Papers relating to the foreign relations of the United States, 1930, Volume III

658.119/1017

The Swedish Minister (Boström) to the Secretary of State

Washington, June 16, 1927.

Sir: I have the honour to present to you the claim of my Government on behalf of the Rederiaktiebolaget Nordstjernan, a Swedish corporation, on account of the detention by American authorities of the Motorship Kronprins Gustaf Adolf from October 27, 1917, to July 12, 1918, and the Motorship Pacific from September 14, 1917, to July 19, 1918. Both vessels belonged at the time in question to the corporation and were of Swedish registry.

At the time when these detentions occurred, the matter formed the subject of an interchange of views between the then Minister of Sweden, Mr. Ekengren, on the one hand, and Mr. Lansing and Mr. Polk, on the other, resulting in a divergence of opinion which I am hopeful that a fuller consideration of the matter at this time may remove.

As is more fully stated in the document which is handed you herewith,² these two Swedish vessels entered American east-coast ports in the summer of 1917. The Kronprins Gustaf Adolf was in ballast; the Pacific carried a cargo of nitrate of soda, the property of a Swedish company, consigned to its owner in Sweden. Both vessels carried with them and had at all times sufficient fuel oil in their bunkers to return to Sweden. The American authorities refused, unconditionally, to permit the Pacific to continue her voyage with her cargo. After some discussion this cargo was discharged. However, the American authorities refused to allow either vessel to leave American waters with their bunker oil. This refusal was put upon the ground that before these vessels could depart from American waters, carrying their bunker oil, they must obtain a so-called “export license” for this bunker oil.

As a condition precedent to the granting of such a license and of permission to depart from American waters it was required by the American authorities:

(1) That the voyage and trade of the vessel be approved by the War Trade Board—an agency of the President of the United States—and that if under charter, the charterer and the terms and conditions of the charter be approved by the same Board;

(2) That the owner of the vessel file with the War Trade Board a list of all vessels owned or controlled by him and enter into an agreement providing, among other things, that:

(a) None of such vessels be chartered to any German, or trade with any German port, or any country allied with Germany, or carry any cargo which came from, through, or was destined to Germany or her allies; and that

(b) None of such vessels carry cargo to any port not approved by the War Trade Board, or carry any cargo or embark on any voyage, or be laid up in port without the approval of the War Trade Board; and that

(c) No vessel be bought or sold without the consent of the War Trade Board, which might also direct the owner to discharge any master, officer, or member of the crew of any of his vessels; and that

(d) A report be furnished to the War Trade Board each month, showing in detail the movements of the owner’s vessels.

The War Trade Board refused to approve a voyage by the vessels in question to Sweden. The owner, while willing to undertake other voyages, refused to enter into an agreement of the character mentioned above. For this reason, an export license for the bunker fuel carried by the two vessels on their arrival in the United States was refused and the departure of the two vessels was not permitted by the American authorities, until July, 1918.

In connection with the aforementioned interchange of views in this matter Mr. Ekengren respectfully directed Mr. Lansing’s attention—in his communications of November 24, 1917,³ January 30, 1918,⁴ and April 30, 1918⁵—to certain clauses in the Swedish-American treaties of 1783⁶ and 1827⁷ then in force, which at that time appeared to my Government, and still appear—with the greatest deference to the views expressed by Mr. Lansing—to have a most important bearing upon this matter. In his first mentioned letter Mr. Ekengren thus referred to Art. 17 of the Treaty of 1783, according to which Swedish property was exempted from every kind of embargo or detention in the United States. In his reply of June 26, 1918,⁸ Mr. Lansing stated that this article, while forbidding both the laying of an embargo and the detention of ships, vessels and merchandises in general, by seizure, by force or by any such manner, did not appear to place the United States under obligation to refrain from applying general regulations for the control of commodities exported from or taken out of that country, to the Swedish motorships in question. Mr. Lansing furthermore stated that these vessels could not be held to have been the subject of any embargo or detention, the Government of the United States having merely required the licensing of certain commodities desired to be removed from the jurisdiction of the United States.

I am now directed to inform you that my Government does not see its way to agree with the views expressed in these statements of Mr. Lansing. It is, on the contrary, the opinion of my Government that by forbidding—even if only conditionally—the vessels to proceed from American territory with the bunker fuel carried at the arrival and indispensable for the navigation of the ships, the ships themselves were in fact subject to detention in the sense of Article 17 in the Treaty of 1783. Such commodities and objects aboard a vessel, destined exclusively for its navigation, as bunker oil and bunker coal or screws and other parts of the engine, compasses, etc., must in this respect be deemed to constitute parts of the ship itself. The detention of the bunker fuel would, indeed, seem no more justifiable than, for instance, an export prohibition of sails, if applied to sails carried by a ship calling at a port where such a prohibition were in force. I trust that you will concur with the opinion of my Government that such a regulation, depriving the ship of the means of navigation already at its disposal, would be wholly inacceptable.

Quite apart from this question—whether the ships as such were detained in violation of the rules laid down in Article 17 of the treaty aforementioned—this must, anyway, be held to have been the case with the commodities carried by the vessels. You will not fail to observe that the vessels in question, both carrying bunker fuel for their own use, and the Pacific moreover a cargo of nitrate, arrived at American east-coast ports already on June 23, 1917, and July 1, 1917, respectively, whereas the first proclamation forbidding the export of oil and nitrate was issued on July 9, 1917.⁹ In these circumstances and on the strength of the clause aforementioned, the Swedish Government feels entitled to claim that these export-proclamations ought not to have prohibited the re-export of Swedish property carried on board Swedish vessels which had entered American ports before the issuing of these regulations.

This opinion of my Government seems to be in close accordance with the views expressed by the Government of the United States in a similar case, referred to in “A Digest of International Law”, Volume VI, Par. 1035, (particularly pages 910–912), by Mr. J. B. Moore, the renowned American lawyer. My Government has observed that in the case quoted, your Government claimed—on the strength of an international clause almost identical with Art. 17 in the Swedish-American treaty and concluded during the same period as the treaty just mentioned—the exemption from an export-prohibition issued in a foreign country of all goods which, prior to the date of the going into effect of this prohibition, were the actual property of American citizens.

Admitting this construction of the word “detention”, the prohibition of the re-export of the commodities carried by the Swedish vessels now in question seems not to have been justified. Whereas, on the other hand, it has furthermore been confirmed by Mr. Lansing in his letter of June 26, 1918, that the fact that these vessels were not permitted to leave the United States was entirely due to the prescriptions regarding the export of the fuel carried—and thus in no way based on any legal regulations forbidding the clearance of the ships as such—the arguments now laid before you would seem sufficient to prove that the detention of the ships was scarcely in conformity with the treaties aforementioned.

This opinion seems, however, to be strongly supported by certain other articles of the same Treaty of 1783, viz., Articles 7–10, which seem to have a most important bearing upon this matter. These articles guarantee to the subjects and inhabitants of both countries complete freedom to navigate with their vessels either in time of peace or war, without regard to those to whom the cargo may belong, from any port whatever, and to sail and trade with their vessels and to carry on commerce not only directly from ports of an enemy of either country to neutral ports but between enemy ports. This liberty of navigation extends to all merchandises, except those expressly listed in Article 9 and Article 10 as contraband.

Neither the cargo of the Pacific nor the bunker oil carried by both vessels is listed as contraband. Indeed, by Article 10, oil is expressly excluded from the list of prohibited goods.

In this connection I beg to draw your attention, first, to the letter of the War Trade Board, dated November 1, 1917, appearing as Annex V (e)¹⁰ of the Claim. By this letter an export license for the cargo of the Pacific was unconditionally denied because, it was stated, no licenses were being granted at that time for export to certain countries, including Sweden. Quite apart from the question as to whether such action constituted an embargo or detention of the vessel and its cargo, you will not fail to observe that by this action the Pacific was not accorded that freedom of navigation with its cargo which is specified in Article 7 of the Treaty of 1783.

I also beg to direct your attention to the situation common to both vessels. The vessels were refused permission to depart in ballast. The reason for the refusal was the necessity of obtaining an export license for the bunker oil brought into American waters by the ships. The reason for the refusal of the export license was (1) that the voyages to Sweden were not approved by the War Trade Board, and (2) that the owner would not enter into an agreement affecting all its vessels and greatly limiting their freedom of navigation and commerce. You will note that in order to obtain the necessary permission for the vessels to depart from American waters, the owner was required to give up the rights secured to him by Articles 7, 8, 9 and 10 of the Treaty of 1783, not only as to the particular vessels in American waters, by abandoning the voyage to Sweden and undertaking a voyage approved by the War Trade Board, but as to all his vessels, wherever situated. The owner being unwilling to surrender these rights, the vessels were detained by force in ports of the United States.

It is unnecessary to point out in view of your great experience in the construction of legal documents, that, as the Supreme Court of the United States of America has said, such documents are not to be construed so as to be self-destructive. The treaty can hardly contemplate that, as a condition to the exercise of any one right granted therein, either contracting party may require the waiver of any other right granted. It is, therefore, the view of my Government—in which I venture to trust that you will concur—that the detention of a vessel, or of the commodities carried by such a vessel, of either contracting party in a port of the other, forbidden by Article 17 of the Swedish-American Treaty, cannot be justified on the ground that the detention might have been terminated, had the owner agreed to waive rights guaranteed by Article 7.

I, therefore, submit the claim for compensation for loss and damage arising from the detention of the vessels referred to, in the belief that you will find it founded upon the principles of law and equity.

Awaiting your views upon this matter, and with renewed assurances of my highest consideration, I have [etc.]

W. Boström

2. Department of State Arbitration Series No. 5 (1), p. 253.
3. Department of State Arbitration Series No. 5 (3), appendix, p. 102.
4. Ibid., p. 104.
5. Ibid., p. 106.
6. Miller, Treaties, vol. 2, p. 123.
7. Ibid., vol. 3, p. 283.
8. Department of State Arbitration Series No. 5 (3) appendix, p. 107.
9. 40 Stat. 1683.
10. Department of State Arbitration Series No. 5 (1), p. 268.