811.7353b W 52/101: Telegram
The Secretary of State to the Chargé in Great Britain (Wheeler)
111. Reference Embassy’s despatch No. 2273, April 20th. Please make answer to Lord Curzon’s note of April 18th in the sense of the following:
(1) The views of the Government of the United States in regard to the waiver of the All America Cables Company of its exclusive [Page 290] privileges in Colombia are set forth at length in the Department’s instruction No. 799 of February 3, 1923. It may, however, be stated in review that All America Cables, Incorporated, adopted a resolution similar to one adopted by the Western Telegraph Company, Limited, by the terms of which the waiver of exclusive privileges was to become effective upon acquiescence of all governments concerned. Formal acceptance of the waiver was not required. The resolution of the company was duly presented to the Government of Colombia by a representative of the company with a petition that the Government of Colombia acquiesce in the waiver. On March 9, 1922, the Colombian Minister of Government addressed a note to the American Legation at Bogota,91 quoting a resolution issued by the Ministry in response to the petition of the company. This resolution was quoted in translation in the Department’s No. 799 of February 3rd. The American Minister acknowledged the note of the Minister of Government, expressing appreciation of the concurrence of the Government of Colombia in the petition of the company that the Government of Colombia acquiesced in the waiver. When the President signed a license authorizing the Western Union Telegraph Company to land a cable at Miami, Florida, the American Legation at Bogota was directed to inform the Government of Colombia that the President had issued the license; that the granting of the license was conditioned on waivers by both cable companies of exclusive privileges in South America and that the license was granted after satisfactory expressions had been obtained from all governments concerned regarding the waivers of the cable companies which were, in terms, effective upon acquiescence by the governments concerned. The Legation was directed further to convey to the Colombian Government an expression of appreciation of the sympathetic consideration which had been accorded the matter by the Government of Colombia.
In these circumstances the Government of the United States felt warranted in regarding the action of All America Cables, in presenting a waiver and petitioning for acquiescence, as sufficient on the part of the company and considers that the resolution of the Ministry of Government indicated acquiescence by the Government of Colombia. In this connection it may be observed that His Majesty’s Government, according to the views expressed in its note of August 18, 1922,92 apparently understood at that time that the Government of the United States withheld the license for the landing of the cable at Miami, after the requirements of the resolutions [Page 291] of the All America Cables Company and the Western Telegraph Company had been fully met by all the governments concerned.
(2) Respecting the comments of Lord Curzon with respect to the proceedings in the District Court for the Southern District of New York and in the Circuit Court of Appeals, it is true that in the lower Courts, decisions were rendered in favor of the Western Union Telegraph Company as he states, but an appeal was taken by the Government of the United States from these decisions to the Supreme Court of the United States. It is also true that no decision was rendered by the Supreme Court, the final authority to determine such questions. However, it should be added that the Supreme Court of the United States entered an order reversing the decree of the Circuit Court of Appeals in accordance with stipulations filed by the parties to the litigation and remanded the case to the District Court of the United States for the Southern District of New York with directions to enter a decree dismissing the bill without prejudice. (United States vs. Western Union Telegraph Company, 260 United States Supreme Court Reports. Page …; U. S. Supreme Court Journal, October 23, 1922.) By this action the decisions of the lower courts were rendered of no effect. In fact the Court proceedings stopped short of final action, the practice followed by the United States in controlling the landing of cables in the territory of the United States in effect being confirmed by the Congress and all further controversy on this point being rendered futile.
(3) The United States perceives no occasion for regarding the statement contained in the sixth paragraph of the Embassy’s note to the Foreign Office of December 21, 1922, that the cable from Brazil to Barbados was not laid until after the landing at Miami had been opposed by the United States as being misleading, which it appears from the third paragraph of his note Lord Curzon thought it might possibly be. The reasons for the statements to which Lord Curzon refers were fully set forth in the paragraph of the Embassy’s note mentioned, and it is clear from the information contained therein that the Western Telegraph Company, Limited, was charged with notice that cables could not be landed in the United States without a license issued by the President, notwithstanding the contention of the Western Union Telegraph Company that the executive branch of the Government had no authority to oppose the landing. The United States has not questioned the good faith of the Western Telegraph Company, Limited. It cannot, however, be claimed that either the Western Telegraph Company or the Western Union Company had the right under law to land a cable in the United States. On the contrary, the historic practice [Page 292] of the United States in that regard was well known and it had never been decided finally the other way.
(4) As to the fourth paragraph of Lord Curzon’s note, this Government does not find it necessary to repeat what has already been said.
(5) This Government is gratified to learn that His Majesty’s Government is making no proposal to restrict the normal control by Portugal of the routing of unordered telegrams originating in, or in transit through, Portuguese territory. This Government would be lacking in candor if it failed to express the surprise and concern with which it has viewed the opposition of His Majesty’s Government to the endeavors of American cable companies to secure from the Portuguese Government cable landing rights at the Azores. If this Government is correct in understanding that the British Government will no longer seek to interfere with the freedom of contract of the Portuguese Government and that it is entirely willing to leave the normal control of traffic to the Portuguese Government, this Government would be glad to receive a statement from His Majesty’s Government to that effect.
(6) There would appear to be no analogy between the contract entered into by the Government of Newfoundland and the Commercial Cable Company and the state of affairs which obtains at the Azores. The subject of this correspondence is the action of His Majesty’s Government in seeking to interpose its influence against the legitimate efforts of American cable companies to obtain concessions in the Azores and the opposition of His Majesty’s Government to the granting of concessions in the Azores except on terms approved by British cable companies and His Majesty’s Government and with conditions restricting the traffic which American cable companies may carry. To this interference with and opposition to transactions between the Portuguese Government and American cable companies, there is nothing to correspond in the relations between the Government of Newfoundland and the Commercial Cable Company, and it is this interference and opposition exerted by His Majesty’s Government outside its jurisdiction which this Government has deeply regretted as being entirely without warrant.
(7) This Government has examined the contents of Lord Curzon’s note with the greatest care and confesses its inability to find points pertinent to the particular issues involved. This Government is loath to infer from the statement in the seventh paragraph of the note under reference that the British Government would be disposed to continue to interfere with the freedom of action of the Portuguese Government in this relation, or that it is intended by the reference to negotiations between the American and British companies to [Page 293] imply that American cable companies may not, themselves, seek permission to land their cables in the territory of another friendly Power, in which it is understood British cable companies enjoy no contractual rights of a privileged or exclusive character, or that it is the purpose of His Majesty’s Government to impose a limitation on the character of the traffic that may be carried by the American companies as compared with British companies through enforced agreement of American cable companies with British cable companies. This Government fails to comprehend on what grounds the influence of His Majesty’s Government can be exerted against the American cable companies and earnestly hopes that His Majesty’s Government will refrain from further opposition to American enterprise at the Azores.
Mail to Legation at Lisbon copy of your note to the Foreign Office.