311.5654 Wilhelmina/16

The Netherlands Ambassador (Loudon) to the Secretary of State

HAS–2439

Sir: With reference to Your Excellency’s note of July 30, 1942, No. 311.5654 Wilhelmina,31 which constituted a reply to my letter of May 4, 1942, No. 2844,32 I have the honor to advise that, in my desire to place my representations before the appropriate United States authorities at the earliest possible moment, I broached the subject-matter without antecedent communication thereanent with the Royal Netherlands Government. Since that time, however, such exchange [Page 471]of thoughts was effected, and as a result thereof the following points of discussion were developed.

According to the above mentioned missive of the Department of State, at the time the SS Wilhelmina arrived in American waters the status and nationality of the ship could not clearly be discerned and, although it was flying the Netherlands flag, sufficient proof of a valid transfer from the flag of a foreign nation to that of the Netherlands was lacking. Further, it was asserted, there was a possibility that no Netherlands Indies registration of the ship had been consummated.

I am now in a position positively to state that the status and nationality of the ship, as also its right to fly the Netherlands emblem at the time of its arrival in American waters, by virtue of being registered in the Netherlands Indies, are completely ascertained, as may appear from the following facts.

On March 30, 1938 the N.V. Java–China Handelsmaatschappij, then a Netherlands corporation with domicile at Amsterdam and branch offices in China, purchased of Mr. Stefan Salas, a Hungarian citizen, two small steamers, lying in the Yangtze river near Hankow, with the intention to add these ships to the Netherlands mercantile marine. Thus being acquired, the two ships, which were named respectively Wilhelmina and Beatrice, were recorded in the appropriate public register at Amsterdam on June 10, 1938. Pursuant to this registration as Netherlands vessels the Consul General of the Netherlands at Shanghai was instructed to provide them with provisional Certificates of Nationality and to have the Netherlands registration numbers chiseled into the hulls of the ships.

Under Netherlands law, after the purchase of a ship in foreign parts a provisional Certificate of Nationality may be issued, provided that all conditions to precede the registration of a ship as a Netherlands vessel have been satisfied. These conditions are most stringent with regard to the evidence showing that the ship is actually Netherlands owned. Seeing that the competent Netherlands authorities proceeded to the registration of the ships and then instructed the Consul General to furnish them with provisional Certificates of Nationality, it is beyond all reasonable doubt that they had become Netherlands property and acquired Netherlands nationality. In line with these established facts is a statement of the Consul General to the effect that, during the time the vessels were anchored in Chinese waters under the flag of the Netherlands, no effort to assert Chinese rights therein had come to his knowledge. Nor had the Japanese Navy, which repeatedly—i.a. in the case of a ship sailing under the German flag—has questioned the nationality of vessels in Chinese waters, ever expressed any doubt as to the nationality of the Wilhelmina [Page 472]and Beatrice. To conclude, the entries in the registry at Amsterdam, together with the ensuing instructions given to said Consul General should be considered conclusive evidence of a valid transfer of these merchantmen to the Netherlands flag, wherefore the Royal Netherlands Government is unable to comprehend why no certainty should exist with respect thereto.

In accordance with the instructions referred to above the registration numbers were cut into the ships’ hulls, so that in the Wilhelmina the designation “AMST”, with reference number, could be easily located.

At the time when the N.V. Java–China Handelmaatschappij acquired the Wilhelmina and the Beatrice, under Japanese regulations navigation on the Yangtze river was impossible for non-Japanese ships, so that the bottoms in question could not depart from Hankow. As, under the circumstances, it would have served no purpose to provide them with provisional Certificates of Nationality, the Consul General deemed it sufficient to furnish them with temporary permits to fly the Netherlands flag.

At the end of 1940 an agreement was entered into with the Japanese authorities, under which the two ships were let in time charter to a Japanese company. These cargo carriers sailed then to Shanghai in order to receive the Netherlands ship’s papers required for ocean voyages.

Meanwhile, following the occupation of the Kingdom in Europe by German forces, the N.V. Java–China Handelmaatschappij had transferred its domicile from Amsterdam to Batavia. The Consul General, therefore, got in touch with the proper authorities in the Netherlands Indies, to whom on April 18, 1941 he forwarded documentary evidence respecting the title to the ships and their former registration at Amsterdam. In pursuance thereof the Netherlands Indies authorities whom this matter concerned instructed the Consul General to issue provisional Certificates of Nationality showing their status as Netherlands Indies ships, with which instructions he duly complied. According to the pertinent laws of that Netherlands dominion no provisional Certificate of Nationality may issue except after the production of sufficient proof of the fact that the ship concerned is actually Netherlands Indies owned. The conclusion is, therefore, inevitable that at the time the two ships put to sea they were Netherlands Indies ships and as such entitled to fly the Netherlands flag and that upon the basis of that national status the Consul General provided them with provisional Certificates of Nationality valid for six months.

When the Wilhelmina was steering its course for American waters in order to elude seizure by the enemy the period of validity of its [Page 473]provisional Certificate of Nationality had perhaps elapsed, but, according to Netherlands Indies law, even if such period should expire while a ship is in the process of a sea voyage, the Certificate of Nationality continues in full force and effect until its return from the ocean.

The attempt of the ship’s owner to have the time of validity of the provisional Certificate of Nationality extended was but made for the purpose of putting its papers in good order, for, as explained above, despite the expiration of that term, the vessel would have retained the status of a Netherlands Indies ship, so that reference to that attempt in my letter of May 4th might just as well have been omitted.

In the meantime the Netherlands Indies authorities concerned had requisitioned the use of all vessels registered in the dominion. As stated in my above mentioned note this general demand included the Wilhelmina and was to take effect with regard to this freighter as soon as contact with the Master could be effected. On January 30, 1942 this contact was accomplished and, accordingly, the captain recorded the requisition in the ship’s journal on that date.

In the Department of State’s note of July 30th doubt is expressed as to whether the status of the Wilhelmina was such that it permitted my Government to requisition the use of the ship whilst being subject to American jurisdiction. Further, the question is posed whether the Commander of the East Indies Naval Forces could by means of a telegram effectually requisition the use of a ship lying in an American port.

So as to remove such doubts it may be adduced that, as appears from the foregoing, the Wilhelmina was a Netherlands Indies ship, the status of which was identical with that of a great many others regularly calling at American ports. It surprises the Netherlands Government that the United States Government could entertain any doubt as to the right of the government of the country to which a ship belongs to demand, regardless of where it is located, the use of a vessel which is part of the mercantile marine of that country. For such requisition affects the relations between the government and a citizen of the country concerned, the ship’s owner, resulting in a limitation of the latter’s control over the ship thus pressed into government service. Ships are subject to the laws of the country whose flag they fly and by virtue of existing legal provisions the Commander of the Netherlands Indies Naval Forces had the right to requisition the use of the Wilhelmina, irrespective of the fact that, when such demand was communicated to the Master, the ship was lying in a foreign port. Accordingly, the ship’s owner has interposed no objection to this fully justified action. In the eyes of my Government it is of no consequence [Page 474]whatever that the order to give effect to the requisition was given telegraphically instead of in writing.

As concerns the Department of State’s contention that “assuming that the use of the vessel had been requisitioned by the Netherlands Government, this fact would not preclude the United States from requisitioning title to and possession of the vessel, in the exercise of a well-established right of a sovereign to take, in the case of necessity, property of any kind situated within its jurisdiction”, this assertion is emphatically rejected. In support of this repudiation reference is made to a decision of the House of Lords of March 3, 1938 in the case of the SS Christina (All England Law Reports 1938 I, p. 719 et seq.), which ship, when moored in the harbor of Cardiff, pursuant to a requisition decree of the Spanish Government was seized by the Spanish Consul and brought under the authority of his government.

From this decision, as also from other American and English judicial determinations which by the various law-lords were cited in their considerations of the Christina case, it follows that a ship, by virtue of the requisitioning of its use by the government of the country whose flag it flies, secures immunity from seizure by another government and is withdrawn from the jurisdiction of the state within which it is physically located. Immunity under international law is not restricted to men of war or similar public vessels, nor to ships owned by a state, but applies likewise to merchantmen, in case they be employed or destined for public purposes, among which is to be counted the transportation of goods necessary for the waging of war, even if they are actually in the power of a foreign state.

Thus Lord Wright states (ibid., p. 732):

“The rule is not limited to ownership. It applies to cases where what the government has is a lesser interest, which may be not merely not proprietary, but also not even possessory. Thus, it has been applied to vessels requisitioned by a government, where, in consequence of the requisition, the vessel, whether or not it is in the possession of a foreign state, is subject to its direction and employed under its orders.”

From Lord Maugham’s views may be cited the following (ibid., p. 741):

“The government of Spain is engaged in civil war, and is entitled to take exceptional and drastic measures to defend itself. The ships mentioned in the requisitioning decree are Spanish ships. There may be public uses for any of such ships, e.g. in carrying stores, munitions, men, orders, and the like, for the purposes of defence or attack. On the whole, I think that the circumstances of the case justify the inference that the Christina is intended to be used for some of such purposes, and is therefore within the description publicis usibus destinata. She is in the possession of the Spanish government. On these grounds, I think she is entitled to the immunity claimed.”

[Page 475]

Finally, I may refer to the following terse statement of Lord Atkin (ibid., p. 723 [722]):

“It is well-established that the Court will not arrest a ship which is under the control of a sovereign by reason of requisition.”

The requisitioning of the use of the Wilhelmina by the Government of the Netherlands Indies had for its object the advancement of the war effort, and, when the ship in the aforementioned manner had come into its possession, it diligently looked after its interests; i.a. by advancing to the owner an amount of $45,000 for certain expense incurred by the vessel. In consequence, the conditions precedent on which, according to the opinions in the above cited case, the immunity of a ship is dependent, have been completely satisfied. The Department of State’s averment that [“] the Wilhelmina was not in the possession of the Netherlands Government, but had been libelled and was in the possession of the District Court of the United States, for the Western District of Washington”, does not seem to carry any weight, inasmuch as the ship was not subject to being libelled and the American court was therefore incompetent to arrest it. This Embassy has at the earliest possible moment protested against the attachment and in order to have it discharged, was willing to give security for the claims brought against it, with a view of having it released and having the question of the legality of the arrest threshed out thereafter. This Embassy never intended to relinquish its standpoint as to the immunity of the ship, as may appear from the following quotation from its note of May 4th:

“The Netherlands Government was and still is considering the question whether in the case of a Government requisitioned ship a libel can attach.”

Apart from the legal grounds expounded hereinbefore, my Government, considering that the two governments are engaged in a war against common enemies, cannot perceive any practical reason for the seizure of the Wilhelmina by the United States Government.

The laudable conduct of the Master of the Wilhelmina, who, after hearing of Japan’s attack on the United States and the subsequent declaration of war by the Kingdom of the Netherlands on the assaulting country, braved the perils of navigating a ship under charter to Japanese interests to a port of a nation allied with the Kingdom, was but motivated by the fixed resolve to evade the grasp of the enemy in order to put his ship into the service of the United Nations. The Netherlands Government, in the same manner as previously done with other vessels of Netherlands nationality, would gladly have let it to the American Government. Thus the result, apparently sought [Page 476]by the United States Government, would have been achieved without any controversial issue being raised.

My Government is, therefore, of the opinion that it must insist that the requisitioning by the American Government shall be nullified as soon as possible, and the Wilhelmina restored to the State of the Netherlands. On its part my government is prepared to charter it to the United States War Shipping Administration on a bareboat basis, and, if required by that Administration in connection with previous arrangements with regard to the operation of the ship, to make the charter party retroactive to April 18, 1942.

The Netherlands Government is convinced that, if the United States Government had been aware of all facts and circumstances surrounding this case, it would have refrained from requisitioning the Netherlands vessel concerned and that, now that the matter has been presented in all its material features, it will no longer hesitate to redress the injury which it unwittingly caused the State of the Netherlands to sustain.

In closing, it may not be amiss to observe that, in view of the agreement of the United Nations to pool their shipping resources so as to insure sufficiency of tonnage for the carriage of most essential goods, it would create an unhappy precedent if one of the parties thereto would take title to a vessel which is an asset of another party and destined to be part of the common reservoir of available shipping space.

Please accept [etc.]

For the Ambassador:
B. Kleijn Molekamp

Minister Plenipotentiary