No. 35.
Mr. Bayard to Mr. Reuterskiöld.

Sir: I have had the honor to receive and consider the note you were pleased to address to me under date of 15th November ultimo, wherein, by direction of your Government, you make general protest against the provisions of the shipping act of June 26, 1884, and the later amendatory act of June 19, 1886, as being “manifestly at variance with the treaty now in force which was concluded between the United Kingdoms of Sweden and Norway and the United States July 4, 1827, inasmuch as in certain cases it favors American vessels above those of the United Kingdoms, this being in contravention of that clause of the above-mentioned treaty which places our vessels on the same footing as national vessels.”

You do not, however, state the particulars wherein consists the alleged treatment of Swedish and Norwegian vessels on a different footing from those of the United States.

Having the most jealous regard for the stipulations of its treaties, the Government of the United States is no less concerned than the United Kingdoms can possibly be in seeing that no discriminating treatment of the respective merchant flags is permitted. I shall be glad, therefore, if, by pointing out the provisions in question, you will afford me an opportunity of making the necessary investigation and of applying the needful correction.

An examination of the statutes in question suggests to me that your Government may take exception to the provisions of section 12 of the act of June 26, 1884, which establishes an exemption from the payment of consular fees for official services rendered to vessels of the United States and to American seamen.

These consular services are of two classes: first, those dependent upon the nationality of the vessel, and which can only be performed by the consul of the vessel’s country; and, secondly, those dependent upon the destination of the vessel, whatever be the flag under which she sails, and which are performed by the consul of the country to whose ports the vessel is bound.

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In the present ease, as the services of the first class can not he performed by the consuls of the United States for the vessels or seamen of Sweden and Norway, no differential treatment is possible, and the Government of the United Kingdoms can no more question the right of the United States so to tax its own vessels or relieve them from taxation at will than the Government of the United States could question the right of Sweden and Norway to treat Swedish and Norwegian vessels as they please with respect to such services performed by Swedish and Norwegian consuls.

But as to services of the second class performed by consuls of the United States for vessels of whatever flag which may be bound for ports in the United States, I am prepared to admit that any tax collected by a consul of the United States from a vessel of Sweden and Norway which is not collectible under the same circumstances from a vessel of the United States is in conflict with the letter and spirit of the Articles II and VIII of the treaty of 1827, because imposing a burden upon the navigation of one country from which the navigation of the other cœteris paribus, exempt; of this class is the consular fee for the certification of a bill of health, and, possibly, other services.

I shall, therefore, await your articulated statement of the discriminations of this class, of which your Government complains.

Your note of November 15 further states that “the Royal Government has likewise found, by examining this new law, that the United States Government maintains its position on the tonnage question, against which position we also protest.”

The Government of the United Kingdoms is quite correct in its inference that the Government of the United States maintains its position on the tonnage question. In a note addressed to you under even date with this, and in answer to your note of 30th June, 1886, I have considered the demand which your Government has deemed itself in a position to make for an equality of treatment of navigation. Your present note sets up no specific demand in this regard, but takes the form of a general, and consequently indefinite protest. To this I reply, that the provisions of the United States shipping acts in respect of tonnage dues have the express sanction of the existing treaty stipulations between the two countries, and are in exact conformity with their engagements. I invite your attention to the provisions of Article II of the treaty of 1827, which article your Government has apparently not deemed it necessary to invoke hitherto in the course of the discussion. The first clause of that article, which defines the treatment of Swedish and Norwegian vessels in the ports of the United States, stipulates that such vessels, “from whatever place they may come, shall be treated on their entrance, during their stay, and at their departure upon the same footing as national vessels coming from the same place with respect to the duties of tonnage, light-house, pilotage, and port charges, as well as to the perquisites of public officers, and all other duties or charges of whatever kind or denomination, levied in the name or to the profit of the Government, the local authorities, or of any private establishment whatsoever.” You will not fail to note that the equality of treatment herein prescribed is expressly conditioned on the respective vessels “coming from the same place;” and it is precisely this equality which is secured by the acts in question, for a Swedish or Norwegian vessel coming from any point in the defined area of geographical neighborhood to a point in the United States pays the same reduced charges as a vessel of the United States making the like voyage.

I am unable, therefore, to admit your protest in this regard as well founded.

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Your note of November 15 further declares as follows:

In the new law the United States Government goes still further than it does in the shipping act of June 26, 1884, the scope of that act having been enlarged and the question of the diminution or entire abolition of tonnage dues having assumed another character, viz, that of reciprocity. In this connection 1 am requested to state that as reciprocity did not form the basis of the facilities granted to certain countries and their vessels, my Government maintains its views with regard to the duties which should undoubtedly, in its opinion, be imposed upon navigation between Sweden and Norway and the United States.

I have shown in previous correspondence that no facilities have been granted by the acts in question to “certain countries,” and much less to the vessels thereof. A universal privilege of navigation has been created within a geographically-denned zone, proximate to our own territory, in which the merchant marine of Sweden and Norway equally shares without any equivalent from the Royal Government. A further privilege is granted conditional upon the reciprocal treatment of American vessels within that zone, amounting in the given case to the entire abolition of tonnage dues; but if that additional privilege be established the navigation of Sweden and Norway, coming from the same place, fully and freely shares it.

Section 12 of the shipping act, as amended June 19, 1884, directs the opening of negotiations with foreign countries generally, with a view to the mutual abolition of “all light-house dues, tonnage taxes or other equivalent tax or taxes on, and also all other fees for official services to the vessels of the respective nations employed in the trade between the ports of such foreign country and the ports of the United States.

Circumstances have delayed the initiation of the general negotiation thus authorized. I should be reluctant to construe the declaration of your present note as an announcement, in advance of the contemplated friendly proposal of the United States, that the Government of the United Kingdoms rejects any overtures founded on mutuality of treatment, and will demand every such equality while refusing equivalence. It is to be expected that other Governments will graciously accede to the proposed negotiations, and in that event the duty of the Government of Sweden and Norway and the United States is clearly defined by the second article of the treaty of 1783 (which is expressly revived and confirmed by the seventh article of the treaty of 1827) as follows:

The King and the United States engage mutually not to grant hereafter any particular favor to other nations in respect to commerce and navigation which shall not immediately become common to the other party, who shall enjoy the same favor freely, if the concession was freely made, or on allowing the same compensation if the concession was conditional.

Accept, etc.,

T. F. Bayard.