300.115 (39)/665

Memorandum of Conversation, by the Assistant Secretary of State (Berle)

The British Ambassador came in today, at his request. After discussing certain other points (reported in memorandum of conversation [Page 20] of even date herewith24a), we then proceeded to a discussion of the Aide-Mémoire of February 8th, 1940, which he had handed to Mr. Welles. I stated to the Ambassador orally the substance of the memorandum a copy of which is attached. The Ambassador’s principal comment was confined to that part of the statement which referred to the Secretary of State’s suggestion that a system be worked out which would minimize interference with American commerce. He said that the Secretary had used, in conversation with him, the phrase “letters of assurance”. It is true that his suggestion contemplated meetings. Two such meetings had actually been had. A memorandum had been given by our people to theirs as to the bases of the Navicert system. No letter had been sent by the Embassy to us indicating that they did not accept these assumptions; the Ambassador thought it was a mistake not to have sent such a letter. The fact was that the assumptions had not been accepted. The establishment of the Navicert system had been done unilaterally, but it had been done because the Embassy had gained the distinct impression that the State Department did not wish to carry discussions further, since it did not wish to be in a position of agreeing to anything.

I confined myself to stating that this would have to be the subject of a further discussion covering the entire Navicert system.

At the close of the discussion I said that I had understood the Ambassador wished to keep his Aide-Mémoire confidential; that we would, however, in due time answer it with more complete discussion; that the object, of course, was not to have a dispute, but to get a result; and that I sincerely hoped that the results, namely, elimination of discriminations and delays and the like, would be such as to make reference to it unnecessary. On the other hand, without some such result our people felt that they were entitled to full information as to the status of affairs.

I added that there were a number of minor but unhappy cases which I thought we should have to discuss in the future. These, it seemed to me, were matters which we should be able to solve, since quantitatively they did not seem to me important. They related to the stoppage of German shipments which had already been paid for by our people; and to the refusal to permit passage of certain goods because they were supposed to be absolute contraband, which led to a controversy over a very small shipment of dental supplies to a European neutral because they contained rubber; and to the shipment from Germany of certain supplies of humanitarian and other articles of similar importance which could not be obtained elsewhere. I said that I did not wish to open this matter today, but that we should wish to get at it in the future.

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Lord Lothian said that he fully agreed that these matters should be taken up and promptly settled, since he did not consider that they were of great importance practically.

As to the outgoing shipment of German goods, he noted that the principle applied to the date of the Order of [in] Council; goods paid for before that time he felt should be released, others not. I said that we naturally reserved our position that any blockade of outgoing goods was contrary to international law; but that in any case I did not think our people would feel themselves charged with knowledge of the date of the British Order in Council. In these cases the situation was that Americans had paid for materials; no advantage could accrue to the Germans, accordingly, from the shipment of these goods, and the only effect, therefore, was to inflict loss on our people. The Ambassador said that he agreed that was so, although the practice might grow up of paying for goods in advance and then insisting that the goods come through. I said that I thought few, if any, American business men were likely to pay for goods in advance and then take a chance on getting them out.

The only other observation of importance made was that I took occasion to emphasize that we understood the phrase in his Aide-Mémoire disclaiming any attempt to control “American trade or traders” must be taken to exclude any possibility of a black list; that our people were extremely sensitive in such matters. We had already had a situation in which Navicerts were issued for shipment to a neutral European, and made available to a number of American shippers but withheld as to one American shipper, which would seem to indicate that the objection was not to the consignee, but to the shipper.

Lord Lothian agreed that the only test was the consignee; though he said there might be certain cases of American shippers who were obviously enemy concerns, like the North German Lloyd. I said there would be no practical difficulty in the cases where the American shipper was very obviously an agent of the German government, but we could cross that bridge when we came to it. In general, I was glad to note their acceptance of the fundamental point of view that no black list would be undertaken as regarded American traders.

A. A. Berle, Jr.
[Annex]

Memorandum by the Assistant Secretary of State (Berle)

We expect to make a more careful and detailed reply to the Aide-Mémoire of the British Embassy, dated February 8th, at a later time. The following comment may be regarded as preliminary.

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At the outset, note must be taken of the fact that the position of the British government is based almost entirely on the so-called Navicert system. This system is in the course of separate discussion; and it is perhaps sufficient to say now that the assurances which the Ambassador communicated to Mr. Grady on January 20th last are not considered adequate, and the present basis of the system does not conform to the understanding which this government had of the matter at its inception. It is expected that more extended discussion of this matter will be had within a few days.

Exception must be taken to the statement that the establishment of this system was due to the fact that “His Majesty’s Government fell in with the suggestion made by the Secretary of State very early in the war” etc. It is unnecessary to remind the Ambassador that the Secretary’s suggestion was that the two governments designate experts to confer, with a view to determining whether a certificate system along the general lines prevailing during the World War might not contribute to lessening interference by Great Britain with the commerce of the United States. This contemplated bilateral exploration, whereas the Navicert system was established by unilateral act, which in certain important fundamentals ignored the conditions suggested by our experts as essential.

We are pleased to observe that the British authorities are in direct contact with the American shipping lines whose vessels have been chiefly affected, and that it is believed that thereby any appearance of discrimination between American and other neutral ships may be removed. In this connection it is appropriate to observe that this government has been careful not to approve any arrangement which the American shipping lines might feel it to their interest to accept; and neither has it undertaken to exercise any influence preventing the entry to such arrangements, and naturally reserves to itself the right to scrutinize such arrangements, bearing in mind the contentions with which the Ambassador is familiar. Among these may be mentioned specifically the interest that any system, whether with or without agreement, which may obtain shall not become a method of controlling American commerce or commercial relations, or an attempt to ration neutrals with which this government has normal commercial relations; and we are happy to observe that the Aide-Mémoire disclaims any intention to permit the systems in force to achieve such result. The Government of the United States definitely understands that the disclaimer of any intent to control American trade or traders means that nothing in the nature of a black list shall be applied to American shippers.

Nevertheless it seems appropriate to make certain observations in this connection.

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We are unable, first, to accept the suggestion of His Majesty’s government that shipments on American vessels destined to neutrals are deemed to be contraband, subject to seizure, until the contrary is proved. In our view, the legal presumption is precisely the reverse. The case of a vessel delayed for fifteen days during examination, at the close of which no single item of its cargo was found to be contraband, whereupon the vessel was released, demonstrates, in our view, not the necessity that such cargo should have been certified in advance, but the complete lack of justification for holding the vessel in the first place.

Further, the implication that American shipping is obliged to cooperate with the British blockade rests on the essential theory that the American shipping lines should become a part of the British blockade mechanism, which of course cannot be accepted.

It would seem, accordingly, that though mention of belligerent rights is made, there ought to be an equivalent recognition of belligerent obligations. It may also be added that since the working of the control station, especially at Gibraltar, appears to be carried on entirely from London, and that its operation is therefore entirely within the knowledge of the British government and entirely unknown to us, we are obliged to judge the system by its actual results.

A. A. Berle, Jr.
  1. Supra.