The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1907-10-26

COMMERCIAL ADVERTISER
ton of articles for the use of the said
Army and Navy than are made by
such vessels for transportation of like
goods for private parties or COM
,panies.''
It will be observed that this law
makes it the duty of the War and
Navy Departments to employ, in gen.
eraI, vessels of the United States, and
no others, for the transportation of
coal and other supplies purchased for
/ the use of the Army or Navy OF
course, if the Congress had seen fit
by this statute to prohibit the trans
portation of supplies for the Army or
! Navy in foreign vessels absolutely,
under all circumstances, without ex-
| ceptfon, and without regard to the
consequences, any and all such ship
ments would be illegal; but the law
provides that if the President shall
find that the rates of freight charges
| by said vessels are excessive and un-
! reasonable, contracts
shall be made under the law as it now
exists" 1t is obvious, therefore, that
Z
| ity that it may be impracticable to
| comply with its terms without expos
! ing the government TO exhorbitant and
unreasonable expense, and it is in
tended, in such event, that even the
very strict terms of the prohibition
shall not prevent the transportation Of
articles evidently necessary for the
maintenance and efficiency of the ma
tional forces.
NECESSITY KNOWS NO LAW.
The contingency that there might be
no American vessels obtainable at any
cost, however. great, to transport the
articles in question is not expressly
covered by the terms of the exception
but, in view of the evident purpose of
the statute, which was plainly to en-
courage the development of American
shipping, and the grave consequences
which might ensue from a failure to
supply the Army or Navy with fuel,
food or munitions of war, we are en-
titled and, indeed, obliged, in my opin-
ion, to apply in this case the rule that
a reasonable construction must be ap-
piled to the Interpretation of all legis-
lative acts; and, therefore, that when
no American vessels can be procured,
even by the payment of unreasonable
and exorbitant charges, there is the
same right to employ other means of
transportation which is expressly
granted when such vessels can be pro-
cured but only at an excessive cost
to the government.
1t remains to be seen what are the
means of transportation open to the
Navy Department, if the President shall
determine that the rates of freight
charges by American vessels are ex-
cessive and unreasonable. The stat
ute SAYS that contracts shall be made
under the law as it now exists that
is to say, under the law as it existed
prior to April %, 1904. This language,
so far as it affects the Navy, would
seem to refer to Section 3718, U. S.
Revised Statutes. which is as follows
in so far as relevant:
tAll provisions, clothing, hemp, and
other materials, of every name and |
nature, for the use of the Navy, and |
the transportation thereof, when time
will permit, shall be furnished by con-
tract, by the lowest bidder
This provision is codifed, with
slight change of language, from the
Act approved March 3, 1845 6 Stats,
6171, and it would seem to be the only
provision of law directly applicable to
the transportation of supplies for the
Navy. 1t is obvious that nothing in
the language of this statute restricts
the competition for which it provides to
vessels of American ownership, and /,
therefore, reach the conclusion that
when the President shall find the facts
he is required to pass upon by the terms
of this statute, the Navy Department
is authorized to procure transportation
for coal or other supplies, which it may |
purchase for the use of the Navy,
through free competition, open to
both American and foreign ship owners.
A CONDITIONAL PRIVILEGE.
1t is to be observed, in this connec-
ton, as showing that the preference to
be accorded American vessels was not
intended to prevent the employment of |
ships owned by foreigners, in certain
contingencies, that this preference is
subject to an affirmative condition,
namely. that the vessels claiming it |
must not discriminate against the Gov
eminent in their charges, as these are
compared with rates of freight estab
lished for private shippers; so that the
statute would not be operative at all
if the American vessels available for
transportation charged less to private
shippers for the like service than they |
did to the Government. It seems OBJ
vious, therefore, that the preference
granted by this statute is to be con
strued as a privilege to be claimed |
by American ship-owners, which is in
operative if not claimed under the con-
ditions prescribed by the law itself.
With the above qualifications, / an
swer your second question in the af
frmative. l, therefore, advise you that,
in my opinion, the prohibitions of Sec
ton 4347, U. s. R. s., and the Act of
February II, 1898, do not refer to prop |
erty owned by the Government, and |
that, under existing laws, coal for the |
use of the Navy may be transported by |
sea from ports on the Atlantic to ports
on the Pacific coast of the United |
States in vessels of foreign registry, |