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

611.62 m 31/42

The Attorney General to the Secretary of State

Washington , January 27, 1927 .

Sir: I have the honor to acknowledge your letter of May 1st last, in which you request an opinion upon the following questions:

1. 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 coastwise trade between American Samoan Islands and the United States?

2. 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?

Accompanying your memorandum were copies of opinions submitted by the Solicitor of the Department of State,²⁷ the Judge Advocate General of the Navy²⁸ and counsel for the United States Shipping Board.²⁸

The Convention in question was entered into by the United States of America, Germany and Great Britain and sought to adjust amicably the questions between the three governments in respect to the Samoan group of islands. The Convention was signed December 2, 1899, subsequently ratified and ratifications exchanged February 16, 1900. Section III of this Convention, which gives rise to the questions asked, reads as follows (31 Stat. 1878, 1879):

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.

From your letter and the accompanying papers it appears that at the time this Convention was entered into vessels of British registry were plying and transporting merchandise between American Pacific Coast ports and the several ports of the Samoan Islands, including the ports over and in respect to which Germany and Great Britain by the Convention of 1899 renounced all rights and claims in favor of the United States, and continued to do so until after the passage of the Act presently to be considered.

On June 5, 1920, however, Congress enacted the Merchant Marine Act, Section 21 of which provides in part as follows (Ch. 250, 41 Stat. 988, 997):

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 establishinent of adequate shipping facilities therefor: …²⁹

By Section 27 it was provided:

That no merchandise shall be transported by water, or by land and water, on penalty of forfeiture thereof, between points in the United States, including Districts, Territories, and possessions thereof embraced within the coastwise laws, either directly or via a foreign port, or for any part of the transportation, in any other vessel than a vessel built in and documented under the laws of the United States and owned by persons who are citizens of the United States, or vessels to which the privilege of engaging in the coastwise trade is extended by section 18 or 22 of this Act: …^29a

The provisions of Section 18 are not material to the present inquiry. Section 22 relates to Hawaii and is considered hereinafter. The President has not extended the period provided by Section 21 for the establishment of the shipping service in the case of American Samoa. In 1923 the Governor of American Samoa advised the Navy Department (under whose administration the Islands had been placed by Executive Order) that unless otherwise directed by the Navy Department, no British or other foreign vessel would be permitted to carry merchandise between continental ports of the United States and American Samoan ports.

In December, 1920, 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 those ports of Samoa under mandate to New Zealand and expressed the view that such duties were being levied in contravention of Article III of the Convention of 1899. This resulted in several communications being exchanged between the Embassy and the British foreign office culminating in a note dated June 30, 1924,³⁰ in which the foreign office informed the Embassy that the New Zealand authorities had invited attention to the fact that owing to the extension of our coastwise laws to the Samoan Islands, 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 on the same terms and conditions as American vessels; and pointed out that these restrictions upon British shipping in American Samoa were at least as inconsistent with the terms of the Convention of 1899 as were the British preferential duties in Western Samoa. They added an assurance, however, that if the Government of the United States would concede that New Zealand and all British ships were entitled to carry goods and passengers between American ports and ports of American Samoa, and to receive in both ports the same treatment as American ships, the New Zealand Government would place American imports in the same position as British imports in Western Samoa.

The first question is whether Article III of the Convention of 1899 gives to British vessels the right to transport cargo and passengers between the United States continental ports and American Samoan ports.

It is the 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; and, as stated by the United States Supreme Court in the case of Geofroy v. Biggs, 133 U. S. 258, 271:

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.

Applying this principle, it seems clear that the purpose of the Convention, as expressed in Article III, was to maintain, with respect to the commerce and commercial vessels of each of the signatory powers, the status existing at the time the Convention was concluded, notwithstanding the partition of sovereignty over the Islands. I am, therefore, of opinion that the privilege then enjoyed by British vessels of engaging in the transportation of passengers and merchandise between American Samoa and the continental United States was one which, by the terms of the Convention, they were to continue to enjoy. In reaching this conclusion I have not overlooked the words of the Convention “in respect to their commerce and commercial vessels in all the islands of the Samoan group,” for it can hardly be plausibly argued that the denial to a British vessel of the right to land in a Samoan port cargo taken on at an American continental port, except under penalty of forfeiture, is not a denial to a British vessel of a privilege enjoyed by an American vessel.

There remains the question whether the extension of our coastwise laws to our Island possessions to that extent superseded Article III of the Convention and terminated the rights secured to Great Britain thereby. Under the Constitution of the United States a treaty and a statute stand on the same footing, and if the two are inconsistent the one later in date will control. Where, however, they relate to the same subject the Court will always endeavor to construe them so as to give effect to both. Whitney v. Robertson, 124 U. S. 190, 194, 195; Botiller v. Dominguez, 130 U. S. 238, 247.

Repeals by implication are neither favored nor presumed (Chew Heong v. United States, 112 U. S. 549), and 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. Bodgers v. United States, 185 U. S. 83. While Congress may, for domestic purposes, abrogate a treaty or parts thereof, such a purpose must not lightly be assumed, but must appear clearly and distinctly from the words used in the statute or the treaty. United States v. Lee Yen Ted, 185 U. S. 213. In this case I am unable to see how Section 21 of the Merchant Marine Act, which though general in its terms is definite in its application, can be given a reasonable effect if, at the same time, the rights of British vessels secured by the Convention are to be preserved. To allow British vessels to transport passengers and merchandise between American ports is wholly inconsistent with our coastwise laws, and with the specific provisions of Section 27 of the same Act, and with the unmistakable purpose of the Act. The Act is entitled:

An Act to provide for the promotion and maintenance of the American Merchant Marine, to repeal certain emergency legislation, and provide for the disposition, regulation, and use of property acquired thereunder, and for other purposes.

It begins with the declaration that it is necessary for the national defense and for the proper growth of its foreign and domestic commerce that the United States shall have a merchant marine sufficient to carry the greater portion of its commerce and serve as a naval or military auxiliary in time of war, and it is declared to be the policy of the United States “to do whatever may be necessary to develop and encourage the maintenance of such a merchant marine.”

By Section 7 the Board was authorized and directed to investigate and determine as promptly as possible what steamship lines should be established and put in operation from ports in the United States or any territory, district or possession thereof to such world and domestic markets as in its judgment are desirable for the promotion, development, expansion and maintenance of the foreign and coastwise trade of the United States with a view to furnishing adequate, regular, certain and permanent service.

In addition to the provisions of Section 21 already quoted, that section contains a proviso that the preceding provisions of the section shall not take effect with reference to the Philippine Islands until the President, after a full investigation of the local needs and conditions, shall by proclamation declare that an adequate shipping service has been established, as provided by the Act, and fix a date for the going into effect of the same.

By Section 22, the Act of October 6, 1917,³¹ giving the Board power to suspend provisions of law and to permit vessels of foreign registry, and foreign built vessels admitted to American registry, to engage in coastwise trade during the war, was repealed, with a proviso that the Board was authorized to issue permits for the carrying of passengers in foreign ships, if it deemed it necessary so to do, operating between the Territory of Hawaii and the Pacific Coast, up to February 1, 1922.

We have, therefore, a clearly expressed declaration of policy by the United States to do whatever may be necessary to develop and encourage the maintenance of a merchant marine for purposes of national defense and the growth of foreign and domestic commerce. To effectuate that purpose we have a direction to the Shipping Board to establish, maintain and operate adequate steamship service to accommodate the commerce of the Island Territories and possessions. We have a repeal of the Act permitting foreign vessels to engage in coastwise trade, and at the same time an extension of our coastwise laws to these Territories and possessions, carrying with it a prohibition, under penalty of forfeiture, against the transportation of goods between points in the United States defined as including its territories and possessions, except in our own vessels; and finally we have a limited exemption of Hawaii and the Philippine Islands from the prohibition. Our island possessions are not numerous, and the fact that the statute makes special exemption of those two leaves no doubt that the others were to be included in the general language of the Act. I am of opinion, therefore, that Section 21 of the Merchant Marine Act superseded, as a matter of municipal law, Article III of the Convention of 1899, and terminated the right conferred by that Article on British vessels to engage in the coastwise trade between American Samoa and continental United States.

Respectfully,

Jno. G. Sargent

27. Ante, p. 760.
28. Not printed.
28. Not printed.
29. Omission indicated in the original opinion.
30. Omission indicated in the original opinion.
30. Foreign Relations, 1924, vol. ii, p. 243.
31. 40 Stat. 392.