File No. 763.72111Od2/14
The Secretary of State to the German Ambassador ( Bernstorff )
Excellency: I have the honor to acknowledge the receipt of your excellency’s note of April 1, last in relation to the refusal of the United States collector of customs at San Juan, P. R., to clear the German steamer Odenwald for Hamburg with a cargo of 1,500 tons of coal and provisions. Your excellency reviews certain circumstances connected with this incident and states that after two thorough searches of the vessel, application for clearance was denied by the collector on the plea that he had as yet received no instructions from Washington authorizing clearance and that the captain finally decided to put to sea without clearance papers, as further delay would cause increased danger from enemy cruisers which were gathering off the port.
Your excellency further states that as the ship was leaving the harbor on, the afternoon of Sunday, March 21, she “met with a brisk machine-gun fire from Morro Castle. A few minutes later a solid cannon shot struck the water a short distance in front of the ship’s bow, raising a column of water from ten to twelve feet high. The [Page 865] engine was immediately stopped and backed at full speed. The forward motion of the ship, ceased at once, in spite of which she was fired upon about three minutes longer. Marks of the bullets can be plainly seen in various places of the ship and hull. It was only through luck that no human life was lost in that onslaught.”
The foregoing statements are based on affidavits by the German Consul in Porto Rico, the captain of the Odenwald, the first officer, the third officer, and the chief engineer, which you enclosed.
Your excellency requests to be advised as to why the Odenwald’s clearance papers were refused, though in the opinion of the harbor officials, after two thorough inspections of the vessel, there was no ground upon which to decline to issue the papers; and your excellency declares that “the reckless action of the harbor authorities in opening fire on the steamer without warning” does not seem to you to have been “justified by the circumstances of the case, as it could hardly be the intention of the American Government to endanger, without imperative cause, the lives of a ship’s crew for the mere sake of insuring orderly traffic in the harbor.”
In reply I have the honor to state that upon the report to this Government by the authorities at San Juan of certain circumstances surrounding the preparation of the Odenwald for sea, an investigation was immediately instituted. Until the investigation was concluded and acted upon at Washington, the authorities at San Juan were instructed to decline to issue clearance papers to the Odenwald. While this investigation was pending, and while the collector of customs at San Juan was acting under these instructions, the captain of the Odenwald reached the determination that he would depart without authorized clearance and in open violation of the customs laws of the United States. Circumstances, which it does not seem necessary to relate here, have shown that the suspicions as to the bona fides of the application for clearance, which had been aroused by the preparations for sailing by the officers of the Odenwald, acting in conjunction with the officers of the German steamer President lying in the same harbor, were well founded, and that this Government and its officers at San Juan were justified in the course which they took in deferring the clearance of the Odenwald. Irrespective of the substantial grounds for the suspicions of the port officials at San Juan, the fact remains that the Odenwald, in her endeavor to leave port on March 21 last without papers, committed a wilful breach of the navigation laws of the United States, because of which judicial proceedings have been brought by the United States against the vessel and the persons concerned in her illegal conduct which made it necessary for the United States authorities to employ force to prevent her unauthorized departure on a mission which this Government felt at the time might constitute a breach of the neutrality of the United States, and result in a possible claim for lack of due diligence on the part of this Government in performing its neutral duties.
As to the assertion that the reckless action of the port authorities in their exercise of force endangered human lives on board the Odenwald, I have the honor to inform your excellency that this Government has had instituted a thorough and searching investigation into the circumstances of the attempted sailing and arrest [Page 866] of the Odenwald on March 21. The result of this investigation, which is supported by the statements and affidavits of the officers of the customs, as well as of the military officers in charge of the defenses of the port, establishes the following facts:
On March 19, at a conference between the collector of customs, Colonel Burnham, United States Army, the German consul, the captain of the Odenwald, and others, the captain of the vessel was informed by Colonel Burnham that the latter would use whatever force was necessary in order to prevent the Odenwald from leaving port without the necessary customhouse clearance, and that he would go to the length of using the guns of his command in the forts for this purpose.
On March 20, at another conference between the same persons, a similar statement was made to the captain of the Odenwald, and it was arranged to place an armed party on board the vessel, unless the captain, the vessel’s agents, and the German consul would give assurances that no attempt would be made to leave without proper papers. Promises were given not to leave during the nightof March 20–21. Nevertheless, it was discovered in the early morning hours of the 21st that officers from the German steamer President had boarded the Odenwald and that the machinery of the Odenwald was being put in motion. The port authorities thereupon again notified the chief officer of the Odenwald not to depart without clearance papers, warning him that the vessel would be closely watched and would be stopped by force if necessary.
On March 21, at about 3 p. m., the Odenwald raised anchor and started her engines. The customs officer on board the vessel at the time was told by the captain that, if he desired to go ashore, he could take the sailboat of the steamer President, which was at the gangway. The Odenwald had moved ahead about five lengths when the customs officer notified the captain that the vessel could not leave port without clearance papers. Notwithstanding this notice the vessel continued in motion, and the officer was under the necessity of leaving the ship while she was under weigh.
As she passed San Augustin Bastion, 500 feet from Morro Castle, Captain Wood, United States Army, who was there stationed with a machine gun, hailed the vessel several times and ordered her to stop, in circumstances which made it impossible for the officers of the vessel not to have heard the order. The Odenwald nevertheless continued on her course, whereupon about seventy-five shots were fired from the machine gun mountedon the bastion. These shots were aimed and fell a considerable distance in front and short of the Odenwald. In order not to endanger craft, which appeared ahead of the Odenwald as she proceeded, fifteen shots were fired from the machine gun which fell off the stern of the vessel. Although these were small solid shots, they were used as a warning because it is not possible to use blank cartridges in a machine gun. The machinegun was not aimed at the Odenwald, nor did any of the shots strike the vessel. Any marks on the Odenwald’s hull, which is old and scarred through many months of sea service, were made by other causes than by machine-gun bullets striking the vessel, according to the proofs laid before this Government.
The Odenwald did not heed this warning nor slacken her speed. Thereupon a 4.7-inch gun on the Morro Castle was aimed and fired [Page 867] under the personal direction of Colonel Burnham. The shot struck at least 300 yards in front of the Odenwald and short of her projected course. The vessel then stopped and was taken back to her anchorage under the direction of a pilot. No machine-gun shots could have been fired from Morro Castle, as no machine guns are mounted at that fort.
It will be observed that six distinct warnings were given to the captain of the Odenwald that force would be used in case he attempted to leave the harbor without the clearance papers required by law; namely, at the conferences on March 19 and 20, twice by the customs officers on board the vessel on March 21, by the orders of Captain Wood from the bastion, and by the shots from his machine gun. None of these warnings was heeded by the captain, who persisted in his determination to leave port in violation of the laws of the United States, until the warning shot from Morro Castle induced him to obey the regulations of the port.
Your excellency will perceive from the foregoing statement of facts that the United States authorities at San Juan in the performance of their duties avoided any act endangering the safety of the vessel and the lives of the persons on board and exercised no greater force than was necessary to prevent the illegal departure of thee Odenwald from the port of San Juan.
I have the honor, in accordance with your excellency’s request, to return herewith the affidavits transmitted with your note under acknowledgment.