894.33/48

The British Embassy to the Department of State 34

Aide-Mémoire

His Majesty’s Embassy have now received the comments of the Foreign Office on the State Department’s Aide-Mémoire of February 21st about the Asaka Maru.

[Page 796]

The State Department’s aide-mémoire said that it was not clear whether the stipulation mentioned in the Embassy’s aide-mémoire that the Nagara Maru should be the last Japanese vessel to be given facilities to pass through the British blockade with enemy exports on board rested on a unilateral statement by the British Government or on a definite agreement between the British and Japanese Governments. The Foreign Office now inform the Embassy that the settlement of the Nagara Maru case was based neither on a unilateral statement by the British Government nor on a written agreement between the British and Japanese Governments, but on the very clear understanding that this would be the last occasion on which German or Italian goods would be allowed to proceed to Japan by sea. The Foreign Office point out that the action of the British authorities in permitting the export of enemy goods in this ship was a concession on their part which was coupled with a warning that such concessions would not be repeated.

The State Department aide-mémoire also said that it was not clear whether the mention in the Embassy’s aide-mémoire of the passage of the Nagara Maru “through the blockade” was intended to refer to a blockade in the ordinary sense of the term or to the economic blockade declared by the British Government. The term “blockade” was used in the popular sense. As the State Department will be aware the British Government bases its action as regards enemy exports on the doctrine of reprisal, and seizure is effected in virtue of the Reprisals Order in Council No. 1709 of 1939. The Foreign Office telegram suggests that the State Department, in suggesting that warrant for interfering with the Asaka Maru might be lacking in substantial legal support, may feel that the vessel itself can claim some sort of immunity by reason of her alleged status as a naval vessel. The British view on this point is that a warship necessarily loses her immunity if she fails to confine herself to her proper functions. Furthermore as regards the major question of the right of His Majesty’s Government to interfere with enemy exports the Japanese Government themselves went far towards recognizing this right when in the Nagara Maru case they offered to undertake to make no further requests for facilities to enable enemy exports to reach Japan if the British authorities for their part would release the ship with all her cargo.

The State Department aide-mémoire also expressed some doubts whether the cargo on board the Asaka Maru would be of serious moment from the point of view of general naval operations. On this point the Foreign Office have replied that the British authorities consider it as at least probable that the cargo is of considerable importance. [Page 797] They hope however to get further information on this point from Lisbon and Bilbao.35

  1. Received in the Department on March 17.
  2. The Legal Adviser (Hackworth) in a memorandum to the Chief of the Division of Far Eastern Affairs (Hamilton), dated March 21, stated that he found no necessity for engaging in any discussion with the British Government on the legal questions involved and observed that a public vessel does not necessarily lose its status as such by reason of the fact that it carries cargo for the Government. In fact, many vessels, such as naval colliers, tankers, etc., constituting naval auxiliaries, are primarily engaged in carrying cargoes. (894.33/48)