File No. 763.72111/1115
The Acting Secretary of State to the British Ambassador (Spring Rice)
Washington, November 23, 1914.
My dear Mr. Ambassador: I have received your note of the 15th instant in which you communicate two rules issued by the Brazilian Government relative to the treatment of merchant vessels to the effect that (1) before vessels leave port the consular officer concerned make a declaration of the ports of call and destination, and give an [Page 635] assurance of the commercial character of the voyage; and (2) that vessels be treated as part of the naval forces of the nation if it is proved either by lapse of time or by the course taken that the voyage has not been direct to the ports of call or destination declared by the consular officer. You state that Sir Edward Grey desires to know whether the United States Government would be disposed (1) to issue rules of a similar nature, and (2) to regard as suspect any ship, whatever her nationality, which has given a false destination or taken an excessive time over her voyage, or unloaded cargo en route.
In regard to the first rule issued by the Brazilian Government my opinion is that in the present status of American law this Government would not be warranted in detaining a merchant vessel and refusing clearance until the consular officer of that vessel’s nationality has declared the ports of call and destination and has assured the Government that its errand is purely commercial. It seems to me that in order that the declaration and assurance of the consular officer should have full legal effect he should derive his authority from an agreement between the United States and his country. The negotiation of such an agreement with all the countries which might be concerned appears to me to be a task which it is impracticable to perform in time to make it of value during the present war.
In regard to the second rule issued by the Brazilian Government it seems to me that to treat a merchant vessel as part of the naval forces of her nation because excessive time has elapsed in reaching her port of call or destination, or because by deviation from her course she did not proceed directly to those ports, is to place the treatment on unjustifiable grounds. The United States has, in its statement of September 19,1 set forth certain circumstances under which it is deemed proper to detain vessels pending an investigation f their intention. Some of these circumstances have perhaps the same evidential weight as lapse of time and deviation from course, but it will be noted that the detention is only for purposes of investigation. A distinction, therefore, is made between detaining a vessel on these grounds pending investigation and treating her as a part of the naval forces of her country. It seems to me that to treat a vessel as part of the naval forces of her country should be based upon direct evidence that she has been acting in that character. Mere lapse of time and deviation from course may have a confirmatory effect, but standing alone they have to my mind no direct evidential value. The German merchant ship Locksun was interned as a naval tender of the German gunboat Geier because the facts regarding her operation stamped her with that character. I am inclined to think, therefore, that the second Brazilian rule would be unacceptable to this Government.
The request of your Government, however, includes an additional point, namely, the matter of regarding as suspect any ship which has unloaded cargo en route. It is assumed that the unloading mentioned refers to transshipment at sea to belligerent warships. This point is, I think, covered by the Department’s statement of September [Page 636] 19 in relation to “Merchant vessels suspected of carrying supplies to belligerent vessels.”1 The case of the Locksun was of this kind and involved a foreign merchant vessel. The case of the Berwind mentioned in your note of the 20th instant is a similar case involving an American vessel. In the latter case I may state that the Government is acting with the utmost expedition to prevent, if possible, a recurrence of the Berwind incident. I mention these cases as showing concretely the methods used by this Government in dealing with actual cases of unloading cargoes at sea.
Finally you state that, in case this Government should not see its way clear to issue rules similar to the Brazilian rules, you are instructed to urge that ships acting in the suspicious manner prohibited by the Brazilian rules be treated with special caution so as to prevent the use of our ports, as bases of supplies for German cruisers. In reply I can assure you that this Government is, and has been, using the utmost vigilance to prevent the use of its ports as bases for supplies for belligerent war vessels as the concrete cases above mentioned fully bear out.
I am [etc.]