740.00112 European War 1939/1092: Telegram

The Chargé in the United Kingdom (Johnson) to the Secretary of State

437. Department’s 1561, December 7, 2 p.m.,26 and my 2565 December 8, 1 p.m.27 Following signed note dated February 21st received today:

“I have the honour to invite a reference to the note Number 1646 which you were so good as to address to me on the 8th December28 and to inform you that His Majesty’s Government in the United Kingdom have given the most careful and systematic consideration to the views expressed by the United States Government on the subject of the operation of the Order in Council of the 27th November29 providing for the seizure of goods of German origin or ownership upon the high seas.

His Majesty’s Government are not less anxious than the United States Government that the established principles of international law should be maintained at a time when the security of peace-loving nations is threatened by a growing tendency towards disrespect for these principles in international relations. Indeed it is in defence of these principles that His Majesty’s Government are engaged in the present war and on that account they venture to hope that they may count on some measure of indulgence from neutral countries in their struggle against Germany which has so repeatedly shown its contempt for its international obligations.
Since the outbreak of the war German submarines have repeatedly sunk merchant vessels not only British and Allied but neutral in violation of the rules contained in the submarine protocol of 193630 to which Germany is a party. More recently merchant vessels British, Allied, and neutral have been sunk by mines laid by German forces indiscriminately and without notification in contravention of the provisions of the Hague Convention Number VIII of 190731 to which likewise Germany is a party. The sinking of these vessels has been effected without regard to their nationality or destination or to the nature, ownership, or destination of the cargoes and these acts have already resulted in grave loss of noncombatant life, British, Allied, and neutral alike. At the date when the Order in Council was issued not less than 10 neutral vessels had been sunk by German action while on their way to or from ports in the Continent of America and by the [Page 25] end of January this figure had increased to not less than 19. In the majority of these cases the ports both of origin and destination were neutral and in 5 cases the ship was outward bound to America. In the last few days there has occurred the case of the Netherlands S. S. Burgerdyk which was torpedoed by a German submarine while on a direct voyage from New York to Rotterdam. It is only too clear that the German Government have deliberately embarked upon a policy of endeavouring to destroy all sea-borne trade between the Allied and other countries by a ruthless use of the forces at their disposal contrary to the laws and customs of war, the rights of neutrals, and the dictates of humanity. In these circumstances His Majesty’s Government have no alternative but to take retaliatory action and in view of their adversaries’ patent disregard of the rules of war His Majesty’s Government are amply justified under international law in taking such measures of retaliation. Although however the essence of retaliation is a departure from the ordinary rules as reprisal for illegal action by the enemy the actual measures contemplated by His Majesty’s Government differ essentially from those adopted by Germany seeing that they do not involve the destruction of innocent vessels with their cargoes and passengers. His Majesty’s Government would in any case be debarred by the most elementary considerations of humanity no less than by their respect for the general principles on behalf of which they are fighting from imitating the methods adopted by their opponents. The German Government’s object then being to stop all sea-borne trade with the United Kingdom without distinction between exports and imports or between ships of belligerents or of neutrals His Majesty’s Government by imposing an embargo upon German exports in addition to the contraband control which they have been exercising for some months can claim with justice to have had recourse to the type of retaliatory action exactly appropriate to the illegal action by Germany which has necessitated it. His Majesty’s Government in fact are adopting measures whose object is to impose on German commerce restrictions and impediments similar to those which the German Government are attempting to impose on the commerce of this country. In His Majesty’s Government’s view the measures which they have decided to adopt constitute the very minimum of retaliation for meeting the settled policy of illegalities and outrages embarked on by the German Government. His Majesty’s Government greatly regret that their action may be such as to cause injury to neutral interests but after giving the matter their most serious consideration they were forced to the conclusion that no means of retaliation could be devised which did not in some degree affect the interests of neutrals.
In actual fact it will I am confident be found that the measures which His Majesty’s Government have decided to apply are so far as concerns the legitimate interests of neutrals of a moderate character; and they have I know been framed and will be applied with all possible consideration for those interests. The fears expressed in paragraph 5 of your note will therefore I trust prove groundless. I can assure you that every effort will be made to ensure that inconveniences and damages to which innocent neutral trade and commerce will be subject will be reduced to the very minimum which is compatible with the attainment of the object which His Majesty’s Government have in view namely the enforcement upon Germany of respect for her [Page 26] treaty obligations and for the rights which other nations are entitled to enjoy under the recognized rules of international law.
I would venture to call your attention to the clauses inserted in the Order-in-Council specifically in order to provide for the legitimate trade industry and commerce of neutrals. Although their decision to take action against German exports and property was announced on the 21st November and the Order in Council was made on the 27th November the measures in question are not applied to any ships which left port before the 4th December; and provision is made for the release of any goods which the prize court is satisfied had become neutral property before the 27th November and also for release in other cases with the consent of the proper officer of the Crown. Moreover if it appeared at the time when the vessel was being examined that a given consignment was of such a character that its release (should it be placed in prize) would probably be ordered it would be the desire of the competent authorities to avoid discharging consignment at all provided they were supplied in adequate time with all the necessary details and always excepting cases in which special reasons required the discharge of the goods. Further the Order in Council provides not for the confiscation but only for the detention of goods of German origin or ownership ordered to be discharged and at the end of the war they are to be dealt with as the prize court may think just; nor is any penalty for the vessel prescribed on account of the carriage of the goods. Every application for exemption from the reprisals Order in Council will be treated by His Majesty’s Government on its merits. I can assure you that they will always be willing to have regard to humanitarian, educational, and scientific considerations as grounds on which exemption may be granted and that they will also take into account the possible effect on the country importing German goods of the refusal of an exemption. His Majesty’s Government will always be ready to give rapid consideration to any applications for exemption which may be addressed to them on behalf of United States interests and will do their utmost to meet any reasonable request that may be put forward. It will be appreciated however that the necessity for carrying out the policy of the reprisals Order-in-Council must be the primary consideration.
It is noted that paragraph 3 of your note suggests that as United States vessels are now prohibited by American law from engaging in any kind of commerce with ports on the west coast of Europe lying between Bergen on the north and the northern coast of Spain on the south the likelihood of such vessels carrying goods destined for or emanating from Germany is greatly diminished. His Majesty’s Government fully appreciate the force of this argument. At the same time they feel bound to point out that it is easily possible for goods of the utmost value to Germany to pass to and from Germany through neutral ports in the Mediterranean and northern Scandinavia which are outside the limits mentioned above and the very fact that United States vessels are prohibited from trading with ports more directly contiguous to Germany may well increase the probability of shipments by those more indirect routes. In these circumstances His Majesty’s Government trust that the United States Government will appreciate why it is that they feel unable to forego their right of visit and examination in respect of ships bound to or from ports on such routes.
His Majesty’s Government have taken note that the United States Government have reserved all its rights and the rights of its nationals whenever and to the extent to which they may be infringed. While His Majesty’s Government cannot admit that legitimate exercise of their belligerent rights can give rise to claims I can assure you that if any persons interested in the ships or cargoes consider that they have good ground for a claim it is open to them to make it in the Prize Court in accordance with the procedure prescribed in the Prize Court rules of 1939.32 The court has full jurisdiction to award damages in those cases where it finds a claim to be well-founded and any claim put forward by United States’ interest will receive the fullest consideration.”

  1. Foreign Relations, 1939, Vol. i, p. 786.
  2. Not printed.
  3. See telegram No. 1561, December 7, 1939, 2 p.m., to the Chargé in the United Kingdom, Foreign Relations, 1939, Vol. i, p. 786, or Department of State Bulletin, December 9, 1939, p. 651.
  4. See telegram No. 2481, November 29, 1939, 3 p.m., from the Ambassador in the United Kingdom, Foreign Relations, 1939, Vol. i, p. 783.
  5. For correspondence regarding signature of process-verbal, November 6, 1936, relating to Part IV (Rules of Submarine Warfare), London Naval Treaty, signed April 22, 1930, see ibid., 1936, Vol. i, pp. 160 ff.
  6. Ibid, 1907, pt. 2, p. 1222.
  7. United Kingdom, Statutory Rules and Orders, 1939 (No.1466/L.23).