The Acting Secretary of State to the German Ambassador (Bernstorff)
My Dear Mr. Ambassador: Replying to your note of the 2d instant in which you request an official statement of the reasons why the Government of the United States has withheld permission for the German steamship Pisa to clear from the harbor of New York, I wish to recall to your attention the substance of your Embassy’s confidential [Page 862] memorandum of the 26th ultimo in which it is assumed that no objections would be made to the clearance of the vessel. In that memorandum the following statement appears:
The Pisa is bound for Hamburg with a cargo of coal and provisions; if possible, the ship shall on that voyage try to communicate with a German cruiser in the Atlantic; afterwards ship to continue her journey to Hamburg. No supplies having been taken to any German man-of-war in that region within the last three months, the Embassy is entitled to assume that no legitimate objections are to be expected to that purpose.
The Department’s information is that the Pisa preparatory to leaving New York was loaded with 5,500 tons of coal, a normal supply of provisions, and 50 barrels of oil.
The memorandum quotes from the Department’s note of December 24 last to the effect that the essential idea of neutral territory becoming the base for naval operations is repeated departure from such territory of merchant vessels laden with fuel or other supplies for belligerent warships at sea, and the memorandum draws the conclusion from Hague Convention No. XIII of 1907, that the word “repeated” means “more than once in three months.” The argument appears to be that, inasmuch as no supplies for German men-of-war have left the United States within three months, no objection ought to be raised to the clearance of the Pisa though it is admitted that she intends to transfer her cargo, if possible, to a German cruiser on the high seas.
It is true that the Department’s note of December 24 discussed the meaning of “base of operations,” but it was also pointed out that the obvious result of the practice of sending supplies to warships at sea, would be that such warships could remain on their stations engaged in belligerent operations without the inconvenience of repairing to port for supplies. Both of these assertions must be considered as they present different phases of the same question. It is the opinion of this Government that the result of supplying warships in order that they may avoid the danger or inconvenience of visiting a neutral port would be in contravention of the rules of international law and the provisions of Hague Convention No. XIII. Both Articles 19 and 20 of that convention indicate unquestionably that the coaling of warships from stores gathered at a neutral port or roadstead is to take place in that port or roadstead, and these provisions are regarded as consonant with the existing rules of international law on the subject. It is obvious that to carry fuel and supplies to a warship on its station at sea is not furnishing her with fuel within a neutral port. I am, therefore, under the necessity of disagreeing with your statement that “it is immaterial whether the warship to be supplied is in port, off port, or on the high seas.”
The reasons for this rule are evident, when its application is considered. In the first place, as only sufficient coal and supplies may be furnished a warship to enable it to reach its nearest home port, neutrals must, in order to determine the amount, be specifically advised of the size of the vessel, the number of the crew, the amount of fuel and supplies already on board, and the place of transshipment. Without knowledge of these facts it would be impossible to limit the cargo of a vessel so that the warship could not take on board more coal or supplies than the rule of international law permits. [Page 863] In the second place after the departure of a supply boat from the jurisdiction of the United States, this Government would have no control over the vessel to prevent delivery to a different warship from the one supposed to be entitled to replenishment, even though the supplies furnished far exceeded the amount permitted by international law. In the third place, as a belligerent warship may not, in any event, supply itself in the ports of a neutral power more than once in three months, a neutral government, before allowing coal and supplies to be taken to a belligerent warship from its ports, should be satisfied that none had been obtained by the same vessel within the preceeding three months. This information can be had only from the warship itself, unless it has during the period entered a neutral port, or been in direct communication therewith. In any event the amount of the stores to be supplied, and the time when they may properly be furnished are questions of fact, and not matters of presumption.
Furthermore, the allowance of coal and supplies by a neutral to a belligerent warship is based on the presumption that the latter intends to return to its home port. There can, however, be no such presumption in the present case. In fact the presumption is that no German warship would attempt to return home when there is a virtual investment of German ports by hostile naval forces. On the contrary it may be assumed with reasonable certainty that a German warship which remains on the high seas, purposes to take supplies in order to continue hostile operations against vessels of belligerent nationality and to intercept and search neutral vessels. If, therefore, such a warship is supplied with an amount of coal and supplies in excess of the amount permitted by law, the neutral territory from which such stores are derived would clearly constitute depot for the projection of the naval operations of a belligerent in contravention of the rules of international law and Article 5 of Hague Convention No. XIII of 1907.
In support of the views above expressed I desire, to direct your excellency’s attention to the following incidents. During the Franco-Prussian war of 1870 the British Government prohibited, in conformity with the desire of the Imperial German Government, the export of coal to the French fleet cruising in the North Sea. It is understood that the ground for this prohibition was that the furnishing of coal to a belligerent fleet at sea would amount to a participation in its operations, since the supply of coal would render possible a continuance of such operations without a return to port. A step in advance of this position was taken by the British Government when the Russian Baltic Fleet was about to undertake a voyage to the Sea of Japan in the summer of 1904. In anticipation of the coaling of the fleet in British ports the British Government caused instructions to be issued to the effect that belligerent fleets, or single belligerent ships of war, proceeding for the purpose of engaging in hostile operations, should not be permitted to make use of British ports or waters for the purpose of coaling either from the shore or from colliers. Here again the object of the instructions seems to have been to prevent neutral territory from becoming a base of hostile operations for a belligerent fleet or a belligerent man-of-war.
Finally the application papers on which clearance is sought for the Pisa would manifestly contain misstatements. An application to clear [Page 864] for a voyage to the port of Hamburg, which is practically sealed by the warships of Germany’s adversaries, with the intention of transferring the cargo at sea to a warship engaged in preying on belligerent commerce and interfering with neutral trade, impresses the application with a fictitious character and shows an intention of obtaining a false clearance. The statutes of the United States impose penalties upon making applications of this sort, and make the act a crime under Federal laws. If this Government, therefore, knowing the real purpose of the voyage, should issue such clearance, it would be subject to justifiable criticism as a party to a violation of its own laws.
Your Embassy’s memorandum in the antepenultimate paragraph suggests that the burden of proving the charge that supplies have been furnished to a certain warship more than once in three months lies upon the neutral. With this suggestion this Government is unable to agree. A neutral, in matters pertaining to neutral obligations, may, in the opinion of this Government, require substantial evidence from a belligerent seeking special privileges that he is entitled to enjoy them.
Owing to the exceptional circumstances of certain cases arising during the present war, which involve rights and duties of neutral powers, I am constrained to limit the application of this note to the particular case under discussion, so that the principles laid down may be read with the facts of the present case in mind and limited in application to those facts, since other conditions might create a different presumption as to the intended use of supplies furnished to a belligerent warship and to that extent at least modify the views expressed.
I am [etc.]