THE MEANING OF COASTING-TRADE IN COMMERCIAL

TREATIES.

I.

AF

FTER having acquired, in 1898 and 1899, the Philippines, the Hawaian Islands, and the Islands of Porto Rico, the United States of America has declared trade between any of her ports and these islands to be coasting-trade, and has exclusively reserved it for American vessels. Russia has by Ukase of 1897, operating from 1900, enacted that trade between any of her ports and that of Vladivostock is to be considered as coasting-trade, and therefore to be exclusively reserved for Russian vessels. At the first and the second Colonial Conference, held in London in 1902 and 1907 respectively, the question has been raised whether Great Britain would be justified in following these examples set by America and Russia, and in giving the term coasting-trade, as used in British commercial treaties, such an extension of definition as would allow her to exclude foreign shipping entirely from the carrying trade between the United Kingdom and Australia, India, South Africa, and other parts of the Empire, as well as between any of these parts. It is therefore of interest to inquire into the question what is the meaning of the term coasting-trade in International Law generally and in commercial treaties in particular.

II.

In the endeavour to trace the meaning of this term in commercial treaties and International Law no consideration need be given to the fact that sometimes municipal laws in making use of the term coasting-trade or cabotage for the purposes of municipal regulations as regards the loading of vessels, the appointment of shippers, and the like, attach a meaning to this term absolutely different from the meaning it has or can have in International Law. Thus in France, a Statute of June 14, 1854, distinguishes between navigation au long cours, au cabotage, and au bornage. Navigation au bornage comprises voyages within fifteen miles from the port where a vessel is registered. Navigation au cabotage comprises voyages beyond fifteen miles, but within the wide zone beyond which navigation au long cours begins. Again in France, a Statute of

January 31, 1893, distinguishes between navigation au long cours, au cabotage international, and au cabotage français. Navigation au cabotage français comprises voyages between French or between French and Algerian ports. Navigation au cabotage international comprises voyages which are not such au cabotage français, but within the wide zone beyond which navigation au long cours begins.

It is obvious, and it is generally recognized, that these municipal uses of the term cabotage or coasting-trade have nothing to do with its international use.

III.

The original meaning of coasting-trade in International Law generally becomes apparent through its synonym cabotage. This is a nautical term, and means, as its Spanish origin indicates, navigating from cape to cape along the coast without going out into the open sea. In International Law cabotage is identified with coasting-trade, so that it means navigating and trading along a coast between the ports thereof. This is the original meaning of the term coasting-trade in International Law as used in the universally recognized rule of the Law of Nations that every littoral State can exclude foreign merchantmen from the cabotage within the maritime belt just as it can exclude foreigners from the fisheries therein. This rule is an outcome of the fact that the maritime belt up to at least three miles from the shore is considered a part of the territory and under the sovereignty of the littoral State. Such State is indeed prevented by International Law from prohibiting the peaceful passage of foreign merchantmen through its maritime belt on their way from one part of the globe to another, but it need not allow them to navigate and trade along its own coast from one port thereof to another. Cabotage in this meaning of coasting-trade is the contrast to navigation on the open sea and to over-sea carrying trade between distant parts of the globe, and it has nothing to do with the question of free trade from or to a port on the coast to or from a port abroad. This question is a matter of commercial policy. International Law has in the past never prevented, and does not at present prevent, a State-apart from arrangements by commercial treaties-from restricting the export from or the import to its ports to vessels of its subjects, or from allowing such export and import under certain conditions only.

IV.

But is this original meaning of coasting-trade in International Law identical with its meaning according to such commercial treaties as stipulate that the coasting-trade of each party should be

reserved for vessels of its own subjects or should be open to each other's subjects? The question whether the term coasting-trade as used in commercial treaties could mean anything else but navigation and trading from one port to another of the same coast of a country could never have arisen but for two facts. There are, first, some littoral States which have more than one stretch of coast, such as France, for instance, with one stretch of coast in the Mediterranean and another in the Atlantic Ocean. And there are, secondly, some countries whose territory is dismembered and consists of parts, which, although forming a political and geographical unit, are separated by the sea, as, for instance, Great Britain in relation with Ireland, the Isle of Man, and the like. If we adhere to the original meaning of coasting-trade, we have to distinguish a coasting-trade along each coast of countries with more than one stretch of coast, and also a coasting-trade along each coast of each part of a dismembered territory. Trade between Marseilles and Nice, between Calais and Havre, between London and Liverpool, and between Dublin and Belfast would then be coasting-trade, but not trade between Marseilles and Havre, and between London and Dublin.

If we look at the practice of the countries concerned the conclusion is inevitable that the original meaning of coasting-trade has been considerably stretched and extended. There is, indeed, an instance which shows that the original meaning of the term has been retained, for Russia formerly-see Ukase of July 1, 1845, concerning cabotage and rights of importation-held to the original meaning by enacting: Cabotage, that is, the carriage of goods from one Russian port to another situated within the same sea, continues to be exclusively reserved for Russian subjects and vessels sailing under the Russian flag.' But more instances can be given which show an extension of the original meaning so that coasting-trade or cabotage include navigation and trade between two ports of the same territory whether they are on the same coast of the territory concerned or on different coasts thereof.

Thus France distinguishes between cabotage petit and grand; whereas petit cabotage is coasting-trade between ports in the same sea, grand cabotage is coasting-trade between a French port situated in the Atlantic Ocean and a French port situated in the Mediterranean, and according to a Statute of September 21, 1793-both grand and petit cabotage are exclusively reserved for French vessels.

Thus, further, the United States of America has always considered trade between one of her ports in the Atlantic Ocean and one in the Pacific to be coasting-trade, and has exclusively reserved it for vessels of her own subjects. She considers such trade coasting-trade

even when the carriage takes place not exclusively by sea around Cape Horn, but partly by sea and partly by land through the Isthmus of Panama.

Great Britain has taken up a similar attitude. Section 2 of the Navigation Act of 1849 (12 & 13 Vict. c. 29) enacted that no goods or passengers shall be carried coastwise from one part of the United Kingdom to another, or from the Isle of Man to the United Kingdom, except in British ships,' and declared thereby trade between a port of England or Scotland to a port of Ireland or the Isle of Man to be coasting-trade exclusively reserved for British ships in spite of the fact that the open sea flows between these ports. And although the Navigation Act of 1849 is no longer in force, and this country does now admit foreign ships to its coastingtrade, it nevertheless still considers all trade between one port of the United Kingdom and another to be coasting-trade, as becomes apparent from Section 140 of the Customs Laws Consolidation Act of July 24, 1876 (39 & 40 Vict. c. 36).

Again, Germany declared by a Statute of May 22, 1881, coastingtrade to be trade between any two German ports, and reserved it for German vessels, although vessels of such States can be admitted as admit on their part German vessels to their own coasting-trade. Thus trade between Koenigsberg in the Baltic and Hamburg in the North Sea is coasting-trade.

These instances are sufficient to demonstrate that an extension of the original meaning of coasting-trade has really taken place and has found general recognition. A multitude of commercial treaties. has been concluded between such countries as established that extension of meaning and others, and these commercial treaties no doubt make use of the term coasting-trade in this its extended meaning. It must, therefore, be maintained that coasting-trade or cabotage as used in commercial treaties has acquired the following meaning: Sea-trade between any two ports of the same country whether on the same coast or different coasts, provided always that the different coasts are all of them the coasts of one and the same country as a political and geographical unit in contradistinction to the coasts of Colonial dependencies of such country.

ར.

In spite of the established extension of the term coasting-trade, it did not include Colonial trade, and it remained restricted to trade between two ports of a country as a political and geographical unit, although such ports might be situated on different coasts. This becomes clearly apparent from International documents as well as from municipal Statutes.

Instances of the former are the Russian Declaration of February 28, 1780, which established the First Armed Neutrality, and the Maritime Convention of St. Petersburg of June 17, 1801, between Russia and Great Britain. England by the so-called rule of 1756 had pronounced the principle that the commerce of neutrals should in time of war be restricted within the same limits as in time of peace, and that consequently such countries as reserved in time of peace their cabotage and Colonial trade for vessels of their own subjects could not in time of war throw open such trade to vessels of neutrals. The first principle of the First Armed Neutrality contested this rule of 1756, pronouncing: Que les vaisseaux neutres puissent naviguer librement de port en port et sur les côtes des nations en guerre, and Article III, No. 1, of the quoted Maritime Convention stipulated the same rule as between Russia and England. Now the fact that here is stipulated freedom of navigation from port to port of a belligerent besides navigation sur les côtes would clearly indicate the conviction that there is a difference between the two. And the difference is that navigation sur les côtes is coasting-trade or cabotage, whereas navigation from port to port embraces the Colonial trade.

An instance of Municipal Statutes is Section 736 of the Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60), which, repeating a provision of repealed Statutes, enacts :—

'The legislature of a British possession may, by any Act or Ordinance, regulate the coasting-trade of that British possession, subject in every case to the following conditions: (a) ... (b) . . (c) Where by treaty made before the passing of the Merchant Shipping (Colonial) Act, 1869 (that is to say, before the thirteenth day of May, eighteen hundred and sixty-nine), Her Majesty has agreed to grant to any ships of any foreign state any rights and privileges in respect of the coasting-trade of any British possession, those rights and privileges shall be enjoyed by those ships for so long as Her Majesty has already agreed or may hereafter agree to grant the same, anything in the Act or Ordinance to the contrary notwithstanding.'

This distinction between the coasting-trade of the different British possessions is sufficient to indicate that in the eye of the legislator coasting-trade of a British possession is trade along the coast of the possession concerned in contradistinction to over-seatrade between a port of the mother-country and a port of a possession.

In this respect it is likewise of value to draw attention to a French Statute of April 2, 1889. Whereas a Statute of April 9, 1866, had thrown open the trade between France and Algeria to vessels of all nations, Article 1 of the Statute of April 2, 1889, enacts: La navigation entre la France et l'Algérie ne pourra s'effectuer