PUBLIC RECORD OFFICE
Reference :-
TTLE C.O.885
16 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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has been adopted in the case of the Commonwealth of Australia, it would seem that the coasting trade of the Cape Province and of the Natal Province could now be closed, if desired, to Austrian and Hungarian ships.
17. There arises, however, a further question. In the case of Canada, in 1868 when the Treaty was made, Prince Edward Island and British Columbia were independent Colonies and not parts of the Dominion. In the case of Australia there was no Commonwealth and the six States were six Colonies. In the case of South Africa there was no Union and the Cape of Good Hope and Natal were separate Colonies. Since that date Canada has been completed by the addition of British Columbia in 1871, and Prince Edward Island in 1873; the six States of Australia have been merged in the Commonwealth, and the Cape and Natal form part of the I'nion, and trade, therefore, between any port in Canada and another port, between any port in the Commonwealth and another port, and between any port in the Union and another port, has become a coasting trade in the contemplation of the Imperial Merchant Shipping Acts. It is clear that in 1868, under the unambiguous terms of paragraph of Article 1 of the Anglo-Austro-Hungarian Treaty as applied to Her Majesty's Colonies and foreign possessions by paragraph 1 of Article 2, the trade between Canada and British Columbia or Prince Edward Island, between the different Colonies in Australia, and between the Cape and Natal, was not a coasting trade and was open to Australian and Hungarian ships under the Treaty on the terms laid down in Article 1. The question therefore arises whether the completion of the Confederation of Canada, and the Federation of the Commonwealth, and the Union of South Africa have altered the position and confer upon the Governments and Parliaments of these Dominions the right to exclude Austrian and Hungarian ships from the coasting trade in the sense of the carriage of passengers or goods from one Province or State to another Province or State.
18. In this connection I am desired by Sir E. Grey to draw your atten- tion to the opinions given by your predecessors on the 11th March, 1902, and the 2nd December, 1907* (copies of which are appended), which deal with the question whether confederation determined the application of a Treaty to a part of the Commonwealth in which it had previously been in force. It would appear that these opinions were based on the view that the application of the Treaty with Japan, which is discussed in both opinions, was not conditioned by the existence of Queens- land as a separate Colony, whereas it would appear to be necessary to read some such condition into the Austro-Hungarian Treaty if it is to be held that what was intercolonial trade in 1868 must remain on the same footing during the currency of the Treaty.
19. I am also to point out that the Treaty is regarded as applicable to British possessions acquired since 1868, and that it would therefore be not inconsistent, since Austria-Hungary is given the benefit of any increase in the number of British Colonies, to ask the Austro-Hungarian Government to accept the effect of any reduc- tion in that number which is due to bond fide reorganisation. If what was a Colony in 1868 must remain a Colony for the purposes of the Treaty, it would appear that there is no alternative to holding that the terms of the Treaty have no application to territories such as Papua and the Cook Islands, which were not Colonies at that time.
20. I am further to observe that in the case of Canada, as will be seen from the facts set out above, the Canadian Government have assumed that they have the right to exclude Austrian and Hungarian ships from the coasting trade between the eastern Provinces and British Columbia, and between the four Provinces form- ing Canada, as it existed in 1868, and Prince Edward Island, and that the Austro- Hungarian Government have not protested against this action. It is, however, the case that the instance of Canada differs from the other two cases, inasmuch as the Constitution of the Dominion, which contemplated the admission of both British Columbia and Prince Edward Island, was an existing fact in 1868, and one which the Austro-Hungarian Government may have been taken to have had under con- templation when the Treaty was entered into.
21. The points raised above would also apply to any case in which, as in the case of the annexation of the Cook Islands to New Zealand, new territory has been added since 1868 to an existing British possession.
22. The definition of coasting trade, as it is dealt with by Part 6 of the Navi- gation Bill of the Commonwealth, will be found in clause 7. It will be observed
Vol. VI., No. 133, and Vol. VII., No. 89.
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that it covers both inter-State and intra-State trade. Except for the special privi- leges conferred on British ships by clauses 286 and 287, foreign ships are admitted by the Bill to the coasting trade on the same terms as British ships, but the question of the power of the Commonwealth to exclude foreign vessels was raised in the Commonwealth Parliament during the discussion of the Bill, and the matter may become of practical importance at any time.
23. I am to request, therefore, that you will take this matter into your consideration, and that you will report to Sir E. Grey—
(1) Whether, in your opinion, it is competent for a Colonial Legislature, during the currency of the Treaty of 1868, to exclude Austrian and Hungarian ships from a coasting trade to which they have once been admitted;
(2) Whether any distinction can in this respect be drawn between cases in which the coasting trade of a Colony had already been opened when the Treaty was concluded, and cases in which it was opened subsequently; and
(3) Whether what was merely trade between Colony and Colony when the Treaty was concluded in 1868 can be treated as coasting trade if the Colonies have been merged into a larger unit by process of bond fide reorganisation.
24. Sir E. Grey would also be glad to receive any observations of a general nature which you may desire to offer upon the papers now submitted to you.
SIR,
LAW OFFICERS to FOREIGN OFFICE.
Royal Courts of Justice, 20th August, 1913. WE were honoured with your commands signified in Mr. A. Law's letter of the 31st May last transmitting to us the accompanying papers with reference to a question which had been raised, in connection with the Australian Navigation Bill, 1912, as to the extent to which Austria-Hungary is entitled, by virtue of the Anglo- Austrian Treaty of 30th April, 1868, to take part in the coasting trade of the Commonwealth and of certain others of the self-governing Dominions.
Mr. Law was directed to request us to favour you with our opinion upon the following questions :-
(1) Whether it is competent for a Colonial Legislature, during the currency of the Treaty of 1868, to exclude Austrian and Hungarian ships from a coasting trade to which they have once been admitted?
(2) Whether any distinction can in this respect be drawn between cases in which the coasting trade of a Colony had already been opened when the Treaty was concluded and cases in which it was opened subse- quently? and
(3) Whether what was merely trade between Colony and Colony when the Treaty was concluded in 1868 can be treated as coasting trade if the Colonies have been merged into a larger unit by process of bond fide reorganisation?
We have taken the matter into our consideration and, in obedience to your commands, have the honour to
Report-
1. That in our opinion the effect of the Treaty of 1888 is to place ships of Austria-Hungary upon a national footing as regards the coasting trade of Colonies and Possessions only when and for so long as that trade is open to foreign vessels.
2. No.
3. Yes. The reason for treating trade between two neighbouring Colonies as intercolonial as opposed to coasting is merely that they are under distinct internal administrations though both part of His Majesty's dominions. If they became one administrative unit, the only reason for regarding the trade between them as any- thing but coasting trade disappears.
We have, &c.,
The Right Honourable
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Sir Edward Grey, Bart., K.G., M.P.,
&c., &c.,
&c.
RUFUS D. ISAACS. JOHN SIMON.
B