862.85/1918

The German Chargé (Thomsen) to the Secretary of State

[Translation]

Mr. Secretary of State: I have the honor to acknowledge to Your Excellency the receipt of the note of April 3, 1941. I have communicated the text of this note to my Government.

Pending a further statement of the attitude of my Government, I reply to Your Excellency that the protest which I have made in the name of my Government against the taking possession of the German tanker Pauline Friedrich and the German motor ship Arauca and the forcible removal of the captains and crews from on board these ships is based on generally recognized principles of international law and on the special rights and obligations of both Governments established in the German-American Treaty of Friendship, Commerce and Consular Rights of December 8, 1923. In international law, the right of a merchant ship to seek the territorial waters of a foreign country that are open to commerce and navigation and to seek refuge therein in war as well as in peace is a principle just as well recognized as that of the freedom of the seas. In addition, the Governments of Germany and the United States of America in the Treaty concluded between them on December 8, 1923 and confirmed by the Agreement of June 3, 1935, have made this principle a special standard for their acts by mutually assuring each other (Article VII, Paragraph 1):

“Between the territories of the High Contracting Parties there shall be freedom of commerce and navigation. The nationals of each of the High Contracting Parties, equally with those of the most favored nation, shall have liberty freely to come with their vessels and cargoes to all places, ports and waters of every kind within the territorial limits of the other which are or may be open to foreign commerce and navigation.”

It does not need to be emphasized that the taking possession of the two German merchant ships in American ports, in which they had [Page 464]sought refuge from attacks by hostile naval forces, actually made or threatened, represents a clear violation of these obligations of hospitality. Other provisions of the German-American Treaty of Friendship, Commerce and Consular Rights also are clearly opposed to the measures taken by the American Government.

On the other hand, no acts of any kind have been committed by the captains, the officers and the men of the two German vessels in question which can release the United States Government from these international and treaty obligations. Neither has American property been destroyed, damaged or otherwise injured, nor have damages of any sort been done to the waters or port works of the United States, nor has the safety of navigation in the harbors been endangered or reduced.

On this occasion I take the liberty of repeating my request, with which Your Excellency did not comply in the answering note of April 3rd, to inform me on what legal basis the Attorney General has ordered or intends to pursue the criminal prosecution of the crew of the steamer Pauline Friedrich.

Accept [etc.]

Thomsen