File No. 658.119/338
The Secretary of State to the Swedish Minister ( Ekengren)
Sir: I have received your note of April 30 last, acknowledging the receipt of a communication expressing this Government’s decision, reached after the most careful and thoughtful consideration, that article 17 and article 12 of the Swedish-American treaties of 1783 and 1827, respectively, had no application to the delay in American ports caused to the Swedish motor ships Kronprins Gustaf Adolf and pacific on account of difficulty in obtaining export licenses for quantities of bunker oil carried on board the ships on their arrival in America. In this relation you state that the Swedish Government’s view concerning the application of the articles of the treaties in question is the opposite of that held by this Government, and you ask, accordingly, for a statement of the reasons for the apparent difference in the interpretation of the treaty stipulations by the two Governments in this case.
I have the honor to state, in reply to your communication, that article 17 of the Swedish-American treaty of 1783, while forbidding both the laying of an embargo and the detention of ships, vessels or merchandise in general “by seizure, by force or by any such manner,” does not appear to place the United States under obligation [Page 1279] to refrain from applying general regulations for the control of commodities exported from or taken out of this country, to the Swedish motor ships in question.
An embargo has been defined by M. Calvo, as you are informed, as a prohibition of leaving, generally applied to merchant ships, and usually imposed in order that the ships may be employed in the service of the nation laying the embargo, or that they may hinder and obstruct the operations of the enemy. You will not fail to perceive, therefore, that no embargo has been laid upon the ships Kronprins Gustaf Adolf and pacific. Moreover, this Government has not prohibited the sailing of the ships in question, nor has it prohibited the exportation of the bunker oil which they carried. It has merely required, for reasons which will readily occur to you, the licensing of all commodities desired to be removed from the jurisdiction of the United States. The law on this subject makes no distinction between the exportation of an article of commerce and the taking out of an article which has never been entered at a customs house of the United States and never left the ship on which it came into the territorial waters of this country. It is obvious that there is a wide distinction between necessary compliance with the licensing regulations of the United States relating to articles of commerce exported or taken out of the jurisdiction of the United States, and detention, “by force, by seizure or by any such manner,” under article 17 of the treaty of 1783.
I have the honor further to state that this Government, after careful consideration of the provisions of article 12 of the treaty of 1827, is constrained to the opinion that no part of this article can be considered to have been intended to apply to cases such as those of the two ships in question, and that a construction of the several provisions of the article makes it appear that the provision according to vessels the privilege of freely departing refers to departure free of a duty on that portion of the cargo not landed, and not to departure free of commercial regulations, quarantine regulations, port charges and similar restrictions. This construction is made more certain by the fact that the subject of port charges appears to have been dealt with independently in the concluding provision of the same article.
In conclusion I may add that it is understood that certain of the co-belligerents of the United States in Europe having similar treaties with Scandinavian countries, negotiated a century or more ago and intended to cover situations then in contemplation but quite different from those presented by present-day conditions of commerce and shipping, do not regard them as applicable to cases similar to those under discussion.
Accept [etc.]