763.72/2339½
Memorandum by the Secretary of State of a Conversation
With the German Ambassador (Bernstorff),
December 31, 1915
December 31, 1915
The German Ambassador called upon me and handed me the annexed paper,
which is the substance of a telegram which he had received from Berlin.
He said that this did not complete his instructions in the matter as the
telegram said—“to be continued.”
The Ambassador said that he appreciated this was going over the ground
which we had traversed many times, but he thought that while his
Government suggested arbitration he had received an intimation that they
would like to know the reasons why we were unwilling to submit the case
to arbitration. He added that he believed that his Government, if a
fairly good case could be made out against arbitration, would follow the
course which had been adopted apparently by Austria in their Ancona case.
[Page 511]
I answered him that we had discussed the illegality of retaliatory
measures by a belligerent and that so far as the legal point of view was
concerned I could not see that there was anything to arbitrate. In
addition to this I called his attention to the next to the last
paragraph in the German reply in the Frye case,
dated November 29, 1915,86 wherein they specifically stated that persons
on board a vessel about to be sunk should be placed in safety. The
Ambassador seemed surprised at this statement of his Government and
said—“Have they gone as far as that?” I said—“Yes, that is their
language and of course it applies as well to belligerent merchant ships
as to neutral merchant ships engaged in contraband trade because the
only legal ground for sinking a neutral vessel would be its temporary
belligerent character.”
He said he would communicate with his Government at once in regard to the
matter and see if they would not follow out a course which they had so
plainly set forth as to the illegality of retaliatory measures, and as
to the duties imposed upon the commander of a submarine in sinking a
merchant vessel.
He said he was hopeful that we could reach an agreement along these
lines.
[Enclosure]
The German Foreign
Office to the German
Embassy
87
December 31, 1915
The German submarine war against England’s commerce at sea, as
announced on February 4, 1915,87a is conducted in retaliation of England’s
inhuman war against Germany’s commercial and industrial life. It is
an acknowledged rule of international law that retaliation may be
employed against acts committed in contravention of the law of
nations. Germany is enacting such a retaliation, for it is England’s
endeavor to cut off all imports from Germany by preventing even
legal commerce of the neutrals with her and thereby subjecting the
German population to starvation. In answer to these acts Germany is
making efforts to destroy England’s commerce at sea, at least as far
as it is carried on by enemy vessels.
The question whether neutral interests may in any way be injured by
retaliatory measures should, in this instance, be answered in the
affirmative. The neutrals by allowing the crippling of their
commerce with Germany contrary to international law which is an
established
[Page 512]
fact, cannot
object to the retaliatory steps of Germany for reasons of
neutrality. Besides, the German measures, announced in time, are
such that neutrals easily could have avoided harmful consequences by
not using enemy vessels employed in commerce with England. If
Germany has notwithstanding limited her submarine warfare, this was
done in view of her long standing friendship with the United States
and in the expectation that the steps taken by the American
Government in the meantime aiming at the restoration of the freedom
of the seas would be successful.
As Germany cannot see a violation of international law in her course
of action, she does not consider herself obliged to pay indemnity
for damages caused by it, although she sincerely regrets the death
of American citizens who were passengers on board the Lusitania. In view of the amicable relations
between our two countries the German Government is however ready to
have differences of opinion settled through international
arbitration—a way always warmly recommended by the United States—and
therefore to submit to the Court of Arbitration at the Hague the
question, whether and to which extent Germany is obliged to pay
indemnity for the death of American citizens caused by the sinking
of the Lusitania. The sentence of the Court
should in no way be taken as deciding the question whether or not
the German submarine war is justified according to international
law, but it would be a means to settle definitively the regrettable
Lusitania incident.
