File No. 763.72111Ap4/108
The German Ambassador (Bernstorff) to the Secretary of State
My Dear Mr. Secretary: Lieut. Hans Berg, of the German Imperial Navy and Commander of H. M. S. Appam, now lying at anchor near Newport News, Va., has informed me that a libel was filed against said vessel in the United States District Court for the Eastern District of Virginia, at Norfolk, on the 16th day of February, 1916, by the British & African Steam Navigation Co., Ltd., and that, under the authority of said court, he has been cited by the marshal of the Eastern District of Virginia to appear before said court on Friday, the 3d day of March 1916, to answer the said libel.
As the Appam was captured at sea by a German man-of-war and brought to the Virginian port .as a prize ship according to the treaty existing between our countries, you may well appreciate my surprise at the action which has been taken.
Article 19 of the treaty of 1799 between Prussia and the United States, renewed in part by Article 12 of the treaty of 1828, provides that “the vessels and effects taken from” the enemies of the contracting parties may be carried freely wheresoever they please, and that such prizes shall not be “put under legal process when they come to and enter the ports of the other party. . . .”
In view of the terms of the treaty, I am at a loss to understand why such action has been taken by a court of your country. It may be argued that it has been because Article 21 of the Hague convention concerning the rights and duties of neutral powers in naval war is applicable. This article provides:
A prize may only be brought into a neutral port on account of unseaworthiness, stress of weather, or want of fuel or provisions.
It must leave as soon as the circumstances which justified its entry are at an end. If it does not, the neutral power must order it to leave at once; should it fail to obey, the neutral power must employ the means at its disposal to release it with its officers and crew and to intern the [prize] crew.
But as Great Britain has not ratified the convention, the article is not binding for the reason that Article 28 provides:
The provisions of the present convention do not apply except to the contracting powers, and then only if all the belligerents are parties to the convention.
Besides, the Appam flies the naval flag of and belongs to the German Government, and therefore the possession of the captors in a neutral port is the possession of their sovereign. The sovereign whose officers have captured the vessel as a prize of war remains in possession of that vessel and has full power over her. The neutral [Page 729] sovereign or its court can take no cognizance of the question of prize or no prize and can not wrest from the possession of the captor a prize of war brought into its ports.
The position which I take is fully supported by an opinion of the Attorney General of the United States (7 Op. 122), the syllabus of which recites that “a foreign ship of war or any prize of hers in command of a public officer possesses in the ports of the United States the right of extraterritoriality and is not subject to the local jurisdiction.”
I would therefore most respectfully protest against the action of the United States District Court, and request that you may ask the Attorney General to instruct the United States District Attorney for the Eastern District of Virginia to appear before the United States District Court and take such steps as may be necessary and proper to secure the prompt dismissal of the libel.
I am [etc.]