File No. 763.72111Ap4/60
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.
[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.
