CO885-(13-15) — Page 371

PUBLIC RECORD OFFICE

Reference :-

TPIEC.O.885

14 PUBLIC RECORD OFFICE, LONDON

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our attention was called to the Despatch from Her Majesty's Minister at Washington of the 29th of December 1891, in which Sir J. Pauncefote reported that in the course of the negotiations which took place on the subject of the arrangement it was proposed that the articles to be placed on the free list by the Colonial Legislatures should be exempt from the payment of "Port Charges," but that this was objected to by the Colonial delegates on the ground that it would interfere with port duties levied in some cases under the local ordinance on all packages landed in order to defray the interest on loans raised for light-houses and harbour improvements, and that Mr. Blaine agreed to strike the words "Port Charges" from the heading of Schedule A. annexed to Sir J. Pauncefote's note of the 24th December 1891. That Mr. Wingfield was also to call our attention to the note at the end of Schedule A. relating to the packages or coverings in which articles named in the Schedule were imported.

That the Package Tax was estimated to produce 3,0007: annually, and it was understood that it would be applied partly to cover the ordinary current expenses of the Harbour Department amounting to about 5007. a year, and partly to meet the charges for interest and sinking fund on a loan of 53,500l. which was being raised under a loan ordinance passed in 1892 for carrying out certain extensive harbour improvements, which charges would amount to about 2,675/. per annum.

That your Lordship requested our opinion--

1. Whether the Antigua Package Tax Act, 1893 constitutes an infringement of the arrangement with the United States.

2. Whether if we were of opinion that the Act as it now stands, is inconsistent with the agreement with the United States, this objection would be removed by the omission of the words "Water Ways and Water Courses" from section 7.

In obedience to your Lordship's commands we have considered the matter, and have the honour to

Report-

That in our opinion it is very difficult to reconcile the provisions of the " Package Act, 1893" with the actual terms of the arrangement entered into between this country and the United States. The only substantial difference between the Act of 1893 and that of 1892 arises from the purposes to which the tax is to be applied, and the Package Tax itself appears to us to fall within the description of " any other Colonial charges" contained in the heading to Schedule "A" in Annex 1 to the note of December 24th, 1891, addressed by Sir Julian Pauncefote to Mr. Blaine, regard being had to the note whereby it is said to be understood that packages in which the Scheduled articles are imported shall be free of duty.

There is great difficulty in construing the arrangement itself with reference to the negotiations leading up to it; and even though the tax could properly be taken as a port charge which we greatly doubt there is nothing in the actual terms of the arrangement to permit such a charge to be made. On the other hand the omission of the words "port charges," coupled with the reason for such omission, viz., that it was not intended to interfere with a package charge being levied in order to defray the interest on loans raised for light-houses and harbour improvements, seems to us to afford a basis for diplomatic representations to the effect that such a tax should be be permitted, though it may not be strictly in accordance with the letter of the arrangement.

As a matter of construction, independently of any alteration to be allowed in accordance with the equitable reading of the negotiations, we are of opinion-

1. That the Act of 1893 does constitute an infringement of the arrangement with the United States.

2. That the objection would not be removed by the omission of the words "waterways and watercourses " from Section 7.

The Most Hon, the Marquess of Ripon.

We have, &c. (Signed) C. RUSSELL.

JOHN RIGBY.

9051.

MY LORD,

No. 62.

(CANADA.)

LAW OFFICERS to FOREIGN OFFICE.

Royal Courts of Justice, May 1, 1894. We were honoured with your Lordship's commands, signified in Mr. Bertie's letter of the 16th ultimo, stating that he was directed to transmit to us the papers relating to a claim for compensation by Mr. Pyne, the master of the British sealing- schooner" Arctic," against the Russian Government for the alleged unlawful seizure of his vessel off the Commander Islands, in the North Pacific, on the 3rd August 1893, and the consequent loss inflicted upon him by his being prevented from hunting during the remaining portion of the seal-fishing season, a loss which he estimated at 16,200 dollars.

That the "Arctic" having been sent for trial to Yokohama, under the provisions of the Sealing Agreement with Russia of the 4th July 1893, proceedings were instituted, on behalf of the Crown, in Her Majesty's Court for Japan, upon the charge of contra- voning "The Seal Fishery (North Pacific) Act, 1893," and that on the 8th December last judgment dismissing the case, as well as the counter-claim for damages, which had been put forward by the defendant was pronounced.

That the alleged position of the vessel, at the time of seizure, inside the prohibited zone round Copper Island was in dispute, and that Her Majesty's judge, while accepting the position assigned to the "Arctic" by the Russian authorities, absolved the schooner on the ground that no act of hunting or fishing, while within that zone, was proved against her.

That Mr. de Bunsen expressed some hesitation in forwarding the claim, but, in deference to the opinion of Mr. Mowat, Her Majesty's judge, and to the precedents quoted by him where somewhat similar claims for loss in respect of " probable prospective catch" had been entertained, and in one instance presented, by Her Majesty's Government, he had not felt justified in declining to submit Captain Pyne's claim to the Secretary of State.

Mr. Bertie further stated that he was to request that we would take the papers transmitted to us into our consideration, and that we would favour your Lordship with our opinion as to whether the case was one in which compensation might properly be demanded by Her Majesty's Government from that of Russia, and if so, what amount might reasonably be claimed on Mr. Pyne's behalf: or (2) whether Her Majesty's Government should decline to support the claim in any way, even by presonting it to the Russian Government.

In obedience to your Lordship's commands, we have taken the papers into our ! consideration, and have the honour to

Report-

That the case is not one in which compensation can properly be demanded by Her Majesty's Government from that of Russia, and that Her Majesty's Government should decline to support the claim in any way, even by presenting it to the Russian Government.

It was found as a fact by the Judge of Her Majesty's Court for Japan that the "Arctic" was within the prohibited zone at the time of her arrest, and Mr. Pyne himself, as appears from his letter of the 29th January 1894, does not dispute this fact. It was also proved that she had seal-skins on board. This being so there was a primâ facie case against her within section 1, sub-section (6) of "The Seal Fishery (North Pacific) Act, 1893," sufficient to justify the action of the Russian officer under that Act, though the evidence given at the trial was sufficient, in the opinion of the judge, to rebut the presumption.

The Right Hon. The Earl of Kimberley,

&c. &c. &c.

We have, &c. (Signed) C. RUSSELL.

JOHN RIGBY.

1

1.

79871.-21.

25.-6/94.