File No. 763.72111Ap4/150
The British Ambassador (Spring Rice) to the Secretary of State
[Received December 2.]
Sir: I did not fail to transmit to Viscount Grey of Fallodon the note which you were good enough to send me on August 24 in reply to my communications of August 3 and August 5 relative to the case of the Appam. I have now received His Lordship’s instructions to communicate to you the following observations.
Your note of August 24 maintains that the cause of the prolonged detention of the Appam in American waters is the suit brought against her by British subjects and not the action of the United States Government. It is also stated that the contents of my note of August 5 relieve the United States Government of replying to the request in my note of August 3, that the Appam should be released to her British owners as originally requested by His Majesty’s Government.
I am directed to point out that these contentions would appear to overlook the fact that the question of the status of the Appam and the treatment which should have been accorded to her from the moment when she was brought within United States waters is primarily one between His Majesty’s Government and that of the United States, and not one between the British owners of the ship and those who are in temporary possession of her. The contention advanced by His Majesty’s Government is that the obligations of neutrality imposed upon the Government of the United States the duty of releasing the vessel directly it was found that she had come within United States jurisdiction for purposes not recognized by the law of nations. The obligation is summarized in the rule that a neutral power must release a prize brought into its ports except on account of unseaworthiness, stress of weather, or want of provisions. It is upon the Government in its executive capacity that this obligation is laid, and it is for the Government to take of its own motion such action as may be necessary to carry out this duty.
The fact that in the United States an alternative remedy is open to the private parties concerned does not affect or diminish the obligation incumbent upon the United States Government as a neutral government to release belligerent prizes improperly brought within its ports.
[Page 744]At the time when the suit in the Appam case was instituted, she had already been in United States waters for a fortnight. Even allowing that there were exceptional circumstances connected with the case which rendered it necessary for the United States Government to consider their position carefully, there was ample time for the matter to have been decided before the suit was commenced. His Majesty’s Government cannot accept the contention urged in your letter, that the mere fact that the owners of a vessel which ought to be released think it prudent for private reasons to resort to a remedy which is open to them in the courts, frees the United States Government of the obligations which are incumbent upon them as a neutral government. Otherwise the unreasonable consequence would ensue that a government might provide an alternative remedy in the law courts and then—by delay so vexatious as to drive the owners to their legal remedy from sheer despair—claim to escape all liability for failure to carry out its obligations.
It is not suggested in your note of August 24 that the institution of proceedings under the alternative remedy provided in the United States deprives the executive Government of the power to release the Appam, and it clearly would not be right for His Majesty’s Government to assume the existence of any such defect of procedure.
My note of August 3 dealt with the question existing between the two Governments; on the other hand my note of August 5 related to a point arising in the course of the litigation between the private parties. The court has given a decision from which one of the parties was entitled to appeal. The question what should be done with the ship pending any such appeal, so long as it remained in the jurisdiction and under the control of the court, was clearly a matter for the court to decide, and as my note pointed out, was a matter in which His Majesty’s Government had no desire to intervene; but the fact that the court had pronounced a decision did not affect the responsibility of the United States Government. That responsibility arose at the moment when it became clear that the Appam had been brought within the jurisdiction in breach of the neutrality of the United States and the contention of His Majesty’s Government is that from that moment their claim that the Appam should be released was a well-founded claim.
The question of the internment of the prize crew was not however dependent in reality on the course of the litigation between the parties. As part of the fighting forces of a belligerent coming within the jurisdiction in the course of military operations, they should have been interned as soon as it was established that the Appam had not merely called at an American port for recognised and authorised purposes.
In addition, the sinking of the Westburn in Spanish waters had disclosed the extreme peril of leaving any captured vessel in the hands of a German prize crew, and my note of August 5 was intended to reiterate the request which I had already made for the internment of the crew, not merely because there had ceased to be any practical reason for allowing them to remain on board during the months that must elapse before the hearing of the appeal, but because the decision of the court rendered still more obvious the failure of the United States Government to carry out its duty of [Page 745] interning these members of the fighting forces of a belligerent who had come within the jurisdiction when acting in execution of their military duties.
For these reasons His Majesty’s Government consider they are justified in maintaining the claim put forward in my note of August 3 to such compensation as may be justly due.
I have [etc.]