The Minister in Poland ( Gibson ) to the Secretary of State

No. 1658

Sir: With reference to my despatch No. 1620 of April 27th10 transmitting copy of my note of April 26th to the Ministry for Foreign Affairs11 in regard to the question of a license for the United States Lines, I have the honor to transmit herewith enclosed copy and translation of a reply to that note which has today been received from the Ministry for Foreign Affairs. I have reported the substance of this note, together with certain comments, in my telegram No. 97 of May 16th, 7 p.m.10

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.

I have [etc.]

Hugh Gibson
[Page 748]

The Polish Minister for Foreign Affairs ( Skrzynski ) to the American Minister ( Gibson )

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.

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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.

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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
  1. Not printed.
  2. See telegram no. 34, Apr. 23, to the Minister in Poland, supra.
  3. Not printed.