File No. 300.115P44/46

The Ambassador in Austria-Hungary (Penfield) to the Secretary of State

No. 1988

Sir: As reported in my telegram of the 14th instant, No. 1436,1 the reply of the Austro-Hungarian Ministry of Foreign Affairs in the case of the American S. S. Petrolite to the Department’s demands as conveyed in the Embassy’s note of February 12, 1916,1 was received on Saturday last.

I now have the honor to enclose herewith a copy with translation of the reply in question, which is dated the 9th instant, and from which it will be seen that the Austro-Hungarian Government adheres to the position taken up in its reply to our first note on the subject. The action of the submarine’s commander is supported throughout and any intention to affront a neutral nation is entirely disclaimed. An exposition of the probable state of mind of the commanders of the two vessels is attempted with an apparent desire to furnish a basis for a tacit agreement to let the matter drop; and finally the affidavits of members of the Petrolite’s crew, which are stated to have been submitted to the Department by the Austro-Hungarian Chargé d’Affaires at Washington, are cited in corroboration of their contention and in rebuttal of the statement of the captain of the Petrolite.

The desire of the Austro-Hungarian Government to bring the matter to a satisfactory conclusion is evident, not only from the terms [Page 289] of this communication, but likewise from the conversations had with them on the subject. At the same time they profess to find themselves in a position where circumstances will not permit of their receding from the position they have taken in the matter at issue. It would seem, therefore, that an impasse has been arrived at unless the Department has become acquainted with further evidence in the case.

I have [etc.]

Frederic C. Penfield

The Austro-Hungarian Minister of Foreign Affairs (Burian) to the American Ambassador (Penfield)

No. 4453

In pursuance of his note No. 3458 of July 17, 1916, the undersigned has the honor respectfully to submit to his excellency the Ambassador Extraordinary and Plenipotentiary of the United States of America, Mr. Frederic Courtland Penfield, the following:

The Imperial and Royal naval authorities instructed the commander of the submarine boat, which participated in the incident of the American S. S. Petrolite, to make a thorough statement concerning the presentation of the case, as set forth in the note of the undersigned, No. 807, of February 22, 1916, as well as on the description contained in the esteemed note No. 7424 of June 24, 1916. The commander declared under oath that he confirms the former exposition as correct in all particulars, and the statements by the crew of the Petrolite deviating therefrom, do not conform with the facts.

The commander stated in detail as follows:

The first shot was fired across the bow of the Petrolite. When the shell struck the water, a clearly visible house-high column of water arose, which could not have been caused by an explosion in the engine room. When thereupon the steamer, instead of stopping, turned its bow in the direction of the submarine boat, a second warning shot was fired. Notwithstanding this, the steamer kept on turning and thus came closer to the submarine boat, whereupon the latter commenced firing. The crew of the Petrolite admits that the steamer, after recognizing the submarine boat, did turn through 90 degrees. This statement is very important and might clear up the incident. It was just this persistent turning of the steamer that gave rise to the suspicion on board of the submarine boat that they were dealing with a vessel under false colors, a Baralong trap. As a matter of fact, in the course of his conversation with the captain of the Petrolite the commander of the submarine called attention to this maneuver and reminded him of the Baralong case. The name Baralong was certainly mentioned. This also proves the incorrectness of the testimony that the commander had taken the steamer for a cruiser. There is no proof required to show that the commander cannot have mistaken the petroleum steamer for a cruiser. The commander nevertheless admits of the possibility of his having said that he had taken the Petrolite for a disguised cruiser, after the manner of the Baralong; yet he cannot remember having made such a statement.

The suspicion that the Petrolite intended to attack the submarine boat was further strengthened by the fact that the steamer did not, as is generally the case, emit steam with a cloud of smoke, which can be seen from a distance as an indication that it had stopped. Moreover, since no American flags were to be seen painted on the sides during the turning of the steamer, although the steamer had in the first place been sighted without any national flag, the commander was under the distinct impression that he was dealing with a ship like the Baralong. It is not correct that the commander had admitted that the steamer had stopped; on the contrary it is stated in the above-mentioned note No. 807 in entire conformity with the facts that the steamer “apparently” stopped the engines, but then turned toward the submarine boat.

That, as a matter of fact, the Petrolite must have turned through more than 90 degrees, appears from the statement of the American naval constructor, that the projectile which struck the steamer must have had an angle of impact of 45 degrees. The submarine boat lay stopped astern of the steamer, when the steamer was ordered to stop. It is not feasible to explain the angle of [Page 290] 45 degrees by a maneuver of the submarine boat, for there was no reason for the latter to proceed to a dangerous position ahead of the steamer. The boat was obliged to endeavor to remain astern of the steamer, in order not to expose itself to the danger of being rammed. The commander cannot concur in the opinion that an attempt at ramming could not be assumed for the reason that the steamer was two miles distant from the submarine boat, and that subsequently an attempt at ramming would appear as hopeless, for he holds that a submarine boat cannot in a few moments submerge deep enough to escape an attack, so that the possibility of ramming a submarine boat is not to be excluded even when the boat is two miles or more from the steamer.

Finally it is incorrect to assert that the maneuver executed by the Petrolite was the proper and reasonable mode of procedure. On the contrary, every steamer which is held up by a belligerent man-of-war is obliged, as is generally known, to stop as quickly as possible without executing any maneuver. A captain of a merchant vessel must know that a maneuver such as that of the Petrolite, particularly in the case of being stopped by a submarine boat, subjects his vessel to suspicion, and therefore places it in serious danger. Moreover, there were not 12, but only 5 shots fired. As to the effect of these shots, the commander distinctly remembers that the captain stated that the damage caused on deck was insignificant.

After the captain had come on board of the submarine boat, the commander, in addition to calling his attention to the false maneuver and to the Baralong case, also called his express attention to the absence of a neutral distinguishing mark.

The wound of the Danish sailor was a very slight one; there can obviously be no question of serious flesh wounds. The sailor came on board of the submarine with the captain and said in the course of the conversation that a fragment of a shell had grazed his left upper thigh. He was of good cheer and smiled when expressions of sympathy were extended to him. He was a member of the boat’s crew and accepted cigarettes from the commander of the submarine boat.

The testimony of the captain in connection with the delivery of provisions does not conform with the facts. It was only a question of whether he could let the officers’ mess have some fresh meat. The submarine boat was amply supplied with provisions; but, inasmuch as at the time it had been ten days at sea, it is conceivable that fresh provisions would have been welcome.

The captain declared himself immediately ready to turn over such provisions and refused any compensation with the remark that being a seaman, he would glady assist every other seaman. The captain let the submarine boat have a ham, 50 eggs and about 20 pounds of mutton.

After the incident the boat remained at sea for some considerable time, which would have been impossible had it been dependent upon the provisions supplied by the Petrolite. There can be no question of compulsion, nor was any compulsion exercised in the case of the Danish sailor. When the captain and his men were about to leave the submarine boat to get the provisions, the commander asked him whether the member of his boat’s crew, who could speak German, could remain on board the submarine for the time being, as it was intended to put a few questions to him concerning traffic in this region and sailing routes. The captain without further ado stated that he was willing to leave the sailor on board, and he himself returned in his boat to the steamer. Shortly thereafter the same rowboat, manned by two sailors and without the captain, came alongside of the submarine boat and one of the sailors delivered a small basket of provisions to the commander. The commander again had his thanks therefor transmitted and handed the Dane, who now reentered the boat, as a kind of return present, a bottle of champagne and a box of cigars for the captain. The captain would surely have refused this present had the steamer and his crew been illegally or inconsiderately treated by the submarine boat. He had, moreover, taken leave of the commander in the most friendly manner by shaking hands and lifting his hat.

At the end of the inquiry, the commander of the submarine boat emphasized that it was as a matter of course far from his thoughts to offend a neutral flag. It was inconceivable to him that such a thing should be attributed to a naval officer. Moreover, no offense can be seen in the application of prize law. The firing upon the steamer under a neutral flag which does not stop, or does not comply with an order to stop in a regular manner, is founded on international law—to say nothing of the fact that the commander of the submarine [Page 291] boat was of the belief that the American flag had been fraudulently hoisted. The commander rejected, as devoid of any foundation, the assertion that he had submitted an incorrect report. He stated that he would leave the decision of the question whether he was guilty of a lack of judgment and self-control or indeed of any evil intention with entire composure to his superiors, who alone were competent to criticize his conduct.

After the commander had given his testimony, the second officer and the chief quartermaster of the submarine boat, who had been similarly informed of the matter under investigation, were heard under oath. They confirmed the testimony of the commander in all particulars. An examination of the other members of the crew was abstained from, because they had no knowledge of the incident from their own observation.

In the opinion of the Imperial and Royal Government, a comparison of the depositions of the officers of the submarine boat, herein reproduced, with the statements of the crew of the Petrolite, gives room to the possibility of easily explaining and clearing up the apparently existing contradictions as to the essential details of the incident in approximately the following manner.

The steamer did not intend to attack the man-of-war, but the improper—though well-meant—conduct of the captain necessarily awakened the suspicion of the submarine boat, so that its commander felt himself compelled, after firing warning shots, to fire a few shots at the steamer, the crew of which, in their surprise at the unexpected encounter, at once believed that they had been fired upon from the first. The delivery of the provisions and the detention of the Danish sailor were probably not in accordance with the wishes of the captain of the Petrolite but he outwardly evinced his readiness, perhaps because he knew that he was confronted by a man-of-war with whose wishes he felt himself obliged to comply, so that he only had the impression of yielding to coercion, without the commander, however, having the slightest thought of exercising compulsion.

Be this as it may, in view of the sworn depositions of the officers of the submarine boat, herein reproduced, and which explain the incident in a plausible manner, the Imperial and Royal Government entertains the conviction that the commander acted entirely within the limits prescribed by international law, and that, therefore, regrettably as it may be that an American ship suffered in the event, no responsibility is to be attached either to the commander or the Imperial and Royal Government.

It may finally be remarked that the Imperial and Royal Government is in possession of sworn statements of a number of members of the crew of the Petrolite which agree in important particulars with the statement of the commander of the submarine boat. The Imperial and Royal Chargé d’ Affaires at Washington has already availed himself of the occasion of laying the contents of these protocols before the Department of State.

The undersigned has now the honor to respectfully request his excellency the Ambassador of the United States of America to kindly bring the foregoing to the cognizance of the Government of the United States and at the same time avails himself [etc.]

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