662.11173 Barley/21: Telegram

The Secretary of State to the Chargé in Germany (Poole)

99. Department’s Number 98, October 5, 6 P.M. In discussing with German Foreign Office the question of temporary shipping restrictions on American barley, or of absolute embargo as foreshadowed in Embassy’s Number 202, October 5th, Noon, you should make it clear that this Government views as a grave matter the imposition of any such restrictive measures without being fully apprised of sound scientific and technical grounds for the taking of such action on the part of the German Government. It is evident that under certain conditions the imposition of sanitary embargoes is justified as an emergency measure, particularly when serious losses are being occasioned or serious dangers threatened by the admission or use of the product in question and that a determination of the precise nature of the deleterious factor must await later thorough scientific investigation. In such cases, however, the losses of livestock or the threatened danger should be shown to be serious and the cause should be clearly traceable to the particular product in question.

The statements submitted by the German Government respecting American Grade “2” barley have thus far been only very general in [Page 908]character. While it has been stated that hogs have been made ill by the consumption of this barley, no proofs have been submitted (1) that hogs have become sick or died as a direct result of its consumption, (2) that it was necessarily American Grade “2” barley which was the cause of the alleged difficulty, or (3) that there may not have been other factors contributing to such trouble as may have been occasioned.

In connection with this it appears that barley of other origin may sometimes be confused by the consumer with American barley. It is furthermore of importance to note that no complaints have been received from other countries to which Grade “2” American barley has recently been shipped.

[Paraphrase.] For the present the Department desires this question to be kept on a purely scientific basis and not to be involved with general economic considerations or immediate financial questions lying between importers and exporters. This barley appears at the same time to be bought by the importer under contract by which certificate of American embarkation-port inspection authorities is accepted unequivocally by importer as final and binding. There is no contractual guarantee that the grain is wholesome for animal consumption, nor is the exporter in any way responsible for any deterioration or change of the grain in transit. While grain so graded may, from previous experience and tests, be assumed to be wholesome, yet the purchaser unconditionally accepts it when specifications for “grade 2 barley” have been certified to as having been met. Furthermore, over a number of years this arrangement has proved satisfactory. Therefore, any action, such as joint inspection by German and American scientific authorities, tending to question officially the validity of the above described certification, might be invoked as affecting a compensation claim by American exporters for the grain involved in this controversy. Careful consideration must be given to this point.

It is pointed out by the Department of Agriculture that an advantage which would accrue to importers through evasion of their present contractual obligations is suggested by the fall in price since the barley upon which restrictions now are placed in the ports of Bremen and Hamburg was purchased at a high market. Moreover, a legal means of complete escape from their obligations by the importers concerned might conceivably be afforded by the imposition of an absolute embargo. It is felt, while not imputing bad faith to the German Government, that pressure on the latter by consumers may have been inspired by the importers; also that the deleterious effect on the hogs from consumption of this barley has been exaggerated greatly. Your comment is desired particularly on this point. [End of paraphrase.]

Inasmuch as the German Government has taken official action in this matter, it is felt that all action or representation on our part should [Page 909]be centered in the Embassy. While cooperating fully with the Consulates at Bremen and Hamburg, you will instruct them accordingly and will warn them against making pronouncements or commitments which might be construed as official.

Kellogg