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The Old Whaling Days

The Cloudy Bay Oil, 1835

The Cloudy Bay Oil, 1835.

On 6th January, 1835, the schooner Fortitude, under the command of Robert Mackay, arrived at Sydney from the Bay of Islands, and three days later, Thomas Jeffry, landing waiter, reported to the Collector of Customs that he had seized on board of her 21 casks of black whale oil and 1 of sperm, in consequence of information received from New Zealand to the effect that the oil was not British caught, as alleged, but had been taken by five Englishmen serving on the American whaler Erie. In addition to the page 269 information sent him preparatory to seizure, the casks in which the oil was contained were of American make.

The oil, it appears, was owned by James R. Clendon, who had purchased it at the Bay of Islands where it had been brought in the American whaler Erie from Cloudy Bay. It was alleged that the oil had been taken in Cloudy Bay by a party of Englishmen under John Moffat Chisholm, and that they had simply utilized the services of the Erie to get the oil transported to the Bay of Islands. In regard to the casks being of American make, it was urged that such fact alone did not warrant seizure, and application was made for permission to tranship the oil to casks of British make. It was also stated that a number of casks had been imported by the Tybee, of Salem, U.S.A., and after paying duty, had been forwarded to New Zealand with biscuits, to be returned with oil. Hence the use of American casks. If the oil could be classified as British, the duty would be £7 10s. If Foreign, £150. The loss if the oil was declared foreign would be £142 10s. The certificate produced under the Act was from the British Resident, and read thus:—

I certify that John Moffat Chisholm, a British subject, has this day appeared before me and declared that Twenty Casks containing about 3500 Three thousand five hundred Gallons more or less of Black Oil, which has been shipped at this place on board the Schooner Fortitude bound for Sydney, was taken by himself and five other British subjects at Cloudy Bay New Zealand and is therefore “British caught.”

James Busby

British Resident.
Bay of Islands
New Zealand20 Decr. 1834.

Information was given in Sydney to the Customs Officers that the oil was American caught. It was stated that the Erie was manned partly by Englishmen, and that the oil, or its equivalent, though taken by five Englishmen, page 270 was taken by five men who, when they took it, were serving on board the American ship.

The oil was sold to a Mr. F. Mitchell, of the Kings Wharf, Sydney, and that gentleman applied for possession of it. On giving security to abide by the decision of the Board of Customs, London, the proceedings which were being commenced in the Vice-Admiralty Court were stayed, and the oil handed over. In advising London of the steps taken it was stated that further evidence would be obtained and forwarded.

On being applied to, Mr. Busby was unable to give any further information, and the Sydney authorities had reluctantly to advise London to that effect. In reply they were directed to cancel the bond.

From information handed in at a later date it was evident that Chisholm was whaling for the Erie in Cloudy Bay, and used American boats and tackle. He and his gang were paid according to lay, under an agreement made at the Bay of Islands before they came down. It was quite true that British subjects had procured the oil, but in so doing they were in American employment. The mistake made in Sydney was in taking the case out of the Vice-Admiralty Court and referring it to London for decision. At a trial the whole of the facts would have come out, the Court would have decided whether it was British or Foreign, and the oil would probably have been forfeited. The same thing would have resulted if the Declaration, instead of allowing the men to say that the oil was British caught, had stated how it was taken and left the officers to decide under what heading it should come in.

Doubtless great quantities of oil evaded the preferential tariff barrier in this way, and the only thing to be regretted is that the dishonest trader would evade the law and prosper, while the honest would observe it and suffer, all the while England paying dearer for her oil. The Erie's oil was British seamen's wages, and the preferential tariff was robbing the whaler of a substantial portion of his remuneration. In all the cases under this legislation which we have page 271 investigated not one can be said to have benefited British trade, though the loss was cut down to a minimum by a very liberal interpretation of the statute.