837.73/31
The Acting Secretary of
State to the Minister in Cuba (
Long
)
Washington
,
January 25,
1921
.
No. 274
Sir: The Department has received your
despatches of December 24 and December 28, 1920,21 relative to the landing of
the proposed Barbados-Miami cable of the Western Union Telegraph Company
in Cuba. You state that the Legation has never been in a position to
make full representations regarding this matter as it has never been
fully informed relative to the Department’s attitude.
It has been the long-established policy of this Government to prevent
foreign cable companies that have received from foreign governments
monopolistic grants for cable connections from landing cables on our
shores. If the monopolistic grant is modified so that American cable
companies are allowed to land cables on the shores of the foreign
nation, and connect freely with the inland telegraphic system, the
objection of this Government is withdrawn. This policy was declared by
President Grant in 1869 when a French cable company attempted to land a
cable from France on the shores of the United States. The French company
had received an exclusive concession from the French Government for
laying cables between the shores of France and the United States.
President Grant prevented the landing of the cable until this exclusive
grant was modified so that companies formed in the United States for the
purpose of laying cables from its shores to the shores of France were
allowed to land in France. Further information concerning cable landings
in the United States is set forth in Senate Executive Document No. 122,
49th Congress, 2d Session, a copy of which is enclosed herewith.21a Information
on the subject may also be found in Moore’s [Page 818]
International Law Digest, Volume II, Section 227,
page 452, and in Volume 22, Opinions of Attorneys
General, Page 13.
Your attention is particularly invited to the attempt of the United
States and Hayti Telegraph and Cable Company to land a cable from Brazil
in the United States which is discussed in the enclosed copy of a letter
dated May 24, 1898, addressed by Mr. Day22 to the Attorney General,
dealing with a similar attempt to land a cable from Brazil on the shores
of the United States.
Objection was made to granting the application of the Western Union
Telegraph Company for permission to land its cable at Miami Beach,
Florida, because of the monopoly of interport cable communications
enjoyed by the Western Telegraph Company in Brazil. As this monopoly
makes it impracticable for American cable companies to land cables from
the north on the shores of Brazil, representatives of the Western Union
Telegraph Company were informed that this Department could not recommend
to the President that he issue a permit for the landing of its cable
from Barbados at Miami Beach, Florida, as this line would constitute a
link in the proposed line of the British cable company to Brazil.
When the Western Union Telegraph Company took steps indicating an
intention to land a cable at Miami Beach, Florida, without a permit, the
matter was brought to the attention of the President, and he directed
that the consideration of the Western Union’s application for a permit
should be postponed until the International Conference on Electrical
Communications could consider the general question of landing licenses
and monopolies and directed that the Departments of War, Navy and
Justice should cooperate with the Department of State to prevent an
unauthorized landing of the cable in the meantime.23
As the Western Union Telegraph Company was unable to effect a landing of
the cable at Miami Beach, it took steps to divert the cable into Cuba,
with a view to using its existing lines between Key West and Cojimar,
and the President then modified the permit issued to the Western Union
Telegraph Company on April 16, 1917, for the landing of its three cables
connecting Key West with Habana, Cuba. A photostat copy of the permit of
the Western Union Telegraph Company for the operation of these cables as
modified by the permit issued on November 20, 1920, is enclosed herewith
for your information.24
Subsequently, the Western Union Telegraph Company has instituted two
suits to obtain an injunction restraining officers of the [Page 819] Government concerned with the
matter from interfering with the landing of this cable, and also with
the laying of certain cables between Miami and Miami Beach, Florida, to
be used with the line from Miami Beach to Key West, Florida. These suits
are now pending in the Supreme Court of the District of Columbia.
The Department desires you to report promptly any developments in
connection with the attempt to land the cable from Barbados in Cuba. The
Department’s views on the subject were set forth in its telegram No. 16
of January 14, 1921.
I have [etc.]
[Enclosure]
The Secretary of
State to the Attorney
General
25
Washington
,
May 24,
1898
.
Sir: I have had the honor to consider your
letters of the 23rd of March and 5th of April last,26 touching the
disposition to be made of the suit of the United
States v: La Compagnie Française des
Cables Télégraphiques, et als., for the purpose of
enjoining the defendants from laying or maintaining a cable upon the
soil of Long Island and connecting the territory of the United
States with foreign territory. In your letter of the 23rd of March
you ask for a reply to a suggestion, which has been made to your
Department, that the suit be discontinued, it having been
represented that every right which the Government can properly claim
will be conceded by the defendants on an arrangement between the
Government, represented by this Department, and the companies,
should a discontinuance be entered. In order to present the matter
in a connected form, it will be necessary to recite certain facts
already known to your Department.
For a number of years permission was granted by the President of the
United States to cable companies to land in the United States on
certain conditions, the first of which was as follows: “That the
Company has received no exclusive concessions from the Government of
(the Government at the other end of the line) which would exclude
any other company or association which may be formed in the United
States of America from obtaining a like privilege for landing its
cable or cables on the shores of . . . . . and connecting such cable
or cables with the telegraphic systems of . . . . .”
In 1889 the Compagnie Française des Cables Télégraphiques, commonly
called the French Company, applied for permission to land at
Charleston, in South Carolina, a cable to connect the shores of the
[Page 820] United States with
those of San Domingo. The Central and South American Telegraph
Company, an American organization and an ally of the Western Union,
protested against the granting of this permission, on the ground
that the cable from San Domingo to the United States was merely a
link in a line of the French Company intended to connect the United
States with Brazil. The French Company then held, and, so far as
this Department is advised, still holds, from Brazil and certain
other South American Governments, the concession of an exclusive
right to land cables within their jurisdiction. The French Company
therefore would not have been allowed under the old conditions to
land in the United States a cable directly from Brazil.
Mr. Blaine, who was then Secretary of State, entertained the protest
of the Central and South American Telegraph Company; and in order to
prevent, as he maintained, the French Company from doing indirectly
what it could not do directly, altered the first of the standing
conditions so as to exclude from the privilege of landing a cable in
the United States, any company which “connected” with another
company having from a foreign government an exclusive privilege
which would prevent the establishment and operation of the cable of
an American Company in the jurisdiction of such foreign
government.
The French Company obviously was unable to accept this condition with
respect to its San Domingo cable, unless it relinquished its
exclusive rights in Brazil; and it finally appealed from the
Executive to Congress. A bill was introduced to allow the landing of
the cable, but it failed to pass. It was actively opposed by Mr.
Blaine.
Subsequently the United States and Hayti Telegraph and Cable Company
was formed for the purpose of effecting a connection with the San
Domingo cable at Coney Island. An application was made to the courts
of the United States for an injunction to restrain its landing.
Lacombe, Circuit Judge, on December 15, 1896, refused a motion for a
preliminary injunction, the ground of his refusal being that the
element of immediate necessity was wanting. The laying of the cable
was completed before the motion was submitted on the affidavits and
proofs. At the same time Judge Lacombe expressed the opinion that
the “main proposition” of the United States was a sound one; that,
without the consent of the general government, no one, alien or
native, had a right to establish a physical connection between the
shores of the United States and those of any foreign country; and
that the determination of this question belonged to the Executive,
in the absence of Congressional action.
[Page 821]
On the question of granting a permanent injunction there does not
appear to have been any hearing, and the attorneys of the French
Company and of the United States and Hayti Telegraph and Cable
Company now ask that the suit be dismissed: and at the same time
they offer to accept the standing conditions as they existed prior
to 1889.
Assuming now, what this offer seems to imply, that the French Company
still refuses to accept any condition which would require it to
relinquish its exclusive rights in South America, the case stands
(saving any reduction in rates) precisely as it did in 1889, except
in two particulars, (1) that the cable has actually been laid and is
in operation, and (2) that a suit for an injunction is pending
against the company because of its failure to obtain permission to
land.
Under these circumstances, the discontinuance of the suit, before an
agreement with the company had been arrived at, would seem to imply
a waiver on the part of the President, in this instance, of the
exercise of any power which he may possess to impose conditions upon
the landing of cables, and would be equivalent to a concession, for
the time being, of an unconditional right to land. The Department
could not recommend that such a step be taken, especially in view of
the court’s expression, of an opinion favorable to the Government’s
position in the suit.
Practically, therefore, we are brought back to the simple question
raised in 1889, as to whether the President shall require of the
company, as the condition of granting it permission to land its
cable in the United States, the relinquishment of so much of its
exclusive rights as would prevent the establishment and operation of
a cable of an American company in certain countries of South
America. The position taken by the Department on this question in
1889 was to all appearances deliberately assumed, and it was
afterwards steadily maintained, unless at such times as the
Department has expressed the view that the whole subject-matter was,
in the absence of legislation, beyond its cognizance. According to
the opinion of your Department, however, as expressed on the 18th of
January last by Acting Attorney General Eichards, the power of the
President in the premises is ample.27 This Department is therefore prepared,
upon the strength of that opinion as well as upon the strength of
many of its own precedents and of the opinion of Judge Lacombe, to
consider, without regard to the precise form, any proposition which
will secure to this Government the essential rights for which it has
contended. As the statement has been made to this Department that
the United States District Attorney at New York is [Page 822] in favor of dismissing the pending
suit, it is probable that he may have formed a definite opinion as
to the terms on which such action might properly be taken.
In compliance with your request, I herewith return the papers
enclosed with your letter of the 23rd of March.
Respectfully yours,
