. But so far as we are concerned, and considering the urgent nature which the canal question presents, I deem it my duty to declare at the present time that the imperial government, which has founded hopes so legitimate upon the result of these conferences, reserves to itself the right to appropriate those conclusions of the commission which may be of a nature to be immediately executed, and to regulate the mode of their, application.

Constantinople, October, 1873.