611.62 m 31/38a

The Secretary of State to the Attorney General

Sir: I have the honor to request an opinion from your Department on the following questions: [Page 769]

Did Article III of the Convention to Adjust the Question in Respect to the Samoan Islands Between the United States, Germany and Great Britain, concluded on December 2, 1899, confer on British vessels the right to engage in the coastwise trade between American Samoa and the United States? The article provides that:

“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.”

If the above question is answered affirmatively did Section 21 of the Act of June 5, 1920 (Merchant Marine Act, 41 Stat. L. 997) supersede, as a matter of municipal law, Article III of the Convention of 1899 and thereby terminate the right conferred by that Article on British vessels to engage in the coastwise trade between American Samoa and the United States? Section 21 of the Act 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 provided by the Section above quoted for the establishment of shipping service in the case of American Samoa and if Section 21 is applicable thereto, the coastwise laws of the United States would seem to have been extended to American Samoa.

These questions have arisen in the course of correspondence now being conducted between this Government and the Government of Great Britain respecting certain discriminatory tariff duties imposed on American imports in that part of Samoa under mandate of New Zealand. In reply to the claim of this Government that the discriminatory duties mentioned were in contravention of Article III of the Treaty of 1899 above referred to, the New Zealand authorities 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 the United States under the same [Page 770] conditions as American vessels and that this restriction was at least as inconsistent with the Convention of 1899 as the British preferential duties in Western Samoa. They added that24

“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.”

Your opinion on the questions herein submitted is desired for the Department’s guidance in its further consideration of the above quoted proposal of the New Zealand authorities and in view of the desirability of disposing of the matter as soon as practicable, I should be grateful to be informed of your views on the questions at your early convenience.

I enclose herewith a memorandum on the subject by the Solicitor for this Department25 and copies of the correspondence mentioned therein,26 together with copies of the Act of June 5, 1920 and the Treaty respecting Samoa concluded on December 2, 1899 between the United States, Germany and Great Britain.

I have [etc.]

Frank B. Kellogg
  1. Paragraph numbered 5, Foreign Relations, 1924, vol. ii, p. 246.
  2. Supra.
  3. Not printed.