File No. 462.11Se8/54
The Ambassador in Germany (Gerard) to the Secretary of State
No. 1964]
Berlin,
December 2, 1915.
[Received December 18.]
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
Berlin,
November 29, 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 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.
[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 ———.
