The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1851-04-08
lnFsIs1Sr UVxxslrIAE DECISION
IN THE tt
UNITED STATES SUPREME COURT.

cunt Iourt Of The United States for the district Of
MI Justice Wayne delivered the opinion Of the
court.
This cause was tried and decided in the Circuit
Court, upon Of facts made by the parties
The question arising from it is, whether or not
the vessels of Portugal within that clause OF tho
act Of the Both Of July, 1916, to reduce duties on
imports, in which it l. said coffee and tea exempt
from duty, when imported direct from the place Of
their growth or production in American vessels or
in foreign vessels entitled by reciprocal treaties to
be exempt from discriminating duties, tonnage and
1t is contended that Portuguese vessels arc within
the act, upon propert construction Of Il IN csnnec-
tion with the "a article OF the treaty with Portugal
Ii is in these words "Vcsselsof the United States
of America arriving either laden in ballast in
the ports of the kingdom and possessions Of Poru-
gal, and rcciprocaly Portuguese vessels arriving,
either laden ballast in the ports of the United
States Of America, shall be treated their entrance
during their stay, and at their departure, upon the
same footing as national vessels coming from tho
same place, with respect to the duties of tonnage,
lighthouse duties, pilotagc, port charges, well
as to the fees of public officers and all other duties
and charges, of whatever kind or denomination
levied upon vessels Of commerce in the name or to
the profit OF the government, the local authorities
or OF ypublic private establishment whatever"
It's meaning is, that there shall be entire rcc-
procy OF duties and charges upon the vessels OF the
two nations in their respective ports: that il, that
Portuguese vessels in ports shall pay other
charges than American vessels do and that Ameri-
can vessels in Portuguese ports shall be charged
liable to pay. What these duties may be, shall be
determined by each nation for its own ports.
There is not word in the article relating to the
duties upon the cargoes vessels Of the either nation
Nor Is there provision in the tTeaty-as shall
show there is in other treaties between the United
States and other Misunderstanding either nation
from ieyying discriminating duties upon cargoes
carried by the vessels Of either into the ports Of the
other, when they made up of articles. merchan-
disc or manufactures the growth production Of q
different nation than that to which the vessel car
hon thA pl,a Lal
production either of Portugal of the United
States
This is the view which both nations have taken
OF the I'd article and Of the other parts of the treaty
relating to the cargoes of vessels.
The Queen of Portugal, in October, 1871 in less
than SIX months after the ratification of tho treaty
had been proclaimed by tho United States, promu-
gated decree Of the General Cortes imposing a
discriminating duty upon goods imported in for
eign vessels which were not the production of the
countries to which such vessels might belong. The
object of 1t to to Portuguese vessels the
direct carryingtradc OF such merchandise to the
ports of Portugal.
The United States did the same by the tenth Sec
ton Of the act Of the Both August, 1872, two years
after tho treaty was made. II placed an additional
duty Of 10 per centum above the rates Of duty fixed
IN lthc act, upon goods, on the importation of
which, Ill American foreign vessels, IL specific dis
elimination between them is not made in the act
which shall be imported in ships not Of the United
States"
This legislation was acted upon by both nations
without any complaint suggestion that it
was not in conformity with the treaty stipuations
between them. Ii shows that tho views of both
were that the vessels Of both were to pay in their
respective ports the charges their own vessels were
subjected to, and more; and that the duties upon
goods, not of American or Portuguese production,
imported into the ports Of either nation by the yes
sells Of the other might be made liable to such dis
terminating duties aseither might think would give
to their vessels the direct trade Of such articles
We will now show that this practice Of both ma
tons was exactly what the treaty itself had provided
for between them.
The 81, 4th, 5th, and 9th articles Of the treaty
relate to the introduction of merchandise into the
TWO countries and are all that do So The 7th aud
.Sth exclude from the operation Of those before
them the coastwse trade of both nations and such
ports and countries in the kingdom and possession of
Portugal where foreign commerce and navigation |
were not admitted And the 18th article Is nulua
undertaking, If either nation shall grant to any
other nation particular favor in ma vgation or com
mcrce, that Il shall become common to the other
PARTY, upon the same terms upon which the grant
may be made. The 81 article provides that the
productions Of either nation shall be admitted into
their respective ports upon payment Of the same
duty rs may be payable on the merchandise if |
it were the growth of any other foreign country. No
prohibition can be put upen the importation
or expectation Of the produce Of either nation
which shalt not extend to all other foreign
nations; nor shall there be any higher or
other duty in either country, upon the expectation
Of art cles to either from the other, than is put
,eign country. Asyet nothing has been said about
the transportation Of commodities from nation
to the other, from foreign states. That is pro-
yided for in the 18th, 9th ana 9Th articles. by the
4th both nations carry in their vessels the pro-
duction Of each into the ports Of the other upon the
same tcrms-thc produce and manufactures of Por
tuga and the United States, it must be remembered,
not the produce or manufactures of any foreign
country; for the stipulation in the 9Th article in
spect the transportation Of these, permits IL only
10 be done whenever there may be lawfully imported
into any all Of the ports OF either nation in YES
sells Of any foreign country, articles which are the
growth, produce manufacture of country other
than that to which the importing vessel shall be-
long BY the 9th article, the vessels Of both nations
may export and re-cxpor from the ports OF each all
kinds Of merchandise which can be lawfully exported
or rec yportcd from the ports OF either without pay
ing higher or other duties or charges than the
articles pay when exported orre-eApored in the yes
sells of either nation.
From all this il must be seen that neither nation
has right, by the treaty. to carry in their essels,
to the ports Of the other, the produce OF foreign
countries, except upon the payment Of such duties,
discriminating and otherwise, as each nation may
impose.
So stood both nations under the treaty from the
time of its ratification, and under their respective
legislation afterwards relating TO duties upon
goes OF foreign produce, without any misapprchen-
sion by either, by he merchants of either OF the
privileges Of commerce conferred by the treaty.
Indeed there could have been none. But il ne
.cessary 10 state particularly what treaty stpu
lations are, that the nature Of tho claim made
for her vessels may be more fully understood
II Il now said that that which the treaty docs not
PERMIT the vessels Of Portugal to do, own legs-
iation allows in that part OF the act Of 1876 TO re-
.duce duties imports, which exempts coffee from
any duty.
There such misapprchcnsion for some time
II acted upon, too, for several months by some
of our merchants and cocctors-pcrhaps until cor
rcctcd in this instance.
The error arose from misapplication Of the act
to the treaties which had with all those nations,
aboishing discriminating duties OF tonnage and port
charges instead Of confirming il TO our treaties with
such Of them in which the same thing had been
done, with the additional reciprocity, permitting
our vessels and theirs to import into the ports of
either, payment Of the same duties, the produce
tions Of other foreign countries, whether they are
shipped from the country in which they pro-
duccd, or from any other foreign country.
When the act of July ~, 1916, was passed. we had