British letters of assurance and that it would doubtless be necessary to have both (p. 162, Case of the United States). Witness the frantic efforts of the Swedish delegates to enlist the assistance of the authorities of the United States, in the efforts of the Swedish authorities to obtain British facilities for cargoes which were permitted to depart from the United States (pp. 451-457, Answer of the United States). The pretense that the refusal of the Government of the United States to grant an export license for the cargo of the Pacific and the refusal of the authorities of the United States to permit the Pacific to depart proves that the ship would have been promptly inspected at Halifax and permitted to proceed to Sweden had not the authorities of the United States asserted their power to detain the ship, is without any foundation. The proposition that the Pacific would have been promptly inspected at Halifax is untrue and has not been and cannot be proved. The Pacific remained at Balboa approximately one month, at St. Thomas approximately two weeks, and at Newport News one month, wholly in the discretion of the owner of the ship. The reasons for her tarrying are obvious. The Pacific remained at Newport News until her cargo was removed from the ship on December 20 wholly in the discretion of the owner of the ship and for the same reason that the ship was kept at Balboa, St. Thomas, and Newport News up to August 2, 1917.

It is stated at page 25 of the Answer of Sweden that the bogey of possible detention by British authorities may be raised in 1932 in the effort to avoid liability for the detention of the vessels, but it is significant that it was not relied upon in 1917 to effectuate their detention. Many shifts of position have occurred since 1917.

The facts as they actually were in 1917, not the vague, indefinite, insufficient and inaccurate allegations which were made in 1917 in behalf of the Johnson Line, were relied upon then by the Government of the United States. The facts as they are revealed by the record to have been in 1917 and 1918, not the inaccurate allegations made in the Case and Answer presented in behalf of the Kingdom

of Sweden-not a bogey of possible detention by British authorities—are relied on today by the Government of the United States. The United States did not effectuate detention and relied on the actual facts in 1917 as it does today. The inability of the owner of the Pacific to obtain British facilities for the ship and cargo were sufficient to cause the owner to detain the ship in Balboa, St. Thomas, and Newport News in 1917. It is significant that the prospect of detention by the British authorities was relied upon by the owner in 1917 as an inducement to keep the Pacific in port.

Now, Your Honor, I have finished for the present. I hope to make a short argument after my associates have completed their arguments.

My argument has been very long. It has been no choice of mine that I felt it necessary to be somewhat contentious. The statements to which I have directed my remarks were made in the Case and Answer of Sweden, and I felt that in loyalty to my duty and to my oath I should do nothing but comment upon them and to endeavor to bring to bear upon those allegations the evidence of record. If I have been able to reveal anything that is helpful or if I have been able to reveal the necessity of close examination of allegations made in behalf of Sweden or in behalf of the United States, I shall feel that my efforts have not been in vain.

I know that my argument has been tedious, and I appreciate your patience and unfailing courtesy.

My associate who is to succeed me in argument here is not present; therefore I would like if we could arrange for an adjournment until tomorrow morning.

The ARBITRATOR: Very well.

Mr. METZGER: Mr. Hunt will argue the treaty tomorrow. The ARBITRATOR: Then we will adjourn until 10 o'clock tomorrow morning.

(At 4:05 o'clock p.m., an adjournment was taken until 10 o'clock a.m. of the following day, Thursday, May 19, 1932.)

NINTH MEETING

THURSDAY, MAY 19, 1932

MORNING SESSION

The Arbitration was convened at 10 o'clock a.m., in Hearing Room No. 1 of the United States Board of Tax Appeals, Internal Revenue Building, Washington, D.C., pursuant to adjournment.

PRESENT: Honorable Eugene Borel, Arbitrator,

Robert Perret, Esq., Secretary General.

The American Government was represented by their Agent, Mr. J. A. Metzger, assisted by Messrs. Bert L. Hunt, James O. Murdock, Frederic A. Fisher, and Miss Ann O'Neill.

The Swedish Government was represented by their Agent, His Excellency W. Boström, Swedish Minister at Washington, assisted by Messrs. Edward B. Burling, Osten Unden, George Rublee, Dean G. Acheson, and H. Thomas Austern.

The ARBITRATOR: You may proceed, Mr. Hunt.

ARGUMENT OF MR. BERT L. HUNT, ON BEHALF OF THE UNITED STATES

Mr. HUNT: If Your Honor please, it is my privilege to discuss with you-briefly, I hope-the first question that has been submitted to the Tribunal for decision, which is not whether the United States detained Swedish merchandise or vessels, as Swedish counsel seem to contend, but whether the United States detained the Swedish vessels in violation of treaty obligations. It is a privilege, as I said, for me to discuss this question with the Tribunal because, so far as I recall, this is the first time in the cen

tury and a half of the existence of this Government in which it has been specifically brought before an international tribunal in this manner, on the charge that it had inculpated itself by deliberate violation of treaty obligations. That is a serious charge to make against any government, and my pleasure in discussing the matter derives from the absolute conviction that this charge of treaty violation is absolutely and thoroughly unfounded and unjustified; and if I shall be able to convince the Tribunal on this point I shall consider that I have at least contributed toward that real service to my Government which it is fully expected that Agent and counsel of the United States shall be successful in this case in rendering.

The Agent of the Swedish Government made two very significant statements in the preliminary remarks with which he opened this arbitration on behalf of the Swedish Government. The Swedish Agent said, in the first place, that this is the only case of disagreement between the United States and Sweden in the 150 years of the existence of these treaties which has not yielded to solution through diplomatic discussion. The Swedish Agent was absolutely right in that respect, but he did not go far enough. There is a reason why the dispute in this case did not yield to diplomatic discussion. That reason is that there was no diplomatic discussion which brought out the real issues of the case. After the United States had explained its position in 1917, in very brief terms, with respect to those two articles of the treaty which had been cited by the Swedish Government, that Government abandoned its position in that respect and for nine long years nothing was heard about this case. When it was revived in this arbitration, every point then made by the Swedish Government, except only with respect to article XVII of the treaty, was then brought forward for the first time. New positions have been taken at every step in the progress of the case. Even in the last written pleading filed by the Swedish Government, a discovery was made of a certain treaty provision which for

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fifteen years had not even been observed, or, if observed, had not been considered worthy of mention in support of the claim. These facts suggest the inquiry as to whether the premature demand of the Swedish Government that this case be arbitrated was not made as a gesture in the hope that it would lead to an offer of compromise. At least the Minister of Sweden, in his notice of June 14, 1929 (U.S. no. I, p. 333), said:

It is my hope that the soundness of the claim will be recognized and that it might be possible to reach an agreement as to the exact damages suffered, thus avoiding the lengthy and costly proceedings of arbitration.

That statement was made eight months after the Swedish Government's demand that the case be arbitrated. The failure of the United States to make such an offer of compromise as suggested by the Minister appears to have caught the Swedish Government off guard and entirely uninformed and unprepared with reference to the factual and legal bases of the claim for which they had demanded arbitration, as that claim has now been set out.

Even after the special agreement for arbitration had been concluded, the Swedish Government delayed for nearly half a year the exchange of ratifications which would mark the beginning of the periods for the filing of pleadings in this case.

It is not surprising, under these circumstances, to find such an accumulation of absolutely untenable arguments regarding the supposed meaning of the treaty provisions as are advanced by the Swedish Government for the support of this untenable claim.

I feel sure that if the merits of this case had been made the subject of such full diplomatic discussion as ordinarily precedes an arbitration it would have yielded to settlement in that manner, because I am thoroughly convinced that the Swedish Government would have been satisfied of the absolute untenability of any basis for claim in the circumstances. It will be observed, therefore, that when the Agent for the Swedish Government says that this is the