The question having been fully covered in my telegram above referred to,
I can only add that there is a manifest intention on the part of the
Polish authorities to avoid considering this question on any broad and
generous grounds and to consider only the technical phases of the matter
with a view to withholding the privileges desired.
[Enclosure—Translation]
The Polish Minister for Foreign Affairs
(Skrzynski) to the American
Minister (Gibson)
Warsaw, May 15,
1923.
No. D/II. O. A. 1592
Dear Mr. Minister: In answer to the Note of
Your Excellency dated April 26, 1923, No. 2211, in which you
transmitted to me an official communication from your Government
concerning the point of view of the Government of the United States
on the question of a concession to be granted by the Polish
Government to the navigation company “United States Lines”, I have
the honor to inform you that the contents of the above mentioned
note have been carefully scrutinized by the competent
authorities.
The Polish Government in view of requests for concessions from
“various navigation companies had decided in principle to grant
concessions on the basis of entire equality to all these companies.
This is why the Polish Government was deeply concerned by the
allegation of pretended discrimination which the interests of the
American companies are said to have suffered.
In the concession granted to the “United States Lines” on December
31, 1921, the latter was authorized to sell second and third class
tickets to Polish emigrants going to the United States by a shuttle
line from Danzig via Hamburg.
The other companies obtained the concession to sell tickets partly
(60 to 50 percent) from Danzig to American ports and partly from
other European ports excepting, of course, the German ports. This
provisional ruling was forced upon the Polish Government because of
the temporary lack of capacity of the port of Danzig to serve as the
sole base for Polish emigrants.
In seeking auxiliary ports the Polish Government could only take into
consideration ports which by their geographic situation could not in
future threaten Danzig with serious competition.
The permission to make use of German ports as transshipping ports
which has been granted to the United States Lines absolutely
exceptionally cannot therefore be looked upon as a voluntary breach
made in the maritime policy of Poland. Such a decision was only
dictated by a sincere desire to extend facilities to American
companies in their work in Poland, and in fact did not fail to be
the object of symptomatic protests from other navigation
companies.
It is with great surprise, therefore, in view of the above that the
Polish Government found in the note of the American Government the
expression “discrimination” from which the interests of the American
navigation companies are alleged to be suffering.
[Page 749]
Treatment on a footing of the most favored nation in the absolute
sense of the word consists in all favor or privileges granted to a
third state on this score being guaranteed to the other contracting
party. As a matter of fact Poland having no treaty with the United
States the latter can not invoke, judicially speaking, the most
favored nation treatment.
Nevertheless Poland desires to grant, even without any convention, to
the United States in the matter of navigation the same treatment as
that granted to other nations. Poland would be ready to grant to the
United States that which in this province it has conceded to other
nations in its commercial treaties.
In no case can I admit the thesis according to which Poland is
alleged to discriminate against the United States, that is to say
that it would place them or more exactly it would place the American
Navigation Company under less advantageous conditions.
The idea of discrimination implies a conscious action tending by
special measures to placing a company in a situation of inferiority
which in fact would consist in conditions less advantageous than
those which other nations enjoy. But this is not the attitude of
Poland toward the United States. Although it has no treaty with the
United States, Poland grants the American Navigation Company the
same conditions that it grants to the companies of other countries:
it allows the embarkation of emigrants in all the ports of Western
Europe with the exception of the German ports. Consequently, from a
judicial point of view Poland cannot admit the unjustified reproach
of discrimination.
In economic relations it often happens that one of the contracting
parties which formerly enjoyed the same advantages as the other
cannot in fact take advantage of this equality of treatment for
reasons which are independent of the party with which it enters into
contract. This happens most often in the matter of customs duties.
Nevertheless such occurrences have never given rise to allegations
of discriminations. A treaty of commerce based on the principle of
the most favored nation can never guarantee effective equality but
only the equality of privilege as compared to the equality of
restriction.
It is in this way that the question appears in the present instance.
Poland is not responsible by the fact that the American Navigation
Company has embarkation ports in Germany. Poland excludes the German
ports from any concessions granted navigation companies. In applying
this condition to the American Navigation Company Poland in no way
departs from the principle of equal treatment which it desires to
grant to the United States, although it has no navigation treaty
with them.
[Page 750]
Although privileged in this way the company “United States Lines”
considers itself damaged in comparison with other navigation
companies. There can evidently be no question of the principle of
base ports (home ports), the Polish Government having absolutely
decided that to facilitate Polish emigrants in view of the actual
lack of capacity of the port of Danzig the use of auxiliary ports is
imperative. Among the latter, however, the ports of Bremen, Hamburg
and Koenigsburg can never be included. Thus the British company,
“Royal Mail Steam Packet Co.”, has obtained a concession for
transporting emigrants through the ports of Danzig, Rotterdam and
Cherbourg; the English company, “Cunard Steam Ship Co.” through
Danzig and Cherbourg; and the Canadian company, “White Star Line”
via Danzig and Cherbourg. Other similar cases of concessions could
also be cited.
Allow me to express the hope that the Government of the United States
will be willing to admit that the point of view set forth in the
present note is well founded as this note has for its object the
clearing up of misunderstandings which had arisen for it is not
conceivable that the Polish Government could have wished to make use
of discrimination from which American interests would have
suffered.
Please accept [etc.]
For the Minister for Foreign Affairs:
Henryk Strassburger
