File No. 462.11Se8/39
The Ambassador in Germany (Gerard) to the Secretary of State
[Received July 31 in sections.]
2656. Following note received:
Foreign Office,
Berlin, July 30,
1915.
The undersigned has the honor to inform his excellency, Mr. James W. Gerard, Ambassador of the United States of America, in reply to the note of the 26th [24th] ultimo, Foreign Office No. 3990,1 on the subject of the sinking of the American merchant vessel William P. Frye by the German auxiliary cruiser Prime Eitel Friedrich , that the points of view brought out in the note have been carefully examined by the Imperial German Government. This examination has led to the following conclusions:
The Government of the United States believes that it is incumbent upon it to take the position that the treaty rights to which America is entitled, as contained in Article 12 of the Prussian-American treaty of amity and commerce of September 10, 1785, in Article 13 of the Prussian-American treaty of amity and commerce of July 11, 1799, Were violated by the sinking of the William P. Frye . It interprets these articles as meaning that a merchantman of the neutral contracting party carrying contraband can not in any circumstances be destroyed by a warship of the belligerent contracting party, and that the sinking of the William P. Frye was, therefore, in violation of the treaty, even if her cargo should have consisted of contraband, which it leaves outside of the discussion.
The German Government can not accept this view. It insists as heretofore that the commander of the German auxiliary cruiser acted in the legal exercise of the right of control of trade in contraband enjoyed by warships of belligerent nations, and that the treaty stipulations mentioned merely oblige the German Government to make compensation for the damage sustained by the American citizens concerned.
It is not disputed by the American Government that, according to general principles of international law, a belligerent is authorized in sinking neutral vessels under almost any conditions for carrying contraband. As is well known, these principles were laid down in Articles 49 and 50 of the Declaration of London, and were recognized at that time by the duly empowered delegates of all the nations which participated in the conference, including the American delegates, to be declarative of existing international law (see preliminary clause of the Declaration of London); moreover, at the beginning of the present war, the American Government proposed to the belligerent nations to ratify the Declaration of London and give its provisions formal validity also.
The German Government has already explained in its note of April 4 last2 for what reasons it considers that the conditions justifying the sinking under international law were present in the case of the William P. Frye . The cargo consisted of conditional contraband, the destination of which for the hostile armed forces was to be presumed under the circumstances; no proof to overcome this presumption has been furnished. More than half the cargo of the vessel was contraband, so that the vessel was liable to confiscation. The attempt to bring the American vessel into a German port would have greatly imperiled the German vessel in the given situation of the war, and at any rate, practically defeated the success of her further operations. Thus the authority for sinking the vessel was given according to general principles of international law.
There only remains then to be examined the question how far the Prussian-American treaty stipulations modify these principles of international law.
In this connection Article 12 of the treaty of 1785 provides that in the event of a war between one of the contracting parties with another power, the free commerce and intercourse of the nationals of the party remaining neutral with the belligerent powers shall not be interrupted, but that on the contrary the [Page 494] vessel of the neutral party may navigate freely to and from the ports of the belligerent powers, even neutralizing enemy goods on board thereof. However, this article merely formulates general rules for the freedom of maritime intercourse and leaves the question of contraband untouched; the specific stipulations on this point are contained in the following article, which is materially identical with Article 13 of the treaty of, 1799 now in force.
The plain intention of Article 13 is to establish a reasonable compromise between the military interests of the belligerent contracting party and the commercial interests of the neutral party. On the one hand the belligerent party is to have the right to prevent the transportation of war supplies to his adversaries, even when carried on vessels of the neutral party; on the other hand the commerce and navigation of the neutral party is to be interfered with as little as possible by the measures necessary for such prevention, and reasonable compensation is to be paid for any inconvenience or damage which may nevertheless ensue from the proceeding of the belligerent party.
Article 13 recites the following means whereby the belligerent party can prevent the vessels of the neutral party from carrying war supplies to his adversary: The detention of the ship and cargo for such length of time as the belligerent may think necessary; furthermore, the taking over of the war stores for his own use, paying the full value of the same as ascertained at the place of destination. The right of sinking is not mentioned in the treaty and is therefore neither expressly permitted nor expressly prohibited, so that on this point the party stipulations must be supplemented by the general rules of international law. From the meaning and spirit of the treaty it really appears out of the question that it was intended to expect of the belligerent that he should permit a vessel loaded with contraband, for example a shipment of arms and ammunition of decisive importance for the outcome of the war, to proceed unhindered to his enemy when circumstances forbid the carrying of the vessel into port, if the general rules of international law allow sinking of the vessel.
The remaining stipulations of Article 13 must likewise be considered in this light. They provide that the captain of a vessel stopped shall be allowed to proceed on his voyage if he delivers out the contraband to the warship which stopped his vessel. For such delivering out can not of course be considered when the ensuing loss of time imperils either the warship herself or the success of her other operations. In the case of the William P. Frye the German commander at first tried to have matters settled by the delivery of contraband, but convinced himself of the impracticability of this attempt in that it would expose his ship to attack by whatever superior force of enemy war vessels pursuing him, and was accordingly obliged to determine upon the sinking of the Frye. Thus he did not exceed on this point the limits to which he was bound by Article 13.
However, Article 13 asserts itself here to the extent that it founds the obligation to compensate the American citizens affected, whereas according to the general rules of international law the belligerent party does not need to grant compensation for a vessel lawfully sunk. For if, by Article 13, the mere exercise of right of highways makes the belligerent liable for compensation, this must apply a fortiori to the exercise of the right of sinking.
The question whether the German commander acted legally was primarily a subject for the consideration of the German prize courts, according to general principles of international law as laid down; also in Article 1 of the Hague convention for the establishment of an international prize court, and in Article 51 of the Declaration of London. The German Government consequently laid the case of William P. Frye before the competent prize court at Hamburg, as was stated in its note of the 7th ultimo.1 This court found by its judgment of the 10th instant that the cargo of the American vessel William P. Frye was contraband, that the vessel could not be carried into port, and that the sinking was therefore justified; at the same time the court expressly recognized the validity of the Prussian-American treaty stipulations severally model [mentioned] for the relations between the German Empire and America, so that the sinking of the ship and cargo, so far as American property, makes the German Empire liable for indemnity. The prize court was unable to fix the indemnity itself, since it had no data before it, failing the receipt of the necessary details from the parties interested.
It will now be necessary to settle these points in a different way. The German Government suggests as the simplest way that each of the two Governments [Page 495] designate an expert, and that the two experts jointly fix the amount of indemnity for the vessel and any American property which may have been sunk with her. The German Government will promptly pay the amount of indemnity thus ascertained; it expressly declares, however, reverting to what has been stated above, that this payment does not constitute satisfaction for the violation of American treaty rights, but a duty or policy of this Government founded on the existing treaty stipulations.
Should the American Government not agree to this manner of settling the matter, the German Government is prepared to submit the difference of opinion as being a question of the interpretation of the existing treaties between Germany and the United States to the tribunal at The Hague, pursuant to Article 38 of the Hague convention for the pacific settlement of international disputes.
The undersigned begs to suggest that the Ambassador bring the above to the attention of his Government and avails himself [etc.]
Von Jagow