800.8836/1208: Telegram
The Ambassador in Cuba ( Braden ) to the Secretary of State
[Received 11:12 p.m.]
830. The note52 mentioned in Department’s telegram number 1054 of December 14, 1 p.m.,53 states that the Cuban Government’s criterion is contrary to that maintained by the terminal companies and that therefore, it considers their demands legally unjustified.
This opinion is based on arguments contained in a lengthy memorandum53 attached to the note the gist of which is that the uniform tariffs and regulations for the port of Habana established by Decree No. 665 of 1920 which the terminal companies invoked had fallen into disuse by the unilateral action of the companies in increasing free storage periods, charging rates, etc., and that this situation was confirmed by Decree No. 1896 of July 10, 1942, which suspended those tariffs in all their parts. (Decree No. 1896 issued by the Ministry of Labor cancelled the tariffs and regulations established by Decree No. 665 declaring that they had fallen into disuse and had been substituted by the tariffs approved by the Intelligence Commission under a law of 1924. The companies did not apparently specifically protest against Decree No. 1896 assuming, it seems, that having been issued by the Ministry of Labor it affected only that part of Decree No. 665 referring to wages.)
The memorandum states that it was the Cuban Maritime Commission which, at the recommendation of the representative of the WSA,54 on December 30, 1942, issued general order No. 7, reducing the free storage time to the period specified in decree No. 665 to relieve a congested condition on the docks brought about by the alleged leniency of the companies in this regard.
[Page 1000]The memorandum discusses subsequent general orders leading up to general order No. 12 of August 10, 1943 alleging with reference to the latter that it does not infringe any pre-existent rights of the companies because:
- (1)
- Their concessions do not contain the provisions which according to my note have been infringed;
- (2)
- Because decree No. 665 merely promulgated general rules applicable to all terminals, which rules competent authorities could subsequently modify;
- (3)
- Because the companies themselves failed to live up to those rules; and
- (4)
- Because the storage rates were not modified by general order No. 12 nor by the preceding orders which merely established general rules for tallying computation of free time; and for day to day charges on merchandise under the faculties granted the Cuban Maritime Commission by decree No. 1855 of July 7, 1942.
The memorandum states that the Cuban Maritime Commission and all orders and regulations which it has or may issue are, in accordance with decree No. 1855, in force for the duration of the war and are essential to the war effort of the United Nations. (A copy and translation of decree No. 1855, establishing the Cuban Maritime Commission, accompanied the Embassy’s despatch No. 397 of July 11, 1942.)55
The memorandum ends with a brief history of the changes which have occurred from time to time in the several concessions under which the docks operate, apparently seeking to prove that the concessions have not been infringed by the general orders under reference.
While every effort should, in my opinion, be made to confirm and uphold the terminal companies’ concessionary rights, I believe that before any specific recommendations can properly be made, a careful study by legal experts of the agreements (?) is required. I do not however, consider that the argument that the terminal companies vitiated their respective concessions by failing to apply the maximum tariffs authorized by decree No. 665 is a valid one. On the other hand, the companies may have weakened their legal position by their apparent failure to protest at the time against the provision of decree No. 1896 of July 10, 1942, mentioned above which declared null and void at least part of the tariffs and regulations established by decree No. 665.
A copy and translation of the note and memorandum were forwarded by courier today.