411.60d Finnish Vessels/132

The Secretary of State to the Finnish Minister ( Åström )

Sir: I refer to your recent oral request of the Under Secretary25a that I take steps to obtain the necessary legislation to authorize the reference to the Court of Claims of the United States, for adjudication, of the claims which have heretofore been presented by your Government on behalf of certain Finnish shipowners on account of the allegedly illegal detention of their vessels by this Government in 1918, and have to advise that I have had this matter carefully reexamined and have reached the conclusion that I could not properly undertake to comply with your request in this respect.

I attach hereto a memorandum indicating, in a brief manner, some of the more important considerations which impel me to this conclusion.

Accept [etc.]

For the Secretary of State:
R. Walton Moore
[Page 148]
[Enclosure]

The Department of State to the Finnish Legation

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.

  1. See memorandum of conversation, supra.
  2. The following omission indicated in the original.
  3. Not printed.
  4. Not printed.
  5. Foreign Relations, 1932, vol. ii, p. 186.
  6. Ibid., p. 187.