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

411.58J63/13

The Swedish Minister (Boström) to the Secretary of State

Washington, October 31, 1928.

Sir: Your Excellency’s note of June 13, 1928, by which you replied to my note of June 16, 1927, containing the claim of my Government on behalf of the Rederiaktiebolaget Nordstjernan, a Swedish corporation, on account of the detention by the United States of the Motor Ship Kronprins Gustaf Adolf horn October 27, 1917, to July 12, 1918, and the Motor Ship Pacific from September 14, 1917, to July 19, 1918, has been accorded the most careful consideration by my Government. Inasmuch as my Government with the deepest regret find themselves unable to agree with the conclusions reached in your note, I have the honour to present to You the views of my Government thereupon.

The conclusions reached by Your Excellency appear to be five in number, as follows:

1. The Collector of Customs was the official vested with authority to grant or refuse clearance, and no such authority was reposed in the War Trade Board. Since the record discloses no application for clearance to a Collector of Customs and refusal thereof by him, there was no detention of the vessels by the United States.

2. Even if there had been a refusal of clearance by a Collector of Customs, the United States would not have been responsible for his conduct in the absence of an appeal to the Secretary of Commerce.

3. The question whether Title VII of the Act of June 15, 1917, applied to bunker oil brought by a foreign vessel into American waters, was a question for the courts to decide. The Government of the United States cannot consider as established that the statute did so apply.

4. The question whether the treaty of 1783 was applicable to the vessels in question and entitled them to the right to depart without export licenses under the conditions existing was susceptible of judicial determination.

5. The Government of the United States do not accede to the view that the treaties exempted Swedish vessels from the operation of Title VII of the Act of June 15, 1917, under the circumstances in the present case.

Considering these several conclusions in the order in which they are stated above, it may be said, with respect to the first conclusion that Your Excellency seems to have somewhat misconceived the position of my Government. My Government do not contend that the War Trade Board detained the vessels. They do contend that the Government of the United States of America detained them. You point out that Section 1 of Title VII of the Act of June 15, 1917, constituted the authority of law for the licensing of exports, which licensing was a condition precedent to lawfully taking such commodities out of the United States, that this authority to license was vested in the War Trade Board, but that the authority to refuse clearance to a vessel unlawfully taking any article out of the United States remained in the Collectors of Customs by Section 3 of the Act.

A Collector of Customs is a minor official of the United States in the Department of the Treasury. Under the statute his duty was absolute to refuse clearance to any vessel attempting to depart without an export license when-such was required. On June [July] 9, 1917, the President proclaimed that no bunker oil should be taken out of the United States unless an export license had been granted therefor. The War Trade Board having thereafter refused an export license to the two Swedish ships for their bunker oil, my Government made demand upon the Government of the United States, by the note of this Legation to the Secretary of State, dated November 24, 1917, that the vessels be permitted to proceed on their journeys. The United States Government, through the Acting Secretary of State, replied on January 24, 1918, as follows:

“I am now in a position to state, in reply to your communication, the view of this Government on the facts of these cases, as understood by me, that the two articles of the treaties mentioned have no application to the delay caused to the Kronprins Gustaf Adolf and the Pacific on account of difficulty in obtaining export license. Inasmuch as the Government entertains this view, which has been arrived at only after thoughtful consideration, I am, as you will appreciate, under the necessity of requesting that these vessels, and others in like cases, comply with the regulations of the Government for the control of commodities exported from or taken out of the jurisdiction of the United States.”

Thus the Government of the United States declined to permit the departure of the vessels unless and until export licenses were granted for their fuel oil. The vessels were detained not by reason of the decision of some minor official but of that of the Government of the United States.

It is unnecessary to point out to Your Excellency that after that Government had determined that the vessels must comply with the regulations requiring export licenses as a condition precedent to their departure, nothing could have been more futile than to have applied to a minor official of the same Government, the Collector of Customs. for the right to depart without such licenses. No such demand was necessary in order that the responsibility for the detention should attach to your Government. “Lex neminem cogit ad vana seu inutilia”—the law will not force anyone to do a thing vain or fruitless.

The demand of my Government upon the Government of the United States that the vessels be permitted to depart therefrom was a demand upon that Government and all its officials from the highest to the lowest that they permit that departure without condition. When this was refused, the vessels were, in the view of my Government, detained by the authority of the Government of the United States and it became unnecessary, in order to preserve the rights of the owners, to go through the vain and useless formality of making the same demand upon a minor official.

With respect to the second conclusion—that even if the Collector of Customs had refused clearance an appeal lay to the Secretary of Commerce—it is only necessary to recall again that the note of January 24, 1918, already referred to, stated “the view of this Government” to be that the Swedish owners must “comply with the regulations of the Government[”] pertaining to export licenses before the vessels could be permitted to depart. The Secretary of Commerce was a member of “this Government” the views of which were thus expressed. It is surely not the position of Your Excellency that, after an appeal had been made to the Government and a decision had been taken, it was necessary or proper to appeal to a single member of that Government in order that the decision that export licenses were an essential prerequisite of the right to depart should be the decision of the Government of the United States. Here again the maxim, Lex neminem cogit ad vana seu inutilia, is applicable. In the view of my Government no principle of law requires such a vain and useless step.

Both of the foregoing conclusions relate solely to matters of procedure. Your Excellency, I am sure, cannot doubt that the Government of the United States considered upon its merits the demand of my Government that the vessels be permitted to depart from the United States without the exaction of conditions, which in the view of my Government, deprived their owners of rights guaranteed to them by treaty, and in a most solemn manner communicated to my Government its decision that the vessels would not be permitted to depart until their owners met these conditions. You object now for the first time that this demand was made directly to the Government of the United States through Your Excellency’s predecessor and the reply made directly by him to my predecessor instead of the demand being made to a minor official of the United States and through his superior to the Government.

Your Excellency does not object that the Government was deprived, by any omission of the Swedish owners, of any opportunity to consider the question presented carefully or to weigh any considerations affecting it. Nor do You point out that at the time the demand was made, your predecessor raised any question as to the propriety of the procedure adopted or suggested any other procedure which should have been followed in order properly to bring the question before the Government of the United States for its decision. Under these circumstances my Government believe that a principle of law universally recognized and announced in the United States by Your Supreme Court renders the procedural objections referred to above ineffective as defenses to the present claim. In the case of Doane v. Glenn appearing in Wallace’s Reports, Volume 21, on page 33, at page 35, the Court said:

“When such objections, under the circumstances of this case, are withheld until the trial is in progress, they must be regarded as waived … This is demanded by the interests of justice. It is necessary to prevent surprise and sacrifice of substantial rights. It subjects the other party to no hardship.”

The third conclusion referred to above is that Your Excellency’s Government cannot consider it as established that Title VII of the Act of June 15, 1917, applied to bunkers brought into American waters and that this question should have been submitted to the courts of the United States. My Government must confess their inability to follow the positions taken by the Government of the United States upon this subject. My Government were informed by Mr. Polk, in his note of January 24, 1918, that these vessels must comply with the regulations of his Government pertaining to export licenses. They were again so informed by Mr. Lansing in his note of June 26, 1918. In the latter note Mr. Lansing was explicit and said:

“The law on this subject makes no distinction between the exportation of an article of commerce and the taking out of an article which has never been entered at a custom house of the United States and never left the ship on which it came into the territorial waters of this country.”

It seems clear to my Government, therefore, that at the time these notes were written the Government of the United States considered it established beyond all question that Title VII of the Act of June 15, 1917, applied to all articles within the territorial jurisdiction of the United States. Furthermore, my Government are aware that Title VII of the Act of June 15, 1917, was administered by the agencies of the United States in charge of its enforcement throughout the entire period of its existence as applicable to articles brought into the United States merely in transit. As instances of this, I refer Your Excellency to War Trade Board Ruling 101, (War Trade Board Journal, June, 1918, page 12) and War Trade Board Ruling 199, Journal, September, 1918, page 6.

It is not the understanding of my Government that You repudiate the action of your predecessor, Mr. Lansing, in his statement that the view of the Government of the United States was that the Act of June 15, 1917, was applicable to the bunker oil in question. My Government, therefore, find it difficult to follow the conclusion stated in Your Excellency’s note that your Government cannot accept it as established that the law did so apply.

Similarly, my Government are unable to concur in the conclusion that the only authoritative determination which could have been had on the question as to whether Title VII of the Act of June 15, 1917, and the regulations issued thereunder applied to the bunker fuel brought into American ports by the Swedish vessels was in the course of judicial proceeding. The determinations made by the Government of the United States and communicated to my Government in the notes of November 24, 1917, and June 26, 1918, purported to be, and were, authoritative. My Government must reasonably have been expected to consider the statement of the Government of the United States as authoritative even if it had not been confirmed by the courts. There is no law of the United States, so far as I am aware, which provides that no act of the executive branch of the Government is authoritative until it has been confirmed by the courts. And there is no such rule of international law.

I am, therefore, unable to escape the conclusion that neither the law of the United States nor the law of nations imposed any duty upon the Swedish shipowners to institute any proceeding in any court of the United States to determine whether or not the action of the Government of the United States in refusing to permit the ships to depart without export licenses under the circumstances in question was in accord with the provisions of the Act of June 15, 1917. Whether any court of the United States had jurisdiction to secure to the Swedish shipowners the rights which they claimed under the treaty will be discussed below.

In respect to the fourth conclusion—that the question whether the provisions of the treaty were applicable to the vessels under the circumstances in question was capable of judicial determination—Your Excellency cannot be unaware that although the courts of the United States had jurisdiction to determine that the terms of the treaty were not applicable because of the subsequent legislation of June 15, 1917, they had no jurisdiction to enforce those treaty provisions in the face of that subsequent legislation. The decisions of your Supreme Court leave no doubt upon this question. In Whitney v. Robertson, reported in Wallace’s Reports, Volume 124, page 190, that Court said:

“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 hand of the Government and take such other measures as it may deem necessary for the protection of its interests. The Courts can afford no redress. Whether the complaining nation has just cause of complaint or whether our country was justified in its legislation are not matters for judicial cognizance.”

It is, therefore, clear to my Government that no matter how earnestly the Swedish shipowners might have presented to the courts their complaint that the enforcement of the Act of June 15, 1917, and the regulations thereunder, against them invaded their rights under the treaty, their complaint was not a matter for judicial cognizance. Since, therefore, the courts had no authority to give an effect to the treaty contrary to the provisions of the statute, the Swedish shipowners had no remedy for the violation of the treaty provisions. They were by no principle of law or justice obliged to institute judicial proceedings in which their rights could not be enforced and where the only possible outcome of the litigation must have been adverse to them.

For the same reason the case of Hendricks v. Gonzalez, reported in 67 Federal Reporter, page 351, appears to be no authority for the assertion that the Swedish shipowners had an adequate remedy in the courts. That case decides only that when a collector of customs denies clearance in violation of American municipal law, the person injured may recover damages against him. It does not hold that such damages may be recovered when clearance is denied under the authority of American law although in violation of a prior treaty. As pointed out above it could not be authority for such a proposition because the courts have no authority to enforce a treaty when its provisions are opposed by subsequent legislation.

Local remedies which should be exhausted prior to diplomatic presentation of a claim, exist only when the local courts are empowered to give legal effect to the right alleged to have been infringed. No such remedy existed in the present case. The right asserted in the present case was, and is, that notwithstanding the Act of June 15, 1917, the two Swedish ships, under the circumstances here involved, had the right under treaty provisions to depart from the United States without complying with the conditions demanded of them by the American Government in accordance with that Act. No court of the United States had authority to give effect to that right because all such courts were bound to enforce the statute, and the question was, therefore, not susceptible of judicial determination.

Turning to the fifth and last conclusion—that the American Government cannot agree that the treaty provisions referred to in my note of June 16, 1927, confers upon Swedish subjects the rights asserted—I note that Your Excellency states but does not discuss it. In asserting these rights of free navigation my Government claim no more than the American Government successfully claimed under the similar provisions of the treaty with Spain,¹⁵ as stated in my prior note. Indeed it claims less, for the American Government claimed immunity from export restrictions for tobacco produced in Cuba and the property of American citizens, while my Government claim only that the Swedish ships which had entered American waters and desired only to depart in ballast without drawing upon the resources of the United States had the treaty right to depart freely and unconditionally. It is impossible for my Government to believe that so simple and elemental prerequisite to freedom of navigation clearly within the plain terms and purport of the treaty can by any process of legal reasoning be placed beyond its scope. I venture to hope, therefore, that Your Excellency will reexamine this conclusion and that, if any doubts remain in your mind that this right is not guaranteed, you will communicate them to me so that I may have the opportunity to remove them.

I also note Your Excellency’s statement that it is a matter of vital concern to the Government of the United States whether the remedies established by the laws of the United States are to be employed or ignored, and I am happy to be able to point out to you that no such question is involved in the present claim. So far as administrative remedies are concerned, as stated above, the present controversy was not merely appealed to a single officer of the Government but was twice appealed to the Government of the United States, itself, by which the questions involved were, as stated in the notes of November 24, 1917, and June 26, 1918, given “the careful and considerate attention which it merits at the hands of this Government”. Here obviously there was no failure—but, on the contrary, the most earnest effort—to obtain all possible administrative relief. Since the matter in controversy was essentially an issue which was not, as the Supreme Court has said, a matter of judicial cognizance, no judicial remedy existed and none was ignored. So far as I am aware, the only issue on this subject which has been raised by officials of the Department of State is not whether remedies established by the laws of the United States are to be ignored but whether the laws of the United States have established any remedy available in the present case. This question obviously is not of the character mentioned by Your Excellency.

In conclusion I beg to express the hope that you will reexamine the claim in the light of the observations here made and will reach a favourable conclusion in regard to it. Should that happy conclusion not result, I am instructed by my Government to request that the Government of the United States join with my Government in submitting the present controversy between them to arbitration.

My Government feel confident that in view of Your Excellency’s great service to the world in advocating so conspicuously and ably the process of the disposition of international differences by arbitration that this disposition of the matter in accordance with the treaty of March 18, 1925,¹⁶ will meet with your approval. I am further assured in this view by the fact that in the cases of Sheldon Lewis, reported in Moore’s International Arbitrations, page 3019, and in that of the Dutch vessel Zeelandia, (now in the Court of Claims of the United States, Docket No. H 252) the Government of the United States referred similar differences with the British Government and the Dutch Government, respectively, to such disposition. In both of these cases the shipowners, believing that their asserted rights were not the subject of judicial cognizance, did not resort to the Courts of the United States, which was justly regarded by the Government of the United States as no bar to the presentation of the claims through diplomatic channels. In the latter case the detention was by virtue of the same statute invoked by the Government of the United States in the present case.

With renewed assurances [etc.]

W. Boström

15. Treaty of October 27, 1795, Miller, Treaties, vol. 2, p. 318. See Moore, Digest, vol. vi, par. 1035, particularly pp. 910–912.
16. Arbitration convention between the United States and Sweden signed at Washington, June 24, 1924, and proclaimed on March 18, 1925; Foreign Relations, 1924, vol. ii, p. 702.