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The Old Whaling Days

Weller's Application, 1834

Weller's Application, 1834.

After the Wellers had found that their Otago station was going to prove a fairly profitable venture, and before the troubles with the Maoris during the season of 1834, they decided to try the experiment of shipping the oil direct to London instead of through Sydney, and accordingly the New South Wales member of the firm made an application to the Collector of Customs at Sydney to ascertain exactly the position. So uncertain was the Sydney view of page 264 the meaning of 3 and 4 Wm. 4, c 52 that Weller's query had to be referred to London.

In the statement of the case sent, Weller's Establishment is described as wholly British, “the men the gear and the boats and the party” being furnished with provisions from Sydney. That was not correct, as one-half of the men were Maoris, who were not British subjects. Mr. Weller's request was stated to be “whether if he sends from home a British vessel, to take on board and carry direct to England the oil thus cured, and obtain from the Resident at the Bay of Islands, a certificate that it is so caught it will be admitted as English.” The idea would seem to be to provision the gang from England, and take the oil back, or combine open sea whaling with the working of the gang, as was done by some of the other Australians, only that they operated from Sydney. Probably the expression “from home” was used to keep within the terms of the Act, which stated that the ship must clear from the United Kingdom.

The London reply was that, as New Zealand was not a British possession, oil from there to England would be liable to a duty of £26 12s. This reply was conveyed to Weller under date 29th September, 1835, and prevented him carrying out his scheme of direct exportation.

In this case, the preferential tariff proved injurious to British trade. The oil was destined for London, and the law prevented it being delivered there at as low a cost as it otherwise could. It compelled it to be sent to Sydney and then on to its destination. The same law prevented the supplies for the station being sent from London, and compelled them to be bought at a more expensive figure in Sydney. All the time this legislation was supposed to be in the interests of British trade.

Following on the receipt of the letter of advice from London, a peculiar mistake was made by the Sydney officials. They appear to have entirely lost sight of the fact that the oil from New Zealand whaling stations was being exported to London under the provisions of an Act page 265 which allowed it, if coming from a British Possession, to come in under a certificate that the whales had been taken by the crews of British vessels. The intermediate stage of the New Zealand oil going to Sydney, and there being reshipped, appears to have been lost sight of, and the London letter was read to mean that oil taken on shore at New Zealand could not be landed in London without paying the enormous duty of £26 12s.

The Customs Officers realized at once that their interpretation of the London letter meant death to New Zealand whaling trade, and they accordingly reported, for the benefit of the London Office, upon the system which prevailed at their port, of sending to England oil which had been obtained at New Zealand—not a British Possession. Anticipating that when the Board of Customs found out that the oil was New Zealand got they would refuse to receive it any longer as British, the Governor was advised of what steps were being taken, and it was suggested to him that as this would mean a great loss to the young Colony, he might write the Lords of the Treasury on the matter.

The reader will bear in mind that the Customs Officers were Imperial men, and communicated with, and received instructions from, the Customs Officers in London, and not the Governor of New South Wales. The following letter was then addressed to the Board of Customs:—

Decr. 22nd 1835.

Honourable Sirs

Referring to Your Honor's Order of the 30th May last No. 22 we think it necessary to report that the several British Establishments alluded to therein as described in our communication of the 25th October, 1834. No. 49 have been carrying on the whale fishery at New Zealand for the last ten years and during the whole of that time the oil, after being brought up here, was shipped for the United Kingdom as British caught and cured.

This system was found in existence at the time Mr. Cotton and Mr. Lauga took charge of the page 266 Department, and was allowed by them and by ourselves up to the present moment. But the above Order has entirely altered our opinion as to the propriety of such proceedings, and we therefore, hasten to lay the case before your honors, for instructions as to our future guidance on this head. We cannot exactly trace the foundation of these Establishments: but we have reason to think that, independently of the great benefit they were to a young Colony like this and to the parties themselves, they arose in consequence of the peculiar footing so similar to that of a British Possession on which New Zealand was placed by His Majesty's Government, as for a certain number of years, the Flax and Spars of the Islands were admitted into the United Kingdom free of all duty, in like manner, and for the like period with the produce of the Colony, and besides recognising the British resident sent from hence to that place, the Lords of the Treasury allowed their vessels to sail under a British Flag.

Taking all these circumstances into consideration and the Fish being decidedly caught by British subjects it was not recollected that being boiled or manufactured into oil on the shores of a country not British it could not, accordingly to the strict letter of the Law, be considered as British cured.

So much capital has however been invested in these speculations so long countenanced and so great a sensation has been created amongst the merchants by the mention of our intention to write home upon the subject that although we fear we have been acting in error, we do not feel justified in at once refusing to certify to the oil which may be shipped (in which view of the case we are borne out by His Excellency the Governor) as there is not consumption here for a twentieth part of what is caught, and would in consequence be entailed on the parties by such a measure. Neither can they break up their page 267 Establishments at a moment's notice, and we therefore venture to submit that should it be decided that the importation of this oil as British caught is illegal time may be given to the parties after the receipt of any order your Honors may be pleased to send to withdraw their Establishments and some provision be made for receiving at the low rate of duty such oil as may at that time be caught.

J. Gibbes Collr.

B. Lauga Contr.

The Board of Customs, London, when replying, very clearly stated the law upon the question and pointed out that where oil was produced by British subjects at New Zealand it could be imported into Sydney, and, after being landed there, could be re-exported to London under the provisions of 3 and 4 Wm. IV. c. 52. They also pointed out that the question raised on Mr. Weller's application was quite different to the one now under consideration.

Their next step showed how little the Sydney officials understood of the Act they were administering. They could not understand, they said, how, if it was unlawful to import oil from one Establishment direct to London it could be lawful for four or five to do it indirectly viâ Sydney. Their letter, in fact, was a blunt suggestion that the London Authorities had backed down.

This was too much for Official London, and a carefully worded explanation of the whole case was concluded in the following words:—

“We further acquaint you that had you sufficiently attended to our Orders of the 30th May, 1835, No. 22, and the 28th July, 1836, No. 54, which we consider contained explicite instructions for your government, you could not have failed to observe, that oil sent direct from New Zealand to the United Kingdom, whether taken by one or more British subjects, could not upon its arrival have been admitted as British taking, and that it must have been in the first instance sent to Sydney to be there page 268 landed and subsequently shipped for exportation under the superintendence of the proper officers to entitle it to be admitted at the low duty upon its arrival in the United Kingdom.

B. B. Dean.

Hy. Legge.

W. Creely.

Sydney, New South Wales.

This letter was dated Custom House, London, 23rd August, 1837.

As the Sydney officials were under the control of the London Board the above admitted of no reply and the correspondence closed. Whether the whaling station owners were ever told that the whole trouble was due to official ignorance is not known.

It will be noticed that the whole position of the exemption from duty is based upon the assumption that those who obtained the oil were British subjects, a position which did not exist in New Zealand owing to the general employment of Maoris at the settlements. In no case were the men of the stations members of the crews of British vessels. The tariff provided, if put into operation literally, would have killed the trade, and it is satisfactory to notice that there was sufficient legal ability in England, if not in Australia, to read an interpretation into the statute which rendered many of its injurious effects quite nugatory.