File No. 841.622a/319

The Ambassador in Great Britain ( Page ) to the Secretary of State 1

No. 6338

Sir: With reference to the Department’s telegram No. 4747 of April 23, 1917, regarding the removal of two German subjects from the American S. S. Allaguash by the British ship Amethyst on February 3 last, I have the honor to enclose herewith a copy of a note I have just received from the Foreign Office in reply to the representations I made in the premises, dealing with the question of the arrest of enemy subjects traveling on neutral merchant ships.

For the guidance of the Department, I venture to add that my memorandum of December 29 last, to which Mr. Balfour makes reference, was based upon the Department’s instruction No. 4520 of December 1, 1916,2 and that a copy of the Foreign Office note of the [Page 530] 30th ultimo was transmitted to the Department under cover of my despatch No. 6328 of May 31,1 the substance of it having been telegraphed in my 6318 of the 31st ultimo, 2 p.m.

I have [etc.]

Walter Hines Page
[Enclosure]

The British Secretary of State for Foreign Affairs ( Balfour ) to the American Ambassador ( Page )

Your Excellency: I have the honour to inform your excellency that His Majesty’s Government have given attentive consideration to the memorandum which you were good enough to communicate to me on the 29th December last in which were stated the views of the United States Government on the questions raised by the removal, effected by the British naval authorities, of certain persons, subjects of a country at war with the United Kingdom, from the United States steamers Henry S., Marcus L. Urann and Ausable. In your note No. 3806 of the 25th ultimo, your excellency requested that the case of the removal of two German subjects from the United States steamer Allaguash by His Majesty’s ship Amethyst on the 3d February last might be considered together with those just cited.

Having regard to the entry of the United States into the present war as a co-belligerent with Great Britain against the German Empire and to the arrangement proposed in your excellency’s note No. 3807 of the 25th April and accepted in my note of the 30th instant, by which the warships of each of the two countries are free to arrest enemy subjects found travelling on merchant vessels flying the flag of the other, His Majesty’s Government presume that your Government no longer desire that the persons removed from the ships above mentioned should forthwith be set at liberty. It appears to His Majesty’s Government unnecessary in the circumstances to examine the contention of the United States Government that a reservist called, or liable to be called, to the colours of his national army is not to be classed among the combatant persons who might, according to the rule laid down in the ancient treaties quoted in your memorandum and to the provisions of Article 47 of the Declaration of London of 1909, be removed from a neutral ship by a belligerent without prize-court proceedings being taken against the carrying vessel, or the further contention that, if any persons may be so removed, it is only in cases where their destination is enemy territory. It will be sufficient merely to indicate the practical grounds on which His Majesty’s Government feel that to accept the view of the United States Government that a belligerent must not interrupt the transport [Page 531] of enemy persons, however clear and unconditional their military or naval character, by a neutral ship without bringing the latter before a prize court, is under the conditions of modern commerce contrary to the interests of all parties concerned.

Your excellency’s memorandum sets out the facts in regard to the theory and past practice of the Governments of the United States and of this country in the matter. His Majesty’s Government would be prepared to admit the proposition that during the greater part of the nineteenth century the practice of the two countries was not to remove enemy persons from neutral vessels on the high seas without placing such vessels in the prize court. The conditions of passenger traffic by sea have, however, greatly changed, and experience has, in the opinion of His Majesty’s Government, shown that a reconsideration of the matter may be in the interests both of belligerents and of neutrals. The treaties referred to in Viscount Grey’s memorandum of the 15th July last,1 and enumerated in your reply of the 29th December show that there is warrant in the old practice of many countries for the adoption of a different policy, and the proceedings of the London Naval Conference show that the reasons which press in this direction have secured recognition among the most important maritime states.

The practice followed by British warships during the present war of removing enemy subjects from neutral merchant ships on the high seas while allowing the vessels concerned to pursue their voyages, even if it is a modification of the practice previously followed by Great Britain, is a modification which His Majesty’s Government have adopted largely out of regard for the interests of neutral shipping. To detain a vessel and to bring her before a prize court with a view to proceedings to ascertain whether she had been employed by the enemy for the transport of the enemy persons on board, and was liable to condemnation accordingly, would impose great inconvenience and heavy loss on the owner of the ship, on the fellow passengers of the enemy persons concerned, and on the owners of the cargo. A return to the older practice in those cases where no questions affecting the cargo are involved, and where His Majesty’s Government have no wish to secure the condemnation of the vessel, would seem to be contrary to the interests of all parties and to be tantamount to ignoring altogether the conditions in which modern passenger traffic by sea is carried on.

In the great majority of cases it is probable that His Majesty’s Government would have no wish to press for the condemnation of the ships by the prize court and it would not be their desire to detain the vessels for longer than the period necessary for the removal of [Page 532] the enemy persons on board. In such circumstances they can not believe that any neutral government would prefer that their vessels should be detained and sent in for adjudication by a prize court, in order that the ship’s owner in each instance might have an opportunity of establishing that the carriage of any noxious individual on board was quite unwitting on his part.

The practice at present being followed is so clearly to the general advantage that His Majesty’s Government do not propose to modify it and send in the (neutral) vessel for adjudication before a prize court except in the case of a neutral country whose government may express a definite wish to that effect, and which may be prepared to come to some understanding that they will not look to His Majesty’s Government to compensate the shipowners for the losses entailed.

I have [etc.]

For the Secretary of State:
W. Langley
  1. Annotation on this paper: “June 21/17. The Secretary says that this should be filed without answer now. L. H. W[oolsey].”
  2. Foreign Relations, 1916, Supplement, p. 667.
  3. Not printed.
  4. Foreign Relations, 1916, Supplement, pp. 653656.