311.5754 Janko/4
The Netherlands Ambassador ( London ) to the Secretary of State
Sir: My Government has noted with deep concern the fact that the motor-tank vessel Norsktank, flying the Norwegian flag and in the possession of the Kingdom of Norway, was on January 13, 1944, seized in a possessory action in rem in the United States District Court for the Eastern District of New York in a suit entitled: Pankos Operating Company, S.A.,—against—Motor-tank Vessel “Janko” (otherwise called “Norsktank”), her engines, toilers, etc.,—and against—O. Nygaard or John Doe (said name being fictitious) and any and all other person or persons in possession of said vessel or lawfully intervening for any legal interest in said vessel, etc.
I am informed that the Kingdom of Norway, through its Ambassador, has addressed to you a request that you use your good offices to the end that the United States District Court in which the suit is pending vacate the suit and process to which the Norsktank is now subjected.
My Government has instructed me to convey to you its urgent request that Your Excellency comply with the request of the Kingdom of Norway. My Government’s vital interest in the matter will be clear from the considerations set forth below.
[Here follows a detailed history of the Norsktank, beginning in November 1941.]
From the foregoing, it would seem abundantly clear that Pankos Operating Company, S.A., has submitted itself completely to the [Page 1203] jurisdiction of the Curaçao Prize Court, not only by filing its answer on the merits and its general appearance but by actively participating in the proceedings over a period of more than two years.
As it is not believed that Your Excellency will consider it admissible to look behind the action of the Kingdom of the Netherlands, a friendly sovereign, in taking possession and control of the vessel as the result of the pending proceedings in Prize referred to above, and thereafter putting her at the disposal of the Kingdom of Norway under the arrangement referred to above, the facts giving rise to her seizure are not here adverted to. As Your Excellency is, of course, aware, however, it is well established in the Law of Prize that no more than a “reasonable suspicion” of the facts calling for condemnation is necessary to justify the original seizure of a vessel. It is then for the Defendant to come “before the Prize Court to show that there was no reasonable suspicion justifying the seizure or to displace such reasonable suspicion as in fact exists.” (The “Louisiana” [1918]19a A.C. 461.) See, also, In re Part Cargo ex s/s “Monte Contes” Confervas Cerqueira Limitada v. H. M. Procurator General, reported Times Law Reports November 26, 1943.
In the middle of the pending Prize proceedings, Pankos Operating Company, S.A., abandoning its efforts to prevent the final condemnation of the vessel on the merits, and, notwithstanding its participation for over two years in the proceedings at Curaçao and submission to the jurisdiction of that Court, has now seen fit to take steps which amount to a collateral attack on the Prize Court proceedings by instituting these proceedings in New York.
The Netherlands Government feels confident that the United States of America will not through its Courts interfere with the orderly progress of the proceedings in Prize in a Court of one of its Allies, the Kingdom of the Netherlands, or with the ad interim possession of another Ally, the Kingdom of Norway, arising out of those proceedings, or with the operations of still another Ally, the United Kingdom of Great Britain and Northern Ireland, to whom the Kingdom of Norway has time chartered the vessel—all as part of the united war effort. This conclusion would seem to be all the more inescapable by reason of the fact that if the Prize Court decrees that the Norsktank should not be condemned, the Kingdom of Norway will, of course, return the vessel (or her value if lost in the meantime) to the Kingdom of the Netherlands, in accordance with the agreement embodied in the notes of November 13th and 15th, 1941,20 above referred to, in which case the Kingdom of the Netherlands will return it to Pankos Operating Company, S.A., the Claimant.
[Page 1204]I therefore respectfully ask that Your Excellency accede to the request of the Kingdom of Norway to the end that the claim of immunity be allowed and a Suggestion to that effect be filed in the United States District Court for the Eastern District of New York.
Please accept [etc.]
Minister Plenipotentiary