File No. 462.11Se8/54

The Ambassador in Germany (Gerard) to the Secretary of State

No. 1964]

Sir: With reference to my telegram of even date1 and to previous correspondence on the subject of the claim for damages for the sinking of the American merchantman William P. Frye , I have the honor to transmit to you herewith a copy and translation of a note received from the Imperial Foreign Office, dated November 29, 1915, which replies to a note which I addressed to the Imperial Foreign Office on October 14, 1915, pursuant to the instructions contained in your telegram No. 2291, of October 12, 1915.2

A copy and translation of the draft of a compromis submitted by the Imperial German Government is likewise transmitted herewith.

I have [etc.]

[Enclosure 1—Translation]

The German Minister of Foreign Affairs (Von Jagow) to the American Ambassador (Gerard)

No. IIIa 19507/184802

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 October 14 [12], F. O. No. 5671, relative to indemnity for the sinking of the American merchant vessel William, P. Frye , as well as to the settlement by arbitration of the difference of opinion which has arisen on this occasion, as follows:

With regard first to the ascertainment of indemnity for the vessel sunk, the German Government is in agreement with the American Government in principle that the amount of damages be fixed by two experts, one each to be nominated by the German and the American Governments. The German Government regrets that it can not comply with the wish of the American Government to have the experts meet in Washington, since the expert nominated by it, Dr. Greve, of Bremen, director of the North German Lloyd, is unable to get away from here, and furthermore would be exposed to the danger of capture during a voyage to America, in consequence of the conduct of maritime war by England contrary to international law. Should the American expert likewise be unable to get away, the two experts might perhaps get in touch with each other by correspondence.

The German Government likewise regrets that it can not assent at this time to the nom nation of an umpire, as desired by the American Government, for apart from the fact that in all probability the experts will reach an agreement in the case of the William P. Frye with the same facility as was the case with similar negotiations with other neutral governments, the assent of the German Government to the consultation of an umpire would depend materially upon whether the differences of opinion between the two experts pertained to questions of principle or merely to the appraisement of certain articles. The consultation of an umpire could only be considered at all in the case of appraisements of this nature.

Should the American Government insist on its demands for the meeting of the experts at Washington or the early choice of an umpire, the only alternative would be to arrange the fixing of damages by diplomatic negotiations. In such an event the German Government begs to await the transmission of a statement of particulars of the various claims for damages accompanied by the necessary proofs.

With regard to the arbitral treatment of the difference of opinion relative to the interpretation of certain stipulations of the Prussian-American commercial treaties, the German Government has drawn up the enclosed draft of a [Page 645] compromis which would have to be worded in the German and English languages and drawn up with due consideration of the two alternating texts. It is true that the draft does not accommodate the suggestions of the American Government so far as it is not in accordance with the rules of summary procedure provided by Chapter 4 of the Hague arbitration convention, but with the rules of regular procedure. The summary procedure is naturally intended only for differences of opinion of inferior importance, whereas the German Government attaches very particular importance to the interpretation of the Prussian-American treaties which have existed for over one hundred years. Pursuant to the agreement made, any proposed amendments would have to be discussed between the Foreign Office and the American Embassy, and oral discussions would appear to be advisable.

Until the decision of the permanent court of arbitration, the German naval forces will sink only such American vessels as are loaded with absolute contraband, when the preconditions provided by the Declaration of London are present. In this the German Government quite shares the view of the American Government that all possible care must be taken for the security of the crew and passengers of a vessel to be sunk. Consequently, the persons found on board of a vessel may not be ordered into her lifeboats except when the general conditions, that is to say, the weather, the condition of the sea, and the neighborhood of the coasts afford absolute certainty that the boats will reach the nearest port. For the rest the German Government begs to point out that in cases where German naval forces have sunk neutral vessels for carrying contraband, no loss of life has yet occurred.

The undersigned begs to give expression to the hope that it will be possible for the two Governments to reach a complete understanding regarding the case of the William P. Frye on the above basis, and avails himself of this opportunity to renew to his excellency, the Ambassador, the assurance of his highest consideration.

Von Jagow
[Enclosure 2-Translation]

Arbitration Compromis

The Imperial German Government and the Government of the United States of America having reached an agreement to submit to a court of arbitration the difference of opinion which has arisen, occasioned by the sinking of the American merchant vessel William. P. Frye by a German warship, in respect of the interpretation of certain stipulations of the Prussian-American treaties of amity and commerce, the undersigned, duly authorized for this purpose, have agreed to the following compromis:

Article 1

A court of arbitration composed in accordance with the following stipulations is charged with the decision of the legal question:

Whether according to the treaties existing between the parties, in particular Article 13 of the Prussian-American treaty of amity and commerce of July 11, 1799, the belligerent contracting party is prevented from sinking merchant vessels of the neutral contracting party for carrying contraband when such sinking is permissible according to general principles of international law.

Article 2

The court of arbitration shall be composed of five arbitrators to be chosen from among the members of the permanent tribunal of arbitration at The Hague.

Each government will choose two arbitrators, of whom only one may be a national of such country, as soon as possible, at the latest within two weeks from the day this compromis is signed. The four arbitrators thus nominated shall choose an umpire within four weeks after they have been notified of their nomination in case of an equal vote the president of the Swiss Federal Council shall be requested to select the umpire.

Article 3

On March 1, 1916, each party shall transmit to the bureau of the permanent tribunal of arbitration eighteen copies of its argument with authenticated copies [Page 646] of all documents and correspondence on which it intends to rely in the case. The bureau will arrange without delay for the transmission to the arbitrators and to the parties, each arbitrator to receive two copies, each party three copies. Two copies shall remain in the archives of the bureau.

On May 1, 1916, the parties shall deposit their counter cases with the supporting evidence and their statements in conclusion.

Article 4

Each party shall deposit with the international bureau at the latest on March 1, 1916, the sum of three thousand gulden of the Netherlands toward the costs of the arbitral procedure.

Article 5

The court of arbitration shall meet at The Hague on June 15, 1916, and proceed immediately to examine the dispute.

Article 6

The parties may make use of the German or the English language.

The members of the court may use the German or the English language as they may choose. The decisions of the court shall be written in both languages.

Article 7

Each party shall be represented by a special agent whose duty shall be to act as an intermediary between the party and the court. These agents shall furnish the court any explanations which the court may demand of them; they may submit any legal arguments which they may consider advisable for the defense of their case.

Article 8

The stipulations of the convention of October 18, 1907, for the pacific settlement of international disputes, shall be applied to this arbitral procedure, in so far as nothing to the contrary is provided by the above compromis.

Done in duplicate at Berlin on the ——— day of ———.

  1. Not printed.
  2. Ante, p. 570.