711.942/409
The Secretary of State to the Secretary of Commerce (Hopkins)
My Dear Mr. Secretary: Further reference is made to Assistant Secretary Johnson’s letter of November 9, 1939, enclosing a copy of a letter of October 25, 1939,33 addressed to the Collector of Customs at Seattle by Mr. H. S. Hoskins, Vice President of Geo. S. Bush & Co., Inc., in which request is made for information in regard to questions as follows:
- (1)
- “After the abrogation of the present treaty (of commerce and navigation between the United States and Japan), and provided it is not renewed, what rate of tonnage tax would be assessed upon entry of a Japanese vessel at a United States customhouse?
- (2)
- “Would there be any additional penalties imposed?
- (3)
- “According to our understanding, as long as the reciprocal agreement is in effect, our Government accepts the inspection certificates of the Japanese Government. If the treaty is abrogated, what effect would the abrogation have on the inspection requirements of Japanese freight vessels and Japanese passenger vessels? In other words, would the United States Steamboat Inspection service be required [Page 618] to inspect such vessels and require their compliance with the various United States laws and regulations as to manning of vessels, equipment to be carried, et cetera?”
In Assistant Secretary Johnson’s letter it is asked that consideration be given to the questions at an early date in order that prompt instructions may be forwarded to your Department’s representatives in the field, and in addition request is made that you be advised upon the economic relations which will exist between the United States and Japan upon the termination of the present treaty of commerce and navigation between the two countries.
Questions Nos. (1) and (2)
Section 146 of Title 46 of the United States Code provides that a discriminating duty of ten per centum ad valorem, in addition to all other duties imposed by law, shall be assessed upon goods imported in foreign vessels which are not entitled by treaty or act of Congress to national treatment in the ports of the United States. (An almost identical provision—based on the same Congressional enactments—is found in Section 128 of Title 19 of the Code. This section adds nothing, so far as this question is concerned, to Section 146 of Title 46 and need not be separately considered.) Section 121 of Title 46 of the United States Code provides for discriminatory tonnage duties on foreign vessels unless the President of the United States shall be satisfied that discriminating or countervailing duties (including all duties not imposed on national shipping) of foreign nations, so far as they operate to the disadvantage of the United States, have been abolished. Section 141 of Title 46 of the United States Code provides, however, that “upon satisfactory proof being given to the President, by the government of any foreign nation” that no discriminating duties of tonnage or imposts are imposed or levied in the ports of that nation upon the vessels of the United States, or upon the produce, manufactures or merchandise imported in the same, the President may issue a proclamation declaring that the discriminating duties of tonnage and imposts are suspended in so far as respects the vessels of that nation and that they will remain suspended so long as the reciprocal exemption from discriminating duties shall continue.
In a proclamation of September 4, 1872 (17 Stat. 956), a proclamation which appears not to have been revoked by subsequent Presidential proclamation, President Grant proclaimed the vessels of Japan and their cargoes to be exempt from the payment of discriminating duties of tonnage and imposts in the United States so long as vessels of the United States and their cargoes should be exempt from payment of discriminating duties of tonnage and imposts in Japan.
It is the opinion of this Department that in view of the above-mentioned Presidential proclamation of September 4, 1872, and as [Page 619] long as that proclamation remains in effect, termination of the Treaty of Commerce and Navigation of 1911 between the United States and Japan does not call for imposition by this Government of discriminating duties of tonnage or imposts on Japanese vessels or cargoes in ports of the United States.
Question No. (3)
Acceptance of inspection certificates of vessels is governed by the provisions of the International Convention for the Safety of Life at Sea, 1929,33a among countries which are parties to that convention. The United States and Japan are both parties to that convention and are therefore bound by its provisions. Termination of the commercial treaty between the United States and Japan would therefore not affect the situation.
With reference to your inquiry in regard to the economic relations that will exist between the United States and Japan upon the termination of the treaty of 1911, it is the opinion of this Department that the expiration of the treaty between the United States and Japan will not of itself produce any changes in the general customs duties or treatment applicable to imports of Japanese goods into the United States. In the absence of a treaty, commercial relations between the two countries are governed in each country by its municipal law or practice, subject of course to any applicable provisions of international law.
In view of this Department’s interest in the matter under discussion and of the fact that this Department is receiving numerous inquiries in regard to questions arising from termination of the treaty of 1911 between the United States and Japan, this Department would appreciate it if the Department of Commerce would, before making reply to the inquiries which the Department of Commerce has received on the subjects discussed in this letter or otherwise commenting publicly on such subjects, confer informally with this Department in regard to the form and content of the replies or any public statement which the Department of Commerce may deem it advisable to make.
Sincerely yours,