File No. 763.72/3339a
The Secretary of State to the Ambassador in Austria-Hungary ( Penfield)
1551. In the American note of December 6, 1915,1 to the Austro-Hungarian Government in the Ancona case, this Government called [Page 132] attention to the views of the Government of the United States on the operations of submarines in naval warfare which had been expressed in no uncertain terms to the ally of Austria-Hungary, and of which full knowledge on the part of the Austro-Hungarian Government was presumed. In its reply of December 15, 1915,1 the Imperial and Royal Government stated that it was not possessed with authentic knowledge of all of the pertinent correspondence of the United States, nor was it of the opinion that such knowledge would be sufficient to cover the Ancona case, which was of essentially a different character from those under discussion with the Berlin Government. Nevertheless, in reply to the American note of December 19, 1915,2 the Austro-Hungarian Government in its note of December 29,3 stated:
as concerns the principle expressed in the very esteemed note that hostile private ships, in so far as they do not flee or offer resistance, may not be destroyed without the persons on board having been placed in safety, the Imperial and Royal Government is able substantially to assent to this view of the Washington Cabinet.
Moreover, in the case of the Persia, the Austro-Hungarian Government in January, 1916, stated in effect that, while it had received no information with regard to the sinking of the Persia, yet, in case its responsibility was involved, the Government would be guided by the principles agreed to in the Ancona case.4
Within one month thereafter, the Imperial and Royal Government, coincidently with the German declaration of February 10, 1916, on the treatment of armed merchantmen, announced that “All merchant vessels armed with cannon for whatever purpose, by this very fact lose the character of peaceable vessels,” and that “under these conditions orders have been given to Austro-Hungarian naval forces to treat such ships as belligerent vessels.”5
In accordance with this declaration, several vessels with Americans on board have been sunk in the Mediterranean, presumably by Austrian submarines, some of which were torpedoed without warning by submarines flying the Austrian flag, as in the cases of the British steamers Secondo and Welsh Prince. Inquiries made through the American Ambassador at Vienna as to these cases have, so far, elicited no information and no reply.
Again, on January 31, 1917, coincidently with the German declaration of submarine danger-zones in waters washing the coasts of the Entente countries, the Imperial and Royal Government announced [Page 133] to the United States Government that Austria-Hungary and its allies would from February 1, “prevent by every means any navigation whatsoever within a definite closed area.”1
From the foregoing it seems fair to conclude that the pledge given in the Ancona case and confirmed in the Persia case is essentially the same as that given in the note of the Imperial German Government dated May 4, 1916,2 viz.:
In accordance with the general principles of visit and search and destruction of merchant vessels recognized by international law, such vessels, both within and without the area declared as a naval war zone, shall not be sunk without warning and without saving human lives, unless these ships attempt to escape or offer resistance,
and that this pledge has been modified to a greater or less extent by the declarations of the Imperial and Royal Government of February 10, 1916, and January 31, 1917. In view, therefore, of the uncertainty as to the interpretation to be placed upon those declarations, and particularly this later declaration, it is important that the United States Government be advised definitely and clearly of the attitude of the Imperial and Royal Government in regard to the prosecution of submarine warfare in these circumstances.
Please bring this matter orally to the attention of the Austrian Government and request to be advised as to whether the pledge given in the Ancona and Persia cases is to be interpreted as modified or withdrawn by the declarations of February 10, 1916, and January 31, 1917. If after your conversation it seems advisable, you may hand to the Minister for Foreign Affairs a paraphrase of this instruction, leaving the quoted texts verbatim.