Foreign Relations of the United States Diplomatic Papers, 1940, General and Europe, Volume II

841.711/3189

Memorandum of Conversation, by Mr. Robert B. Stewart of the Division of European Affairs

[Washington,] March 13, 1940.

Representatives of the British and French Governments called at the Department today to discuss the question of diversion and detention of American ships and cargoes and the interference with American mails. The following persons were present:

• State Department representatives:
  • Mr. Berle
  • Mr. Hackworth
  • Mr. Dunn
  • Mr. Hickerson
  • Mr. Stewart
• British representatives:
  • Mr. F. Ashton-Gwatkin
  • Mr. N. M. Butler, Counselor, British Embassy
  • Mr. A. K. Helm, First Secretary, British Embassy
  • Mr. R. Reid-Adam, Commercial Secretary, British Embassy
  • The Honorable Loring Christie, Minister of Canada
• French representatives:
  • Professor Charles Rist
  • Mr. Maurice Garreau-Dombasle, Commercial Counselor, French Embassy
  • Mr. Jacques Dumaine, First Secretary, French Embassy

Mr. Berle opened the discussion with the subject of detention of ships at Gibraltar. He said that we had already complained to Great Britain about the long detention, and particularly about discrimination in favor of Italian lines. He added that while the situation has now improved considerably, it has improved on Britain’s own terms, the improvement resulting from (a) Black Diamond or holdback guarantees; (b) navicert arrangements. Mr. Berle said that we reserved the right to scrutinize all such agreements, to see particularly that they do not involve black-listing or discrimination against American shippers. Moreover, we have reserved all our rights under international law and have already taken the position that the burden of proof is on the belligerent to prove enemy destination of cargo passing from one neutral country to another. The contraband control system, on the other hand, works the other way around. Our silence must, therefore, not be construed as consent to the legality of the system. However, we have been pleased to note a considerable improvement in the situation at Gibraltar.

Mr. Hickerson added that the average period of detention had now been reduced from more than twelve days per vessel during October to 3.7 days during the first half of February.

Mr. Berle then mentioned the recent ruling announced in the Department of Commerce’s circular to Collectors of Customs on February 29. Under this ruling no merchant vessel, foreign or domestic, departing from the United States may proceed into any foreign port, including a contraband control station, except in stress of weather, distress, or under military or naval compulsion without having cleared for belligerent ports. A clearance will be granted only if title to cargo has been transferred. Mr. Berle said that Scandinavian boats have been calling voluntarily at British control stations and that he was now obliged to tell them that they must discontinue this practice unless title to cargo has been transferred. The other alternative, he added, is for them to be taken in under force and we are trying to work out a recognition of the mildest form of coercion.

Mr. Maurice Garreau-Dombasle asked if a radio command sent from Kirkwall would be regarded as coercion or force majeure.

Mr. Berle thought that this would depend upon whether or not the British were actually in a position to enforce the command and he felt that the boats might want to run fairly close to Kirkwall and have radio commands sent which they could log, otherwise they would face a dilemma of either trying to run the British control or of violating American law.

Mr. Hickerson said that the Scandinavians were quite frantic about the situation. They came to him a few days ago and he explained to them the system at Gibraltar under which each American ship is given a command at close range to go into Gibraltar. The ship logs the command and goes in. Since the British ships are actually there to enforce the command it is unquestionably a case of coercion. Mr. Hickerson said that he had suggested that the Scandinavian ships make certain that they had an order from the British and that this order should be entered in the log before going in.

Mr. Ashton-Gwatkin, returning to the subject of interference with shipping in the Mediterranean, stated the British position as follows: (1) Britain does not accept the contention that the burden of proof with regard to cargo passing between neutral countries rests with the belligerent; (2) as regards the Black Diamond guarantee he gave explicit assurances that there is no black-listing and no discrimination involved; (3) as to alleged discrimination in favor of Italian ships, this is merely a suspicion which has arisen from the fact that the Italians have provided advance information and have accordingly been released with shorter delays. Also, Italian ships have given Black Diamond guarantees more readily and have carried block cargoes while American ships have been carrying miscellaneous cargoes.

Mr. Berle said that we were glad to accept Mr. Ashton-Gwatkin’s assurances and that we did not desire to go over the ground again; that we did want to reserve our position and certainly would not admit that guarantees and arrangements of the above nature could be substituted for the right of search under international law.

Mr. Dunn agreed that we were prepared to rest on this position.

Mr. Berle next brought up the subject of diversion. He thought that if the navicert and holdback arrangements were working no question of diversion would arise except for the question of mails. He said that we recognize the right of a belligerent to divert ships under certain circumstances which have been set forth in our notes to the British Government but we have never recognized that the right of diversion could give rise to an additional right of censoring mails.

Mr. Berle said that an added complication had just arisen with the refusal of Scandinavian vessels to carry American mails. Under American law ships may be refused clearance if they decline to take mails tendered to them.

Mr. Ashton-Gwatkin asked whether there might be a possibility that American ships would discontinue carrying mail to Scandinavia and leave this to Great Britain and other neutrals.

Mr. Berle said he thought that American ships will very likely be coming to us presently as the Scandinavian lines have done to say that they don’t want to carry the mails.

Professor Rist asked whether this was not the real solution of the problem.

Mr. Dunn replied that we were dealing with a public service and that he did not regard the suggestion as a practicable one either from a public point of view or from the view of the Post Office Department.

Mr. Hickerson felt that this government would be subject to severe criticism if such a solution were adopted. He said that there is a limit beyond which we could not hope to go. The Moore-McCormack Line has agreed already not to carry passengers. Moreover, American vessels to Scandinavia do not carry mails to Germany. The Post Office Department, very obligingly to Great Britain, sends all mails to Germany through Gibraltar.

Mr. Ashton-Gwatkin said that this merely meant that persons wishing to evade the censorship would try all the harder to get mail to Germany via Scandinavia. He added that the censorship is a vital question to Great Britain and is intimately bound up with contraband control—so intimately that he could not conceive of a contraband control without a control of mails. He wanted to mention in passing that trade secrets of American firms were not being used improperly by the British authorities.

Mr. Berle said he was glad to accept this assurance but that it did not cover the situation. He agreed with Mr. Hickerson that it would be unwise to accede to any request of the Moore-McCormack Lines to discontinue carrying mails.

Professor Rist repeated the view that mail control is an indispensable accompaniment of contraband control and that they know a great quantity of mail is being flown from Germany to Madrid.

Mr. Ashton-Gwatkin said that since Kirkwall seemed to be out and since American ships apparently could not discontinue carrying mail he could see only two possible solutions: (a) that all mail pass Gibraltar or (b) that a control base be established somewhere in Canada. He thought the first of these would involve less delay.

Mr. Berle said we did not have instructions to do more than take note of any proposal which the British and French might make on the second point. Mr. Dunn added that he thought we would like to have any suggestion in somewhat greater detail. For example, they had mentioned only one possible port. There might be others that might well come into the picture.

Mr. Christie stated that Canada had been asked by Great Britain whether it would agree to a control base at St. John, New Brunswick, and that Canada has replied that it would acquiesce in such an arrangement on condition that this would contribute to a solution of some of the problems pending between the United States and Great Britain.

Mr. Ashton-Gwatkin suggested that if such a base were established American mail might be taken off at St. John and forwarded by the next fast British boat.

Mr. Berle said that that involved exactly the thing we were trying to avoid, acquiescence in a system which would enable the British to censor our mail.

Mr. Ashton-Gwatkin said that his government maintained the right to bring ships in, even into the combat zone, but that for convenience they were willing to establish another base. Mr. Berle thought that Mr. Ashton-Gwatkin had skipped a point, and repeated that we do not recognize any right of the British to take ships in for censoring mails.

Mr. Hackworth asked whether in fact the censorship operations revealed information of any moment and Mr. Hickerson wanted to know whether the value of mail censorship to Great Britain was sufficient to off-set the tremendous neutral irritation. Mr. Ashton-Gwatkin answered yes to both these questions. He said he would be glad to show us some evidences of the kind of information they secure from the mails.

Mr. Butler asked if St. John were established as a control base whether the United States would object to American ships carrying mail there.

Mr. Dunn suggested that a subcommittee be appointed to consider some of the questions involved in establishing a base on this side. He said he thought there were certain considerations which the British Government would certainly want to have in mind before reaching any decision on the question. It was agreed that such a subcommittee would meet tomorrow.

Mr. Ashton-Gwatkin then raised the question of mails from Europe to the United States and stated that he was instructed to inform us in confidence that his government was going to start censoring outward bound mails from Europe. Mr. Hickerson observed that this was getting quite a distance from contraband control.

Mr. Ashton-Gwatkin then raised the question of air mails and the possibility of intercepting air mails. He said that this was a new question but if mails were free to go by air then there certainly could be no blockade.

Mr. Berle said that of course Mr. Ashton-Gwatkin was familiar with the reaction in this country to a recent case of interception of American mails which had voluntarily come into British territory. He said that we did not need to indulge in any imagination in order to picture the reaction which would result if a squadron of British planes appeared over Portugal and fired a shot at an American plane. He hoped, therefore, that the matter would be threshed out before anything was done and that the British would not present a fait accompli. He said that we were acutely aware of the situation and of the British problem and that he personally approached the subject with sympathy.

Professor Rist stressed the view that the principle of looking for mails in planes is the same as looking for mails in ships. Only the technique is different. Mr. Berle thought that there were distinct limits to which this argument might be carried and referred to certain new practices in 1916 which the German Government indulged in and attempted to justify on the basis of new circumstances.

Mr. Berle added that if the British Government claimed the right to intercept planes with air squadrons the other side might decide to put squadrons in the air also. He thought it was by no means certain who would control the situation in this case. This point he thought the British Government might wish to consider before reaching any conclusions.