File No. 841.711/346
After long toleration those acts became so numerous and aggravated that
it was no longer possible to acquiesce in their being indefinitely
carried on. Hence the provisions which the Allied Governments consider
to be warranted by both the circumstances and the texts but which have
nevertheless given rise to the above-mentioned objections.
These objections have been carefully examined and the French and English
Governments have, in common accord, set forth in the enclosed memorandum
the result of the said examination.
In transmitting, by order of my Government, that paper to your
excellency, I am instructed to express to you the hope that you will
kindly recognize the weight of the arguments therein presented in
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regard to an action which,
besides, never was circumscribed by absolute rules of limitation. In
your telegram of January 4 last, to the American Ambassador at London
and thereafter made public, your excellency only specified that: “Modern
practice generally recognizes that mails are not to be censored,
confiscated, or destroyed on high seas, even when carried by belligerent
mail ships.”
If even before late events those practices were not unanimously followed,
your excellency will judge whether the arguments and facts set forth in
the enclosed note do not amply justify, as we believe they do, our
refraining from complying with them at present.
My instructions, on the other hand, warrant my assuring your excellency
that precise instructions are issued not to subject innocent neutral
mails and, of course, neutral diplomatic pouches to avoidable delay.
[Enclosure—Translation]
Memorandum Relative to Postal Correspondence on
the High Seas1
February 15, 1916
The treatment of mail correspondence carried by sea has, in the
course of the present war, been the object of various uncertainties,
has occasioned some confusion, and at times given rise to criticisms
which, for the sake of international relations and neutral commerce,
the Allied Governments deem it advisable to dispel.
It has always been and is the paramount object of postal services to
receive, carry, and distribute written correspondence or missive
letters. By degrees recourse was had to the same services for the
transmission of printed documents, then samples, valuables, and
finally, under the name of “parcel post,” almost every kind of
merchandise, provided only that certain conditions were met in
respect of weight, bulk, and packing.
It is also known that, when bearing postage stamps, any sealed
wrapper, irrespective of its contents, weight, or bulk, may be
mailed and is treated as a letter by the postal administrations.
The reflex action of the war on that state of things suggests the
following remarks:
At the time of the second conference of The Hague in 1907, the
Imperial German Government argued that the telegraph offering
belligerents much quicker and safer means of communication than the
post, there was no longer any interest in regarding, as theretofore,
postal correspondence as apt to prove contraband by analogy and in
disturbing its transmission through seizure and confiscation. Their
confidence won by a proposition that looked so pacific, the other
powers concurred. Article 1 of the eleventh convention of The Hague
of 1907 stipulates, as is known, that thenceforward postal
correspondence on the high seas is “inviolable.”
A first remark must be made with respect to the parcel post.
The shipment of merchandise by parcel post is a mode of shipment and
transportation analogous to shipment/and transportation on way bills
or bills of lading, with this difference, that the transportation is
undertaken by the mail service, which moreover sometimes turns it
over to common carriers, as is the case in France.
In no wise do such “parcels” constitute “letters” or “correspondence”
or “despatches,” and they are clearly not withdrawn in any way frOm
the exercise of the rights of police, supervision, visitation, and
eventual seizure which belong to belligerents as to all cargoes on
the high seas.
This was shown notably in a communication of the Post Office
Department of the United States addressed on April 8, 1915, to the
French authorities and transmitting a statement in conformity
therewith from the commander of the
Prinz Eitel Friedrich
, a vessel of the Imperial German Navy, regarding the
post parcels shipped on the French mail steamer Floride, which the first-named cruiser had captured. (See
Annex 1.)
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The Allied Governments have also adopted this view, which in their
opinion is fully founded in law and superabundantly justified by the
facts.
Among many other examples it will be sufficient to cite: 1,302 post
parcels, containing together 437.51 kilograms of india rubber for
Hamburg (steamers Tijuca, Bahia, Jaguaribe,
Maranhao, Acre, Olinda, Para, Brazil); or again, 69 post
parcels, containing 400 revolvers for Germany via Amsterdam (S. S.
Gelria).
As regards the forwarding of letters, wrappers, envelopes, and others
entrusted to the postal services and generally contained in the mail
bags of the post office of the countries which send them forth, the
Allied Governments bring the following consideration to the notice
of the neutral governments:
Between December 31, 1914, and December 31, 1915, the German or
Austro-Hungarian naval authorities destroyed, without previous
warning or visitation, 13 mail ships (see Annex 2) with the mail
bags on board, coming from or going to neutral or Allied countries,
without any more concern about the inviolability of the despatches
and correspondence they carried than about the lives of the
inoffensive persons aboard the ships.
It has not come to the knowledge of the Allied Governments that any
protest touching postal correspondence was ever addressed to the
Imperial Governments.
Under dates of August 11, 17, and 18, 1915, the neutral mail steamers
Iris (Norwegian), Haakon VII (Norwegian), Germania
(Swedish) had the mail bags they carried from and to all places
seized on the high seas by the German naval authorities; the letters
and correspondence were censored by the German authorities, as
proven by the photograph herein inclosed by way of illustration
(Annex 3).1
The Allied Governments understand that subsequently the Imperial
German Government, while announcing its intention to desist from
such seizures, declared that the said seizures were and would be
fully warranted in its opinion. According to the Imperial German
Government, the eleventh convention of The Hague of 1907, not having
been ratified by all the powers at present engaged in the war, would
be inapplicable.
Finally, the supervision within the territories of the Allies of
various mail bags shipped on mail steamers that call at certain
ports in the said territories more recently disclosed the presence
in the wrappers, envelopes, and mail matter of contraband articles
particularly sought after by the enemy, and notably: On board the S.
S. Tubantia, arriving in Europe, 174½ pounds
of India rubber, of which 101 pounds of the Para, highest grade, and
7 parcels of wool; on board the S. S. Medan,
7 parcels of crude rubber. That same supervision, exercised under
the same conditions on mail bags from Europe which at first sight
might have been supposed to contain nothing but correspondence,
uncovered in the bags put on board the single mail steamer Zaandijk (Dutch) not less than 368 parcels of
miscellaneous goods.
The following letter from the German firm of G. Vogtman and Co.,
dated from Hamburg, No. 16, Glockengiesserwall, December 15, 1915,
is particularly instructive:
For sometime past we have been receiving regularly from Para
invoices of crude india rubber, and you might turn your
attention to that line of business. The shipments are made in
the shape of “Samples without value,” registered, about 200
parcels in every mail, each containing about 320 grams of
rubber, net. The trouble of doing up the parcels and the high
cost of postage are amply covered by the high price commanded by
the commodity here.
It is known that on December 15, 1915, crude india rubber, all of
which was taken up by the German State, was worth about 25 marks per
kilo, and, as the Hamburg merchant remarked, “ein guter verdienst
nicht ausgesehlossenist” [a handsome profit is not barred out].
Hostile traffic, shut out of the mastery of the seas, thus resorted
to hiding in mail-matter in order to get through all kinds of
merchandise, contraband of
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war even included, apparently by imposing on the post office
departments of the neutral states.
From a legal standpoint, the right of belligerents to exercise police
and supervisory powers over vessels, and particularly over what they
carry, has never, to the knowledge of the Allied Governments, been
subject to exceptions, not any more in regard to mail bags than in
regard to any other cargo; nay more, as late as 1907 the letters and
despatches themselves could be seized and confiscated.
By the eleventh convention of The Hague and for the reasons above
stated, the signatory powers waived the right so to seize despatches
and declared postal correspondence to be inviolable.
The said inviolability only detracted from the public law as far as
“correspondence”—that is to say, despatches or “missive letters”—are
concerned, because, as we have seen, it was thought, rightfully or
wrongfully, that belligerents having in the telegraph a better
medium of correspondence, correspondence by mail was of no interest
in warfare. The result is, on the one hand, that inviolability does
not apply to any mail matter that is not “correspondence”—that is to
say, “missive letters”—and, on the other hand, that this
inviolability would be given a wider scope than it possesses if it
were regarded as exempting from any supervision goods and articles
shipped by mail, even though they were contraband of war.
Under these conditions, the Allied Governments announce:
- 1.
- That from the standpoint of their right of visitation and
eventual arrest and seizure, merchandise shipped in post
parcels need not and shall not be treated otherwise than
merchandise shipped in any other manner.
- 2.
- That the inviolability of postal correspondence stipulated
by the eleventh convention of The Hague of 1907 does not in
any way affect the right of the Allied Governments to visit
and, if occasion arise, arrest and seize merchandise hidden
in the wrappers, envelopes, or letters contained in the mail
bags.
- 3.
- That true to their engagements and respectful of genuine
“correspondence,” the Allied Governments will continue, for
the present, to refrain on the high seas from seizing and
confiscating such correspondence, letters, or dispatches,
and will insure their speediest possible transmission as
soon as the sincerity of their character shall have been
ascertained.
