411.60d Finnish Vessels/133
The Finnish Minister (Åström) to the Secretary of State
Excellency: I have the honor to acknowledge Your Excellency’s note of May 8th, 1934, enclosing a memorandum of the State Department’s proposed objections to my Government’s request that authority be given various Finnish citizens to sue the United States of America in the Court of Claims for damages suffered by them in 1918 as a result of the detention of their respective sailing ships. My understanding is that this note and memorandum were delivered to me in order that I might be advised of the Department’s proposed objections and so that I might answer such objections before a definite conclusion is reached by the Department.
Pursuant to that understanding I have given careful consideration to the various points mentioned in the memorandum, and am still convinced that the various points set out therein fail to justify a refusal of authority for these claimants to submit their claims for a judicial determination.
In the first point of the Department’s memorandum the following statement appears:
“As a matter of fact there was no act of detention on the part of this Government”
This conclusion overlooks the evidence which has been submitted to the Department and appears beyond dispute or argument directly [Page 151] contrary to that evidence, which evidence the claimants are prepared to submit to a court when such right is granted. In this connection I again beg to call Your Excellency’s attention to a letter written by Mr. J. B. Smull31 of the Government Committee then controlling charters for outward cargoes, to the ships’ agent, dated April 18, 1918, saying, among other things:
“No action can be taken on this fixture (the charter of the Sailing Vessel Woodburn) until we hear from Washington that the entire question of these Russian sailing vessels is settled. Just at the moment no Russian vessel is allowed to leave American ports.”
This letter, from one of the officials of the American Government then in control of such matters, is positive proof that the vessels themselves were the objects of the detention.
I also desire to call Your Excellency’s attention again to the files of the War Trade Board, and particularly to the statement which was prepared by one of the Board Officials summarizing the Board’s actions with respect to these vessels, as follows:
“In the early part of the operations of the Bureau on Transportation all Russian vessels were licensed freely in line with our general policy as applicable to allied vessels. As the uncertainty of the military situation in Russia developed our policy in this connection of necessity had to be materially changed, and all applications for licenses covering Russian vessels were reported to this Bureau for approval. As the complete military defeat of the Russian armies became more and more apparent our policy in connection with the licensing of Russian vessels became more clearly defined until finally in actual practice no licenses were granted.”
Also, in a memorandum of a conference between one of the officials of the War Trade Board and one of the officials of the Shipping Board, dated April 12, 1918, wherein the Shipping Board was inquiring the reason for the vessels’ being held up, it appears that the War Trade Board official advised the Shipping Board official that
“the vessels had applied for bunker licenses for South Africa and were being held pending decision of the Board in relation to action on Russian vessels. Mr. Robinson32 also stated there was nothing specific against the vessels themselves and the question was one of general policy as to the advisability of allowing Russian vessels to proceed under existing conditions.”
Furthermore, in a letter from the Director of the Bureau of Transportation of the War Trade Board to Lieutenant W. N. Elkins, [Page 152] U. S. N., dated June 21, 1918, wherein Lieutenant Elkins was directed to investigate the crews of these vessels, it is stated:
“As you know, the situation with regards Russian vessels has been a somewhat delicate one, and we have felt it was rather unsafe to allow such vessels to proceed.”
In addition to this documentary proof made by the responsible officials of the United States Government at the time of the occurrence of the events upon which these claims are based, may I be permitted again to direct Your Excellency’s attention to the negotiations for a charter of these vessels by the United States and to the correspondence relating thereto, wherein it appears that the United States Government offered to carry out the charters made by the owners in order to relieve the owners of any possible claim for breach thereof. This evidence I submit not only corroborates the previously mentioned evidence of an actual detention of the ships, but is also direct and positive evidence that there was no embargo on the export of the cargo or bunkers involved. In fact, there is not a single reference to an embargo on the cargoes or ships stores at the time of the occurrence and none of the correspondence or documents now of record in the files contain the slightest suggestion of such an embargo. At all times and in all places the object of the detention is specified as the ships themselves.
It is further stated in the first point of the Department’s memorandum that
“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.”
Upon this point I beg leave to refer to my note of May 3, 1932,33 wherein I stated:
“I have the honor to call your attention to the fact that neither the Finnish citizens who have made claim for damages which have been suffered from the detention of their vessels, nor the Government of Finland presenting their claims, have intended to question the right of the authorities acting for the United States to control the exports of resources or products of the United States within the limits prescribed by local laws.”
Upon this point, therefore, there is no dispute between us, but, as I further stated in my note of May 3, 1932,
“It is the standpoint of the claimants and the Government of Finland that the refusal of the bunker licenses was only incidental to the main purpose of the American authorities, that is, the detention of the [Page 153] ships themselves, and was one means by which this purpose was made effective.”
It is still the contention of these claimants and my Government that the denial of the bunker licenses was merely incidental to the detention of the ships themselves. It was the means by which the detention was made effective. The fact that it was the ships themselves which were being detained and not the cargo is fully and completely substantiated by the quotation from Mr. Smull’s letter set forth above, by the quotations from the memoranda of the files of the War Trade Board quoted above, and by the offer of the United States Government itself to charter these ships and carry these particular cargoes to their respective destinations.
It is further stated in the first point of the Department’s memorandum that,
“The present claim rests upon the theory that the conditional granting of licenses for such removal (that is removal of commodities produced in this country) did involve this government in international responsibility and that the claimants were not under obligation to observe the conditions prescribed.”
These claimants and my Government have always admitted and still admit that the owners of these vessels were obligated to observe the conditions prescribed by local laws for clearing and carrying out cargoes and supplies. Local laws and regulations then prescribed:
- Approval of charters.
- Agreements to return with prescribed cargoes.
- Permits for exportations of cargoes.
- Permits for necessary bunkers and ships stores.
Evidence has been submitted and has not been disputed that the particular charters were submitted for approval and actually approved by the American Government officials. Evidence has been submitted and not disputed that the owners agreed to return with specified cargoes. Evidence has been submitted and not disputed that permits were obtained for the exportation of the particular cargoes. Evidence has been submitted and not disputed that applications were submitted for licenses for bunkers and ships stores and clearance, but were refused, as shown by the evidence set out above, because, according to record of the American Government,
- “the question was one of general policy as to the advisability of allowing Russian vessels to proceed under existing conditions.”
- “As the complete military defeat of the Russian armies became more and more apparent our policy in connection with licensing of Russian vessels became more clearly defined until finally in actual practice no licenses were granted.”
- “We have felt it was unsafe to allow such vessels to proceed.”
- “Just at the moment no Russian sailing vessel is allowed to leave American ports.”
The contention of these claimants and my Government is that (1) the evidence quoted above is positive proof of the fact that the vessels themselves were the object of detention and; (2) the vessels being not Russian but Finnish vessels, their detention by the officials of the United States rendered the United States liable to damages for such acts both under the Rules of International Law and local law. No local law either directly or by implication authorized the government officials to refuse bunkers and clearance to a ship because of its Finnish registry.
The point raised in the second paragraph of the Department’s memorandum was answered in the supplemental memorandum of counsel for the claimants, which was submitted by me to the Department on Nov. 3, 1931.34 By reason of the fact that the Department has referred to no rule or decision of American courts contrary to the rules and decisions there cited, I have been led to the belief that the Department had agreed to the conclusions reached by claimants’ counsel in that memorandum.
For the sake of brevity in this note, I will not repeat here the numerous rules and decisions of American courts in support of the claimants’ contention set forth in that memorandum and which was subscribed by Honorable William J. Donovan, former Assistant to the Attorney General of the United States. I refer again, however, to the rules and decisions therein quoted.
As to the point raised in the third paragraph of the Department’s memorandum I limit myself in this connection to note that in subparagraph “a” of the third point in the Department’s memorandum it is stated:
“Sofar 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”;
In answer to this statement I beg to refer again to the evidence which has been submitted in this case and which will be submitted to a Court when authority is given the claimants so to do. This evidence shows a constant, persistent effort on the part of the agents of these vessels to obtain clearance for them. It shows a constant, persistent effort on the part of the agents and the masters of the vessels to (1) agree with the government officials upon a satisfactory charter of the vessels; and (2) to obtain clearance so as to leave legally.[Page 155]
The point raised in the fourth and fifth paragraphs of the Department’s memorandum refer to the delay which has occurred in disposing of these claims.
In the fifth paragraph it is stated, in substance, that a defense of the claims, which is based upon acts of government officials, involves a disclosure of the state of mind of those officials which is impossible to [of] ascertainment after the lapse of such a long period of time. This conclusion does not appear to be justified by the facts. A recent investigation by counsel for the claimants discloses the fact that all of the officials who took active part in the detention of these vessels, with the exception of former Secretary of State Lansing, Mr. Weldin Ring and Mr. Marc M. Michael are still available as witnesses. This investigation also disclosed the fact that former Secretary of State Lansing, Mr. Ring and Mr. Michael died long after these claims were filed. In other words, the only witnesses not now available to the Government to interpret their own acts are witnesses who died long after the time when the Department had notice of the claims, and long after the time when the Department could have, if it had felt such course necessary, obtained and perpetuated their testimony. In addition to such fact, the correspondence which took place at the time and the memoranda made by responsible officials at the time speak for themselves and disclose the state of mind of those officials who acted in the matter so that their testimony is in fact unnecessary. Such correspondence and memoranda are still available to the Government.
Under these circumstances it does appear that the state of mind of the responsible officials is possible of ascertainment.
I have thus answered the proposed objections of the Department to recommending that authority be given to these claimants to sue. In addition thereto, I may be permitted to state that
(1) the courts of Finland are always open to claimants of other countries for the prosecution of claims against the Government of Finland, and while my Government is aware that the laws of the United States are different, it does feel justified in asking that a similar privilege be extended to its citizens on these claims; (2) the Government of the United States has heretofore extended the privilege here requested to citizens of the Government of the Netherlands and to the citizens of the Government of Sweden35 on quite similar claims. My Government feels justified in continuing to request that similar privileges be extended to its citizens and would consider, in view of the right accorded to the Netherlands and to Sweden to have the claims of their citizens judicially decided, a denial of such right to the Finnish Government to have the claims of the Finnish shipowners so decided as a plain case of discrimination.[Page 156]
The claimants in these cases are numerous shareholders of the various ships scattered quite broadly through Finland. They have knowledge of the fact that citizens of other countries may litigate their claims against Finland in Finnish courts. They have been informed of the fact that the Government of the United States has extended to citizens of other countries the privilege of litigating similar claims against the United States in the courts of the United States or before arbitrators especially chosen for that purpose. Accustomed to abide by decisions of courts in judicable matters, they would not be able to understand the refusal of the Government of the United States to authorize similar privileges for them.
I have understood in my discussion of these claims with the officials of the Department that the Department would have long ago recommended authority for these claimants to submit their claims for a judicial determination were it not for the fact that they feared that such a course might result in the presentation of numerous other similar claims. It has seemed to me that such a reason cannot be justified in fact at this late date. In this connection I again take the liberty of quoting the attitude of the Government of the United States toward claims of citizens of other countries as expressed in a note from the Department of State to the Minister of the Netherlands in connection with the claim for the detention of the Steamship Zeelandia, as quoted in the opinion of the Court of Claims in that case, as follows:
“This Government (the Government of the United States) is quite agreed that in a case presenting a question as to the responsibility of the United States for the damages toward an alien corporation as does that of the Zeelandia, the claimant, if invoking any principle of international law as applicable thereto, should have its day in court before a tribunal competent to pass on the contention and having ample jurisdiction to do so.”36
In behalf of my Government, I am still confident that the Department of State will not now discard this rule of international fair dealing and will still agree to recommend that these claimants be authorized to litigate their claims in the Court of Claims by a suitable Act of Congress.
I am still confident that the evidence heretofore submitted and referred to herein, as well as the decisions and rules of law herein referred to, and more fully set forth in the memoranda heretofore submitted, fully answer the proposed objections as set forth in the Department’s recent memorandum, and confidently expect that the request will be granted so that the Congress may enact the necessary legislation, giving to these claimants “Their day in court before a [Page 157] tribunal competent to pass on the contention and having ample jurisdiction to do so”.