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Six days later the following was sent from Ambassador Gerard to the Secretary of State:

AMERICAN EMBASSY, Berlin, September 7, 1915.

Foreign office sends me the following report of the sinking of the Arabic, with the request that it be brought to the knowledge of the American Government:

On the 19th of August a German submarine stopped the English steamer Dunsley about 60 nautical miles south of Kinsale and was on the point of sinking the prize by gun fire after the crew had left the vessel. At this moment the commander saw a large steamer making directly toward him. This steamer, which, as developed later, was identical with the Arabic, was recognized as an enemy vessel, as she did not fly any flag and bore no neutral markings. When she approached she altered her original course, but then again pointed directly toward the submarine. From this the commander became convinced that the steamer had the intention of attacking and ramming him. In order to anticipate this attack he gave orders to have the submarine submerge and fired a torpedo at the steamer. After firing he convinced himself that the people on board were being rescued in 15 boats.

According to his instructions the commander was not allowed to attack the Arabic without warning and without saving lives unless the ship attempted to escape or offered resistance. He was forced to conclude from the attendant circumstances that the Arabic planned a violent attack on the submarine. This conclusion was all the more obvious, as he had been fired upon at a great distance in the Irish Sea on August 14-that is, a few days before-by a large passenger steamer apparently belonging to the British Royal Mail Steam Packet Co., which he had neither attacked nor stopped.

The German Government most deeply regrets that lives were lost through the action of the commander. It particularly expresses this regret to the Government of the United States on account of the death of American citizens. The German Government is unable, however, to acknowledge any obligation to grant indemnity in the matter, even if the commander should have been mistaken as to the aggressive intentions of the Arabic. If it should prove to be the case that it is impossible for the German and the American Governments to reach a harmonious opinion on this point, the German Government would be prepared to submit the difference of opinion as being a question of international law to The Hague tribunals, pursuant to article. 38 of The Hague Convention for the Pacific Settlement of International Disputes. In so doing it assumes that as a matter of course the arbitral decision shall not be admitted to have the importance of a general decision on the permissibility or the converse under international law of German submarine warfare. Berlin, September 7, 1915.

GERARD.

The Arabic controversy was continued by the following memorandum:

THE SECRETARY OF STATE TO AMBASSADOR GERARD.

[Telegram.]

DEPARTMENT OF STATE, Washington, September 14, 1915.

You are instructed to deliver to the Foreign Office the following summary of the evidence on file in the department in regard to the sinking of the Arabic.

(1) It is generally agreed that the course of the Arabic drew her nearer to the Dunsley from the time the Dunsley and Arabic sighted each other until about the time the Arabic was torpedoed. (Affidavits of master, first, second, and third officers, mess steward and seamen of Dunsley; affidavits of captain and second officer of the Arabic; unsworn statements of three American passengers.) The officers of the Dunsley agree.that the Arabic altered her course somewhat toward the Dunsley, but that her course was variable or zig-zag. (Affidavits of master, first, second, and third officers and mess steward and one seaman of the Dunsley; affidavits of captain and second officer of Arabic; affidavit of one American passenger.) The third officer stated that the Arabic began the zig-zag course 4 miles away from the Dunsley. Though the Arabic at times necessarily pointed toward the Dunsley, at the time the torpedo struck she was moving away from the Dunsley. (Affidavit of captain and second officer of Arabic, third officer of Dunsley, and one passenger of unknown nationality, and unsworn statement of one American passenger.)

(2) The passengers on the Arabic variously estimated that the Arabic approached the Dunsley to within 1 to 5 miles. (Affidavits of three American passengers; unsworn statements of three American passengers and one passenger of unknown nationality.) While the Dunsley was sighted several miles away, the officers of that vessel estimated that the Arabic approached to 1 to 3 miles from the Dunsley. (Affidavits of master, first, and seconds officers.) And one Dunsley seaman swore the first distance was only one-half mile. The affidavits of the captain and the second officer of the Arabic agree that the Arabic did not approach nearer than 2 miles to the Dunsley. (3) It appears that the submarine, after shelling the Dunsley and after sighting the Arabic, hid behind the Dunsley and submerged before the explosion of the torpedo which sank the Arabic. (Affidavits of master, first, and second officers, mess steward, and one seaman of Dunsley.)

(4) Witnesses are in agreement that the submarine was not seen from the Arabic (affidavits of the captain and second officer of the Arabic, affidavits of three American passengers, and unsworn statement of passenger of unknown nationality), and that the Arabic could not have seen the submarine from its position behind the Dunsley prior to submerging. (Affidavit of second officer of the Dunsley.)

5. All agree that the Arabic received no warning. (Affidavit of six American passengers and two passengers of unknown nationality, and the unsworn statements of four American passengers and two passengers of unknown nationality and the affidavits of captain and second officer of the Arabic.)

(6) The torpedo was first seen by the passengers at an estimated distance of 150 to 300 yards away. (Affidavit of passenger of unknown nationality; unsworn statements of two American passengers, and one passenger of unknown nationality.) The captain of the Arabic, however, swears that the air bubbles and the torpedo were only 300 feet away when he saw them. (It appears that Consul Washington at Liverpool, in conversation with Capt. Finch and the second officer of the Arabic, learned that they saw bubbles of air at the time they first noticed the torpedo, which were taken to indicate the air escaping at the time the torpedo was expelled from the tube, and that therefore the submarine was supposed to have been only 300 feet from the Arabic and about 2 miles from the Dunsley when the torpedo was fired. Consul Washington's three telegraphic reports of August 24.)

(7) All agree that the torpedo struck the Arabic near the stern on the starboard side. (Affidavit of captain, second officer of Dunsley, and two American passengers and a passenger of unknown nationality, and unsworn statement of one American passenger.)

From a diagram made by the second officer of the Arabic, who observed the approach of the torpedo from the navigating bridge, the course of the torpedo was almost at right angles to the course of the Arabic.

Germany issued the following instructions on October 5, 1915:

THE GERMAN AMBASSADOR TO THE SECRETARY OF STATE.

GERMAN EMBASSY, Washington, October 5, 1915. MY DEAR MR. SECRETARY: Prompted by the desire to reach a satisfactory agreement with regard to the Arabic incident my Government has given me the following instructions:

The orders issued by His Majesty the Emperor to the commanders of the German submarines-of which I notified you on a previous occasion-have been made so stringent that the recurrence of incidents similar to the Arabic case is considered out of the question.

According to the report of Commander Schneider of the submarine that sank the Arabic, and his affidavit as well as those of his men, Commander Schneider was convinced that the Arabic intended to ram the submarine. On the other hand, the Imperial Government does not doubt the good faith of the affidavits of the British officers of the Arabic, according to which the Arabic did not intend to ram the submarine. The attack of the submarine, therefore, was undertaken against the instructions issued to the commander.. The Imperial Government regrets and disavows this act and has notified Commander Schneider accordingly.

Under these circumstances my Government is prepared to pay an indemnity for the American lives which, to its deep regret, have been lost on the Arabic. I am authorized to negotiate with you about the amount of this indemnity.

I remain, etc.,

J. BERNSTORFF.

Three months later Germany issued further instructions, as follows:

COMMUNICATION FROM GERMAN GOVERNMENT DELIVERED BY GERMAN

AMBASSADOR, UNDER INSTRUCTIONS.

GERMAN EMBASSY,

Washington (Received January 7, 1916). 1. German submarines in the Mediterranean had, from the beginning, orders to conduct cruiser warfare against enemy merchant vessels only in accordance with general principles of international law and in particular measures of reprisal, as applied in the war zone around the British Isles, were to be excluded.

2. The German submarines are therefore permitted to destroy enemy merchant vessels in the Mediterranean-i. e., passenger as well as freight ships as far as they do not try to escape or offer resistance only after passengers and crews have been accorded safety.

3. All cases of destruction of enemy merchant ships in the Mediterranean in which German submarines are concerned are made the subject of official investigation and, besides, submitted to regular prize court proceedings. In so far as American interests are concerned, the German Government will communicate the result to the American Government. Thus also in the Persia case if the circumstances should call for it.

4. If commanders of German submarines should not have obeyed the orders given to them, they will be punished; furthermore, the German Government will make reparation for damage caused by death of or injuries to American citizens.

The submarine controversy was expanded by the sinking of the Italian liner Ancona November 7, in which nine Americans perished. This incident was intensified by the fact that Dr. Dumba, the Austrian ambassador, had been called home, at the insistence of the United States, on September 27, as the result of the discovery, through the seizure of papers on the person of James F. J. Archibald, an American citizen, of a letter from the ambassador to his home Government suggesting the incitement of strikes in American munition factories. Archibald was arrested by the British authorities when the Rotterdam, on which he was traveling to Holland, put into Falmouth. The following communication from the American Government to the Austrian Government was sent December 6, 1915:

THE SECRETARY OF STATE TO AMBASSADOR PENFIELD.

DEPARTMENT OF STATE, Washington, December 6, 1915. Please deliver a note to the minister of foreign affairs, textually as follows:

"Reliable information obtained from American and other survivors who were passengers on the steamship Ancona shows that on November 7 a submarine flying the Austro-Hungarian flag fired a 84610-H. Doc. 2111, 64-2, pt. 1—5

solid shot toward the steamship; that thereupon the Ancona attempted to escape, but being overhauled by the submarine, she stopped; that after a brief period and before the crew and passengers were all able to take to the boats the submarine fired a number of shells at the vessel and finally torpedoed and sank her while there were yet many persons on board; and that by gunfire and foundering of the vessel a large number of persons lost their lives or were seriously injured, among whom were citizens of the United States.

"The public statement of the Austro-Hungarian Admiralty has been brought to the attention of the Government of the United States and received careful consideration. This statement substantially confirms the principal declaration of the survivors, as it admits that the Ancona, after being shelled, was torpedoed and sunk while persons were still on board.

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The Austro-Hungarian Government has been advised, through the correspondence which has passed between the United States and Germany, of the attitude of the Government of the United States as to the use of submarines in attacking vessels of commerce, and the acquiescence of Germany in that attitude, yet with full knowledge on the part of the Austro-Hungarian Government of the views of the Government of the United States as expressed in no uncertain terms to the ally of Austria-Hungary, the commander of the submarine which attacked the Ancona failed to put in a place of safety the crew and passengers of the vessel which they purposed to destroy because, it is presumed, of the impossibility of taking it into port as a prize of war.

"The Government of the United States considers that the commander violated the principles of international law and of humanity by shelling and torpedoing the Ancona before the persons on board had been put in a place of safety or even given sufficient time to leave the vessel. The conduct of the commander can only be characterized as wanton slaughter of defenseless noncombatants, since at the time when the vessel was shelled and torpedoed she was not, it appears, resisting or attempting to escape; and no other reason is sufficient to excuse such an attack, not even the possibility of rescue.

"The Government of the United States is forced, therefore, to conclude either that the commander of the submarine acted in violation of his instructions or that the Imperial and Royal Government failed to issue instructions to the commanders of its submarines in accordance with the law of nations and the principles of humanity. The Government of the United States is unwilling to believe the latter alternative and to credit the Austro-Hungarian Government with an intention to permit its submarines to destroy the lives of helpless men, women, and children. It prefers to believe that the commander of the submarine committed this outrage without authority and contrary to the general or special instructions which he had received.

"As the good relations of the two countries must rest upon a common regard for law and humanity, the Government of the United States can not be expected to do otherwise than to demand that the Imperial and Royal Government denounce the sinking of the Ancona as an illegal and indefensible act; that the officer who perpetrated the deed be punished; and that reparation by the payment of an

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