865.30/49
The American Ambassador in Spain (Hayes) to the Spanish Minister for Foreign Affairs (Jordana)78
Excellency: I have the honor to acknowledge the receipt of Your Excellency’s Note Verbale No. 586 of October 6, 1943, in which it is [Page 717] stated that the Ministry of Foreign Affairs cannot accede to the Embassy’s request, contained in its Note No. 1337 of September 13, 1943, that the Italian warships now in the ports of Mahon and Pollensa, in the Balearic Islands, be permitted to continue their journey.
The Ministry states that these Italian vessels entered the Spanish ports referred to in search of refuge, which they obtained. I am confident, however, that the opinion of the Ministry in this respect is based on a misunderstanding of the reasons for which these ships entered the ports of Mahon and Pollensa. The Italian war vessels, it should be pointed out, entered these ports (1) in order to land Italian naval personnel who had been killed or wounded as a result of an attack by German military forces, and (2) in order to obtain fuel under the provisions of Article 19 of the 13th Hague Convention.
With reference to the latter consideration, the Ministry recognizes in its Note that the cause of the delay in the departure of the Italian vessels has been their inability to obtain fuel, as requested, sufficient to enable them to continue their journey, but it also states that it cannot admit that the period for supplying fuel, when such fuel is not initially available, is indefinite, since that would have the result of extending such period for so long a time as to vitiate totally the purpose for which the period was fixed.
In this connection, I should like to point out to Your Excellency that this Embassy has never contended that the period within which fuel can be made available to the warships in question should be considered to be of indefinite duration. It has, on the contrary, taken the view that fuel should be made available at the earliest possible moment and that the vessels should thereafter be allowed only the usual period of twenty-four or forty-eight hours within which to depart, and, in order that their departure may be expedited, has, in its Note No. 1337, offered to cooperate with Your Excellency in making certain that fuel would be made available for this purpose, in the same manner in which it is presently cooperating in making petroleum supplies available for Spanish domestic needs, including the needs of the Spanish armed forces.
It is apparent, moreover, that the purpose underlying the fixing of a limited period within which fuel shall be made available, to which the Ministry refers, is, in fact, to make it possible for belligerent warships in need of fuel to enter neutral ports and take on sufficient fuel to permit them to continue their journeys, without compromising the neutrality of the port Power by remaining in its waters for a longer time than is necessary for them to complete their refueling and to depart. This rule presupposes the existence of a supply of fuel which may be taken on within the limits of the quantity permitted, however, and, in cases in which such fuel is not initially available, it [Page 718] is apparent that, far from being vitiated by an extension of the time limit, this purpose would be completely defeated by the denial of such an extension and the internment of vessels which enter such ports well within their rights under international law, but which, through no fault of their own, are unable to obtain the fuel without which they are rendered incapable of continuing their journeys.
In such cases it would clearly be inequitable to invoke a twenty-four or forty-eight hour limit against such vessels until there has been made available to them sufficient fuel to enable them to depart, and it is therefore my Government’s view that any time limit which may be set for the departure of these Italian warships from Spanish ports should be counted only from the time such fuel is made available to them.
I am confident that Your Excellency will wish to reconsider this matter in the light of the circumstances set forth above, and that the Ministry will agree with the views of my Government that fuel supplies should be made available to these vessels and that they should be permitted thereafter to continue their journeys, in accordance with orders already given to them by the Royal Italian Government.
I avail myself [etc.]
- Copy transmitted to the Department by the Ambassador in his despatch No. 1441, October 12; received October 21.↩