The Secretary of State to the Netherlands Ambassador (Loudon)
The Secretary of State presents his compliments to His Excellency the Ambassador of the Netherlands and has the honor to refer to the Ambassador’s note of March 15, 1943 which was acknowledged by the Department on April 13, 1943,33 concerning the desire of the Netherlands Government to obtain the return of the S.S. Wilhelmina, title to and possession of which were taken by the United States on April 18, 1942, with the understanding that the vessel would be chartered to the United States War Shipping Administration on a bare-boat basis, and that if required by the Administration the charter party would be made retroactive to April 18, 1942.[Page 477]
The Ambassador’s note recites at some length details bearing on the nationality and registration of the vessel. It states that requisition of the Wilhelmina by the Netherlands East Indies was to take effect as soon as contact with the master could be effected, and that, “on January 30, 1942 this contact was accomplished and, accordingly, the captain recorded the requisition in the ship’s journal on that date.” At that time the vessel was at Dutch Harbor, Alaska, and within the territory and jurisdiction of the United States.
The note quotes the Department’s statement in its note of July 30, 1942,34 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,” and states that this assertion is emphatically rejected. The Department cannot concur in this position but must maintain the position set forth in the above quoted excerpt from its note of July 30, 1942.
In support of the repudiation of this Government’s position, the Ambassador cites a decision of the House of Lords on March 3, 1938 in the case of the S.S. Christina. (All England Law Reports 1938 I, p. 719 et seq.) An examination of this case, which is also reported in Law Reports, Appeal Cases, 1938, p. 485 et seq., discloses that it does not support the position taken in the Ambassador’s note. The case relates to a writ in rem issued by a private company claiming, as sole owner of a Spanish steamship requisitioned by the Spanish Government, to have the possession of the vessel adjudged to it. While this case may be regarded as supporting the view that the courts of Great Britain will not at the instigation of a private litigant allow the arrest of a ship, including a trading ship, which is in the possession of and which has been requisitioned for public purposes by a foreign sovereign state, it has no bearing on the question of the rights which the local sovereign may, in the case of necessity, exercise with respect to such vessel. This question was not before the House of Lords and was not passed upon in this case. The Department again affirms the right of the Government of the United States, under both its domestic law and international law, to take title to and possession of the Wilhelmina for use in connection with the prosecution of the war.
The Wilhelmina entered the jurisdiction of the United States at Dutch Harbor, Alaska, on December 25, 1941. Subsequently it proceeded to Seattle, Washington, where it arrived on February 20, 1942. [Page 478]Notwithstanding the great need for shipping in connection with the prosecution of the war, the Wilhelmina remained idle in the latter port for nearly four months until title to and possession of the vessel were taken by the United States on April 18, 1942. During this time it was libeled by various claimants. The Department on several occasions took up with the Embassy the question of whether some action could not be taken by it with a view to this vessel being put into service. Its efforts in this connection met with no success. The action taken by this Government in requisitioning the vessel had the effect of promptly putting it into service to the benefit of the United Nations.
With a view to effecting a settlement of the matter and meeting as far as may be possible the wishes of the Netherlands Government, the Department took up the matter with the War Shipping Administrator and is in receipt of a communication from him stating that by an Act approved June 16, 1942,35 the Act of June 6, 1941,36 under which the Wilhelmina was requisitioned by this Government, was amended to read in part as follows:
“The Administrator, War Shipping Administration, may determine at any time prior to the payment in full or deposit in full with the Treasurer of the United States, or the payment or deposit of 75 per centum, of just compensation therefor that the ownership of any vessel (the title to which has been requisitioned pursuant to …37 the Act of June 6, 1941 …37) is not required by the United States, and after such determination has been made and notice thereof has been published in the Federal Register, the use rather than the title to such vessel shall be deemed to have been requisitioned for all purposes as of the date of original taking: Provided, however, That no such determination shall be made with respect to any vessel after the expiration of a period of two months after the date of delivery of such vessel pursuant to title requisition except with the consent of the owner.”
The War Shipping Administrator adds that should the Netherlands Government indicate that it desires him to make a determination such as that contemplated by the foregoing provision of law, converting the requisition of title to the Wilhelmina to requisition of use, he is prepared to give consideration to such proposal, provided that he is furnished with satisfactory evidence of the “consent of the owner” thereto, as required by the statute, and provided further that satisfactory arrangements can be made both with respect to the expenditures for the repair of the vessel and also for the disposition of the pending liens and libels.