File No. 462.11Se8/16
The Ambassador in Germany (Gerard) to the Secretary of State
[Received April 7, 11.05 p. m.]
The undersigned has the honor to make reply to the note of his excellency, Mr. James W. Gerard, Ambassador, the United States [of] America, dated the 3d instant, Foreign Office No. 2892, relative to claims for damages for the sinking of the American merchant vessel William P. Frye by the German auxiliary cruiser Prinz Eitel Friedrich.
According to the reports which have reached the German Government the commander of the Prinz Eitel Friedrich stopped the William P. Frye on the high seas January 27, 1915, and searched her. He found on board a cargo of wheat consigned to Queenstown, Falmouth, or Plymouth to order. After he had first tried to remove the cargo from the William P. Frye he took the ship’s papers and her crew on board and sank ship.
It results from these facts that the German commander acted quite in accordance with the principles of international law as laid down in the Declaration of London and the German prize ordinance. The ports of Queenstown, Falmouth, and Plymouth, whither the ship visited was bound, are strongly fortified English coast places, which, moreover, serve as bases for the British naval forces. The cargo of wheat being food or foodstuffs, was conditional contraband within the meaning of Article 24, No. 1, of the Declaration of London, and Article 23, No. 1, of the German prize ordinance, and was therefore to be considered as destined for the armed forces of the enemy, pursuant to Articles 33 and 34 of the Declaration of London and Articles 32 and 33 of the German prize ordinance, and to be treated as contraband pending proof of the contrary. This proof was certainly not capable of being adduced at the time of the visiting of the vessel, since the cargo papers read to order. This, however, furnished the conditions under which, pursuant to Article 49 of the Declaration of London and Article 113 of the German prize ordinance, the sinking of the ship was permissible, since it was not possible for the auxiliary cruiser to take the prize into a German port without involving danger to its own security or the success of its operations. The duties devolving upon the cruiser before destruction of the ship, pursuant to Article 50 of the Declaration of London and Article 116 of the German prize ordinance, were fulfilled by the cruiser in that it took on board all the persons found on the sailing vessel, as well as the ship’s papers.
The legality of the measures taken by the German commander is furthermore subject to examination by the German prize court pursuant to Article 51 of the Declaration of London and Section 1, No. 2, of the German code of prize procedure. These prize proceedings will be instituted before the prize court at Hamburg as soon as the ship’s papers are received and will comprise the settlement of questions whether the destruction of the cargo and the ship was necessary within the meaning of Article 49 of the Declaration of London; whether the property sunk was liable to capture; and whether, or to what extent, indemnity is to be awarded the owners. In the trial the owners of ship and cargo would be at liberty, pursuant to Article 34, paragraph 3, of the Declaration of London, to adduce proof that the cargo of wheat had an innocent destination and did not therefore, have the character of contraband. If such proof is not adduced, the German Government would not be liable for [Page 361] any compensation whatever, according to the general principles of international law.
However, the legal situation is somewhat different in the light of the special stipulations applicable to the relations between Germany and the United States, since Article 13 of the Prussian-American treaty of friendship and commerce of July 11, 1799, taken in connection with Article 12 of Prussian-American treaty of commerce and navigation of May 1, 1828, provides that contraband belonging to the subjects or citizens of either party can not be confiscated by the other in any case but only detained or used in consideration of payment of the full value of the same. On the ground of this treaty stipulation, which is as a matter of course binding on the German prize court, the American owners of ship and cargo would receive compensation even if the court should declare the cargo of wheat to be contraband. Nevertheless the approaching prize proceedings are not rendered superfluous since the competent prize court must examine into the legality of the capture and destruction and also pronounce upon the standing of the claimants and the amount of indemnity.
The undersigned begs to suggest that the Ambassador bring the above to the knowledge of his Government and avails himself [etc.]
April 4, 1915.