Foreign Relations of the United States Diplomatic Papers, 1937, The British Commonwealth, Europe, Near East and Africa, Volume II

811.114 Miserinko/161

The British Ambassador (Lindsay) to the Secretary of State

No. 401

Washington, November 17, 1937.

Sir: In my note No. 88 of the 15th March,²² I had the honour to inform you that His Majesty’s Government in the United Kingdom were pursuing their enquiries regarding the ownership and registration of the Motor Vessel Miserinko, and that, pending the conclusion of these enquiries, they reserved all their rights in the matter of her seizure by the United States Coast Guard authorities.

2. I have now been instructed by His Majesty’s Principal Secretary of State for Foreign Affairs to make the following communication to you:—

3. It was reported to His Majesty’s Government in the United Kingdom in April, 1936, that the British Motor Vessel Miserinko had been seized by the United States Coast Guard patrol boat Harriet Lane on the 14th March at a point which was described by the United States customs authorities of Portland, Maine, as fifteen and a half miles, ninety-eight degrees true from Jeffreys Ledge Buoy, Latitude 42–59 N, Longitude 69–42 W, in Customs Enforcement Area No. 5. In a subsequent communication addressed to His Majesty’s Consul-General at Boston by the Commander of the Boston division of the United States coast guard on the 12th June it was stated that the Miserinko was sighted seventeen miles off the United States coast by aircraft and that pursuit by the patrol boat began at a point thirty-one miles off the coast. It was added that the vessel’s normal speed was ten knots. That indeed is the speed given in the certificate of survey issued at Meteghan on the 31st August, 1931. It is thus clear that the pursuit started when the vessel was not only outside territorial waters but also outside the one hour’s steaming distance provided by the Anglo-United States Liquor Convention of the 23rd January, 1924.

4. Accordingly on the 27th June, 1936, I addressed a note to you stating that in the view of His Majesty’s Government in the United Kingdom there could be no justification under the Convention for the seizure and that the seizure was an illegal action under international law. I requested the release of the vessel and added that His Majesty’s Government reserved their full rights to put forward a claim for compensation at some later date.

5. In a further note dated the 18th July I informed you that His Majesty’s Government took note of the fact that the master and crew of the Miserinko had been sentenced on the 5th May in the United States Court at Concord, New Hampshire, to certain terms of imprisonment. I pointed out that the members of the crew in question were British subjects and Canadian nationals, and I requested that, in view of the circumstances attending the seizure of the vessel, the master and said members of the crew be unconditionally released forthwith or, failing that, be released on bail. At the same time I reserved the right to put in a claim for compensation on behalf of those individuals at a later date.

6. In an interim reply²³ to my note of the 27th June you requested information as to the actual ownership of the vessel, a request which was repeated in a semi-official letter addressed by Mr. Vallance to Mr. Broad on the 18th July.²⁴ In that letter reference was made to certain statements made by Sir Charles Hip wood in the course of discussions with the Board of Trade in 1926, when he was said to have made it clear that in his opinion His Majesty’s Government did not wish to protect persons who were masquerading under the British flag and using it as means of violating the laws of their own country. In a further semi-official letter of the 18th July²³ Mr. Vallance drew attention to certain decisions given in the British courts which were held to have a bearing on the legality of the registration of the Miserinko in the name of the Marion Elizabeth Shipping Company of Lunenburg, Nova Scotia.

7. In an official note of the 20th August, 1936, you set forth at length the views of the United States Government on the question. You began by expressing their conviction after careful investigation that the Miserinko was actually owned and controlled by one Ralph Bitters, of East Orange, New Jersey, a citizen of the United States, and other American citizens, and was to all intents and purposes a vessel of the United States. Information was furnished showing that from the time she was built to the date of her seizure the Miserinko had apparently been solely engaged in facilitating the illegal introduction of intoxicating liquors and alcohol into the United States. In proof of the actual American ownership of the vessel quotations were cited from a libel presented to the attorney for the Marion Elizabeth Shipping Company, Limited on the 15th April, 1936, preparatory to the entry of a decree for the forfeiture of the vessel and cargo. One of the causes of forfeiture alleged had been that the Miserinko was substantially owned and controlled by a citizen of the United States within the meaning of and for the purpose of Section 3 of the Anti-Smuggling Act of the 5th August, 1935. Against those allegations the alleged owner had filed no defence but had filed a written consent that a decree of forfeiture of the vessel and cargo be entered. It was suggested that it would be in accordance with the views of the British legal authorities as expressed in various prize cases that the burden of proof would now rest upon the claimants to show that the vessel was not American owned. In view of the facts stated, which were held to show clearly that the British registration of the vessel was procured merely as a cloak to hide the illegal activities of certain American citizens, His Majesty’s Government were invited to agree that the Miserinko was not entitled to the use and protection of the British flag but on the contrary that she had been desecrating that flag for a long time by using it to shield the unlawful enterprises of her actual owners. The hope was expressed that an investigation would be made by His Majesty’s Government into the bona fides of the British registration, in which regard reference was made to the seizure of the British schooner Henry L. Marshall in 1921.

8. His Majesty’s Government have studied these communications from the United States Government with all the care they merit, but after full examination they have been unable to discover anything in them, or in the investigations they have since made into the registration of the Miserinko, which would cause them to modify their original view of the case. In the first place they desire to make it clear that it is far from their policy to allow the British flag to be used as a cloak for nefarious practices. If proof be needed of their attitude in this respect it is afforded by their action in the case of the Henry L. Marshall, to which reference was made in your note of the 20th August, 1936. In that case, having come to the conclusion that the transfer of the Henry L. Marshall from United States to British registration had been fraudulent, and that she was therefore not entitled to be regarded as a British ship, they withdrew their claim to question the validity of the seizure.

9. In the present case they once again deferred to the suggestion of the United States Government that the possibility of fraudulent registration of the vessel should be investigated. As a result of their enquiries, which have now been completed, no ground is revealed for doubting the authenticity of the British registration and legal ownership of the vessel. The vessel was registered at Weymouth, Nova Scotia, in 1931, by the Marion Elizabeth Shipping Company, Limited, of Lunenburg, Nova Scotia, and the registry was transferred by the same Company to Bridgetown, Barbados, on the 21st December, 1931. The Company is itself unquestionably a registered British Company, and in spite of prolonged and detailed investigations, no flaw has been discovered in the registration of the vessel either at Weymouth or at Bridgetown. In this connexion the statement said to have been made by Mr. L. J. Iversen on the 13th July, 1936, and quoted in your note of the 20th August, to the effect that the “company is now cancelled”, would seem to be irrelevant. It is open to any company to go into dissolution at any time, and in any event the “cancellation” would appear to have been made after the events of which complaint is made took place.

10. The United States Government have argued that it would be in accordance with precedents furnished in the British prize courts to lay the onus of proof of British ownership upon the claimants. His Majesty’s Government are unable to agree that prize court decisions given in time of war have any relevance or applicability in the present circumstances. The position is that there can be no question about the British ownership of the vessel. As the United States Government have been informed on previous occasions, the British Merchant Shipping Acts make it a condition of registration, very carefully enforced, that a British vessel must be owned by a British subject or Company. When accordingly in your note of the 27th June [July 1], 1936, and in Mr. Vallance’s communication of the 18th July, it was suggested that His Majesty’s Government should make enquiries into the actual ownership of the vessel, His Majesty’s Government were for their part disposed to the view that it was for the United States Government themselves to initiate such enquiries if they wished to base the defence of their action on the alleged true ownership of the vessel. In view, however, of the facts alleged in your note of the 20th August, which were evidently based on enquiries already made, His Majesty’s Government decided to institute the investigations requested. In the light of their result they can only maintain that the vessel must be held to have been British owned at the time of seizure.

11. His Majesty’s Government cannot but feel that there is a fundamental difference of opinion between them and the United States Government as to what constitutes ownership for this purpose. By ownership His Majesty’s Government understand legal ownership before the law, and they do not and cannot take account for the purposes of their registration laws of such indeterminate considerations as “ultimate control”. They regard as the owner of a vessel the person who would, for instance, be entitled to bring or defend an action on her behalf in a court of law. If that person is a British subject or Company, the vessel is entitled, so far as her ownership is concerned, to British registration and to fly the British flag. It is only in cases where it could be shown that the supposed owner of the vessel was not the true legal owner that her registration could be impugned.

12. In this connexion I have been instructed to draw your attention to my letter of the 17th June, 1935,²⁵ prior to the passage of the United States Anti-Smuggling Act, in which I stated that His Majesty’s Government would be obliged to protest against any interference with a British ship outside the three-mile limit, except in those cases where interference could be justified under the provisions of the Liquor Convention, and in which I specifically emphasised that the foregoing considerations applied in respect of a vessel of British registry whatever her ultimate control. In his reply dated the 22nd June,²⁶ Mr. Walton Moore invited my attention to the fact that Section 1 (b) of the bill forbade the enforcement of any United States law on the high seas in contravention of a treaty with a foreign Power.

13. With regard to the allegations contained in your note of the 20th August relative to the activities of the Miserinko since her construction, His Majesty’s Government have themselves no information on the matter, nor any desire to dispute the allegations. Their position is simply that no amount of illegality by a British vessel, other than a pirate, would justify her arrest by the United States authorities on the high seas outside treaty limits. They are, however, somewhat surprised that, being possessed of the information they had, the United States authorities did not think fit to bring it to the knowledge of His Majesty’s Government who would willingly have taken such steps as were within their power to put an end to any improper activities by the ship and, if the allegations had been substantiated and were such as would justify doing so under English law, might even have considered removing her from the registry. His Majesty’s Government consider that they can reasonably entertain a feeling of disappointment that their confidence should not have been sought in the matter, more especially in view of the active measures they have taken to co-operate with the United States Government in combating the practice of liquor smuggling, measures which have already gone far beyond what one Government is normally willing to do for another in such a matter and which have earned the appreciation of the United States Government themselves. Instead of seeking their co-operation in this case, the United States authorities proceeded to arrest the ship on the high seas, regardless of their obligations under the Convention of 1924, and on the assumption (which is now seen to be erroneous) that the ship was wrongfully registered as British. In the case of the Henry L. Marshall, there was some reason for such action, seeing that she had at one time been under United States register and was not flying the British flag at the time of arrest; indeed her name was concealed by a tarpaulin, her officers were absent on shore, and she was boarded in the genuine belief that she was of United States register. No such circumstances attended the arrest of the Miserinko and it has never been suggested that the United States Customs authorities were unaware of her nationality when effecting the arrest.

14. His Majesty’s Government are accordingly of opinion that they would be fully justified in demanding that the matter be referred for consideration, with a view to ultimate compensation, in the terms set forth in Article 4 of the Liquor Convention. After a careful review of all the circumstances, they have, however, decided to refrain from doing so, and to content themselves with placing on record a formal protest at the action of the United States authorities. This attitude should not be regarded as constituting any precedent for the future. His Majesty’s Government must in this connexion point out that the expression of opinion by Sir Charles Hipwood quoted in Mr. Vallance’s communication of the 18th July, 1936, is not relevant to the present issue. It may be perfectly true as a general proposition—indeed His Majesty’s Government do not seek to deny it—that they have no wish to protect persons masquerading under the British flag and using it as a means of violating the laws of some other country, and in any case where it can be proved that the British flag is being used by persons having no legal right to do so, they are ready to take action. But in this case they are concerned with upholding the rights of the British ships on the high seas, and more particularly to ensure that the provisions of the Liquor Convention, which are already very wide and give the United States Government rights which they could not claim under the ordinary rules of international law, are not exceeded. They must therefore protest formally against the action taken by the United States authorities in this case and express the earnest hope that the United States Government will issue such instructions as may be necessary to ensure that the terms of the Convention be fully observed in the future.

I have [etc.]

R. C. Lindsay

22. Not printed.
23. Not printed.
24. Not printed, but see memorandum of July 20, 1936, by Mr. Vallance, p. 108.
23. Not printed.
25. Foreign Relations, 1935, vol. ii, p. 4.
26. ibid., p. 5.