File No. 763.72111/1469
The Secretary of State to the German, Ambassador (Bernstorff)
Excellency: I have the honor to acknowledge the receipt of your excellency’s note of the 19th instant, and in reply have to inform you that the statements contained in your excellency’s note have received my careful consideration in view of the earnest purpose of this Government to perform every duty which is imposed upon it as a neutral by treaty stipulation and international law.
The essential statement in your note, which implies an obligation on the part of this Government to interfere in the sale and delivery of hydro-aeroplanes to belligerent powers, is:
There is no doubt that hydro-aeroplanes must be regarded as war vessels whose delivery to belligerent states by neutrals should be stopped under Article 8 of the thirteenth convention of the Second Hague Conference of October 18, 1907.
As to this assertion of the character of hydro-aeroplanes I submit the following comments: The fact that a hydro-aeroplane is fitted with apparatus to rise from and alight upon the sea does not in my opinion give it the character of a vessel any more than the wheels attached to an aeroplane fitting it to rise from and alight upon land give the latter the character of a land vehicle. Both the hydro-aeroplane and the aeroplane are essentially aircraft; as an aid in military operations they can only be used in the air. The fact that one starts its flight from the surface of the sea and the other from the land is a mere incident which in no way affects their aerial character.
In view of these facts I must dissent from your excellency’s assertion that “there is no doubt that hydro-aeroplanes must be regarded as war vessels,” and consequently I do not regard the obligations imposed by treaty or by the accepted rules of international law applicable to aircraft of any sort.
In this connection I further call to your excellency’s attention that according to the latest advices received by this Department the German Imperial Government include “balloons and flying machines and their component parts” in the list of conditional contraband, and that in the Imperial prize ordinance, drafted September 30, 1909, and issued in the Reichs-Gesetzblatt on August 3, 1914, appear as conditional contraband “airships and flying machines” (Article 23, section 8). It thus appears that the Imperial Government have placed and still retain aircraft of all descriptions in the class of conditional contraband, for which no special treatment involving neutral duty is, so far as I am advised, provided by any treaty to which the United States is a signatory or adhering power.
As in the views of this Department the provisions of Convention XIII of the Second Hague Conference do not apply to hydro-aeroplanes I do not consider it necessary to discuss the question as to whether those provisions are in force during the present war.