411.60d Finnish Vessels/145
The Finnish Minister (Åström) to the Secretary of State
Excellency: I have the honor to acknowledge Your Excellency’s note of December 11, 1934, together with the copy of a Departmental Order dated October 17, 1934.
In connection with the latter I have the honor to inform you that neither the Government of Finland nor myself as its agent employed the lawyers who have appeared in this case. They were employed by the several shipowners whose claims have been presented. These lawyers have, of course, consulted with and advised me in connection with these claims on various occasions since I was instructed by my Government to present them. This fact has been known to the Department of State since the beginning. It has always been understood by me that such consultations and advice were approved by the Authorities of the United States. I am informed that the second statute quoted in your separate memorandum has no applicability to any of the lawyers who have appeared herein. I understand that the Department of State did raise the question of the applicability of this to Colonel Donovan and Mr. Lamb when they first appeared, but also understood that by reason of the fact that the claims were not pending in the Department of Justice while they were members thereof, it was agreed that the Statute did not apply. In addition I wish to inform Your Excellency that neither of these lawyers have taken any part in the matter for over a year now. I have discussed the Departmental Order of October 17, 1934, with Mr. Poore, the lawyer who has consulted and advised with me most frequently in the matter, and he has stated that he will be glad to comply with the provisions of this new order.
In the main subject of Your Excellency’s note I have noted the statement that “It now appears that the claim which you urged was based on faulty factual premises”, and have also noted the arguments set forth in support of that statement. It is now stated in Your Excellency’s note that in order to conserve shipping the appropriate officials of the American Government refused to permit American sailing vessels to enter the war zone; that the risk of loss of sailing vessels entering the submarine zone was a practical certainty, or almost sure death; that the American Government’s policy to conserve tonnage lead to a resolution by the War Trade Board prohibiting the approval of applications for bunkers for sailing vessels into the submarine war zone, and that this restriction was enforced so stringently that even [Page 162] an urgent request by one of America’s allies in the war to permit one of its sailing vessels then in an American port to be supplied with bunkers and cargo for a voyage through the submarine zone was denied; and that the routes of these vessels to South Africa and Australia would carry them into the submarine zone and therefore the American authorities were unwilling to lend themselves to the possibility of enhancing the enemies supplies.
To all of these statements and arguments I have given sympathetic and earnest consideration, and I am glad to note that the Department of State has seemingly concluded that it was the ships themselves which were the object of detention and not the cargoes as heretofore urged, but I most respectfully submit that the records upon which these claims are based show that this new defense to the claim, as outlined in Your Excellency’s note, is also clearly based upon faulty factual premises as is here below pointed out.
I.
Sailing vessels bound for South Africa and Australia did not pass through or enter the submarine war zone. They used the same route, to a point some 300 miles below the Equator, as sailing vessels bound for Rio de Janeiro and ports further south in South America. In support of this fact, well known to persons familiar with sailing routes, I submit herewith two maps prepared by the Hydrographic Office of the United States Navy,41 which, together, show the sailing vessel route from New York to South Africa and Australia. It will be observed that while this route does take a vessel slightly nearer the submarine zone than New York itself, nevertheless, the route is at all times southerly and therefore away from that zone.
For Your Excellency’s further information I have had plotted on these two maps the actual course of one of these vessels when it was finally allowed to sail. The plotted course is that of the S/V Prompt, as taken from her log on the voyage in question. Your Excellency will find the Prompt’s course plotted in pencil notations showing the successive daily positions of the vessel on the voyage, which notations follow quite closely the usual route as marked with a blue line by the Hydrographic Office printer.
II.
I am familiar with the fact that the War Trade Board of the United States issued and quite strictly enforced the order quoted by Your Excellency against issuing bunker licenses for sailing vessels into or through the submarine war zone. But that order had no applicability [Page 163] to these vessels, their cargoes or voyages. That is shown by the facts set forth in the preceding paragraph, as well as by the facts stated in the attached letter from Messrs. J. F. Whitney & Co.,42 the agents who handled these ships for the owners while under detention. This letter shows the clearance by Messrs. Whitney & Co. of nineteen other sailing vessels destined to travel the same route as the Finnish sailing vessels proposed to travel during the period between October 15, 1917 and October 8, 1918, and it will be noted, also, from Messrs. Whitney & Co.’s letter that these other vessels which were allowed to sail while the Finnish vessels were being detained carried the same kind of cargoes as the Finnish ships proposed to carry. I also attach a list of 25 sailing vessels which cleared for the same routes during the first eight months of 1918, as prepared by Messrs. Norton Lilly & Co.,42 of New York City. I beg to call Your Excellency’s attention to the fact that these lists cover the clearance of only two ship brokerage firms in New York City, and suggest that if the Department of State would ask the Custom House at New York for clearances of all sailing vessels on these routes for the same period, there would be found very many more, as I am informed that the order prohibiting clearance of sailing vessels into and through the submarine zone took numerous steamers from their usual routes between American ports and the East Coast of South America, South Africa and Australia and sent practically all sailing vessels into these very routes, and that in fact a very large portion of the commerce between the United States and these ports was carried in sailing vessels during this period.
III.
In connection with the defense heretofore urged by the Department of State, that clearances were refused these vessels in order to conserve their respective cargoes for use in the United States, I have heretofore set forth various facts to show the faulty factual premises thereof. The same facts apply with equal force in confutation of the defense now urged. To complete the answer to this new defense, I repeat those facts here, however, even though it constitute a repetition of what I have called to the Department’s attention in previous notes.
- (a)
- The proposed charters for these vessels were submitted to responsible officials of Your Excellency’s Government in charge of that phase of shipping, the Chartering Committee of the United States Shipping Board, and the charters were approved by those officials. During the entire period of detention the approval of those charters was never cancelled or withdrawn. This is positive proof that the proposed voyages of these vessels would not carry them into the submarine [Page 164] war zone, because certainly if the voyages had been in violation of the order which Your Excellency quoted, they would not have been approved, or, if the order became applicable only following the date of the approval, then the approvals would have been withdrawn.
- (b)
- The correspondence file between the owners’ agents and the United States Shipping Board, which heretofore was submitted to the Department of State, shows that the United States Shipping Board, itself a Governmental Agency, offered to charter these vessels and to carry out these particular charters which had been made by the owners. This also is positive proof of the fact that the proposed voyages of these vessels would not carry them into the submarine war zone because certainly if the order which is quoted in the Department’s recent note had any applicability to these vessels or their voyages, an American Governmental Agency would not have offered to carry out those charters and thus violate the orders of the American Government.
- (c)
- In a letter written by Mr. J. B. Smull, of the Government
Committee controlling charters for outward cargoes, to the
ships’ agent, dated April 18, 1918, Mr. Smull said:
“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.”
In a memorandum prepared by one of the officials of the War Trade Board summarizing the Board’s action with respect to these vessels, it is said:
“In the early part of the operations of the Bureau of 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.”
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 it appears that the Shipping Board was inquiring the reason for these vessels being held up, it is stated 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 [Page 165] on Russian vessels. Mr. Robinson 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, 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 felt it was rather unsafe to allow such vessels to proceed.”
I feel convinced that Your Excellency will note that these statements are all made by the responsible officials of the Government of the United States, who were active in the detention of the vessels; were made by them concurrently with their action and were made for the purpose of explaining and recording the reasons for the detention. I am also convinced that Your Excellency will note that the reasons then given by those officials failed to mention anywhere or at any time a claim or suggestion that the vessels were detained because they proposed to enter or pass through the submarine war zone, but will note that the sole reason given for their detention was the fact that they were “Russian (Finnish) vessels.” Again I say that these statements by the responsible officials of the American Government who enforced the detention, statements made concurrently with their action for the very purpose of recording the reasons for their detention, constitutes positive proof that the proposed voyages of the vessels did not tend to violate the order which Your Excellency quoted in your latest note.
I am compelled, therefore, to urge with all earnestness and in all fairness that the facts upon which these claims are based, and as set forth above, show beyond question that the defense now urged by the Department of State is based entirely on faulty factual premises. I also urge that 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, where the American Government was found liable, should be followed in disposing of the claims of these citizens of Finland. That statement is 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 [Page 166] 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.”
I am still confident that the evidence heretofore submitted, together with the evidence herewith submitted, as well as the decisions and rules of law heretofore referred to fully and completely answer every objection which the Department of State has raised in connection with these claims, and confidently expect that the request of my Government in behalf of its citizens will be granted, so that Congress may enact the necessary legislation giving to these claimants “their day in court before a tribunal competent to pass on the contention and having ample jurisdiction to do so.”
Accept [etc.]