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exceeding one dollar and twenty-five cents per net registered ton, except for vessels of the United States and its citizens, and not less than seventy-five cents per net registered ton, and is prohibited from imposing any tolls upon vessels engaged in the coastwise trade of the United States. He is required to impose tolls of at least seventyfive cents per net registered ton upon all foreign vessels. He is authorized to impose no tolls upon any American vessel, and is required to impose no tolls upon American vessels engaged in the coastwise trade.”
Objections are made by Sir Edward Grey to the provisions of the Panama Canal act as given abovefirst, because no tolls are to be levied upon ships engaged in the coastwise trade of the United States; second, because a discretion appears to be given to the President to discriminate in fixing tolls in favor of ships belonging to the United States and its citizens as against foreign ships. Sir Edward Grey states:
The Panama Canal act in its present form conflicts with the treaty rights to which His Majesty's Government maintain they are entitled.
“Under Section 5 of the act the President is given, within certain defined limits, the right to fix the tolls, but no tolls are to be levied upon ships engaged in the coastwise trade of the United States, and the tolls, when based upon net registered tonnage for ships of commerce, are not to exceed one dollar and twenty-five cents per net registered ton, nor be less, other than for vessels of the United States and its citizens, than the estimated proportionate cost of the actual maintenance and operation of the canal.
"The effect of these provisions is that vessels engaged in the coastwise trade will contribute nothing to the upkeep of the canal.
Again, in the cases where tolls are levied, the tolls in the case of ships belonging to the United States and its citizens may be fixed at a lower rate than in the case of foreign ships, and may be less than the estimated proportionate cost of the actual maintenance and operation of the canal.
"These provisions (1) clearly conflict with the rule embodied in the principle established in Article VIII of the Clayton-Bulwer treaty of equal treatment for British and United States ships, and (2) would enable tolls to be fixed which would not be just and equitable, and would therefore not comply with Rule 1 of Article III of the Hay-Pauncefote treaty.
“It has been argued that as the coastwise trade of the United States is confined by law to United States vessels, the exemption of vessels engaged in it from the payment of tolls cannot injure the interests of foreign nations. It is clear, however, that the interests of foreign nations will be seriously injured in two material respects.
"In the first place the exemption will result in the cost of the working of the canal being borne wholly by foreign-going vessels, and on such vessels, therefore, will fall the whole burden of raising the revenue necessary to cover the cost of working and maintaining the canal. The possibility, therefore, of fixing the toll on such vessels at a lower figure than one dollar and twenty-five cents per ton, or of reducing the rate below that figure at some future time will be considerably lessened by the exemption.
“'In the second place, the exemption will, in the
opinion of His Majesty's Government, be a violation of the equal treatment secured by the treaty, as it will put the 'coastwise trade in a preferential position as regards other shipping. Coastwise trade cannot be circumscribed so completely that benefits conferred upon it will not affect vessels engaged in the foreign trade. To take an example, if cargo intended for a United States port beyond the canal, either from east or west, and shipped on board a foreign ship could be sent to its destination more cheaply through the operation of the proposed exemption, by being landed at a United States port before reaching the canal, and then sent on as coastwise trade, shippers would benefit by adopting this course in preference to sending the goods direct to their destination through the canal on board the foreign ship.
“Again, although certain privileges are granted to vessels engaged in an exclusively coastwise trade, His Majesty's Government are given to understand that there is nothing in the laws of the United States which prevents any United States ship from combining foreign commerce with coastwise trade, and consequently from entering into direct competition with foreign vessels while remaining prima facie' entitled to the privilege of free passage through the canal. Moreover, any restriction which may be deemed to be now applicable might at any time be removed by legislation or even perhaps by mere changes in the regulations.
"In these and in other ways foreign shipping would be seriously handicapped, and any adverse result would fall more severely on British shipping than on that of any other nationality.
“The volume of British shipping which will use the canal will in all probability be very large. Its opening will shorten by many thousands of miles the waterways between England and other portions of the British Empire, and if on the one hand it is important to the United States to encourage its mercantile marine and establish competition between coastwise traffic and transcontinental railways, it is equally important to Great Britain to secure to its shipping that just and impartial treatment to which it is entitled by treaty and in return for a promise of which it surrendered the rights which it held under the earlier convention.”
The Hay-Pauncefote treaty provides that tolls shall be “just and equitable.” Sir Edward Grey pointedly observes:
“The purpose of these words was to limit the tolls to the amount representing the fair value of the services rendered, i. e., to the interest on the capital expended and the cost of the operation and maintenance of the canal. Unless the whole volume of shipping which passes through the canal, which benefits all equally by its services, is taken into account, there are no means of determining whether the tolls chargeable upon a vessel represent that vessel's fair proportion of the current expenditure properly chargeable against the canal; that is to say, interest on the capital expended in construction and the cost of operation and maintenance. If any classes of vessels are exempted from tolls in such a way that no receipts from such ships are taken into account in the income of the canal, there is no guaranty that the vessels upon which tolls are being levied are not being made to bear more than their fair share of the upkeep. Apart altogether, therefore, from the provision in Rule 1 about equality of treatment for all nations, the stipulation that the tolls shall be just and equitable, when rightly understood, entitles His Majesty's Government to demand, on behalf of British shipping, that all vessels passing through the canal, whatever their flag or their character, shall be taken into account in fixing the amount of the tolls.
“The result is that any system by which particular vessels or classes of vessels were exempted from the payment of tolls would not comply with the stipulations of the treaty that the canal should be open on terms on entire equality, and that the charges should be just and equitable.”
We will now proceed to show that the foregoing statements by Sir Edward Grey are entirely sound. To do this we ask the reader to note the language used in the last sentence of Section 1, Article III, of the Hay-Pauncefote treaty; namely, “Such conditions and charges of traffic shall be just and equitable.”
John Hay states: “One amendment proposed by Lord Lansdowne was regarded by President McKinley as so entirely reasonable that it was agreed to without discussion. This was the insertion at the end of Clause 1 of Article III of the words: 'Such conditions and charges of traffic shall be just and equitable.'
How are charges that are just and equitable, in this instance, determined? The Panama Canal is an international utility-a public utility. So considered, the foregoing question is easily answered from a financial standpoint.