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shall, from and after the publication hereof, come into any port, harbour, creek, or river within this Province not being to the north eastward of Cape Canso, and not owned by some person or persons belonging to this Province,
should pay the same dues as would be payable on a merchant vessel at Shelburne Harbour. Provision was made for the appointment of collectors in the several ports, harbours, creeks, and rivers to the south and west of Cape Canso, a penalty was imposed for refusal to pay the dues, and provision was made for seizing and detaining the vessel till the fine, dues and expenses were paid
1795.-The Acts of Nova Scotia relating to the Sambro and Shellburne lighthouses were amended (35 Geo. III, cap. 3) so as to make the light dues payable immediately after arrival. Non-payment resulted in a penalty, and seizure and detention of the vessel. (App., p. 597.)
1803.-An Act of Nova Scotia (43 Geo. III, cap. 4) provided for the support of a lighthouse at Annapolis Basin. All ships entering the Gut of Annapolis Basin were to pay the same tonnage dues as were then payable at Halifax. The dues at Shelburne were put upon the same basis. (App., p. 600.)
1804.-The United States passed a statute (cap. 57) imposing certain duties on articles, and levying and collecting light money on foreign ships and vessels. It enacted that a duty of 50 cents per ton, to be denominated "light money," should be levied and collected on all vessels not of the United States, which entered any port of the United States. Such light money was to be levied and collected in the same manner and under the same regulations as the tonnage duties. (App., p. 783.)
1809.-A light-house having been erected on Briar Island, at the entrance of the Bay of Fundy, which, as the Act recited, would be highly beneficial to all vessels going into that bay, it was provided, by a statute of Nova Scotia (49 Geo. III, cap. 9) that all vessels entering the Bay of Fundy and arriving at any port, harbour, or creek, or bay in Nova Scotia within the said Bay of Fundy, north of Cape Saint Mary's, should pay the same rate of tonnage duties as were then payable by all vessels entering Halifax. Should the lighthouse at the entrance to the Gut of Annapolis be rebuilt, all vessels which should enter and pay duties there were to be exempted from those imposed by the Act. (App., p. 602.)
1812. (52 Geo. III, cap. 4.)-A statute of Nova Scotia provided support for a lighthouse then being erected on the south end of Coffin's Island on the eastern side of the entrance of Liverpool Harbour, by levying the same rate of tonnage duties, on all vessels entering that harbour, as were then payable at Halifax. (App., p. 604.)
POSITION IN 1818.
It will thus be seen that not only in 1783, when the treaty of Paris was entered into, but in 1818, when the treaty of that year came into effect, legislation was in force in the British colonies, whereby dues were levied on vessels entering colonial ports and harbours. After the convention, further lighthouses were established on the coasts of the British colonies, and Acts were passed from time to time providing for the imposition of light dues to maintain them.
The necessity for lighthouses and sea-marks, and the fairness of charging part of the cost to American fishing vessels was pointed out by the United States consul at Pictou in 1852. In a letter to Sir A. Bannerman, Lieutenant-Governor of Prince Edward Island, he said (App., p. 198):
2d. It has been satisfactorily proved, by the testimony of many of those who escaped from a watery grave in the late gales, that had there been beacon lights upon the two extreme points of the coast, extending a distance of 150 miles, scarcely any lives would have been lost, and but a small amount of property been sacrificed. And I am satisfied, from the opinion expressed by your Excellency, that the attention of your Government will be early called to the subject, and that but a brief period will elapse before the blessing of the hardy fishermen of New England, and your own industrious sons, will be gratefully returned, for this most philanthropic effort to preserve life and property, and for which benefit every vessel should contribute its share of light-duty.
3rd. It has been the means of developing the capacity of many of your harbours, and exposing the dangers attending their entrance, and the necessity of immediate steps being taken to place buoys in such prominent positions that the mariner would in perfect safety flee to them in case of necessity, with a knowledge that these guides would enable him to be sure of shelter and protection.
Newfoundland legislation regarding lighthouses commenced in 1834. The statute 4 Wm. IV, cap. 4, recited that there was (App., p. 694)
already erected and provided at the entrance of the Port of St. John's in this island, a building for the purpose of a lighthouse, and other apparatus necessary for lighting the same, but which cannot be put in operation for want of adequate means to defray the expense thereof.
Dues were accordingly levied to pay the cost of maintenance, but coasting and fishing vessels were exempt.
In the following year (5 Wm. IV, cap. 7) (App., p. 695), dues 77 were established for the maintenance of Harbor Grace light
house; fishing vessels were obliged to pay, but they were excused from paying more than once in each year. In 1839, Newfoundland passed an Act (3 Vic., cap. 5) (App., p. 697) compelling all vessels entering any port between Cape Ray and Cape John to pay certain dues according to tonnage for the maintenance of lighthouses. Coasting, sealing, and fishing vessels were required to pay, but the dues were smaller than in the case of other vessels.
In 1852, the statute 15 Vic., cap. 3, altered the rate of dues, but preserved the former distinction between the different classes of vessels. (App., p. 699.)
The Act now in force (62 and 63 Vic., cap. 19, 1899) requires the payment, by merchant vessels entering any port in the colony, of certain dues according to tonnage. Coasting, sealing, or fishing vessels owned and registered in the colony are exempt whilst not engaged otherwise than in the fisheries or coasting trade. (App., p. 754.)
EXEMPTION OF NEWFOUNDLAND FISHING VESSELS.
This total exemption of the Newfoundland fishing-vessels has existed since 1899. It is contended by Great Britain that this exemption of colonial fishing-vessels does not in any way affect the propriety of the dues imposed upon vessels used by American fishermen. No objection has been taken at any time to the amount of the light dues on the ground that they were excessive, or as being out of proportion to the expense to which Newfoundland is put to maintain her lighthouses. The light dues collected do not at all compensate Newfoundland for the expense of erecting and maintaining the lighthouses, and, in addition to dues received from merchant-vessels and from American fishing-vessels, Newfoundland contributes every year considerably more than the amount local fishing-vessels would pay on the same basis as American vessels contribute.
It is therefore submitted that so long as the fair share of these fishing-vessels is contributed by or for them, no objection can be made to the dues levied on American vessels on the ground of inequality. If the United States contributed an amount estimated to be a fair equivalent for what the masters of American fishing-vessels now pay, the positions of the fishermen of Newfoundland and of the United States would then be identical.
Under the modus vivendi which has been in force from 1906 until the present time, light dues have been paid by American fishermen. In his despatch of the 20th June, 1907, in discussing the terms on which the modus vivendi should be continued, Sir
Edward Grey made the suggestion that American fishermen should be exempted in cases in which Newfoundland fishermen are exempted from their light dues. This, however, must be a matter of arrangement, and, on the question of right, it is submitted that there is nothing inconsistent with the treaty in requiring the payment of such light dues by American fishermen, irrespective of the question whether colonial fishermen do, or do not enjoy exemption.
The position with regard to entry or report at customs, and as to payment of light and harbour dues may be summarised as follows:
(1) Laws requiring vessels to enter or report at customs, and to pay fair tolls towards establishing and maintaining the usual aids to navigation are reasonably incidental to laws admitting vessels into a nation's coast waters, and do not partake of the nature of exclusion.
(2.) A requirement that American fishermen, who bring vessels, fishing-gear, and supplies into the treaty waters, shall enter or report them at customs, assuming that reasonable facilities are supplied by the colonies for that purpose, is in no sense inconsistent with the treaty.
(3.) Nor is it inconsistent with the treaty that such fishermen should be required to pay dues for the support of lighthouses and of harbour improvements from which they derive benefit.
(4.) The exercise by American fishermen of the rights granted them by the treaty is subject to their observance of these requirements in this sense only, that in default of payment the vessel in respect of which default occurs is subject to the appropriate proceedings.
CUSTOMS ENTRIES AND LIGHT AND HARBOUR DUES IN NONTREATY WATERS.
Under the provisions of the said article, that the American fishermen shall be admitted to enter certain bays or harbours for shelter, repairs, wood, or water, and for no other purpose whatever, but that they shall be under such restrictions as may be necessary to prevent their taking, drying, or curing fish therein or in any other manner whatever abusing the privileges thereby reserved to them, is it permissible to impose restrictions making the exercise of such privileges conditional upon the payment of light or harbour or other dues, or entering or reporting at custom-houses or any similar conditions?
The considerations which have been advanced in support of the contention made by Great Britain under the third question apply equally here, and are adopted for the purposes of this question.
A grant of liberty to enter a bay or harbour, whether by statute or treaty, confers the right to enter, subject to the usual obligations of entry, that is compliance with the rules and regulations in force there.
Every vessel entering a harbour, whether under a legal right or by privilege merely, is obliged, in the absence of express exemption, to observe all pilotage, quarantine, and anchorage rules, and, it is submitted, is equally bound to comply with all regulations requiring entry or report at customs, and payment of all dues or tolls charged to defray the expense of establishing and maintaining any maritime improvements.
As already pointed out, these are usual incidents of laws permitting vessels to enter ports or harbours, and unless special exemption therefrom is given, they must be observed. A grant of the right to enter a harbour does not in any way relieve from the performance of such obligations as the entry itself imposes.
EXCLUSION IN 1818.
And this is particularly so as applied to a grant, made in or prior to 1818, permitting foreign vessels to enter colonial harbours. At that time strict navigation laws were in force, involving exclusion of foreign vessels from colonial harbours. A grant of liberty to enter harbours under those circumstances, granted free
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