300.115(39)/379: Telegram
The Chargé in the United Kingdom (Johnson) to the Secretary of State
London, December
29, 1939—7 p.m.
[Received December 29—3:40 p.m.]
2747. Your 1446, November 17, 5 p.m. A note pursuant to the Department’s
instruction was sent to the Foreign Office on November 20th. Following
reply dated December 28th received today:
- “1. I have the honor to invite a reference to Mr.
Kennedy’s note No. 1569 of the 20th November last in which
he was so good as to communicate to me certain observations
of the United States Government in regard to the printed
statement on contraband control issued by the Ministry of
Economic Warfare on the 14th October.
- 2. Generally speaking, His Majesty’s Government in the
United Kingdom entirely understand, even though they cannot
in all respects concur in, the point of view of the United
States Government, as stated in Mr. Kennedy’s note; and they
are continuing to make every endeavor to minimize the
inconvenience and losses to neutral traders attendant upon
the exercise of contraband control. No country has shown
itself in the past more concerned than the United Kingdom
with the promotion of the free exchange of goods between all
the nations of the world, and I need hardly emphasize that
in their prosecution of the war, His Majesty’s Government
have always before them as their goal a return to the
conditions of unrestricted
[Page 819]
commercial intercourse which have been
interrupted by the actions of the German Government.
- 3. While, however, His Majesty’s Government are
endeavoring to reduce to a minimum the inconvenience and
losses caused to neutral traders and while they recognize
the desirability of granting such alleviation as is possible
in this respect, this cannot be permitted to override the
necessity for instituting adequate enquiries into the nature
and destination of all cargoes dealt with by the control. In
this connection, His Majesty’s Government find themselves to
their regret unable to agree with the suggestion made in Mr.
Kennedy’s note that it is in any way a fundamental principle
of international law that cargo moving from one neutral
country to another has in its favor a general presumption of
innocence. In the opinion of His Majesty’s Government, the
question whether any presumptions can be said to exist in
the matter turns largely on the geographical situation, and
the nature of the commerce of each individual country. So
far as many countries on the western, northern and
Mediterranean seaboards of Europe are concerned, it is the
undoubted fact that even in time of peace, a considerable
part of their imports from overseas are in transit or
intended for re-export to other countries in Europe. With
regard to a country so situated, there can certainly be no
presumption that all imports from overseas are necessarily
destined for the use of that country itself. There is indeed
a definite presumption that a part of these imports (great
or small according to the circumstances) has an ulterior
destination; and this presumption is very greatly
strengthened when the circumstances of the war render direct
imports by sea from certain countries into the enemy country
impossible. That at least a part of such traffic should now
proceed, or endeavor to proceed, through adjacent neutral
countries, becomes a virtual certainty.
- 4. Moreover, since the laws of war and neutrality in no
way forbid neutrals to sell goods to a belligerent (though
the other belligerent is entitled to stop the passage of
contraband if he can), and since in consequence such trade
is in no way illegitimate, there does not exist any ground
on which neutrals can claim that a belligerent is bound to
assume that they are not sending goods to the enemy until
the contrary is proved. It is indeed just as likely that a
given neutral, who in time of peace is in the habit of
exporting, re-exporting or facilitating the transit of goods
to a belligerent country, is still doing or endeavoring to
do so in time of war, as that he is not.
- 5. The action of His Majesty’s Government, therefore,
rests on the broad ground that they are entitled, in the
exercise of their lawful belligerent rights, to examine and
enquire into the destination of every cargo passing through
their contraband control, with a view to ascertaining
whether it is of such a nature and has such a destination as
would justify placing it in the Prize Court; and that they
are entitled to do this irrespective of the fact that the
goods may ostensibly be consigned to a neutral
country.
- 6. It would appear that the preoccupations of the United
States Government have arisen largely from the construction
which they have put upon paragraphs 6 and 7 of the
memorandum of the 14th October, referred to above, from
which it seems to have been inferred that His Majesty’s
Government intend to regard everything as suspect
[Page 820]
that is not
covered by a satisfactory guarantee. This is a
misapprehension, which His Majesty’s Government are happy to
be able to correct. The true position in regard to
guarantees is as follows. As already stated, His Majesty’s
Government must make enquiries into all cargoes of a
contraband character passing through their control. Such
enquiries necessarily take time and delays may be
considerable. If importers in neutral countries are in a
position to give satisfactory guarantees (and they are under
no compulsion to do so) and if these guarantees appear to be
reliable, it may be possible to release goods without
instituting all the enquiries which would otherwise have
been necessary, thereby avoiding much delay. The absence of
a guarantee, however, save in exceptional circumstances will
not of itself render a consignment suspect, though it would
compel His Majesty’s Government to make enquiries, with the
result that release might not be effected for a considerable
time. The system of guarantees, therefore, affords a means
whereby in suitable cases traders can obtain an early
release of goods, which might otherwise have to be detained
for a possibly prolonged period. It does not in any way
imply the existence of a general suspicion attaching to
goods consigned to neutral countries. Each case is one for
separate enquiry and appreciation, in the light of all the
circumstances, but the system of guarantees is intended as a
concession to traders, not as an imposition. Its absence
would result almost certainly in a greater number of
seizures than at present occur, and quite certainly in
releases taking much longer to effect than at
present.
- 7. On the question of reparation, which Mr. Kennedy
mentioned at the conclusion of his note, His Majesty’s
Government cannot admit any claims arising out of the
legitimate exercise of their belligerent rights. If however,
parties interested in any ship or cargo consider that they
have good grounds for a claim, it is open to them to make it
in the Prize Court in accordance with the procedure
prescribed in the Prize Court Rules, 1939. The Court has
full jurisdiction to award damages in cases where it holds
the claim to be well founded.
- 8. It is nevertheless, as I have already indicated, the
firm intention of His Majesty’s Government to interfere as
little as possible with United States trade destined for
neutral countries, and they feel sure that the United States
Government will, for their part, appreciate that their
action in this connection is wholly dependent upon the
question whether any given trade is or is not so destined.
In these circumstances, His Majesty’s Government must
reserve the right, in accordance with recognized principles,
to employ such means of establishing the facts in individual
cases as the circumstances may require; but it is their
earnest hope that the practical outcome of these measures
will prove less onerous to United States trade than Mr.
Kennedy would seem to expect.”
