No. 36.
Mr. Reuterskiöld 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.
[Page 1901]
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 excelleney 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 VIII.
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
[Page 1902]
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 Stacketherg,
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
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-lӕst) if they are
laden, 1 specie 11 skillings, and if they are in ballast
or are laden below one-fourth of their capacity, 66
shillings. (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 laden, 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
[Page 1903]
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 (exerçant 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 on 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 a 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 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 respecting 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 nowforms 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
[Page 1904]
all parts of
Europe except the Mediterranean are charged only with
fiftythree schellings per ton if loaded. In other words,
American vessels are hound 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 he 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
demanding 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.
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 customhouses 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. C.
of the law of August 7, 1827, and that established by
schedule La. C.
In accordauce with this principle, the customhouse 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
Teasel in excess of what is required by the
aforementioned schedule La.
C.
