462.11 T 41/14½
The Counselor for the Department of State (Lansing) to the Secretary of State
Dear Mr. Secretary: The case of the death of an American citizen through the sinking of the British S. S. Falaba11 presents a question which will have to be decided and the decision will determine our policy in this case and in the event other Americans meet death in the same way.
I assume that, if the sinking of the Falaba had been the result of an attempt of the vessel to resist or to escape when summoned to stop or to surrender by a German submarine, there would be no ground of complaint for the loss of an American life as a result of the submarine’s frustrating such attempt.
In that case the submarine would be exercising a belligerent right recognized by international law.
But the sinking of the Falaba, when no attempt is made to resist or escape, without giving the crew and passengers adequate time to leave the vessel is a different matter. It is a practice unwarranted by international usage.
Now the question is this: Ought we not to hold the German Government responsible for the death of an American through the act of their naval forces, when that act is in violation of the established rules of naval warfare?
An American taking passage on a belligerent merchant vessel is entitled to rely upon an enemy’s war vessel conforming to the established rules of visit and search and of protection of non-combatants. He should not be exposed to greater dangers than the enforcement of the rules impose. If this is a correct statement, duty would appear to require a complaint and a demand for damages.
On the other hand, to enter complaint on account of the death of an American in these circumstances would compel this Government to denounce the sinking of merchant vessels in the manner referred to as a flagrant violation of international law. In fact it would be a denunciation of the German “war zone” plan, or at least of the method of carrying it out.
While as yet we are not fully advised as to the facts of the case I think that the policy of the Government should be determined in [Page 366] order that we may act promptly if action seems advisable and necessary, as delay in entering complaint and denunciation would be, in my opinion, a matter of just criticism.
I would like to be advised as to the policy of the Government in order that preparations may be made to act in case it is decided to act.
Faithfully yours,