800.8836/10–2544
The Secretary of State to the Ambassador in Cuba ( Braden )
Sir: Reference is made to the Embassy’s airmail despatch no. 8100 of October 25, 1944, and prior correspondence, in relation to the controversy between American-owned terminal and warehouse companies in Habana and the Cuban Maritime Commission in connection with the issuance of certain Orders by the latter in alleged violation of the rights of the companies under their concessions.
It is noted that in the communication of June 28, 1944 of Dr. Gregorio del Real, counsel of the Commission, a copy of which accompanied the Embassy’s despatch no. 7781 of August 28, 1944, reference is made to the fact that the controversy between the companies and the Commission had become the subject of proceedings in the courts [Page 1010] of Cuba, and also that in a memorandum which was handed Ambassador Braden on August 3, 1944, it was stated that the Commission had approved a report of Dr. del Real in which it was concluded that the matter “should be channelized through the courts.” While it is possible that Dr. del Real had in mind the general principle of international law in relation to the exhaustion of legal remedies available in the tribunals of a state against which complaint is made, it is also noted that the Ministry of State has apparently made no reference to the principle and has not indicated a disposition to object to discussion of the matter in the diplomatic channel on that ground.
In the circumstances, the Department considers that you are warranted in continuing your endeavors to effect an adjustment of the controversy provided you are satisfied that decisions of the Supreme Court of Cuba cited by attorneys for the companies support the contention of the companies that rights vested in them by their respective concessions cannot lawfully be modified unilaterally by the Cuban Government. In that relation it is observed that while in the memorandum accompanying the Embassy’s despatch of October 25, 1944,78 the Embassy’s legal adviser stated that there is “little jurisprudence” on the subject of administrative concessions in Cuba, he nevertheless agrees with the opinion of the attorneys for the companies, also enclosed with that despatch, in which the decisions allegedly supporting the companies’ contention are cited.
It is doubted that further representations to the Ministry of State will serve any useful purpose if that Ministry continues to reply on the opinions of the counsel for the Maritime Commission whose primary interest in the matter may be that of endeavoring to support the legality of the Commission’s actions. It may be noted that so far as the record discloses, he has refrained from any discussion of the Commission’s action and the companies’ rights in the light of the decisions of the Supreme Court of Cuba which have been cited in support of the contentions of the companies. Accordingly, it is thought that the prospect of effecting an adjustment of the matter might be enhanced should the Ministry of State endeavor to obtain a more impartial appraisal of the situation by seeking the views of the Ministry of Justice regarding the legal contentions of the companies. The Embassy may consider the statements made in the second paragraph of the memorandum prepared by attorneys for the company [companies],79 which accompanies the Embassy despatch of October 25, 1944, as affording a basis for suggesting, formally or informally, that the Ministry of State pursue that course. Before doing so, however, the Embassy may desire to obtain the views of the [Page 1011] local representatives of the companies concerning the advisability of following such a course.
It is suggested that in presenting the matter anew to the administration which recently assumed office, the Embassy point out that since a considerable period of time has already elapsed since the issuance of the Orders complained of, and in view of the estimate of the attorneys for the companies that an additional period of some four or five years may elapse before final action can be obtained in the courts, the matter appears to be one which should be remedied by administrative action as promptly as possible. This is particularly true in view of the fact that as a consequence of the Orders the companies are being deprived of substantial revenues to meet the increased cost of operations imposed upon them, and in the meantime accumulating corresponding claims against the Cuban Government.
Since the Embassy may, in the course of its representations, desire to present to the Ministry of State the memorandum prepared by the attorneys for the companies the Spanish text of the memorandum is returned herewith for the convenience of the Embassy.
Very truly yours,