File No. 763.72111Ap4/60

The German Ambassador (Bernstorff) to the Secretary of State

[Translation]
J. Nr. A 1727

In reply to your kind note of the 2d instant, I have the honor, in compliance with instructions, to submit to you the enclosed memorandum of the Imperial Government on the subject that has been received by me.

Should the Government of the United States fail to concur in the Imperial Government’s interpretation, the Imperial Government would propose that the construction of the treaty in question be referred to the Hague Court of Arbitration in the same way as the Imperial Government proposed in the William P. Frye case in Secretary of State von Jagow’s note of November 29 last, to Mr. Gerard, Ambassador of the United States at Berlin, provided that the status quo [Page 733] of the S. S. Appam will remain unchanged throughout the arbitration proceedings and that the steamer will be allowed to remain with her prize crew in an American port during that time.

Accept [etc.]

J. Bernstorff
[Enclosure]

Memorandum

The Imperial Government does not consider correct the interpretation of the Department of State of Article 19 of the treaty of 1799 as given in the note.

The Department of State criticized that the Appam was not brought into port by a warship, but arrived only with a prize crew on board. The treaty of 1799, referring to prizes accompanied by a warship, speaks, of course, of commercial warfare as it was usual in those times and which could be carried on by both parties only by privateers. This made it necessary that the prize was brought into port by the capturing vessel. The development of modern cruiser warfare, where, as a rule, the warship sends her prize into port by a military prize crew, can not render the stipulations of Article 19 of said treaty null and void. The prize masters and prize crew, who represent the authority of the belligerent state, now take the place which the capturing vessel held formerly. That such stipulations are not in contradiction to the general rules of international law. and that, therefore, the treaty is not subject to the especially strict interpretation given to it by the Department of State, is proved by Article 23 of the Hague convention regarding neutrality on sea, which was adopted by a great majority, although under reservation by the United States, Great Britain, and Japan.

The Department of State missed in the commission of Lieutenant Berg an, order to take the prize into a German port, as it is unwilling to admit the permanent internment of the German prize in an American port as a consequence of the treaty. As proved by the last but obsolete sentences of Article 19 of the treaty of 1785 and Article 19 of the treaty of 1799, the object of Article 19 is to grant asylum or shelter to prizes of one contracting party in the ports of the other party. The asylum naturally continues only as long as the prize crew is on board and the danger of being captured by enemy naval forces exists. Both premises prevail in this case. Lieutenant Berg, an officer of the Imperial Navy, was commissioned by the commander of a German warship to seek with his prize in an American port the asylum guaranteed by the treaty. The opinion of the Department of State that the commission must mention a German port of destination for the prize is unfounded, as Article 19 only provides the freedom of the prize to leave for the places which are named in the commission, but does not make the right of asylum depend on such port being mentioned. Such an indication seems superfluous if the prize is conducted by a prize crew mustered from the Imperial Navy, for such crew has to bring the prize into a German port as soon as possible. At present the claim for asylum naturally still exists, considering the uneven distribution of the domination of the seas between the belligerent’s.

As long as the right of asylum lasts, the jurisdiction of American courts over the prize is formally excluded by Article 19; a German prize court alone is competent. The opinion of the Department of State that the American courts must decide about the claims of the British shipping company is incompatible with the treaty stipulations.

It is therefore respectfully requested that the prize crew should be permitted to remain in the American port, and also that the legal steps before an American court should be suspended.