I attach hereto a memorandum indicating, in a brief manner, some of
the more important considerations which impel me to this
conclusion.
[Enclosure]
The Department of
State to the Finnish
Legation
[Washington, May 8,
1934.]
Memorandum
The request of the Minister of Finland that the Department take
steps to obtain from Congress the necessary legislation to
permit of the adjudication by the Court of Claims of the claims
presented by the Finnish Government on behalf of certain Finnish
shipowners is not considered to be justified for several
reasons, among which may be mentioned the following:
First The claims are based upon an alleged
detention of the vessels by this Government during the year
1918. As a matter of fact, there was no act of detention on the
part of this Government. The vessels voluntarily entered the
ports of the United States under such circumstances as to make
it impossible for them to leave for other destinations without
obtaining from this country certain quantities of bunkers and
supplies. At that time all exportation from the United States
was subject to license. There can be no question as to the right
of any Government to prohibit or restrict the exportation of
commodities from its own jurisdiction, especially commodities of
its own production, as were those involved in this case. There
can be no question of international liability for consequences
resulting from the exercise by a Government of such an
unquestioned right, whether by withholding entirely of
permission to remove such commodities or by permitting their
removal under prescribed conditions. The present claim rests
upon the theory that the conditional granting of licenses for
such removal did involve this Government in international
responsibility and that the claimants were not under obligation
to observe the conditions prescribed. That theory cannot, of
course, be accepted.
Second. During the entire period in which
their vessels were lying in American ports, the claimants had
ample opportunity to appeal to the Courts of the United States
for the rectification of any supposed injustice or injuries
being inflicted by American officials. Claimants neglected to
avail themselves of such remedies. Consequently, the judicial
recourse which the Finnish Government now requests this
Government to provide, by special legislation, would be in
effect the reestablishment of a remedy which the Finnish
claimants had available at the appropriate time but then
neglected to use. One of the essential prerequisites of a valid
international claim is, of course, the exhaustion of the
remedies available to claimants under the municipal law of the
country against which the claim is made.
Third. The contention that the presence on
board these vessels, during their stay in the ports of this
country, of United States Marine
[Page 149]
Guards constituted their forceful
detention, is entirely unfounded, because:
- (a)
- So far as the records indicate, there was no effort on
the part of the vessels to leave the United States in a
legal manner and consequently no efforts were exerted by
the Marine Guard to detain them;
- (b)
- The function of the Marine Guard was that of
protecting the vessels from injury rather than that of
depriving them of any legal rights, as is clearly
evidenced by the following extracts from instructions to
the Guard which were issued by the Navy Department:
- “1. Purpose. The
purpose of the naval guard is to protect merchant
vessels, otherwise unprotected, from internal or
external damage, and to prevent the coming aboard
or departure of unauthorized persons or material
which might do injury to the vessel or to the
interests of the United States. This will be meant
to include all neutral vessels and all Allied or
United States vessels without naval armed guards,
whose ultimate port of destination is outside
United States waters.26
- . . . . . . .
- “7. Duties of the guard on
board. Besides carrying out the following
detailed rules the guards on board merchant
vessels must not neglect any other measures which
may be necessary for carrying out the purposes of
the guard, namely, the protection of the ship
against all acts inimical to the interests of the
United States or damage to any part of the vessel
or its personnel or equipment.
[Here follow several paragraphs of detailed rules
for guards on merchant vessels.]
Fourth. Although the alleged detention
took place during the year 1918, it was not until June 17 (July 7?], 1922, that the Finnish
Government presented a claim to this Government.27 That claim related to
but one of the thirteen vessels now concerned, namely, the bark
Rowena. After careful consideration
of that claim, the Honorable Charles E. Hughes, then Secretary
of State, now Chief Justice of the United States, rejected it on
October 23, 1922.27 It was not until another five years had
elapsed that the claim was revived on behalf of the owners of
the Rowena and was enlarged by the
addition of like claims on behalf of the owners of twelve other
vessels.28 This enlarged claim
has, on several occasions, been carefully considered by the
Department and found to be without merit. The Department’s views
in this respect were last formally expressed in its note of
February 18, 1932, to the Minister of Finland,29 in
which it said:
“As you have been informed on other occasions, the
Department has given very careful consideration to the
matter of these claims
[Page 150]
and its conclusion has been,
consistently, that the cases present no violation of
either municipal law of the United States or of the
accepted principles of international law. Therefore
there is no financial responsibility on the United
States for damages said to have been sustained by the
owners of the vessels.”
No evidence has been presented since that date which justifies a
reversal of that conclusion.
Fifth. The contention that the refusal of
the War Trade Board to issue, unconditionally, licenses for
ships stores to enable the vessels in question to leave the
United States, because of an alleged desire of the Board to
detain the vessels, is unmeritorious and has to do with a state
of mind of American officials which this Government could not,
under any principle of equity and justice, be expected to answer
after the lapse of such a long period of time and when the state
of mind of the responsible officials (even assuming that the
point is material, which cannot, of course, be conceded) would
be impossible of ascertainment.
