INTRODUCTORY STATEMENT. Article III, paragraph (3) of the Special Agreement of December 17, 1930, between the United States and Sweden, which governs the present arbitration, provides :' "(3) Within sixty days from the date on which the exchange of statements provided for in paragraphs (1) and (2) of this Article is completed each Agent shall present in the manner prescribed by paragraphs (1) and (2) an answer to the statement of the other together with any additional evidence and such argument as they desire to submit." This printed Answer of Sweden, together with the documentary evidence contained in the Appendix thereto, is delivered in pursuance of the foregoing provision. The function of the answers in the present arbitration, as apparently conceived by the Department of State of the United States which drafted the special agreement, was to enable each party to answer and rebut, with additional evidence and argument, the statement of the case and supporting evidence previously filed by the opposing party, and thus to bring the parties to an issue upon the facts and the law applicable thereto. The answer of the United States can be so directed because of the full statement of the case contained in the printed documents previously filed by Sweden. But the Agent for Sweden finds the greatest difficulty in making such an answer. His difficulties are much the same as those which confronted the Agent for the United States in making his statement of the case. The Statement of the United States, was, under the Special Agreement, required to be made contemporaneously with that of Sweden and not subsequent and in answer thereto. The Statement filed by the United States sets forth much of the legislation of the United States, and the contemporaneous correspondence, both diplomatic and otherwise, relating to the detention of the two vessels, which is printed in the Appendix to the Case of Sweden. It also sets forth the subsequent diplomatic correspondence in which the Government of Sweden presented its claim for indemnity and the Government of the 1 APPENDIX TO CASE, Sweden, p. 4. 2 Id., pp. 47, 49. United States disputed it. But whether or not the positions taken by the Government of the United States in this correspondence are now adhered to is not disclosed. Some evidence not hitherto considered is also presented. This will, of course, be discussed in this Answer. But it is fair to say that the Statement of the Case of the United States does not-and for wholly understandable and proper reasons-present the conclusions of fact and law upon which the United States will rest its defense to the claim of Sweden for indemnity. This Answer must, therefore, be written without, for the most part, a knowledge of what defense the Government of Sweden will be called upon to rebut. I. THE ISSUE IN SO FAR AS FRAMED BY THE CASE OF THE On page 5 of its Case, the United States rephrases the question presented for decision by paragraph “First" of Article I of the Special Agreement of December 17, 1930, as follows: "This comprehensive question is conveniently separated into two parts: (1) whether the action which the Government of the United States shall be proved in the course of this arbitration to have taken with respect to the two motorships, constituted detention of them between the dates mentioned; and, if so, (2) whether the detention was in contravention of the treaties." The Case of the United States does not contain any discussion of the evidence presented in the light of the issue so framed, nor does it contain any discussion whatever of the treaties referred to. However, the Answer of the United States may do so, and, in the hope of arriving at an issue of fact and law, the position of Sweden upon the first of the questions framed above will be restated. The Government of Sweden submits that the evidence presented establishes that the Government of the United States took the following action with respect to the two motor vessels which constituted detention of them between the dates mentioned. On July 30, 1917, the office of the Collector of Customs at New port News, Virginia, informed Ekström, the representative of the owner of the Pacific, in respect to the clearance of that vessel:1 "You are also advised that it will be necessary for you to furnish a special license for the cargo of nitrate On July 31, 1917, the Division of Export Licenses of the Department of Commerce at Washington informed Ekström: 2 "In reply to your letter of July 27, you are advised it is necessary to obtain an export license for the cargo before the ship will be allowed to clear from the port." On August 2, 1917, Ekström filed with the Division of Export Licenses an application for an export license for the cargo of the Pacific.' On September 5, 1917, the Exports Administrative Board informed A. R. Nordvall, the delegate of the Swedish Government: " 4 "Referring to your letter of August 14th addressed to Mr. McCormick, concerning the motorship Pacific, and in particular the question of whether the Act of June 15th, 1917, applies to a cargo coming from a foreign country on a vessel which touches at an American port: The Board is at present advised that the instance mentioned in your said letter of August 14 comes within the provisions of the statute." On October 5, 1917, the Exports Administrative Board informed the attorney for the owner of the Pacific, as follows:5 "At the request of Mr. George W. Dalzell, we wish to advise you that the application of G. Ekström for five thousand seven hundred sixty-two (5,762) tons of nitrate of soda, consigned to the Swedish Superphosphates Selling Company, Sweden, is under consideration at the present time by the Exports Administrative Board. It is impossible to give you definite information as to whether it will finally be granted or refused. This has been given our reference number 20144. 1 APPENDIX TO CASE, Sweden, p. 184. APPENDIX TO CASE, U. S., p. 164. APPENDIX TO CASE, Sweden, p. 185. 4 APPENDIX TO CASE, Sweden, pp. 134, 135. " Id., p. 186. "It is, at the present time, necessary to obtain an export license for any commodity, passing through this country in bond for transshipment and it will be necessary to obtain a license for the exportation of the material covered by the above application number before it can be forwarded from this country." On October 12, 1917, the Exports Administrative Board, in response to requests that the Pacific, because of lack of space at Newport News, be permitted to go to Savannah, Georgia, U. S. A., under guard, if necessary, in order to discharge her cargo, which was deteriorating, informed the attorney for the owner:" "I am directed to advise the agents that the vessel will need to discharge her cargo where she now is instead of proceeding to Savannah to discharge." On November 1, 1917, the Bureau of Exports of the War Trade Board rejected the application for the license to export the cargo of nitrate and announced a general embargo, which had already been in operation for some months,' against the northern neutral nations including Sweden. The Board wrote: " 8 "Pending current negotiations, no licenses are being granted at the present time for shipments to Holland, Denmark, Norway or Sweden. Accordingly, all applications now on file for licenses to export to these countries are being returned to the applicants, and the Bureau of Exports will not receive additional applications until further notice." On November 8, 1917, the Chief of Ordnance of the United States Army, informed the representatives of the owner of the cargo of nitrate that the Government would buy the cargo at a stated price and "that in the event that this offer was not accepted, the cargo would be commandeered by this Department. Meanwhile, on or about October 29th the War Trade Board, through Mr. L. L. Richards, informed Messrs. Dean and Ekström, representing the owner of the Kronprins Gustaf Adolf and Pacific, 6 APPENDIX TO CASE, Sweden, p. 187; APPENDIX TO CASE, U. S., p. 169. 7 APPENDIX TO CASE, Sweden, pp. 257-259. * Id., p. 188. • Id., p. 191. |