871.6363/11–145: Telegram

The American Representative in Rumania (Berry) to the Secretary of State

843. On receipt Deptel 548 of October 17 we requested fourth meeting American-Soviet Oil Equipment Commission be held soon possible. Owing illness Colonel S. M. Blank, Chief Soviet member, meeting delayed until October 30. Americans represented by Reagen10 with assistance Walters and Willcox and interpreter Greydberg. Following is Reagen’s report of fourth meeting:

Americans handed Soviets memorandum incorporated in minutes which presented inter alia (1) American position as set forth urtel 548 regarding Soviets’ requests of Sept 6; (2) photostatic copies seven proces-verbaux covering all but minor items lifted; (3) repetition American reply to Soviets’ proposal regarding release information (urtel 487 of September 1011) (copy is memo being forwarded [Page 663]under despatch with minutes as soon as transcribed12).

Soviets first adverted to (3) and stated their Govt considered no information regarding Commission’s work should be released by either Govt until work completed. We agreed that in principle our Govt takes same position. Soviets then stated their Govt maintains its position that neither Government should give out information without other’s approval and said they considered our statement that “each Govt should be free to release etc.” as nullifying the principle enunciated with regard to timing of any releases. We reiterated that our Govt like Soviet Govt would, of course, prefer no information be released until conclusion of Commission’s work but that should, for example, there be undue delay in its conclusion, either Govt might be constrained to release information but that its release should not be dependent upon approval of other Govt. After further discussion on latter point, Soviet members stated they could not agree to this and submitted a prepared memo for minutes to this effect. (Text is being submitted by despatch.)13

Soviets reiterated their previous position that question ownership is basic factor whereas quantities materials removed secondary. Latter could be settled short order on basis of lists materials available both parties. Soviets stated that question ownership of material removed was raised by Americans; therefore, Americans should furnish proof American ownership. Americans refused accept principle that burden of proof as to ownership rested on American Govt and stated this was matter of reciprocal responsibility. Blank in what appeared to be prepared statement complained American position (1) above merely represented counter proposal for procedure and that Americans have delayed Commission’s work by refusing give detailed information with regard stocks, purchases, etc., requested on September 6 (mytel 650 of September 7) which would permit determination ownership, that Soviets do not deny lifting material from Romano-Americana but that their Govt has documents showing such materials to be German and that Americans’ failure present this information requested by Soviets has placed responsibility for lack of progress in work entirely upon Americans. He stated that “restoration American owned materials and equipment” (urtel 548) was outside competence [Page 664]of Commission and merely “took note” our statement we considered Commission competent to make recommendations as to basis for and manner in which restoration should be made. He agreed in principle (although later negated by Spilman14) with our basis for determination of ownership (as outlined under 3 of urtel 548) but only if considered in conjunction with all information requested by Soviets September 6. Soviets asserted that if ownership could be determined on basis of Rumanian law only, then Commission would not have been necessary; the fact that Commission was appointed proves seriousness of questions involved. Colonel Spilman, Soviet legal adviser, stated he considered that view wartime position of Rumania, certain features international law might override “existing Rumanian law” (some he said made by reactionary Govt) but did not specify more exactly and added he did not care go further into that legal phase this question at this time. Spilman in support of Blank’s contention argued that in order identify the “part” i.e., items lifted and ownership thereof full information on the “whole” i.e., all information asked by Soviets on September 6 must be presented. By “whole” Spilman means all goods acquired by the companies in 1942 through 1944 while Rumania was under German domination. Blank stated that naturally it was the purpose of Soviet members of this Commission to use the information on the “whole” merely in order to determine the ownership of the “part”.

American representative stated he was glad to note Blank’s acceptance as basis for discussion of Dept’s prescription for determination of ownership (under 3 urtel 548) but could not, under his Govt’s instructions, accept Blank’s reservation that with this basis the procedure demanded by Soviets September 6 must be employed. Reagen stated that he must emphatically reject Soviet member’s assertion that delay has been caused by failure of Americans to give proof of ownership on basis requested by Soviets, that primary details as to acquisition by Romano-Americana of materials lifted by Soviets had been presented at third meeting; that the procès-verbals relating thereto and requested by Soviets at third meeting had now been submitted at this fourth meeting; that the interim delay between third and fourth meeting had been caused by the demands of Soviets at third meeting and which demands, as he had just informed the Soviet members, were considered by the American Govt as irrelevant to the Commission’s objective, namely, agreement as to the material lifted and determination of ownership. In reply to Spilman’s argument that all information on “whole” is required to ascertain facts on “part” Reagen recalled terms of Potsdam protocol and pointed out that no consideration [Page 665]was envisaged therein re equipment which had not been removed and that, therefore, investigation of facts regarding latter and presentation of information and documents relating these concerned issue in his opinion outside competence of the Commission (last paragraph urtel 548). He pointed out that on basis our interpretation Potsdam protocol it appears logical continue procedure on points begun first and second meetings and in conformity with restatement our position as outlined our memo just presented, namely to seek agreement on items lifted and then conduct simultaneous efforts (a) to check further on unagreed lifted items and (b) to establish ownership on agreed items. To these ends he felt sure Soviets would consider that only frank and reciprocal presentation of all relevant information by both sides would fulfill spirit as well as letter of Potsdam protocol; he then repeated requests made by Walters previous meetings for Soviet lists of lifted materials and asked for submission of documents Blank has said his Govt possessed showing German ownership.

Blank reiterated his Govt’s instructions called for procedure on lines requested September 6, evaded replying directly to our request for list cigtel [lifted?] materials by reiterating that question ownership, primary question be settled; in reply to our request for documents Soviets had said they possessed showing German ownership material lifted, Blank in effect withdrew his previous statement in this respect and stated that it was obvious that in removing this property as war booty his Govt considered that this material was German property. Blank said since Americans had presented “counter-proposals” today he must refer these to Moscow for decision, Soviets did not indicate when Moscow’s reply could be expected.

In view of this envisaged delay Reagen asked whether work as previously undertaken might not be continued meanwhile and inquired whether Soviets would indicate example items from our list for which companies might immediately prepare full documentation on basis our instructions presented Soviets today. Soviets refused. Reagen then suggested that to save time Americans were prepared submit documentation on random items as examples for consideration by Soviets. Soviets replied that since documentation only of items lifted did not fulfill Sept 6 requirements they could not undertake accept such submission for consideration.

Summarizing the chief points of Soviets position follow: (1) they insisted the question of ownership was basic factor and question of quantities secondary; (2) question of ownership was raised by Americans and therefore Americans should furnish proof of American ownership; (3) Americans have not presented such proof although Commission has been meeting for 3 months; therefore Soviets cannot accept responsibility for delay; (4) they refused American offer as test of method to supply information re ownership for part of material stating this might prejudice question of ownership on the “whole”; [Page 666](5) their reaction to proposal to base ownership on Rumanian law was unfavorable; (6) they have no authority to discuss question of restoration; (7) Americans instead of supplying answers to their questions had made new proposals embodying a complete new approach to problem; the question will therefore be referred to their Govt.

The Americans position is summarized as follows: (1) Americans refuse to accept principle that burden of proof as to ownership rests on Americans and stated this was matter of reciprocal responsibility. (2) The Soviets had asked for information on ownership of all materials whereas Commission’s assignment referred to materials lifted only. (3) Americans raised question of Soviets supplying list of materials lifted but evasive answer received.

This is 843 from Berry; rptd Moscow as 252; Bern as 23 and London as 83.

Berry
  1. Daniel J. Reagen, Counselor for Economic Affairs at the Legation in Bern, on temporary assignment as United States member on the U.S.-Soviet Oil Commission.
  2. Not printed; it instructed that information regarding meetings of the Commission investigating removal of oil equipment from Rumania should be released only by American and Soviet Governments and preferably when the Commission had concluded its work (871.6363/8–3045).
  3. The preliminary notes of the fourth meeting of the Soviet-American Commission for the Study of Facts and Documents Connected with the Removal of Oil Equipment, October 30, 1945, were transmitted to the Department in despatch D–590, November 2, 1945, from Bucharest, neither printed. Annexed to these notes was the memorandum cited here, also not printed. (781.6363/11–245)
  4. The Soviet memorandum was embodied in the notes of the fourth meeting of the Commission, cited in footnote 12, above.
  5. Colonel Spilman (sometimes spelled Spielman in minutes of the Commission meetings), Legal Adviser to the Soviet members of the Commission.