of November we say both vessels were detained because they were not permitted to take their fuel oil out of the United States.

The ARBITRATOR: We will recess here until 2: 30.

(At 12 o'clock noon a recess was taken until 2:30 o'clock p.m. of the same day.)

AFTERNOON SESSION

Met pursuant to the taking of the recess, at 2: 30 o'clock p.m.

The ARBITRATOR: We will resume the hearing.

ARGUMENT OF MR. ACHESON-Continued

Mr. ACHESON: This morning we had reviewed the law applicable to this case as it had been stated by Professor Unden. Then we reviewed the facts which Mr. Burling had stated, and had picked out the twelve salient facts which, in the view of the Swedish side, are the important and determinating facts in this case.

This afternoon I want to take up the defenses which the United States has advanced and to consider with the Tribunal whether those defenses are permissible under the treaty.

To do this I first wish to take up the correspondence which the United States addressed to the Swedish Minister in 1918. That will be found on page 103 and the following pages of the Swedish Appendix. In these letters the United States, for the first time, stated its defense to the Swedish protest, and therefore these letters have peculiar importance.

In the note of January 24th, the American Government replied to the Swedish protest of November 24th. Then on April 30th, the Swedish Government addressed another note to the United States. That brought out the reply of June 26th. So that it is in those two letters, the letter of January 24th and the letter of January 26th, in which the United States gives its position.

I want before reading parts of those letters to draw the attention of the Court to three points which the Court will find in those letters. In the first place, the Court will see that the United States concedes that the ships have been detained, or delayed, or stopped, or rendered immobile, whatever word you wish to use. The United States recognizes that some impediment has been placed in the way of the ships leaving American waters.

The second thought which the Court will find in these letters is that the American Government recognizes that the impediment is the refusal of the United States to grant an export license for the bunker fuel. That is recognized in the letters.

The third thought which the United States puts forward is that that refusal is not a violation of the treaty.

Now taking up the letters, we turn, first, to the letter of January 24th. The first paragraph of that letter, which is at the bottom of page 103, simply states the content of the Swedish protest. They merely repeat what the Swedish Government has said to the American Government.

Turning the page, we then find what the American Government answered.

It says:

I have delayed answering your communication in order that the question, involving, as you indicate, the interpretation of two treaties with your country, might receive the careful and considerate attention which it merits at the hands of this Government. I am now in a position to state, in reply to your communication, the view of this Government on the facts of these cases, as understood by me, that the two articles of the treaties mentioned have no application to the delay caused to the Kronprins Gustaf Adolf and the Pacific on account of difficulty in obtaining export license. Inasmuch as the Government entertains this view, which has been arrived at only after thoughtful consideration, I am, as you will appreciate, under the necessity of requesting that these vessels, and others in like cases, comply with the regulations of the Government for the control of commodities exported from or taken out of the jurisdiction of the United States.

That was Mr. Polk speaking.

Now if the Arbitrator will turn to page 107, we will look at the second letter. That letter says:

SIR: I have received your note of April 30th last, acknowledging the receipt of a communication expressing this Government's decision, reached after the most careful and thoughtful consideration, that article XII and article XVII of the Swedish-American treaties of 1783 and 1827, respectively, had no application to the delay in American ports caused to the Swedish motorships Kronprins Gustaf Adolf and Pacific on account of difficulty in obtaining export license 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 XVII 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 to refrain from applying general regulations for the control of commodities exported from or taken out of this country, to the Swedish motorships in question.

Then follows a sentence in regard to Mr. Calvo's definition of an embargo. We will skip, if the Court please, down to the third sentence of the next paragraph beginning with the word "moreover":

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 XVII of the treaty of 1783.

Now the Court will see that in these letters the United States acknowledges that there has been delay caused to these two ships, acknowledges that they are in American waters because some impediment is keeping them there. It acknowledges, also, that that difficulty is the failure to obtain an export license. That is stated in both letters. The American Government then insists that the treaty does not appear to place the United States under any obligation to refrain from applying general regulations for the control of commodities exported from or taken out of this country.

Now the importance of these three thoughts which are contained in the notes is that in passing on this question the United States did not say that the ships were not delayed, were not detained, were not held in this country; it admitted that they were. It also did not say that the Swedish Government, or the Swedish owners, had failed to make any proper application for a license. They said freely that the reason that these ships were here was because they had not received an export license; and they said that, "There is nothing in the treaty which requires us to give them an export license."

That is the issue. The issue was raised by these notes in 1917, and it always has been the issue between the United States and the Swedish Government.

The American Government then goes on to point out that there is a difference in its view between the refusal to give an export license and detention, as that is covered by the treaty.

What I wish to do with Your Honor is to examine that proposition to see whether there is any difference between the refusal to give an export license and the detention, which is prohibited by the treaty. The American Government says:

We are not prohibiting the ships from leaving. We are not detaining the bunker oil. All we are doing is requiring the owner to comply with the regulations for licensing.

Now Your Honor will recall what the regulations for licensing were. Licensing is only another word for granting a permission. It is a synonym. What the United

States, in effect, said is this:

We are not prohibiting the ships from leaving. We are not detaining the bunker oil. All we say is that the ships must not go without our permission, and we will not give our permission.

So far as the ordinary use of words is concerned, that is a prohibition upon the ships leaving with their oil. Of course, ships cannot leave without oil. A motor vessel cannot sail, and cannot be propelled, in any other way. It has to go by the use of fuel. Yet the United States says: "You must comply with the necessary regulations for taking out commodities, to wit, bunker oil"; and when those regulations are that the bunker oil cannot be taken out, that is a prohibition upon the departure of the ship. The United States might have avoided the circumlocution of this sentence and said:

What we say to the Swedish Government is: "You can take these ships and depart any time you please, but you must not take the means which you have on board for making the ships go!"

That is exactly the same as saying that they may not go. Your Honor will recall-if I may depart from the law for a moment and resort to a literary authority-a long time ago there was a proceeding in a Venetian court which has been reported by Shakespeare, and a similar proposal was made in that court; and in The Merchant of Venice Shakespeare gives the answer to it. He says:

You take my house when you would take the prop which doth sustain my house. You take my life when you do take the means whereby I live.

That is exactly what the Swedish Government has been saying in this case. "You detain my ships", the Swedish Government says, "when you detain the means which makes them move."