195.1/149½
The Acting Secretary of State to President Wilson
My Dear Mr. President: I fear that I cannot give a very satisfactory answer to your letter of to-day as to the probable attitude of the French and British Governments in the matter of the transfer of ships of belligerent nationality during hostilities, and particularly of transfers to a corporation in which the United States Government is interested.
In the first place I think that a distinction should be made between the transfer of flag and the transfer of ownership. In the case of the transfer of flag there have been numerous cases of ships of foreign register owned by Americans or by companies subsidiary to American companies which have been transferred to American register without opposition by either the British Government or the French Government. A vessel of this sort was the tank steamer Brindilla. It was seized and taken to Halifax, but was later released, the British Government stating that it did so without passing upon the legality of the [Page 108] transfer. In spite of this reservation I think that the British Government will recognize such transfers, and in view of the silence of the French Government it is fair to assume that no objection will be made by them.
The transfer of ownership as well as of flag, which is the type of transfer to which your letter refers, is a different matter.
I have not discussed the subject for some time with Mr. Jusserand, but the last time we did so he was most emphatic in his opposition. There is no question but that the French Government in their official utterances have denied the validity of the sale of a merchant vessel by a belligerent to a neutral on the ground that it is always done for the purpose of avoiding the consequences of belligerency. While this has been their consistent attitude for the past one hundred and forty years I am, nevertheless, unable to find a single case in which a French prize court has condemned a vessel so transferred on account of the illegality of the transfer.
While M. Jusserand referred to the French practice in regard to such transfers, he spoke more feelingly upon a consequence of such sales rather than upon the legal right. He asserted that for Americans to purchase German steamships interned in our ports would release a large amount of German capital and relieve the companies of the constant expense of caring for the vessels and of maintaining their crews. The moneys thus made available, he asserted, would be employed to carry on the war against France, so that it would amount to giving aid to the enemy.
Applying this idea to purchases by this Government the Ambassador said that, if the purchases were made, the action would menace the unbroken friendship of France for this country, for whose liberty Frenchmen had shed their blood and contributed their wealth, etc., etc.
Stripped of its sentimentality the argument came to this, that the purchase of interned German ships by this Government would be of material aid to Germany and that to give such aid would be an unneutral and unfriendly act, which the French Government would resent; and that, being contrary to the French theory of legality of transfer, the purchases would be considered invalid and the vessels liable to condemnation as prize.
I should also call your attention to the fact that at the time the shipping bills were being publicly discussed Ambassador Herrick reported that the French Government were bitterly hostile to the idea, raising objections similar to those urged by M. Jusserand.
[Page 109]The British Ambassador in the conversations, which I have had with him on this subject, has been far less definite than his colleague in expression of his views. I think that this is due to the fact that he is unwilling to differ with the French attitude and yet he cannot agree with it as it would be entirely contrary to the position which the British Government has invariably taken in regard to transfers of belligerent-owned vessels.
He has spoken of the release of German capital, which would result, but I was not impressed with the sincerity with which he advanced it as an argument. Recently, in discussing the withdrawal of the suggestion of this Government as to the Declaration of London and the assertion that our rights and duties would be determined by the existing rules of international law, I made the comment that at least the ambiguity of the article of the Declaration relative to the transfer of belligerent merchant ships would no longer vex us, as the right to make such transfers was well established so far as the practice of the United States and Great Britain was concerned. He admitted that this was probably so, but added that it seemed to him to be unneutral to give assistance to a belligerent, thus falling back on the French argument.
To sum up my impressions from the conversations I have had with the two Ambassadors:
I believe that the French Government will vigorously oppose the purchase of German vessels by this Government on the ground that the purchase is invalid, and also on the ground that this Government by making the purchase would violate its neutrality and would act in an unfriendly manner toward France.
I believe that the British Government, while giving a measure of support to their ally on the second ground mentioned, would not, in view of the long established British doctrine as to the right to make such purchases, seriously oppose the validity of the transfers, though I have no doubt their validity would be subjected to prize-court proceedings.
I regret that I cannot give you a more definite impression as to the probable position of the British Government, but the announced position of the French Government, so adverse to the British doctrine, prevents, I think, a free expression of opinion by Sir Cecil.
Very sincerely yours,