Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 6, 1904

Mr. McCormick to Mr. Hay.

American Embassy,
St. Petersburg, September 21, 1904.

No. 186.]

Sir: I have the honor to confirm my cablegram of the 19th with reference to the attitude of the Russian Government on the subject of contraband of war, and to transmit to you a copy of a memorandum handed me by Count Lamsdorff, practically reiterating what he had said to me on former occasions with reference to any discussion of the facts or of the principle involved in the seizure and condemnation by the prize court at Vladivostok, of that part of the cargoes of these two ships which were consigned to merchants in open Japanese ports.

Count Lamsdorff was not prepared to take any issue with me on the declarations and principles contained in your circular note (circular of June 10, 1904, printed ante) and your instructions No. 143 of August 30 (printed ante), a copy of the former having been handed to him and the contents of the latter having been transmitted to him practically in extenso as well as the contents of your instruction on the subject of the seizure of the cargo of the Arabia.

Count Lamsdorff said, in addition to what I have already transmitted to you by cable, that to unconditionally accept as noncontraband all merchandise not universally accepted or described in their own rules as such would open the door to contractors in Japan to import food stuffs and other merchandise without limit for account of the Japanese Government; that is, on account of or in destination of the enemy. That the Russian Government could not but consider as contraband a cargo of flour consigned to a port at which was quartered a large body of troops, and that extending this principle the ultimate destination of the cargo had to be taken into consideration, although its direct consignment might be to a merchant in an open port.

This statement, with a copy of the aide-memoire which is herewith inclosed, will enable you to understand the position of the Russian Government at this time.

My only reply was that it meant, practically, abrogation of the principle “that the blockade, in order to be obligatory, must be effective,” and relieved Russia of the necessity of maintaining one. To this he replied that nobody would be so naive as to consign merchandise not prima facie contraband, although intended for the enemy, to the destination of the enemy, substituting therefor a middleman in the shape of a merchant in the open port. He added here, as he repeated several times, that we would see that in the future there would be less ground for complaint, and that it was far from the desire of the Russian Government to place any obstacles in the way of legitimate commerce with Japan; but that they would be compelled to take such steps as would be necessary to prevent supplies of any character ultimately intended for the use of the enemy from reaching their destination. He added that the several notes I had written on the subject, as well as your circular note of June 10, had been handed to Professor Martens, who would consider the representations made therein when the cases of the Arabia and Calchas came before the admiralty court of St. Petersburg.

I also asked him whether or not the special commission considered their work closed and whether there would be any further modification of the Russian rules to meet the representations of the United States and others interested in the matter of contraband. He replied that Professor Martens, whose fairness is known to everybody, would represent the foreign office and international interests and that he would consider and bring forward all the representations which had been made, giving me to understand that this would be done not in the interests of the Russian Government, but in the interest and support of the principles of international law.

In a subsequent conversation which I had with Count Lamsdorff to-day I again raised the question of the Russian Government’s attitude as to the character of coal, and he repeated what he said on the 19th, that coal and cotton were held to be absolutely contraband, adding that the only exceptions to this rule were covered by section 10 of Article VI, as communicated in my cable of that date.

* * * * * * *

I have, etc.,

Robert S. McCormick.

[Inclosure.—Translation.]

Memorandum.

The American notes relating to the seizures of the steamers Calchas and Arabia, dated September 2 and 14, respectively, treat simultaneously of both questions of principle and of fact.

The questions of fact raised in these two cases relate to the decisions of the Vladivostok prize court. They belong, therefore, to the jurisdiction of the judicial institutions established to take cognizance of cases of this character. The sentences pronounced at Vladivostok may, according to article 77 of the prize regulations of 1895, be appealed from within the periods provided by law. The final decision, according to article 85 of the same regulations, belongs only to the supreme prize court constituted by the admiralty board. The ministry of foreign affairs is represented in this court by a special delegate, who takes cognizance of all the considerations which the neutral governments interested have deemed it their duty to communicate to the Imperial Government with regard to the prizes in process of adjudication.

Consequently, until the decisions of the Vladivostok court are reviewed by the supreme court, reclamations regarding questions of fact are beyond the jurisdiction of the imperial ministry of foreign affairs.

In view of this the imperial ministry, in its replies concerning the Arabia and Calchas cases, numbered 14 and 30, and dated August 12 and 27, respectively, confined itself to communicating to the United States embassy a summary of the decisions of the Vladivostok court, without entering into any extensive discussion or forming any reservations on these decisions.

It is therefore important for the parties concerned to file their appeals without delay in the forms prescribed.

As far as questions of principle are concerned, his excellency the ambassador of the United States was opportunely notified that a special board, convoked by supreme order in the imperial ministry of foreign affairs, and presided over by Monsieur de Martens, had subjected the question as to the interpretation of section 10 of article 6 of the regulations of February 14 on contraband of war to a thorough examination. The conclusions of this board have been made known to Russian cruisers and prize courts in order to be taken into due consideration by them in future.