393.115 Carolina Leaf Tobacco Company/10: Telegram
The Secretary of State to the Consul General at Shanghai (Lockhart)
549. Your 1219, September 14, 10 a.m. The Department desires that you reply to the Japanese Consul General along lines as follows:
The ownership of the hogsheads of tobacco by the Carolina Leaf Tobacco Company, an American firm; the presence of those hogsheads of tobacco in the godowns of the Joint Savings Society at the time of the occupation of those godowns by the Japanese forces on or about October 31, 1937; and the seizure of the hogsheads of tobacco by the Japanese military authorities are established facts which appear to be accepted by the Japanese Consul General. The Consul General contends, however, that the hogsheads were “booty” and seized as such, and he alleges, as a basis for his contention, that the Chinese troops appropriated the tobacco which act gave to the tobacco an “enemy” character and consequently made it subject to confiscation by the Japanese forces under “the rules of war”. The Japanese authorities affirm, therefore, that they are not in position to return the tobacco or to accept any claim for damages.
In the opinion of the American Government there exists no factual or legal basis for the Japanese contention. The fact that Chinese troops had made use of the godowns affords no grounds whatsoever for the Japanese contention that the Chinese troops appropriated the tobacco. Use which the Chinese troops may have made of the hogsheads was simply of an incidental character. This was no more appropriation than would be a similar use of a building or a wall or a mound of earth. The tobacco, belonging to an American firm, could, as a matter of fact, not legally have been appropriated by the Chinese troops; nor subsequently could it legally be appropriated by the Japanese troops.
The American Government maintains that the tobacco in question could not lawfully be taken and be damaged or destroyed or appropriated by either the Chinese or the Japanese authorities—or by any other authorities—and that such procedure without compensation would be or is confiscation. Under no rules of war would that be legal. Even if the Japanese authorities were in position to appeal with warrant to those rules, such appeal would not support the Japanese contention in this matter. There is nothing in the rules of war which authorizes or makes lawful any confiscation of noncontraband property of nationals of third countries.
[Page 484]The American Government, therefore, asks the Japanese authorities to reconsider this matter and urges that measures promptly be taken either to effect return of the tobacco to the American owner or fully to indemnify the owner.
Please repeat to Chungking, Peiping, and Tokyo. Request Tokyo, as from the Department, to make an approach to the Japanese Foreign Office along the lines set forth above if, in its opinion, such an approach would serve a useful purpose.