Just

compensation

The Department replied:

The Government of the United States, while noting with interest the views of the German Government and observing that there is a lack of unanimity of the authorities on certain phases of the subject, deems it unnecessary at this time to enter into a discussion of the circumstances under which the right may be exercised.

The German Embassy to the Department of State, Mar. 4, 1941, and the Department of State to the German Embassy, Mar. 15, 1941, MS. Department of State, file 862.85/1845.

The German Chargé d'Affaires amplified his statement by writing: "The German Government is of the opinion that under universally recognized principles of international law the first prerequisite for the application of the Right of Angary is the existence of a state of urgent public emergency, and that it can be exercised under no other conditions by any nation in time of war. The mere desire to obtain additional tonnage or even a lack of shipping tonnage gives no nation the right to requisition foreign ships lying in its harbors under the Right of Angary. It needs no mention that such a state of urgent public necessity does not exist in the United States inasmuch as the Government of the United States, since the outbreak of the present war, has been and still is in a position freely to consent to the sale and transfer of a large number of its own merchant ships to third nations." The German Chargé d'Affaires ad interim (Thomsen) to the Assistant Secretary of State (Acheson), Mar. 5, 1941, ibid.

On May 7, 1941 the German Chargé d'Affaires referred to his previous protest against the American seizure of two German merchant vessels in American ports (see ante, p. 520), and protested the proposed legislation authorizing the President to requisition foreign merchant-ships laid up in American territorial waters. He asserted that this would involve a “flagrant breach of neutrality” and would be a seizure of foreign private property contrary to international law. He said that it was impossible to recognize the validity of the need for purposes of national defense as an adequate reason, in as much as considerations of national defense had not prevented the United States Government from turning over to third states a considerable number of American merchant-ships.

In reply Secretary Hull said:

I do not understand upon what theory your Government maintains that the requisitioning of idle ships in American waters would constitute a breach of neutrality or represent the seizure of foreign-owned private property "contrary to law". The right of a Government to requisition for public use private property within its jurisdiction, whether owned by nationals or by aliens, subject to the payment of just compensation, is not open to question. Payment for property thus taken is provided for not only in the Constitution of the United States but also in the proposed legislation to which you take exception.

Determination of the needs of the national defense of the United States is not a matter to be passed upon by a foreign government; rather it is a sovereign prerogative of the United States.

The German Chargé d'Affaires ad interim (Thomsen) to the Secretary of State (Hull), May 7, 1941, and Mr. Hull to Mr. Thomsen, May 13, 1941, MS. Department of State, file 862.85/2029.

In his reply of June 9, 1941 the German Chargé stated that the German Government had not been able to discern a single valid reason in the American argument and that it therefore considered a further discussion pointless but reserved all rights which would result from what it regarded as a violation of international law. Mr. Thomsen to Mr. Hull, June 9, 1941, ibid. /2130.

By a note of May 10, 1941 the Italian Ambassador called attention to the passage by the House of Representatives of an act to authorize the acquisition by the United States of foreign merchant vessels, referred to the notes of March 31 and April 14 (ante, pp. 523, 524) protesting the taking of possession and control of the 28 Italian vessels in ports of the United States, and protested once more this "further action . . . which the Royal Italian Government considers a new flagrant violation of international law". The Department of State noted that the Italian Ambassador had not indicated why his Government considered the proposed action a violation of international law, and said:

The right of a Government to requisition for public use private property within its jurisdiction, whether owned by nationals or by aliens, subject to the payment of just compensation, is well settled. That idle ships within the jurisdiction of the state exercising the right do not constitute an exception to this general rule is well established by abundant precedents. The rule with respect to compensation in these cases is safeguarded not only by the Constitution of the United States but by the proposed legislation against which the Italian Government has seen fit to protest.

The Italian Ambassador to the Secretary of State, no. 2520, May 10, 1941, and the Secretary of State to the Italian Ambassador, May 15, 1941, MS. Department of State, file 865.85/649.

The act approved June 6, 1941 provided:

That whereas Congress has power to provide for the common defense and general welfare and to regulate commerce with foreign nations and whereas for this purpose embargo Acts and nonintercourse Acts have from time to time been passed and whereas the commerce of the United States is at the present time interrupted and the general welfare of its citizens is threatened and an emergency has been declared, for the purposes of national defense, during the existence of the national

emergency declared by the President on September 8, 1939, to exist, but not after June 30, 1942, the President is authorized and empowered, through such agency or officer as he shall designate, to purchase, requisition, for any period during such emergency charter or requisition the use of, or take over the title to, or the possession of, for such use or disposition as he shall direct, any foreign merchant vessel which is lying idle in waters within the jurisdiction of the United States, including the Philippine Islands and the Canal Zone, and which is necessary to the national defense: Provided, That just compensation shall be determined and made to the owner or owners of any such vessel in accordance with the applicable provisions of section 902 of the Merchant Marine Act, 1936, as amended.

55 Stat. 242. For extension beyond June 30, 1942, see 56 Stat. 370. Other provisions of this statute authorized the Maritime Commission to charter and to purchase vessels, which the Commission might operate or might charter to others. Provisions were also made for documentation of vessels chartered, purchased, or requisitioned under this statute.

For the provisions of the Merchant Marine Act referred to, see 53 Stat. 1254. That statute makes provision for the requisitioning of American vessels. It contains a proviso

"... That if the Maritime Commission, after consideration by it of evidence submitted to it within ten days after the approval of this Act, shall find that on September 3, 1939, and continuously thereafter, any vessel was exclusively owned, used and operated for its exclusive sovereign purposes by a sovereign nation making claim therefor, such vessel may be taken under this section only by purchase or charter; and in determining said ownership, use and operation the Commission shall disregard (1) all contributions made in whole or in part at any time to the construction, repair, reconditioning, equipping or operation of said vessel, (2) all such matters, in nature similar to or dissimilar from, the foregoing clause as in the opinion of the Commission are immaterial or irrelevant to the determination of such ownership. Use of such vessel at any time since September 3, 1939, in commercial trade shall be presumptively deemed to show that said vessel is not owned, used and operated by a sovereign nation for its sovereign purposes. The final determination by the Maritime Commission shall be conclusive: Provided further, That if any vessel shall be found under the proviso next preceding to be exclusively owned, used and operated by any sovereign nation so that it can only be chartered or purchased, and such vessel shall be chartered or purchased, then the cash to be paid for said charter or purchase, to the extent that may be necessary, after payment of existing claims and liens of creditors against said vessel, shall be held for application upon such debt, if any, as may be due to the United States from the sovereign nation so found to have exclusive ownership to said vessel."

The act approved Oct. 16, 1941 provided that during the national emergency declared May 27, 1941 (but not later than June 30, 1943) the President might requisition upon payment of fair compensation any "military or naval equipment, supplies, or munitions, or component parts thereof, or machinery, tools, or materials necessary for the manufacture, servicing, or operation of such equipment, supplies, or munitions", if he finds that they are needed

in the defense of the United States and cannot otherwise be obtained. 55 Stat. 742. This authority was extended to June 30, 1944 by Public Law 104, 78th Cong., 1st sess., June 30, 1943.

Pursuant to the act approved June 6, 1941 (ante, p. 541), the President on that date issued Executive Order 8771, reading as follows:

1. The United States Maritime Commission ... is hereby authorized and empowered, at such time or times and upon such terms and conditions as the Commission shall deem desirable and conducive to the national defense, to purchase, requisition, charter, requisition the use of, or take over the title to, or the possession of, any or all foreign merchant vessels which are lying idle in waters within the jurisdiction of the United States, including the Philippine Islands and the Canal Zone, including all tackle, apparel, furniture, spare parts and equipment, and all stores, including fuel, aboard such vessels or appertaining thereto, for the use and disposition hereinafter directed.

2. Without limiting the authority of the Commission under the provisions of sections 3, 4, and 5 of the said act of Congress or under any other provision of law, the Commission is authorized and directed, to such extent and upon such terms and conditions as the Commission shall deem desirable and conducive to the national defense:

(a) To operate any or all of such vessels, either directly or by agent, in any service of the United States, or in any commerce, foreign or coast wise.

(b) To charter or lease any or all of such vessels to any persons for operation in any service of the United States, or in any commerce, foreign or coastwise: Provided, that no vessel shall be transferred, chartered, or leased to any belligerent government without the approval of the President.

(c) To document any or all of such vessels under the laws of the United States or any neutral country of the Western Hemisphere.

(d) To make such other use or disposition of any or all of such vessels as the President may hereafter direct.

(e) To repair, equip, and man such vessels and to do whatever may be necessary to accomplish the purposes of the said act or

this order.

3. The Commission is directed to determine and make to the owner or owners of any vessel taken in accordance with the provisions hereof, just compensation for such vessel, or the use thereof, in accordance with the provisions of the aforesaid act.

6 F.R. 2759; see also Department of State, IV Bulletin, no. 102, pp. 701-702 (June 7, 1941). See Woolsey, "The Taking of Foreign Ships in American Ports", 35 A.J.I.L. (1941) 497.

Executive Order 8881 of Sept. 2, 1941 made the provisions of the order of June 6, 1941 applicable to "any or all foreign merchant vessels, including all appurtenances thereto" lying idle in waters within the jurisdiction of the United States at any time after June 6, 1941 and up to and including June 30, 1942. 6 F.R. 4551; see also Department of State, V Bulletin, no. 115, p. 180 (Sept. 6, 1941).

It was held that the Maritime Commission might requisition, under the act of June 6, 1941, Italian ships against which forfeiture proceedings had been brought by the United States under section 3 of title II of the Espionage Act of 1917 (40 Stat. 217, 220; see ante, p. 515) without prejudice to the forfeiture proceedings. The Pietro Campanella, 41 F. Supp. 656 (D. Md., 1941); The Villarperosa, 43 F. Supp. 140 (E. D. N. Y., 1942). In a note of July 24, 1941 the Danish Minister of Foreign Affairs stated to the American Chargé d'Affaires :

According to Danish law shipowners are prohibited from selling or chartering their ships abroad without the consent of the Danish Government. Such consent to the sale or chartering of the ships lying in the United States cannot be expected. The owners do not want to sell or to charter their ships, but wish them to remain laid up in American harbors. The Danish Government take it for granted that the American Government will not disregard this perfectly clear Danish standpoint. The Danish Government must in advance protest most emphatically against any step whatsoever on the part of the American Government, which contrary to international law aims at taking over the Danish ships whether as property or for temporary use.

The Chargé d'Affaires ad interim in Copenhagen (Perkins) to the Secretary of State (Hull), no. 663, July 29, 1941 (enclosure), MS. Department of State, file 859.85/736.

Under instructions from Secretary Hull the Chargé replied that just compensation was to be made to the owners and that "There is no question that this Government's right to do this exists under international law." Mr. Hull to the Legation at Copenhagen, telegram 139, Aug. 15, 1941, ibid. /703; Mr. Perkins to Mr. Hull, no. 696, Aug. 18, 1941 (enclosure), ibid. /752.

The Danish Minister of Foreign Affairs, in a note dated Sept. 10, stated: "I cannot agree with the statement made in your above mentioned note to the effect that the right of the American Government to requisition the ships exists under international law. On the contrary the Danish Government must decidedly consider it at variance with international law that a neutral power as the United States should requisition on her territory ships belonging to citizens of a friendly nation, ships which have at the express instruction of their Government repaired to American and Philippine ports in the expectation of obtaining there the protection due to them by virtue of the neutrality of the United States.

"In view of the above the Danish Government must protest most emphatically against encroachment which has been made on Danish property through the requisitioning of the ships and insist on the immediate restitution of the ships to their lawful owners."

Mr. Perkins to Mr. Hull, telegram 331, Sept. 11, 1941, ibid. /748.

In a series of notes the Italian Ambassador protested against the requisitioning under the act of June 6, 1941 of various Italian merchant vessels lying in ports of the United States.

The Italian Ambassador (Prince Colonna) to the Secretary of State (Hull), third-person notes of June 18, July 3, July 11, July 26, Aug. 27, Sept. 3,