No. 661.
Mr. de
Beuterskiöld 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.
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 excellency 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 VII1.
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 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
Stackelberg, 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
[Page 1051]
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-læst) if they are laden, 1
specie 11 skillings, and if they are in ballast or are laden below
one-fourth of their capacity, 66 skillings. (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 ladeu,
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 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 (exercant 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
oil 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 an 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
[Page 1052]
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 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 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 now forms 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 all parts of Europe except the
Mediterranean are charged only with fifty-three schellings per ton
if loaded. In other words, American vessels are bound 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 be 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 demanuing 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.
[Page 1053]
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 custom-houses 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. A. of the law of August 7, 1827, and
that established by schedule La. C.
In accordance with this principle, the custom-house 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 vessel, in excess of what is required by the
aforementioned schedule La. C.
