811.7353b W 52/101

The Ambassador in Great Britain (Harvey) to the Secretary of State

No. 2273

Sir: With reference to my telegram No. 117, of April 19, 5 p.m., 1923,79 I have the honor to forward herewith copy, in triplicate, of the Foreign Office Note No. A 2051/319/45, of April 18, 1923, relative to the Azores cable situation.

I have [etc.]

For the Ambassador:
Post Wheeler

The British Secretary of State for Foreign Affairs (Curzon) to the American Ambassador (Harvey)

No. A 2051/319/45

Your Excellency: On receipt of Your Excellency’s note No. 593 of the 20th February last,80 I requested His Majesty’s Minister at Bogotá to report on the present position of the waiver by the All-America Cables Company of their exclusive rights in Colombia. Lord Herbert Hervey replied on the 16th ultimo that the Colombian Government did not consider that they had received formal notice of renunciation by the cable company and that his United States colleague was informing your government in order that action might be taken by the company. In thus confirming the statement contained in my note of November 14th last81 to which you took exception, I have the honour to make the following further observations respecting the points mentioned in your note under reply and that of December 21st last,82 in regard to which there is still some disagreement between our two Governments.

I may perhaps be excused for not understanding the practice of the United States Government in connection with the issue of landing licenses (as suggested in paragraph 5 of your note of [Page 284] December 21st) seeing that Mr. Norman Davis, when Under-Secretary of State, in giving evidence before the Interstate Commerce Committee on December 15th, 1920 (S. 4301, page 6)83 said that the authority of the President to control the landing of a cable “has never been specifically passed upon and determined by the court of last resort”. The Committee, after hearing the evidence of Mr. Norman Davis and others, reported a bill which was introduced in the House of Representatives by Mr. J. Stanley Webster on May 18th 1921. Mr. Webster said, in part, referring to the attempt made by the United States Government in the Federal Court for the southern district of New York to restrain the Western Union Company from landing their cable at Miami, “Judge Hand of that Court seems to have held that there is no authority vested in the President of the United States to control the matter of cable landings especially where the case is one involving an American company which has complied with the provisions of the so-called post roads Act of July 24th, 1866. The case was appealed to the circuit court of appeals for the second circuit and the opinion of Judge Hand was affirmed. The United States has appealed the case to the Supreme Court where it has been fully presented and is now under submission for final decision.” (Congressional Record May 20th[18th], 1921, p. 1592 [1541]).84 Consequently, with reference to the last sentence of the same paragraph of your note, the practice of the United States Government, so far as any judicial decisions show, seems also to have been based on a misunderstanding. The remainder of the debate on the occasion to which I have referred, showed that the United States Government urgently desired the passage of the bill lest the Supreme Court should confirm Judge Hand’s decision (Congressional Record May 20th[18th], 1921, pp. 1545[1539] et seq.) and that one of the chief objections to the Miami landing was that it would enable a British company to “get into the United States” (Record pp. 1554 and 1555 [1550]).
The statement in paragraph 6 of your note of December 21st that the cable from Brazil to Barbados was not laid until after the landing at Miami had been opposed by the United States Government is possibly somewhat misleading. The contention of the Western Union Company, subsequently upheld in the Courts as stated above, was that the State Department had no authority to oppose the landing; [Page 285] even if it had such authority, the date on which its opposition was officially manifested remained in dispute (see S. 4301). The facts with regard to the cable itself are that the section to Maranham was laid prior to July 1920: the remaining section was on board the “Colonia”, which laid the Barbados-Miami Cable, and therefore could not be laid till after the “Colonia” reached Barbados from Miami. None the less the Western Company had long been committed to the expenditure on the cable (see pages 107, 311, 312 of S. 4301), and, I venture to think, my original proposition holds good, namely that the Company were faced with the loss of an investment of three million dollars made in good faith and in reliance upon the existing law of the United States.
I have again referred at some length to the essential points of the Miami incident because the statements contained in your two notes required a careful re-examination of the facts upon which His Majesty’s Government based their impression of the attitude of the United States towards a British cable company. I greatly regret that nothing transpires which would justify any modification in the proposals contained in my note of November 14th last.
I observe, however, that your government consider “that if American cable companies are able to establish a more efficient service at better rates than their British competitors maintain, they, and those who employ cables in the transaction of their business, are entitled to the benefit of their enterprise, and should not be deprived of them by artificial restrictions, such as His Majesty’s Government propose to place on American companies”. This statement seems to be based on a misunderstanding, seeing that no proposal is being made to restrict the normal control by the Portuguese Telegraph Administration of the routing of unordered telegrams originating in, or in transit through, its territory.
In this connection I would remind you that the Newfoundland Government has recently concluded an agreement with one of the United States companies competing with the British Imperial cables for trans-Atlantic traffic, whereby all the unordered traffic from Newfoundland for Great Britain and places beyond, including the continent of Europe, is to be handed over to that company for fifteen years. I presume the United States Government are aware of this transaction and I should be glad to learn in what way it differs in their opinion from the arrangements at the Azores to which they object, except that at the Azores the unordered traffic would be sent by British cables and at Newfoundland by a United States cable.
In order that there may be no further misunderstanding with regard to the attitude of His Majesty’s Government, I take this opportunity [Page 286] to repeat that they are quite willing to leave the matter to the discretion of the Portuguese Government after free negotiation between the British and United States companies, if the United States Government is prepared to adopt that course.

I have [etc.]

Curzon of Kedleston
  1. Not printed.
  2. See instruction no. 799, Feb. 3, 1923, to the Ambassador in Great Britain, p. 271.
  3. Foreign Relations, 1922, vol. ii, p. 381.
  4. See instruction no. 746, Dec. 6, 1922, ibid., p. 383.
  5. Cable-Landing Licenses: Hearings before a subcommittee of the Committee on Interstate Commerce, U. S. Senate, 66th Cong., 3d sess., on S. 4301 (Washington, Government Printing Office, 1921).
  6. In this and later references to the Congressional Record, the paging given in the British note is that of the unbound copies. The corresponding page numbers in the bound volumes are here inserted in brackets.