No. 212.
Mr. Evarts
to Sir Edward Thornton.
Sir: The advent of the winter season, usually so fruitful in disasters to life and property on the great lakes between the United States and Her Britannic Majesty’s dominions in North America, constrains me again to invite your earnest attention to the subject of my notes of July 15 and August 26 of the current year, in relation to the reciprocal aiding of vessels wrecked or disabled in those waters.
I am not unmindful of the fact that your replies to those two communications informed me that the matter had been laid before the government of the Dominion of Canada, with a view to considering the question of legislation to meet that of the Congress of the United States as embodied in the act approved June 19, 1878. But since the date of my recent notes certain additional facts have come to the notice of this government, which, in the judgment of the President, require that prompt action should be taken to the end of putting the mutual relations of the United States and Her Majesty’s American dominion, in that respect, on a footing more consonant with the practice observed heretofore, with the common interest of the two countries, and with the necessary principles of humanity.
While the incident of the Champion, to which I adverted in my note [Page 482] of August 26 last, seemed of itself abundantly sufficient to show the need of a change in the system at present followed, other facts have since been reported which not merely confirm the representations heretofore made, but call for immediate action thereon.
Inquiries having been made through the revenue officers of the United States along the line of the lakes and the Canadian frontier, for the purpose of ascertaining what statutory or other provision of law authorizes the present Canadian procedure, which visits heavy penalties upon any vessel of the United States which may extend relief to a vessel in distress within the line of demarkation, it is found that Her Majesty’s collectors of customs there are supposed to have no other warrant for this action than such as is contained in a circular numbered 210 and dated March 8, 1878, which reads as follows:
CIRCULAR No. 210.
Customs Department,
Ottawa, March 8, 1878.
No. 3.]
Sir: I am now instructed by the minister of customs to call your attention to the bearing of the customs law upon the treatment of wrecked vessels or property in Canadian waters, which provides in effect that no vessel, foreign or Canadian, has a legal right to interfere with wrecked vessels or material in Canadian waters unless permitted by the collector of customs at the nearest port, after reporting to him, and no foreign vessels should receive such permission, as it is contrary to the customs law, and should be placed under detention in case of violation.
I have, &c.,
J. JOHNSON.
To Collector of Customs.
Careful inquiry has failed to show the existence of a “customs law” which has any “bearing,” in the manner which the circular seems to contemplate, upon wrecked vessels or material in Canadian waters.
It will not, I think, be disputed by the Dominion Government that uninterrupted custom and usage for a long series of years, from the beginning of this government until within a very recent period, have sanctioned as the rule of action, founded upon the IIId and XIVth Articles of the treaty of 1794, and reaffirmed by the VIIth Article of that of 1842, that a vessel of either nation, wrecked or in distress, shall not be debarred from receiving, from whatever quarter, the succor which should be prompted by the first instincts of humanity. For ninety years this just rule has been observed. Canadian vessels have been freely welcome to give assistance to the end of saving life or property in cases where a ship may be in peril in waters within the jurisdiction of the United States, and in like manner aid has been generously rendered and received in cases of marine disaster within the jurisdiction of the Dominion.
The United States have always stood, and still stand, ready to extend the freest liberty to the vessels of the Dominion, and, rather than hamper them in their humane work, to give grateful acknowledgment of the services which they may render. Such a course is the unwritten law of this country; and if it has become apparently necessary to limit and define it, as in the act of Congress of June 19, 1878, it is because the recent action of the authorities of the Dominion renders it necessary to reach a precise understanding in the matter.
The severe construction placed upon the circular, even assuming that it is issued in due form of law and is binding as an international rule of action, is inconsistent with common humanity and intolerable to good neighborhood, as a few facts will, I am confident, suffice to show.
Although the circular No. 210 refers only; in express terms, to “wrecked vessels or material in Canadian waters,” its operation has been extended to embrace even the most trifling and legitimate assistance to prevent [Page 483] wrecks, as well as those acts of succor which civilization makes obligatory upon all.
For instance, in the case of the Champion, with which you are already familiar, the action of a towboat in merely pulling off one of its own tow which had grounded for a brief time, is visited with an onerous fine and vexatious detention, although I am happy to learn the fine of $400 imposed was subsequently refunded.
The tug Winston, of Detroit, having on three occasions pulled off vessels which had simply grounded while on their regular trips, and which proceeded on their journey without any injury whatever being sustained, is now debarred from plying in waters common to both countries, or entering the jurisdiction of the Dominion, under menace of seizure and heavy fine.
The tug J. H. Martin has been officially declared liable to seizure and a like heavy penalty, for taking in tow a schooner which was lying at anchor in the Saint Clair River, opposite Sarnia.
These are but a few among many instances in which no wreck or pretense of wreck has been shown. On the other hand, the cases which have occurred of actual wreck and loss of life are equally striking, as illustrating the hardships and inhumanity of the course prescribed by the Canadian authorities. One instance will suffice.
The affidavit of the master of the steam-tug Bryant, of Buffalo, shows that the American schooner Augustus Ford, of Oswego, was driven ashore near Grand River, Canada, in November, 1874; that his tug was requested to come to his assistance, and arriving before any other vessel, the master of the Bryant took off from the wreck the frozen dead bodies of the captain’s wife and others and saved a part of the cargo of grain; that there was no Canadian vessel present capable of rendering the required succor, and that, for this simple humane service, the Bryant was seized by the Canadian authorities and subjected to thirty days’ detention and a fine of $100 in gold, only a part of which fine was subsequently remitted.
I may add that the commander of the United States revenue steamer Fessenden has reported to this government that the Canadian authorities purpose serving process upon this public vessel, if found engaged in the duty of relieving any craft in distress within Canadian limits.
The practical consequences of such a policy are easy to foresee. If vessels and crews during the perilous winter season are so unfortunate as to be driven upon these Canadian shores, even though an American tug or tugs maybe at hand with all the appliances for a speedy saving of the vessel or crew, yet under the enforced provisions of the Canadian circular no “interference” is to be allowed, but the vessel, cargo, and crew must await the coming of some Canadian tug before rescue can reach them, if rescue then be not too late. That this last contingency may happen at any time is only too likely, in view of the notorious insufficiency of the steam life-saving service on the Canadian shores, and the wide intervals between the stations from which help must be awaited.
I submit that it would be difficult to imagine a state of things less in accordance with the spirit of our civilization and the age, when the sufferings of even a state of war between nations are sought to be alleviated by all the means within the power of either party.
If the information which I have been able to obtain respecting the origin of the circular in question, or of the action which seems to have preceded it be well founded, and I may remark that it comes from the [Page 484] Canadian officers themselves, it would appear that no legislation is necessary to remove the cause of complaint. The fines, forfeitures, and seizures of American vessels on the boundary inland waters common by treaty stipulations to the vessels of both nations, are shown to rest on no act of the Imperial Parliament, neither on any act of that of the dominion, nor on any law of the provincial legislature of Ontario.
If a simple order of a subordinate provincial officer is their sole support, a simple order from his superiors should be sufficient to revoke it. It is understood that a provision of the constitutional organization of the dominion gives to the governor and council ample power, even if legislation were needed, to decree orders during the recess of the Parliament, which shall have the force of law, and certainly no better opportunity for the exercise of this wise prerogative could be found than the prompt resolution of the question now presented. I trust that the Dominion Government will not hesitate to meet the frank expression of the views of this government by at once taking steps to place the saving of life and property on the lakes upon the firm basis of reciprocity contemplated by the recent act of Congress.
I have, &c.,