File No. 462.11Se8/33
The Secretary of State to the Ambassador in Germany ( Gerard )
1868. You are instructed to present the following note to the German Minister of Foreign Affairs:
I have the honor to inform your excellency that I duly communicated to my Government your note of the 7th instant on the subject of the claim presented [Page 451] In my note of April 3 last,1 on behalf of the owners and captain of the American sailing vessel William P. Frye in consequence of her destruction by the German auxiliary cruiser Prinz Eitel Friedrich.
In reply I am instructed by my Government to say that it has carefully considered the reasons given by the Imperial German Government for urging that this claim should be passed upon by the German prize court instead of being settled by direct diplomatic discussion between the two Governments, as proposed by the Government of the United States, and that it regrets to find that it can not concur in the conclusions reached by the Imperial German Government.
As pointed out in my last note to you on this subject, dated April 30 ,2 the Government of the United States has considered that the only question under discussion was the method which should be adopted for ascertaining the amount of the indemnity to be paid under an admitted liability, and it notes with surprise that in addition to this question the Imperial German Government now desires to raise some questions as to the meaning and effect of the treaty stimulations under which it has admitted its liability.
If the Government of the United States correctly understands the position of the Imperial German Government as now presented, it is that the provisions of Article 13 of the treaty of 1799 between the United States and Prussia, which is continued in force by the treaty of 1828, justified the commander of the Prinz Eitel Friedrich in sinking the William P. Frye , although making the Imperial German Government liable for the damages suffered in consequence, and that inasmuch as the treaty provides no specific method for ascertaining the amount of indemnity to be paid, that question must be submitted to the German prize court for determination.
The Government of the United States, on the other hand, does not find in the treaty stipulations mentioned any justification for the sinking of the Frye, and does not consider that the German prize court has any jurisdiction over the question of the amount of indemnity to be paid by the Imperial German Government on account of its admitted liability for the destruction of an American vessel on the high seas.
You state in your note of the 7th instant that Article 13 of the above-mentioned treaty of 1799 “expressly reserves to the party at war the right to stop the carrying of contraband and to detain the contraband; it follows then that if it can not be accomplished in any other way, the stopping of the supply may in the extreme case be effected by the destruction of the contraband and of the ship carrying it.”
The Government of the United States can not concur in this conclusion. On the contrary, it holds that these treaty provisions do not authorize the destruction of a neutral vessel in any circumstances. By its express terms the treaty prohibits even the detention of a neutral vessel carrying contraband if the master of the vessel is willing to surrender the contraband. Article 13 provides: “In the case supposed of a vessel stopped for articles of contraband, if the master of the vessel stopped will deliver out the goods supposed to be of contraband nature, he shall be admitted to do it, and the vessel shall not in that case be carried into any port, nor further detained, but shall be allowed to proceed on her voyage.”
In this case the admitted facts show that pursuant to orders from the commander of the German cruiser, the master of the Frye undertook to throw overboard the cargo of that vessel, but that before the work of delivering out the cargo was finished the vessel with the cargo was sunk by order of the German commander.
For these reasons, even if it be assumed as your excellency has done, that the cargo was contraband, your contention that the destruction of the vessel was justified by the provisions of Article 13 does not seem to be well founded. The Government of the United States has not thought it necessary in the discussion of this case to go into the question of the contraband or non-contraband character of the cargo. The Imperial German Government has admitted that this question makes no difference so far as its liability for damages is concerned, and the result is the same so far as the justification for the sinking of the vessel is concerned. As shown above, if we assume that the cargo was contraband, the master of the Frye should have been allowed to deliver it out, and the vessel should have been allowed to proceed on her voyage.[Page 452]
On the other hand, if we assume that the cargo was non-contraband, the destruction either of the cargo or the vessel could not be justified in the circumstances of this case under any accepted rule of international law. Attention is also called to the provisions of Article 12 of the treaty of 1785 between the United States and Prussia, which, like Article 13 of the treaty of 1799, was continued in force by Article 12 of the treaty of 1828. So far as the provisions of Article 12 of the treaty of 1785 apply to the question under consideration, they are as follows:
“If one of the contracting parties should be engaged in war with any other Power, the free intercourse and commerce of the subjects or citizens of the party remaining neuter with the belligerent Powers shall not be interrupted. On the contrary, in that case, as in full peace, the vessels of the neutral party may navigate freely to and from the ports and on the coasts of the belligerent parties, free vessels making free goods, insomuch that all things shall be adjudged free which shall be on board any vessel belonging to the neutral party, although such things belong to an enemy of the other.”
It seems clear to the Government of the United States, therefore, that whether the cargo of the Frye is regarded as contraband or as non-contraband, the destruction of the vessel was, as stated in my previous communication on this subject, “a violation of the obligations imposed upon the Imperial German Government under existing treaty stipulations between the United States and Prussia.”
For these reasons the Government of the United States must disagree with the contention which it understands is now made by the Imperial German Government that an American vessel carrying contraband may be destroyed without liability or accountability beyond the payment of such compensation for damages as may be fixed by a German prize court. The issue thus presented arises on a disputed interpretation of treaty provisions, the settlement of which requires direct diplomatic discussion between the two Governments, and can not properly be based upon the decision of the German prize court, which is in no way conclusive or binding upon the Government of the United States.
Moreover, even if no disputed question of treaty interpretation was involved, the admission by the Imperial German Government of its liability for damages for sinking the vessel would seem to make it unnecessary, so far as this claim is concerned, to ask the prize court to decide “whether the destruction of the ship and cargo was legal, and whether and under what conditions the property sunk was liable to confiscation,” which, you state in your note dated June 7, are questions which should be decided by the prize court. In so far as these questions relate to the cargo, they are outside of the present discussion, because, as pointed out in my previous note to you on the subject dated April 30, “the claim under discussion does not include damages for the destruction of the cargo.”
The real question between the two Governments is what reparation must be made for a breach of treaty obligations, and that is not a question which falls within the jurisdiction of a prize court.
In my first note on the subject the Government of the United States requested that “full reparation be made by the Imperial German Government for the destruction of the William P. Frye .” Reparation necessarily includes an indemnity for the actual pecuniary loss sustained, and the Government of the United States takes this opportunity to assure the Imperial German Government that such an indemnity, if promptly paid, will be accepted as satisfactory reparation, but it does not rest with a prize court to determine what reparation should be made or what reparation would be satisfactory to the Government of the United States.
Your excellency states in your note of June 7 that in the event the prize court should not grant indemnity in accordance with the treaty requirements, the German Government would not hesitate to arrange for equitable indemnity, but it is also necessary that the Government of the United States should be satisfied with the amount of the indemnity, and it would seem to be more appropriate and convenient that an arrangement for equitable indemnity should be agreed upon now rather than later. The decision of the prize court, even on the question of the amount of indemnity to be paid, would not be binding or conclusive on the Government of the United States.
The Government of the United States also dissents from the view expressed in your note that “there would be no foundation for a claim of the American [Page 453] Government unless the prize courts should not grant indemnity in accordance with the treaty.” The claim presented by the American Government is for an indemnity for a violation of a treaty, in distinction from an indemnity in accordance with the treaty, and therefore is a matter for adjustment by direct diplomatic discussion between the two Governments and is in no way dependent upon the action of a German prize court.
For the reasons above stated the Government of the United States can not recognize the propriety of submitting the claim presented by it on behalf of the owners and captain of the Frye to the German prize court for settlement.
The Government of the United States is not concerned with any proceedings which the Imperial German Government may wish to take on “other claims of neutral and enemy interested parties” which have not been presented by the Government of the United States, but which you state in your note of June 7 make prize-court proceedings in this case indispensable, and it does not perceive the necessity for postponing the settlement of the present claim pending the consideration of those other claims by the prize court.
The Government of the United States, therefore, suggests that the Imperial German Government reconsider the subject in the light of these considerations, and because of the objections against resorting to the prize court the Government of the United States renews its former suggestion that an effort be made to settle this claim by direct diplomatic negotiations.