The sun. [volume] (New York [N.Y.]) 1833-1916, 1914-03-27

Facts and Law Abeut tse oeaissssU -
American C0astwise Commerce.

Supreme Court OF NeU York.
] DEAR Sin: Your name for upriGhtnssa
and for legal acumen stands 90 high al
Washington and among New York law
yers that one Of the latter 10 led to sub
init to your decision certain proposed md
insS Of fact and conclusions Of law refer
| ring 70 the proposed repeal OF that clause
OF the Panama act which relieves Ameri
can coastwisc commerce from payment OF
the toll charge. Your decision might In
controversy. Would you then mark
| abreast Of each of these . so found.
or q Refused" or an "lmmateriai.' &C. 7
You will readily excuse omissions OF the
| usual legal vsrbiage from what I am
submitting. Some will understand the
| nndinss bsttsr In the simple language In
which ! have clothed them.
With very high respect. dear sir. I am
| your obsdisnt servant. MARsroN NILES.
TorsHAM. Ne, March -.
SrNpiNos ov FACT.
l. In February. 1909. . contract
known ~ tho Hay.FauAcefote trca ~
was made between Great Britain and
| the United States, by which, In con.
sideration Of this new Obligation under
taken by the United States. II was
released from an earlier contract known
as the Clayton Bulwer treaty. BY the
new contract the United States became
At liberty to construct . canal between
the oceans and to manage 1t.
2. Among other things the contract
provides uhat the canal shall be free
| and open on terms OF entire equality
to vessels Of all nations that observe
the rules; 90 that there shall be no
discrimination In respect to the condi-
| nh - -
and that the tolls shall be just and
equitable.
3. In August. 1919. the United States
made law directing that no tolls
shall be levied upon vessels engaged in
the coastwise trade OF the United States.
This direction Is in force.
| 4. The British thereupon objected, and
In due form. In substance they alleged
that Notwithstanding the contract that
| there shall be no discrimination against
any nation. the August law does dis.
eliminate in favor OF the coastwise YES.
sells OF the United States: inasmuch as
1t provides In effect that the total con-
tribution Of canal dues shall not include
those sums which. except for the law.
would be collected from coastwise vessels
exactly as from the rest. They COM
plain that this arrangement will make
40 much the larger those sums that
British and other vessels must con-
| tribute. In substance they complain
that British vessels will thereby be
made to pay. In the place Of coastwise
vessels. those sums which the latter,
as enjoying the benefits OF the canal
like the British, ought TO pay as do the
British. but are by law excused from
paying.
| 8. The British contend further that
this law violates the clause OF the Hay
Pauncefote contract stipulating that the
toll shall be just and equitable. They
allege IN substance that unless the whole
volume which takes benefit equally Is
taken into account. there Is no means
OF telling whether the tolls required
from n British or other foreign vessel
are indeed that vessels fair proportion
OF the expenditure rightly chargeable
against the tonnage benefit. This Ian
guage is understood as courteous
method Of asserting that such exemption
Is itself the means Of telling with GER
tainty that the charge extracted from
the British vessel Is greater than her
fair proportion. and that no other
means Is necessary for telling.
8. BY sundry persons understood to
be speaking in the interests Of the
United States alone II has been alleged
on the other hand. that the whole man.
agement OF coastwise commerce Is IN
der control OF the United States. and
| that the British have no concern with
II. The assertion Is that British vessels
| are by law excluded from competition
with Americans In that commerce: also
that this being the case, the law to
which the British are Directing does
not make any discrimination between
American vessels and British vessels In
that trade, inasmuch as that trade has
no British vessels to be Disseminated
against, I find the foregoing to he true.
I. / find that at the time when the
said complaint was presented It was
well known to the British that there is
not and that there cannot be any COM
petition in respect OF coastwise COM
merce. I find also that the British
charge OF discrimination Ia not made In
respect OF American vessels being en-
abled through the exemption to COM
pete in coastwise commerce 10 the
prejudice OF the British: but that they
state, on the contrary, that the dlscrim!-
nation will consist in oblging them to
pay. as extra, that share OF the expense
OF transit which American coastwise
vessels would themselves pay IL they
were not exempted.
s. To the British contention I ind
that sundry Americans Of we'll known
integrity and Of the highest character
have made reply substantially as fol.
lows: In the treaty the words all
nations observing these rules are not
to he construed as including the
United States. The United States itself
makes the rules and absolutely. 1t
must not he presumed to be bound by
any rules 1t makes. The two things
are incompatlble-an absolute power
to make rules, and an obligation to
be Itself bound by these absolutely, 4"
| These Americans declare. moreover, that
| where the treaty provides that among
| all nations observing the rules there
| shall be no discrimination against any
nation In respect to charges OF traffic,
| these words are not To be construed as
| including the United States, because
the United States Is the nation that
constructs the canal and that charges
! Tor the traffic.
.. ] find that In the treaty there is
! no such expression as "all other ma
tons; nor Is there any such as all
nations excepting the United states"
nor any such az 'hll nations executing