Papers Relating to the Foreign relations of the United States, 1927, Volume II

611.62 m 31/38a

Memorandum by the Solicitor for the Department of State (Hackworth)

[Washington,] April 30, 1926.

The Department in 1920, through the American Embassy at London, brought to the attention of the British Government certain discriminatory tariff duties which had been imposed on American imports in that part of Samoa under the Mandate of New Zealand, and expressed the view that such duties were being levied in contravention of Article III of the Convention to Adjust the Question between the United States, Germany, and Great Britain in Respect to the Samoan Islands, concluded December 2, 1899.¹⁴ Article III of the Convention in question provides as follows:

“It is understood and agreed that each of the three signatory Powers shall continue to enjoy, in respect to their commerce and commercial vessels, in all the islands of the Samoan group privileges and conditions equal to those enjoyed by the sovereign Power, in all ports which may be open to the commerce of either of them.”

Several communications were exchanged between the Embassy and the British Foreign Office regarding the matter and finally in a note, dated June 30, 1924, the Foreign Office informed the Embassy¹⁵ that the New Zealand authorities had invited attention to the fact that owing to the operation of the coastwise laws of the United States, British vessels trading between New Zealand and the United States were not permitted to carry goods and passengers between American Samoa and ports of the United States under the same conditions as American vessels. The New Zealand authorities, in a telegram which accompanied the British note referred to, pointed out that these restrictions upon British shipping in American Samoa were at least as inconsistent with the Convention of 1899 as were the British preferential duties in Western Samoa. They stated:

“If the Government of the United States definitely concede that New Zealand ships and all British ships are entitled to carry goods and passengers between American ports and ports of American Samoa, and that British shipping will receive exactly the same treatment in all other respects in such trade as American ships, both in American Samoa and in United States ports, then the New Zealand Government will reciprocally legislate to place American imports in the same position as the British imports in Western Samoa.”

Prior to the enactment of the Act approved June 5, 1920, known as the Merchant Marine Act, 1920,¹⁶ British vessels were permitted to carry passengers and merchandise between the ports of American Samoa and the United States. However, in 1923, the Governor of American Samoa advised the Navy Department (under whose administration the island had been placed by Executive Order¹⁷) that in his judgment Article III of the Convention of 1899 was contravened in part by Section 21 of the Merchant Marine Act of 1920 and that, consequently, unless the Navy Department directed otherwise, no British or other foreign vessel would be permitted to carry merchandise between American Samoa and the United States. The matter was referred to this Department by the Secretary of the Navy¹⁸ and this Department, under date of June 6, 1923, replied in part as follows:

“It is not within the province of this Department to pass upon the question whether the coastwise laws of the United States are by virtue of Section 21 of the Merchant Marine Act, 1920, extended to American Samoa. Irrespective of the applicability of Section 21 to American Samoa, British subjects are, under Article III of the Convention referred to, entitled to enjoy with respect to their commerce and commercial vessels in all the ports of American Samoa open to commerce, privileges and conditions equal to those enjoyed by citizens of the United States.

“With respect to the contention of the Governor of American Samoa that Article III of the Convention referred to is superseded in part by Section 21 of the Merchant Marine Act, I may state that although the Department is aware that the courts have declared that when a treaty is inconsistent with a subsequent act of Congress the latter prevails, yet it may be observed that a judicial determination that an act of Congress is to prevail over a treaty does not relieve the Government of the United States of the obligations established by a treaty. When treaty obligations are disregarded a claim may be made to which the existence of domestic legislation does not constitute a defense. If such a claim were well founded and other methods of settlement failed, the usual recourse would be to an arbitration in which international rules of action and obligations would be the subject of consideration.

“For reasons indicated in the foregoing I deem it desirable that British subjects be accorded with respect to their commerce and vessels the same treatment in Samoa as is accorded American citizens and vessels.”

Section 21 of the Merchant Marine Act of 1920 provides in part as follows:

“That from and after February 1, 1922, the coastwise laws of the United States shall extend to the Island Territories and possessions of the United States not now covered thereby, and the board is directed prior to the expiration of such year to have established adequate steamship service at reasonable rates to accommodate the commerce and the passenger travel of said islands and to maintain and operate such service until it can be taken over and operated and maintained upon satisfactory terms by private capital and enterprise: Provided, That if adequate shipping service is not established by February 1, 1922, the President shall extend the period herein allowed for the establishment of such service in the case of any island Territory or possession for such time as may be necessary for the establishment of adequate shipping facilities therefor”:

The President has not extended the period as provided by the section above quoted for the establishment of shipping service in the case of American Samoa, and it would seem, therefore, that if the section is applicable thereto the coastwise laws of the United States extend to that island territory or possession.

The note from the British Foreign Office presents two questions for consideration: first, whether Article III of the Convention confers the right upon British vessels irrespective of Section 21 of the Act in question to engage in the coastwise trade between American Samoa and the United States and, second, if such is the case, whether Article III is for domestic purposes superseded by this section, in which event, British vessels irrespective of the privileges theretofore enjoyed in that regard, may no longer engage in such coastwise trade.

The questions under consideration have been referred to the Navy and Treasury Departments, the Department of Commerce and the Shipping Board for an expression of their views and copies of the replies received are hereto attached.¹⁹ Neither the Treasury Department nor the Department of Commerce has considered that it was in a position to express an opinion on the subject. While the Navy Department and the Shipping Board are not in agreement with respect to the first question presented, both concur in the view that Section 21 of the Merchant Marine Act being of later date, supersedes Article III of the Convention, and, therefore, British vessels are not entitled to engage in the transportation of merchandise and passengers between ports of American Samoa and the United States.

Considering the first question presented, namely, whether irrespective of Section 21, Article III of the Convention confers upon British vessels the right to carry merchandise and passengers between the ports of American Samoa and the United States, it will be noted that the article in question stipulates that the signatory Powers shall continue to enjoy, in respect to their commerce and commercial vessels, privileges and conditions equal to those enjoyed by the sovereign Power in all ports in Samoa open to commerce. At the time the Convention was concluded British vessels might transport merchandise and passengers between the United States and the Samoan Islands without restriction and in fact continued freely to engage in such commerce on equal terms with the American vessels until 1923. The provision in Article III that signatory Powers should continue to enjoy privileges and conditions equal to those enjoyed by the sovereign Power is an indication of an intention upon the part of the signatories that so far as commerce and commercial vessels were concerned the status existing at the time the Convention was concluded should irrespective of the partition of the islands be maintained. Although the Convention provides that such privileges and conditions are to be enjoyed “in all ports” of American Samoa, it is difficult to escape the conclusion that the language used in Article III is sufficiently broad to cover the transportation of merchandise between such ports and the United States, particularly in the light of the generally recognized rule that treaties entered into between friendly powers are to be given a liberal interpretation. As stated by the Supreme Court in the case of Geofroy vs. Riggs (133 U. S. 258)

“It is a general principle of construction, with respect to treaties, that they shall be liberally construed, so as to carry out the apparent intention of the parties to secure equality and reciprocity between them. As they are contracts between independent nations, in their construction, words are to be taken in their ordinary meaning, as understood in the public law of nations, and not in any artificial or special sense impressed upon them by local law, unless such restricted sense is equally [clearly] intended. And it has been held by this court that where a treaty admits of two constructions, one restrictive of rights that may be claimed under it, and the other favorable to them, the latter is to be preferred.”

An enlarged signification was, early in our national history imparted to the term “commerce” by Chief Justice Marshall in the case of Gibbons vs. Ogden (9 Wheaton 1) in which he defined the term as employed in the Constitution of the United States as follows:—

“Commerce undoubtedly is trade but it is something more: it is intercourse; it describes the common [commercial] intercourse between nations and parts of nations in all its branches and is regulated by prescribing rules for carrying on that intercourse.”

This enlarged meaning of the term “commerce” was subsequently adopted by the Supreme Court of the United States in the case of Welton vs. Missouri (91 U. S. 280). In that case the Court stated:

“Commerce is a term of the largest import which comprehends intercourse for the purposes of trade in any and all its forms including the transportation, purchase, sale and exchange of commodities between the citizens of our country and the citizens or subjects of foreign countries and between the citizens of different States.”

If a British vessel carrying cargo from a port in the United States were to enter a port of American Samoa, and there be denied the privilege of landing such cargo except under the penalty of forfeiture imposed by the coastwise laws of the United States, while under similar conditions an American vessel were permitted to land its cargo free from penalty, it could hardly be maintained that the British vessel had been permitted to enjoy in the Samoan port privileges and conditions equal to those enjoyed by the vessel of the United States. If on the other hand a British vessel in a Samoan port were permitted to load a cargo destined for a port of the United States, it might doubtless be urged that the denial of the right to land the cargo in an American port would not, at least technically, constitute a violation of the stipulations of the treaty. However, the denial of the privilege of unloading the cargo in an American port under the conditions stated would inevitably result in British vessels in Samoa discontinuing the loading of merchandise destined for the United States and to this extent participation by British ships in Commerce in ports of American Samoa would be interfered with and Great Britain would be denied the enjoyment of privileges and conditions in Samoa equal to those enjoyed by American Commerce. In any event, in causing a forfeiture of the cargo transported from American Samoa in a British vessel, this Government would be laying itself open to the charge that it was seeking by indirection to do that which could not be directly accomplished and such action, if technically within the letter of the Convention, certainly would be regarded as in contravention of the spirit of it.

If Article III of the Convention of 1899 is susceptible of the interpretation that British vessels were, prior to the passage of the Merchant Marine Act of 1920, entitled to engage in the transportation of merchandise between American Samoa and the United States, there remains to be considered whether the provisions of Section 21 of the Act have superseded the provisions of the Convention.

The Shipping Board and the Navy Department in holding that Article III of the Convention is abrogated by the section of the Act referred to rely upon the familiar rule of the courts that a treaty is subject to such acts as Congress may pass for its enforcement, modification or repeal and, that when a subsequent Act of Congress is inconsistent with a treaty, the former prevails.

In the Head Money Gases (112 U. S. 599), the Supreme Court of the United States stated in part,

“In short, we are of opinion that, so far as a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement, modification or repeal.”

In the case of Whitney vs. Robertson (124 U. S. 190) in which the question of the effect of the treaty concluded February 8, 1867 with the Dominican Republic²⁰ was considered, the Supreme Court of the United States stated in part:

“…²¹ If the treaty contains stipulations which are self-executing, that is, require no legislation to make them operative, to that extent they have the force and effect of a legislative enactment. Congress may modify such provisions, so far as they bind the United States, or supersede them altogether. By the Constitution a treaty is placed on the same footing and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other. When the two relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either; but if the two are inconsistent, the one last in date will control the other, provided always the stipulation of the treaty on the subject is self-executing. If the country with which the treaty is made is dissatisfied with the action of the legislative Department, it may present its complaint to the executive head of the government, and take such other measures as it may deem essential for the protection of its interests. The courts can afford no redress. Whether the complaining nation has just cause of complaint, or our country was justified in its legislation, are not matters for judicial cognizance.”

The principles announced by the Supreme Court of the United States in the foregoing cases clearly establish that for municipal purposes treaties may be superseded by Acts of Congress. This principle if applicable to the present case would seem to support the contention that Article III of the Convention is impliedly superseded by Section 21 of the Merchant Marine Act. That Act, however, does not refer to the Article of the Convention and a question suggests itself whether it was the intention of Congress in extending in general terms the coastwise laws of the United States to the island territories and possessions, to interfere with the treaty obligations of this Government. In ascertaining the intention of Congress and the effect, if any, upon the privileges conferred by the Convention upon British vessels by the enactment of the legislation in question, it will be helpful to apply certain generally recognized rules of statutory construction.

While Congress may for domestic purposes nullify a treaty previously concluded with another nation, the courts have held that:—

“the purpose by statute to abrogate a treaty or any designated part of a treaty … must not lightly be assumed but must appear clearly and distinctly from the words used in the Statute or the treaty.” (U. S. vs. Lee Ten Tai, 185 U. S. 213)

Moreover, repeals by implication are neither favored nor presumed. As stated by the Supreme Court of the United States in the case of Chew Heong vs. United States (112 U. S. 549);

“…²² The utmost that could be said, in the case supposed, would be, that there was an apparent conflict between the mere words of the statute and the treaty, and that, by implication, the latter, so far as the people and the courts of this country were concerned, was abrogated in respect of that class of Chinese laborers to whom was secured the right to go and come at pleasure. But even in the case of statutes, whose repeal or modification involves no question of good faith with the government or people of other countries, the rule is well settled that repeals by implication are not favored, and are never admitted where the former can stand with the new act. Ex parte Yerger, 8 Wall. 85, 105.”

It is also a generally recognized rule of statutory construction that a later statute general in its terms and not expressly repealing a prior special statute will not ordinarily affect the special provisions of the earlier statute. In the case of Rodgers vs. U.S.., 185 U. S. 83, the Supreme Court stated:

“It is a canon of statutory construction that a later statute, general in its terms and not expressly repealing a prior special statute, will ordinarily not affect the special provisions of such earlier statute. In other words, where there are two statutes, the earlier special and the later general—the terms of the general broad enough to include the matter provided for in the special—the fact that one is special and the other is general creates a presumption that the special is to be considered as remaining an exception to the general, and the general will not be understood as repealing the special, unless a repeal is expressly named, or unless the provisions of the general are manifestly inconsistent with those of the special.”

To the same effect is the rule announced in the case of the U. S. v. Nix (189 U. S. 199), in which the Supreme Court stated in part:

“The rule of statutory construction is well settled that a general act is not to be construed as applying to cases covered by a prior special act upon the same subject. On this principle we held in Townsend v. Little, 109 U. S. 504, that special and general statutory provisions may subsist together, the former qualifying the latter.”

It seems to be a general rule of construction in the case of revenue statutes that:

“specific provisions for duties on a particular article are not repealed or affected by the general words of a subsequent statute, although the language is sufficiently broad to cover the article first mentioned.” (Movius v. Arthur, 95 U. S. 144).

Applying the foregoing rules of construction to the case under consideration, it will be noted that while certain acts and parts of acts enumerated in Section 2 of the Merchant Marine Act are thereby repealed, subject to certain conditions and exceptions, no mention is made in that section or elsewhere in the Act of the Convention of 1899 and such an omission may be said to imply the absence of intention upon the part of Congress to interfere with any of the provisions of the Convention in question.

As possibly bearing on the question whether Congress contemplated the repeal of the Treaty of 1899, reference is made to Section 34 of the Merchant Marine Act which provides that:

“Treaties or conventions to which the United States is a party which restrict the right of the United States to impose discriminating customs duties on imports entering the United States in foreign vessels and in vessels of the United States, and which also restrict the right of the United States to impose discriminatory tonnage duties on foreign vessels and on vessels of the United States entering the United States shall be terminated, and the President is hereby authorized and directed to give notice to the foreign governments to terminate such treaties as may be provided in the provisions thereof.”

Without discussing whether the section quoted has application to the Treaty of 1899, it may be observed that the notices of termination contemplated by Section 34 have not been given with respect to any treaty to which the United States is a party and that the Treaty of 1899 contains no provision for termination on notice by any of the signatories.

Moreover, Section 21 extending the coastwise laws of the United States to the island territories and possessions not covered thereby is a statute general in its terms, whereas Article III of the Convention is in the nature of special legislation. If the rule of construction referred to above is applicable to the present case, it might, perhaps be possible to interpret Article 21 as prohibiting in general all vessels of foreign registry from carrying merchandise between the ports of American Samoa and the United States, or between the ports of that possession, subject to the special privileges and conditions conferred by the Convention upon the commerce and commercial vessels of Great Britain.

It is noted that the Shipping Board has taken the position that inasmuch as a reference to the coasting trade was not included in Article III, it should never be presumed in the absence of a clear intent that a sovereign Power has estopped itself from exercising its rights of sovereignty, especially when such rights relate to a well known and long established national policy. Irrespective of the question whether the presumption referred to by the Shipping Board is well founded in fact or in law, it does not seem necessary in the present case to consider the force or effect of such a presumption for the reason that prior to the conclusion of the Convention the United States exercised no sovereign rights over American Samoa, but only acquired sovereignty over such territory by virtue of the renunciation by Great Britain and Germany in Article II of the Convention of their rights and claims to such territory. The consideration for renunciation of territorial rights by Great Britain and Germany was not confined to the renunciation by the United States of its rights to the territory which those nations received under the Convention, but included the guarantee given in Article III of the Convention that in the territory over which sovereignty was thus acquired, British and German commerce and vessels were to enjoy privileges and conditions equal to those enjoyed by the United States. As stated by Attorney General Gushing (6 Op. Attorney Gen. 148).

“Now, in the treaties and conventions between nations, the general doctrine is that any special advantage conceded by a party under any one article of the contract is in consideration of all the advantages enjoyed by the same party under that and all other articles of the treaty. Each particular article is consented to by each party in consideration of all the other articles, and all the articles united form the consideration of each particular article.

“Vattel lays down the rule as follows:²³—‘We cannot consider the several articles of the same treaty as so many distinct and independent treaties; for, though we do not see any immediate connection between some of those articles, they are all connected by this common relation, viz.: that the contracting powers have agreed to some of them in consideration of the others, and by way of compensation. I would, perhaps, never have consented to this article, if my ally had not granted me another, which in its own nature has no relation to it. Everything, therefore, which is comprehended in the same treaty, is of the same force and nature as a reciprocal promise, unless where a formal exception is made to the contrary.’”

Under the circumstances related, the presumption relied upon by the Shipping Board would seem to have little, if any weight.

In the absence of a clear intention upon the part of Congress, that Article III of the Convention should be superseded by Section 21 of the Act, it would seem advisable that the section should be interpreted if it can be done in accordance with the accepted rules of construction, so as not to disturb the reciprocal privilege with respect to commerce in Samoan ports enjoyed by British and American vessels, under the Convention of 1899.

G[reen] H. H[ackworth]

14. Ibid., 1899, p. 667.
15. Ibid., 1924, vol. ii, p. 243.
16. 41 Stat. 988.
17. Of Feb. 19, 1900; quoted in American Samoa, A General Report by the Governor (Washington, Government Printing Office, 1922), p. 10.
18. By letter of Apr. 28, 1923, not printed (file No. 611.62 m 31/30).
19. Enclosures not printed.
20. Malloy, Treaties, 1776–1909, vol. i, p. 403.
21. Omission indicated in the memorandum.
22. Omission indicated in the original memorandum.
23. Edward D. Ingraham (ed.), The Law of Nations; or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns (From the French of Monsieur de Vattel; from the new edition, by Joseph Chitty, Esq.), with additional notes and references (Philadelphia, T. & J. W. Johnson & Co., 1883), book ii, ch. xiii, sec. 202, 6th sentence, p. 215.