Of course the whole matter boiled down is this: Since a belligerent has
the right to capture or destroy private owned merchant ships of enemy
register, such ships are entitled to defend themselves from certain loss
to their owners, and their treatment as public ships because they carry
an armament adequate to protect them from destruction can find no
warrant in the rules of naval warfare or in justice.
I feel that we ought without delay to reach a very definite conclusion as
to this matter because everything indicates the intention
[Page 583]
of the German authorities to
treat all armed merchant vessels as ships of war. The press is
industriously circulating this view and I understand it is getting its
material from the German Embassy. Gerard’s reports all point the same
way; and the memorandum sent me by the German Ambassador on January 10th
(Enclosure B)82 makes it very evident that the stage is being
set for a new act on the part of his Government. In fact everything is
being done to prepare the American public for a more vigorous submarine
war on commerce.
If we let the German memorandum go unanswered it will be alleged that we
have accepted their interpretation of our declaration of March 25, 1916
(Enclosure C),83
and that we are, therefore, particeps criminis.
Nothing we can say later will remove the impression on our own people
that though fully warned we permitted Germany to proceed in her
announced purpose of treating armed merchant vessels as warships. For
that reason I deem it essential that a very definite attitude should be
at once reached.
Furthermore, if the German Government carries out her manifest plan to
renew ruthless submarine attacks I believe that the consequences will be
irreparable so far as peace is concerned. Not only will the Entente
powers be so enraged as to refuse to consider any overtures, but, if we
with previous knowledge fail to do all we can to prevent it, your
influence over them, I fear, will be seriously impaired, and the very
hope of peace will be extinguished.
I believe this is a time to state to Germany frankly and with the
greatest firmness our views and to impress them with the possibility of
an actual break in our relations if they attempt to carry forward their
plan. In dealing with that Government our greatest success has come when
they saw we would not recede or compromise. I think this is a time to
adopt that course. If we do not, we may expect, in my opinion, a
critical situation especially if American citizens are killed or
imperiled.
You may see, Mr. President, from what I have written that I am greatly
agitated over the present state of affairs. I am indeed more anxious
than I have been since the Sussex affair. In many
ways this is even a greater crisis as so much depends on nothing being
done which will prevent the movement toward peace, and that movement
will, I am firmly convinced, come to an end if submarine war of a
reckless sort is renewed by Germany.
I enclose also for your consideration a report of the Neutrality Board on
this subject (Enclosure D)84 which is referred to in my memorandum (Enclosure
A).85
[Enclosure]
Memorandum on Armed Merchantmen
[Washington,]
January 30, 1917.
At present the condition of armed merchantmen may be stated as follows:
- (1)
- There is a tendency to increase the size of guns up to six
inches on vessels coming to American ports.
- (2)
- The number of guns, in some cases, has also been increased
from one to two on the stern. No guns have as yet been
placed on the bow.
- (3)
- Naval gunners and officers, both of the Naval Reserve,
have been put in charge of guns in many cases.
- (4)
- These men are reported as being paid by the steamship
companies, but in a few cases it appears that the gunners
are paid a shilling a week extra by the British
Government.
- (5)
- Instructions have been issued for the guidance of
merchantmen by the French Government, and perhaps by other
governments, to “open fire as soon as the submarine is
fairly within range,” or, if near by, to “try and ram it.”
There have come to the Department’s notice reports of half a
dozen instances in which armed merchantmen have fired at
submarines on sight. Two or three of these vessels have
subsequently come to American ports.
- (6)
- At a conference held at the London Foreign Office,
December 10, 1916, it was agreed to arm all British, French,
Russian, and Italian merchant ships with from two to four
guns (according to the size of the vessel) of six-inch
caliber or less, and to place them in charge of men and one
to three officers, as the case might require.
[Page 585]
The Department’s memorandum of September, 1914,87 states that a merchant vessel of belligerent
nationality may carry an armament and ammunition for the sole
purpose of defense without acquiring the character of a ship of war;
that the presence of an armament and ammunition on board a merchant
vessel “creates a presumption that the armament is for offensive
purposes,” but this presumption may be overcome by contrary
evidence; that evidence sufficient to overcome this presumption
might be, by way of illustration, that the guns are under six
inches, few in number, mounted on the stern of the ship, manned by
usual crew, and that the vessel follows its regular trade route, and
carries the usual quantity of fuel and supplies, and the usual
character of passengers; and that the conversion of a merchant ship
into a ship of war is a question of fact to be established by
evidence of the intention as to the use of the vessel.
The memorandum of March 25, 1916,88 states that a neutral government may proceed
upon the presumption that
“an armed merchant vessel of belligerent nationality
is armed for aggression, while a belligerent should proceed on the
presumption that the vessel is armed for protection. Both of these
presumptions may be overcome by evidence—the first by secondary or
collateral evidence, since the fact to be established is negative in
character”;
that
“A belligerent warship is any vessel which, under
commission or orders of its government imposing penalties or
entitling it to prize money, is armed for the purpose of seeking and
capturing or destroying enemy property or hostile neutral property
on the seas,”
the size of the vessel, strength of armament, and
its defensive or offensive force being immaterial; that armed
belligerent merchantmen which are under commission or orders to
attack in all circumstances enemy naval vessels, are to receive
prize money for such service, and are liable to a penalty for
failure to obey the orders given, lose their status as peaceful
merchant vessels, and are to a
“limited extent incorporated in the naval forces of
their government, even though it is not their sole occupation to
conduct hostile operations;”
that such vessels engaged
“intermittently in commerce and . . . in pursuing
and attacking enemy naval craft, possess a status tainted with a
hostile purpose which it can now throw aside or assume at will,”
[Page 586]
and should, therefore,
“be considered as an armed public vessel and receive
the treatment of a warship by an enemy and by neutrals”;
that as to offensive and defensive operations of
merchant vessels,
“The attacking vessel must display its colors before
exercising belligerent rights”;
that
“When a belligerent warship meets a merchantman on
the high seas which is known to be enemy-owned, and attempts to capture the vessel, the latter
may exercise its right of self-protection either by flight or by
resistance”;
that
“it has become the established practice for warships
to give merchant vessels an opportunity to surrender or submit to
visit and search before attempting to seize them by force”;
that
“If, however, before a summons to surrender is
given, a merchantman of belligerent nationality, aware of the
approach of an enemy warship, uses its armament to keep the enemy at
a distance, or after it has been summoned to surrender, it resists
or flees, the warship may properly exercise force to compel
surrender”;
and that
“A merchantman entitled to exercise the right of
self-protection may do so when certain of attack by an enemy
warship; otherwise the exercise of the right would be so restricted
as to render it ineffectual.”
As the present or proposed “defensive” character of merchant vessels
enjoying the hospitality of United States ports or transporting
American citizens on the seas shows a tendency to increase in point
of government control, skilled personnel, and strength of armament,
it is important to determine, if possible, the extent to which the
increase may be carried without endangering the neutrality of the
United States or limiting the protection to be accorded American
citizens traversing the seas on armed merchant ships.
It may add to clearness of discussion to consider the classes of
cases likely to arise when a warship and an armed merchant ship meet
at sea.
- (1)
- A warship (a) sends up colors, and (b) signals a merchantman to stop, and the
merchantman flees and fires—this is not offensive action,
because the enemy nationality and the intention of the warship
are known.
- (2)
- The merchantman makes no reply, the warship fires blank shots,
and the merchantman flees and fires—not offensive action.
- (3)
- The warship then fires solid shot until merchantman is halted,
and merchantman returns fire—not offensive action.
- (4)
- If, before (1), a merchant vessel is certain of
enemy-character warship and then fires—not offensive action,
because presence of enemy warship presumes attack.
- (5)
- If, after (1) (a) and before (1) (b) merchantman fires— not offensive
action.
- (6)
- If, before (1), a warship chases a merchantman and latter
fires—not offensive action, because chase by warship presumes
attack.
These cover roughly all the classes of cases which might occur. From
them it is evident that while it may be difficult to define
“offensive” or “defensive” action in general terms, it is not
difficult to determine which action has been taken in a specific
case. This is because of the assumption which naturally comes to the
mind that the presence of a battleship of known enemy nationality
presages peaceful or forcible capture.
Perhaps it may be said generally that “offensive action” means action
that is initiated by one ship against another, or is provocative of
action in defense by the other. Such offensive action may be by
direct attack, as by gunfire, ramming, etc., or it may be by
signalling, chasing, etc. It is conceded that an enemy merchantman
may interpose for self-protection against capture all the resistance
in its power. The best method of defense may be to use force
immediately upon the appearance of a warship. The mere appearance of
a warship provokes resistance, but this is not offensive action.
When the warship is a submarine, the best, if not the only time to
resist is when it appears on the surface. It is no fault of the
merchantman that a submarine can not safely expose itself to the
resistance which merchantmen may legally make, or comply with the
usual methods of visit and search, conveying to port, and placing
persons in safety.
If a merchantman may resist capture or destruction, what is to govern
the size, strength, or efficiency of her armament? The character of
the craft she has to resist. It is out of the question for a vessel
of the size and build of a merchant vessel to carry arms sufficient
to keep off a battleship. Perhaps in the old days this was possible,
for we read of merchantmen resisting and overpowering their
assailants. If, however, this were possible today, it would be
logically and legally correct for merchantmen to carry the armament
of a warship. The number, size, and emplacement of the guns,
therefore, is immaterial so long as they bear some relation to the
vessel which it is purposed to resist. If this is so, then clearly a
merchantman may carry sufficient armament to resist a thinly-armored
submarine. If she may carry guns, she must be allowed skillful
gunners under officers of experience. Otherwise, her guns may be
practically useless.
[Page 588]
Suppose the belligerent government sought to control or direct the
merchant ship through commissions or other orders to her officers to
act as a part of the armed forces of the state, or through paid
naval officers of the state in control of the vessel instead of
merchant officers, or through penalties imposed or prizes offered to
induce hostile conduct. The flying of a naval flag might be
confirmatory of this condition. What effect would the presence of
these elements have on the character of the vessel? They would make
the vessel a fighting arm of the state. Theoretically, all of these
elements might be present, and the vessel be used nevertheless as a
commerce-carrier for profit, its fighting qualities being reserved
for self-protection. Carried to the extreme limit, we might have a
battleship engaged solely in peaceful commerce. What, then, can be
the distinction between peaceful and aggressive ships? It is, as the
United States has stated, really a matter of intention—an intention
to seek out and hunt down war vessels of the enemy or merchant
vessels of enemy nationality.
As a practical matter, however, there must be some rule to prevent
neutrals being imposed upon by a change of intention after leaving
port. The assurance of the belligerent does this in part, and this
is supplemented by investigation of each case. The use of a
battleship, for example, as a commerce-carrier would be so liable to
abuse, and the very extraordinary and unnecessary preparations for
the use of force, considering the surface strength of submarines, or
converted cruisers, if they were the only enemy craft to be feared,
would so arouse suspicions as to her intentions, that whatever her
theoretical status might be, it would be difficult to believe, and
the enemy could never be brought to believe, that such a vessel was
not a ship intended for aggressive purposes. Moreover, being in the
service, control, and direction of the state, she might well be
regarded as a military arm of the state, and therefore
indistinguishable from the class of public armed ships generally
subject to attack without warning by the enemy. She would indeed
fall within the rules agreed upon by the Second Hague Conference
regarding the conversion of ships. According to the Hague Convention
No. 7 of 1907,89 a
merchantman is converted into a warship if the vessel is “placed
under the direct authority, immediate control, and responsibility of
the power whose flag it flies.” (Art. 1.) She “must bear the
external marks which distinguish warships of their nationality”
(Art. 2), have a “commander . . . in the service of the state and
duly commissioned by competent authorities” (Art. 3), have a “crew .
. . subject to military discipline.” (Art. 4), “observe in its
[Page 589]
operations the laws and
customs of wars” (Art. 5), and “must as soon as possible be
announced in the list of warships” (Art. 6.). These criteria have no
binding force, as the Convention is not in effect, but they are
important as indicating an agreement of nations on what constitutes
a conversion of merchant ships into warships.
Suppose that the belligerent government own, control, and operate
merchant ships. This may be done so long as they submit to treatment
accorded to merchant ships in foreign ports. The Brazilian Lloyd
ships are of this class, being operated as government ships by the
Minister of Finance of Brazil. If such a vessel mounts arms for
defense, she does not necessarily become a public fighting ship. A
government-owned merchant ship is, it is true, under the “direct
authority, immediate control, and responsibility” of the government,
as provided in Hague Convention No. 7; the officers and crew are in
the service of the state; the captain is no doubt duly commissioned,
but as a merchant captain instead of a naval officer; the crew are
not under military discipline; the vessel does not observe the laws
and customs of war, because it does not engage in war; the vessel is
not listed in the roster of warships, and does not carry a naval
flag.
These distinctions, however, as to kind of officers, kind of
discipline, kind of laws observed, kind of roster of ships, kind of
flag—are of minor importance. For a vessel may be in fact a fighting arm of the state
without any of them, and a peaceful commercial vessel with them all.
The test is more fundamental. It is in the real purpose and use of
the vessel. These distinctions are merely prima
facie indications of the purpose and use. If, however, the
purpose and use are peaceful, it will be hardly necessary for the
vessel to have naval officers and marines, military discipline,
naval commissions, a name on the roster of the fleet, or a naval
flag. Nevertheless, as these criteria have hitherto by long custom
been limited to fighting ships, their presence in connection with
merchant vessels arouses at once inquiry as to the use to be made of
such vessels. While the best evidence of that purpose and use will
be the formal statement of the government controlling the vessel,
and the past actions of the vessel itself, yet, if either should
belie the fact, the neutral would be criticizable for having
harbored such a ship. It is proper, if not necessary, therefore, for
the neutral to be on the side of safety, and to refuse to recognize
a vessel as a peaceful ship which has any of the usual
characteristics of a naval vessel, or which has acted as an
aggressive ship, notwithstanding the assurance of its government to
the contrary or the evidence of prior peaceful conduct. Assurances
may be regarded as binding the government that gives them to
liability for breaches thereof to the extent of offsetting any claim
by the enemy that the vessels violating the assurances have used
American ports as bases of operations. But allowance into port as a
[Page 590]
peaceful ship would be
notice to travelers that the United States would protect them in
case of attack without warning.
It would seem, therefore, the part of wisdom for a neutral, for the
purpose of maintaining its neutrality or of not giving a strained
interpretation to the protection of neutrals on board, to regard
merchantmen, whether private ships or government-owned, as peaceful
commercial ships, regardless of the size, number, or emplacement of
the guns up to what might be reasonably regarded as sufficient to
resist successfully the kind of enemy vessel which will probably be
met at sea, but arbitrarily to regard a vessel on the naval list, or
carrying a commission or orders of a government authorizing the
unlimited use of force, officers on board in the naval service and
in the pay of the government, or a naval flag, as a warship, because
these elements are unnecessary to a ship’s peaceful and commercial
purposes, or even to such resistance as she might possibly make
against the enemy. Even a naval crew or naval gunners in the service
and pay of the government do not change the character of the vessel
if they are not given absolute control of the guns or ship, and act
solely as expert gunners under officers in the service and pay of
the owners of the vessel. Furthermore, former naval officers or men
of naval experience in charge of these men, but not in the active
service and pay of the government, in no way affect the character of
the vessel.
Summary. (1) The following vessels should
be treated as warships:
- (a)
- Vessels under government commissions or orders to use
force without restraint;
- (b)
- Vessels with officers in the service and pay of the
government;
- (c)
- Vessels carrying a naval flag;
- (d)
- Vessels named on the naval list.
Such vessels, being warships, may be attacked without warning, and
the United States Government is not responsible for the protection
of life and property on board, the decision of C. J. Marshall to the
contrary notwithstanding.
(2) Other armed vessels should be treated as merchantmen, so long as
they leave port under an assurance of their government that they are
not to operate aggressively, and so long as there is no reason to
doubt their faithful compliance with the assurance. To avoid
criticism by the other belligerent, and possible claims for
unneutral conduct, as well as to preserve friendly relations with
him by restraining excessive armament, it would be wise, however, as
a matter of policy, to place a limit on the number of guns, on their
size, and on the number of men and officers serving them. A
reasonable maximum limit of armament for defensive purposes under
present conditions
[Page 591]
would,
it is believed, be the following: four guns of six inches or less
caliber, placed anywhere on the ship, with an officer for each gun,
and a number of men for each gun equal to the caliber in inches, the
officers and men not to be members of the regular military forces
detached for temporary duty, but still in the service and pay of the
government, though they may be members of the reserve. This strength
of armament has been recommended by the Joint State and Navy
Neutrality Board as the “reasonable minimum” which a merchant vessel
might carry for self-defence, but it is believed that for the
guidance of the Government in view of present conditions of naval
warfare, and in order not to give the impression of opening the
doors to excessive armament, the Board’s “reasonable minimum” would
appropriately serve as a conservative maximum armament for peaceful
belligerent merchant vessels.
