Papers Relating to the Foreign Relations of the United States, 1918, Supplement 1, The World War, Volume II

File No. 763.72112/9371

The Secretary of the Navy ( Daniels ) to the Secretary of State

Washington , July 5, 1918.

Sir: I have the honor to acknowledge the receipt of your letter of June 26, 1918, relative to inquiries made by Professor George Grafton Wilson, of Harvard University, in regard to the status of the Hague conventions in their relations to the operations of the war against Germany and the routing of neutral merchant vessels.¹

Replying to your request for information as to the nature of the participation of American naval officers in the British practices with respect to the searching and routing of neutral vessels, I have to state that American naval forces in European waters have been engaged in anti-submarine operations and in escorting convoys. The belligerent right of visit and search has been exercised on the high seas everywhere in accordance with Instructions for the Navy of the United States Governing Maritime Warefare, June, 1917, except that boarding vessels are not required to make entries in ships’ logs where such entries would give information facilitating unlawful attack by enemy submarines. Mandatory routing of neutral merchant vessels has not been practiced by our Navy.

Sincerely yours,

Josephus Daniels

[Sections VI and VII of Instructions for the Navy of the United States Governing Maritime Warfare, June, 1917, dealing with visit and search, read as follows:

section vi.—visit and search

Where and When Exercised

42. The belligerent right of visit and search, subject to exemptions mentioned in section VII, may be exercised outside of neutral jurisdiction upon private vessels after the beginning of war in order to determine their nationality, the port of destination and departure, the character of their cargo, the nature of their employment, or other facts which bear on their relation to the war.

Method of Exercise

43. The right should be exercised with tact and consideration, and in strict conformity with treaty provisions, where they exist.

44. Subject to any special treaty provisions the following procedure is directed: Before summoning a vessel to lie to, a ship of war must hoist her own national flag. The summons shall be made by firing a blank charge (coup de semonce), by other international signal, or by both. The summoned vessel, if a neutral, is bound to stop and lie to, and she should also display her colors; if an enemy vessel, she is not so bound, and may legally even resist by force, but she thereby assumes all risks of resulting damage.

45. If the summoned vessel resists or takes to flight she may be pursued and brought to, by forcible measures, if necessary.

46. When the summoned vessel has brought to, the ship of war shall send a boat with an officer to conduct the visit and search. If practicable, a second officer should accompany the officer charged with the examination. There may be arms in the boat, but the boat’s crew shall not have any on their persons. The officer (or officers), wearing side arms, may be accompanied on board by not more than two unarmed men of the boat’s crew.

47. The boarding officer shall first examine the ship’s papers in order to ascertain her nationality, ports of departure and destination, character of cargo, and other facts deemed essential. If the papers furnish conclusive evidence of the innocent character of vessel, cargo, and voyage, the vessel shall be released; if they furnish probable cause for capture she shall be seized and sent in for adjudication.

48. If the papers do not furnish conclusive evidence of the innocent character of the vessel, the cargo, and voyage, or probable cause for capture, the boarding officer shall continue the examination by questioning the personnel or by searching the vessel or by examining her cargo. If such further examination furnishes satisfactory evidence of innocency, the vessel shall be released; otherwise she shall be seized and sent in for adjudication.

49. The boarding officer must record the facts concerning the visit and search upon the log-book of the vessel visited, including the date when and the position where the visit occurred. This entry in the log must be made whether the vessel is held or not. …

Papers

50. The papers which will generally be found on board a private vessel are …:

. . . . . . . . . . . . . .

The evidence furnished by the papers against a vessel is conclusive. Regularity of papers and evidence of the innocence of cargo or destination furnished by them are not necessarily conclusive, and if doubt exists a search of the ship or cargo should be made to establish the facts. If a vessel has deviated far from her direct course, this, if not satisfactorily explained, is a suspicious circumstance warranting search, however favorable the character of the papers.

section vii.—limitations on visit and search

Convoy

51. Neutral vessels under convoy of vessels of war of their own nationality are exempt from search. The commander of the convoy gives orally or in writing, at the request of the commander of a belligerent ship of war, all information regarding the vessels and their cargoes which could be obtained by visit and search.

52. If the commander of the United States vessel has reason to suspect that the commander of the convoy has been deceived regarding the innocent character of any of the vessels (and their cargoes or voyages) under his convoy, the former officer shall impart his suspicions to the latter. In such a case it is to be expected that the commander of the convoy will undertake an examination to establish the facts. The commander of the convoy alone can conduct this investigation, the officers of the United States visiting vessel can take no part therein.

53. The commander of the convoy may be expected to report the result of his investigation to the commander of the United States vessel. Should that result confirm the latter’s suspicions, the former may further be expected to withdraw his protection from the suspected vessel; whereupon she shall be made a prize by the commander of the United States vessel.

54. Any vessel under convoy of a vessel of war of an enemy is liable to capture.

Search of Neutral Mail Vessels

55. The inviolability of certain postal correspondence does not exempt a neutral mail ship from the laws and customs of maritime war as to neutral merchant ships in general.

The following paragraphs from section VIII, dealing with neutral or enemy character, and section IX, dealing with liability to capture, together with other sections referred to in the latter, are to be considered in connection with the above:

section viii.—neutral or enemy character

Character of Vessel

56. The neutral or enemy character of a private vessel is determined by the neutral or enemy character of the state whose flag the vessel has a right to fly as evidenced by her papers.

Transfer of Flag Before Hostilities

57. The transfer of a vessel from one flag to another is valid when completed previous to the outbreak of war in which the state of the vendor is a belligerent, provided the transfer is made in accordance with the laws of the state of the vendor and the state of the vendee.

Transfer of Flag During Hostilities

58. The transfer of a private vessel of a belligerent to a neutral flag during war is valid if in accordance with the laws of the state of the vendor and of the vendee, provided that it is made in good faith and is accompanied by a payment sufficient in amount to leave no doubt of good faith; that it is absolute and unconditional, with a complete divestiture of title by the vendor, with no continued interest, direct or indirect, of the vendor, and with no right of repurchase by him; and that the ship does not remain in her old employment.

section ix.—liability to capture

Neutral Vessels

64. A neutral private vessel is in general liable to capture if she—

(a) Attempts to avoid visit and search by flight, but this must be clearly evident; or resists with force.

(b) Presents irregular or fraudulent papers, or lacks necessary papers, or destroys, defaces, or conceals papers. …

(c) Carries contraband, except when permitted by treaty to surrender (“deliver up,” “deliver out”) the contraband to the captors. …

(d) Has broken or has attempted to break a blockade. (See sec. III.)

(e) Has engaged in unneutral service. (See sec. IV.)

(f) Is under enemy convoy; or under neutral convoy to avoid rightful capture.

The provisions of section III, dealing with blockade, referred to in the foregoing, are as follows:

Extent and Limitations

26. A blockade must be limited to the ports and coasts belonging to or occupied by the enemy; must not bar access to neutral ports or coasts. A blockade, to be binding, must be effective. A blockade must be applied equally to the ships of all nations.

. . . . . . . . . . . . . .

Effectiveness

27. The blockade, to be effective and binding, must be maintained by a force sufficient to render ingress to or egress from the port dangerous. If the blockading vessels be driven away by stress of weather and return thereafter without delay to their station, the continuity of the blockade is not thereby broken. The blockade ceases to be effective if the blockading vessels are driven away by the enemy or if they voluntarily leave their stations, except for a reason connected with the blockade; as, for instance, the chase of a blockade runner.

As the suspension of a blockade is a serious matter, involving a new notification, commanding officers will exercise especial care to preserve the continuity and effectiveness of the blockade.

Notification to Neutrals

28. Neutral vessels are entitled to notification of a blockade before they can be made prize for its attempted violation. The character of this notification is not material. It may be actual, as by a vessel of the blockading force, or constructive, as by a proclamation or notice of the government maintaining the blockade, or by common notoriety. …

Liability of Vessels

29. Blockade running is a distinct offense which subjects the vessel attempting to commit it, or sailing with intent to commit it, to capture without regard to the nature of her cargo.

30. If a neutral vessel attempting to enter a blockaded port has had notice of the blockade in any way, she shall be captured and sent in for adjudication; but should formal notice not have been given, the rule of constructive knowledge arising from notoriety should be construed in a manner liberal to the neutral. Vessels appearing before a blockaded port, having sailed without notification, are entitled to actual notice by a blockading vessel. … The boarding officer shall enter in the log and the document fixing the vessel’s nationality the fact of such notice, the extent of the blockade, the date, the geographical position, and the name of the blockading vessel, verified by his official signature; and shall furnish the master with a copy of the blockade proclamation. The vessel is then to be set free. Should she again attempt to enter the same or any other blockaded port as to which she has had notice, she is good prize.

31. The liability of a blockade runner to capture and condemnation begins and terminates with her voyage. If there is good evidence that she sailed with intent to evade the blockade, she is liable to capture from the moment she appears upon the high seas. If a vessel has succeeded in escaping from a blockaded port, she is liable to capture at any time before she completes her voyage. But with the termination of the voyage the offense ends.

The provisions of section IV, dealing with unneutral service, referred to above, are as follows:

Definition

35. Unneutral service is service rendered by a neutral to a belligerent contrary to international law. It is in its nature indirect or direct.

Indirect Unneutral Service

36. A neutral vessel is guilty of indirect unneutral service and may be sent in for adjudication as a neutral vessel liable to condemnation—

(a) If she specially undertakes to transport individual passengers who are embodied in the armed forces of the enemy and who are en route for military service of the enemy or to a hostile destination, or transmits intelligence in the interest of the enemy whether by radio or otherwise.

(b) If, to the knowledge of the owner, or the charterer, or of the agents thereof, or of the master, she is transporting a military detachment of the enemy, or one or more persons who are embodied in the military or naval service of the enemy and who are en route for military service of the enemy or to a hostile destination, or one or more persons who, during the voyage, lend direct assistance to the enemy, or is transmitting information in the interest of the enemy by radio or otherwise.

37. The above provisions do not apply if, when the vessel is met at sea, she is unaware of the existence of a state of war, or if the master, after becoming aware of the opening of hostilities, has not yet been able to disembark the passengers.

38. The vessel is deemed to be aware of the existence of a state of war if she left an enemy port after the opening of hostilities, or left a neutral port after the publication there of the notification to the neutral power to which the port belongs of the opening of hostilities.

Direct Unneutral Service

39. A neutral vessel is guilty of direct unneutral service and may not only be captured but may be treated as an enemy merchant vessel—

(a) If she takes a direct part in the hostilities;

(b) If she is under the orders or under the control of an agent placed on board by the enemy Government;

(c) If she is wholly chartered by or in the exclusive employment of the enemy Government;

(d) If she is at the time exclusively engaged in, or wholly devoted to, either the transport of enemy troops or in the transmission of information in the interest of the enemy by radio or otherwise.

The following paragraphs from sections XII and XIII are also to be considered in connection with the sections quoted above:

section xii.—treatment of vessel, goods, postal correspondence, officers, crew, and other persons on board

Mail Steamers and Postal Correspondence

87. The genuine postal correspondence of neutrals or belligerents, found on board a neutral or enemy ship at sea, is inviolable. If the ship is detained, such postal correspondence is to be forwarded by the captor with the least possible delay.

The provisions of the preceding paragraph do not apply, in case of violation of blockade, to correspondence destined for or proceeding from a blockaded port.

88. Neutral mail ships are subject to the laws and customs of maritime war applicable to neutral merchant ships in general.

Enemy Military Persons on Board Neutral Vessels

89. As to treatment of vessels outside of neutral jurisdiction and carrying persons embodied in the military service of the enemy, unless treaty provisions allow their removal from the neutral vessel and the release of the vessel herself thereupon, see paragraphs 36, 39.

90. The persons referred to in paragraph 89 must be actually embodied in the military service of the enemy. Reservists or other persons subject to military duty but not formally incorporated in military service are not included.

section xiii.—destruction of prizes

94. An enemy ship made prize may be destroyed by the capturing officer in case of military necessity, when the vessel can not be sent or brought in for adjudication.

95. Engaging in unneutral service as defined in paragraph 39 stamps a neutral vessel with hostile character, and such a neutral vessel made prize may be destroyed by the capturing officer in the case of military necessity, when the vessel can not be sent or brought in for adjudication.

96. Owing to the serious responsibility involved, a neutral vessel not engaged in unneutral service as defined in paragraph 39, must not be destroyed by the capturing officer save in case of the gravest military emergency which would not justify him in releasing the vessel or sending it in for adjudication. If circumstances permit, it is preferable to appraise and sell the prize, as provided in section 4615, Revised Statutes …, rather than to destroy it.

97. In no case after a vessel has been brought to may it be destroyed until after visit and search has been made and all persons on board have been placed in safety, and also, if practicable, their personal effects.]

1. Not printed.