811.114 Miserinko/86
Memorandum by Mr. William R. Vallance of the Office of the Legal Adviser
During conversation with Mr. Broad, Second Secretary of the British Embassy, on July 17, I referred to the Ambassador’s note No. 208 [Page 109] of July 9, 1936, in response to this Department’s note of July 1, 1936,12 in which this Department made the following request:
“In the meantime I should greatly appreciate receiving information as to the actual ownership of the above-named vessel.”
The response of the Ambassador was that:
“I have learnt from the Governor of Barbados that the motor vessel Miserinko is legally registered in Barbados as a British ship in the name of the Marion Elizabeth Shipping Company Limited, of Lunenburg, Nova Scotia, as owners.”
As this reply did not furnish data regarding the actual ownership of the vessel I mentioned to Mr. Broad that his note did not seem responsive to the Department’s request and that this Department’s request seemed appropriate in view of the provisions of the London Agreement of 1936 [1926].13 Mr. Broad stated that he was not familiar with the provisions of this Agreement. I told him that I had participated in the conference at London which led to this Agreement and that Sir Charles Hip wood, representing the Board of Trade, and I had been assigned to prepare a draft of the Agreement. I stated that Sir Charles had expressed the opinion that the British Government did not want to have American citizens masquerading under the British flag by means of dummy British companies in whose names the vessels were registered. He stated that such vessels did not bring credit upon the British flag and caused a great deal of difficulty for the British authorities. I told Mr. Broad that it was my understanding there was a provision in the London Agreement which obligated the British Government to make an investigation into the actual ownership of vessels in the smuggling traffic before a protest would be made to the United States.
Mr. Broad stated that he would like to look into the matter and would telephone me later about the results of his investigation.
Mr. Broad referred to the arbitration between the United States and Canada in the I’m Alone case14 and said that he thought the seizure might come within the decision in that case. I replied that the owners of the vessel and of the cargo were not awarded any damages in that case as the vessel and cargo were found to be American owned. Consequently, the decision would hardly support the view that the United States could not have a right to seize a ship and its cargo both of which belonged to citizens of the United States. The part of the decision that went against the United States was based on the excessive force used by the Coast Guard, which resulted in the [Page 110] sinking of the vessel and the consequent death of a member of the crew and the loss of their belongings.
Mr. Broad said that the point was of importance just then. He had prepared a note objecting to the arrest and imprisonment of the members of the crew of the Miserinko who were in jail at Concord, New Hampshire, without bail.
I told Mr. Broad that there had been some decisions of the British Courts holding that where a vessel was registered in the name of a British company but the shares of stock and the control of the company was in nationals of a foreign country, the vessel would not be regarded as a British ship. As Mr. Broad said he was not familiar with these decisions I sent him copies of the decisions in the cases of the Polzeath (Probate Reports 1916, 241) and the St. Tudno (Probate Reports 1916, 291).
Mr. Broad telephoned me during the morning of July 18 that he had found the London Agreement of 1926 in the files of the Embassy and that the only provision he could find bearing on the subject was the following statement:15
“8. Diplomatic Support.
When any complaint in connection with liquor smuggling, or suspected liquor smuggling operations, is made to one side against the officers of the other, the present practice might be continued of examining the record of the complainant and any other information that may be available before deciding whether under the terms of the existing Liquor Convention or on other grounds the case is one in which enquiry or eventual representations should be made.”
Mr. Broad stated that he was doubtful whether this provision was sufficient to require an investigation as to the actual ownership of a vessel under the British flag before a protest was filed by the Embassy. I told him that the language was that of Sir Charles Hipwood and that it was for the purpose of carrying out his statement to me that he did not want American citizens as owners of vessels masquerading under the British flag. Mr. Broad stated that he was very much interested in the question and asked whether I could give him, informally, some indication as to who the American owners were so that he would have something definite to go on. I told him that our information [investigation] was not sufficiently completed to send a formal note on the subject but that according to reports the vessel was owned and controlled by one Ralph Bitters, an American citizen of New Jersey, who was being sought by officers of the United States. I also stated that the owner of a large part of the shares of the Marion Elizabeth Shipping Company of Lunenburg was Christian Iversen of Lunenburg who was born in Denmark and who apparently had not [Page 111] been naturalized in Canada. I further stated that I understood the Canadian authorities had made some investigation regarding the ownership of the shares of this company.
I suggested to Mr. Broad that it was very important, in my opinion, to conduct a full investigation of the facts in these cases before the positions of the two governments became too firmly crystalized, as upon a full exchange of information it might well be concluded that the persons involved were not entitled to help from the British Government. Such frank discussion at the outset was in accord with the spirit of the Agreement reached at London and this was the first instance of a substantial protest from the Embassy since the London Agreement [came into force].
In view of the reference to the criminal proceedings at Concord, New Hampshire, I telephoned the Department of Justice and talked with John Smith about this phase of the case. He stated that the United States attorney would be instructed to submit a full report on the present status of the case. He further telephoned me this morning that Commander Parker of the United States Coast Guard has under preparation a full report with regard to the seizure and the ownership of this vessel.
- Neither printed.↩
- See Foreign Relations, 1926, vol. ii, pp. 336 ff.↩
- See ibid., 1929, vol. ii, pp. 23 ff.↩
- Foreign Relations, 1926, vol. ii, p. 354.↩