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a that then passende Governmehe submariviolat
livered at Vienna on December 15, 1915, and transmitted to Washington, and has given the note immediate and careful considerationi.
On November 15, 1915, Baron Zwiedenek, the chargé d'affaires of the Imperial and Royal Government at Washington, transmitted to the Department of State a report of the Austro-Hungarian Admiraly with regard to the sinking of the steamship Arcona, in which it was admitted that the vessel was torpedoed after her engines had been stopped and when passengers were still on board. This admission alone is, in the view of the Government of the United States, sufficient to fix upon the commander of the submarine which fired the torpedo the responsibility for having willfully violated the recognized law of nations and entirely disregarded those humane principles which every belligerent should observe in the conduct of war at sea. In view of these admitted circumstances the Government of the United States feels justified in holding that the details of the sinking of the Ancona, the weight and character of the additional testimony corroborating the admiralty's report, and the number of Americans killed or injured are in no way essential matters of discussion. The culpability of the commander is in any case established, and the undisputed fact is that citizens of the United States were killed, injured, or put in jeopardy by his lawless act.
“The rules of international law and the principles of humanity which were thus willfully violated by the commander of the submarine have been so long and so universally recognized and are so manifest from the standpoint of right and justice that the Government of the United States does not feel called upon to debate them and does not understand that the Imperial and Royal Government questions or disputes them.
“The Government of the United States therefore finds no other course open to it but to hold the Imperial and Royal Government responsible for the act of its naval commander and to renew the definite but respectful demands made in its communication of the 6th of December, 1915. It sincerely hopes that the foregoing statement of its position will enable the Imperial and Royal Government to perceive the justice of those demands and to comply with them in the same spirit of frankness and with the same concern for the good relations now existing between the United States and Austria-Hungary which prompted the Government of the United States to make them.”
LANSING. Second Austrian reply:
AMBASSADOR PENFIELD TO THE SECRETARY OF STATE. .
Vienna, December 29, 1915. · The following reply to my note of the 21st instant, communicating textually the contents of the department's telegram No. 1039 of December 19,1 p. m., was received this afternoon:
[Translation.) “In reply to the very estemed note No. 4307, of the 21st instant, the undersigned has the honor most respectfully to communicate to
his excellency the ambassador of the United States of America, Mr. Frederic Courtland Penfield, the following:
“The Imperial and Royal Government thoroughly agrees with the Washington Cabinet that even in war the sacred demands of humanity must be complied with. Just as it has hitherto never given anyone occasion to doubt its respect for these demands, it has also given numerous proofs of its most humane sentiments, both toward enemies and neutrals, throughout the entire course of this war, which is presenting such convulsive pictures of moral confusion, and it was not its fault that not long ago it did not agree with the Washington Cabinet on a question which it, in unison with the entire public opinion in Austria-Hungary, regarded principally as a question of humanity.
“Also as concerns the principle expressed in the very esteemed note that hostile private ships, in so far as they do not flee or offer resistance, may not be destroyed without the persons on board having been placed in safety, the Imperial and Royal Government is able substantially to assent to this view of the Washington Cabinet.
“ The Imperial and Royal Government is very responsive to the assurance that the Government of the United States attaches value to the maintenance of the good relations which happily exist between Austria-Hungary and the United States of America; it reciprocates this assurance most warmly and is now as ever, as far as lies within its power, zealous to render these relations still more cordial.
“Guided by the same spirit of candor as is the American Government, the Imperial and Royal Government, although it does not find in the aforesaid note a reply to all of its justified questions, is ready to communicate to the Government of the United States the result of the investigation which was instituted, in accordance with the existing internal regulations, immediately after the receipt of the naval report on the sinking of the Ancona and which has been very recently concluded. The results of this investigation may be summarized as follows:
“On November 7, 1915, at 11.40 a. m., in thick weather, the commander of the submarine saw the outlines of a large Italian steamer suddenly emerge from the fog one point to the starboard at a distance of about 3,000 meters, in latitude 38° 40' north and longitude 10° 8' east. He first took it for a transport steamer and put about and then fired a wide warning shot, from the after gun; at the same time he displayed the signal leave the ship. The steamer did not stop, but on the contrary turned away and attempted to escape. The commander at first remained stationary several minutes in order to increase the distance, as he feared the steamer might have a stern gun and use it against the submarine. When the distance had increased to 4,500 meters, he took up the pursuit at full power and fired from the bow gun 16 shells at decreasing range and observed three hits. During the pursuit the steamer steered a zigzag course and did not stop until after the third hit. Thereupon the commander ceased firing. Even during the flight the steamer while at full speed dropped several boats with people, which immediately capsized; after stopping it began to rig out the boats. At a distance of about 2,000 meters the commander saw that six boats were completely filled and rapidly pulled away from the steamer. Another boat had capsized and was floating keel upward; the people were hanging on to the lines and to the capsized boat. During the further approach of the submarine the commander saw that great panic was prevailing on board and that he was dealing with a passenger steamer, viz, the Ancona, of Genoa. He therefore accorded the people on board of the steamer more than the necessary time for leaving the ship in the lifeboats. There was still on board at least 10 lifeboats, which would have more than sufficed for the rescue of the people still on board. One of these boats was completely filled and hung on the half-rigged-out boat davits. As no further measures were being taken to rig out the boats, the commander decided, after the lapse of 45 minutes, to torpedo the ship in such a way that it would still remain above water for a considerable length of time, so that, on the one hand, the rigging out of the boats would be accelerated and, on the other hand, sufficient opportunity would remain for rescuing the people still on board.
5 Shortly thereafter a steamer was sighted heading for the Ancona developing a great amount of smoke and which apparently had been summoned to the Ancona by radiotelegraphy. As the commander of the submarine had to count upon an attack from the steamer, which he took to be an enemy cruiser, he submerged after having had a torpedo launched at 12.35 p. m. from a distance of 800 meters 'at the forehold of the Ancona. After that torpedo shot the latter listed about 10° to starboard. At this time an attempt was made to completely lower the half-rigged-out lifeboat; it carried away, however, and fell into the water. The boat remained afloat, keel downward, and the people clung to the gunwale. None of the remaining boats were lowered to the water, although people were still seen on board. The steamer gradually righted itself to an even keel and sank so slowly that the commander of the submarine at first doubted whether the steamer would go down; as late as 1.20 it sank, bow first, after slowly submerging parallel to the water line. During this further period of 45 minutes it would have been easily possible to rescue, by means of the available boats, persons still on board. From the circumstances that, contrary to expectations, this did not happen, commander concluded that, contrary to all seamanlike custom, the crew had effected their own rescue in the first boats and left the passengers intrusted to their protection to themselves.
“At the time of the incident the weather was good, and the sea was smooth, so that the lifeboats could have reached the nearest coast without danger, as, in fact, lifeboats were damaged only through inexpert lowering but not after reaching the water. The loss of human lives is in no way to be attributed in the first instance to the sinking of the ship, but-and according to all probability in a much higher degree to the dropping of the first boats while under way at full speed, as well as to the fact that the crew, thinking only of themselves, did not rescue the passengers of the capsized boats, and also possibly to the projectiles which struck the fleeing ship. But also the death of the persons who went down with the steamer is, above all, to be attributed to the conduct of the crew, which was contrary to the requirements of their duty.
"As is apparent from above-cited facts of the case, the very esteemed note of the 9th instant proceeds in several points from incorrect assumptions. The information reaching the American Governmant that a solid shot was immediately fired toward the steamer is
incorrect. It is incorrect that the submarine overhauled the steamer during the pursuit. It is incorrect that only a brief period was accorded for the disembarkation of the people; to the contrary, an unusually long time was given the Ancona for the disembarkation of the passengers. Finally, it is incorrect that a number of shells were still fired at the steamer after it had stopped.
“ The facts in the case further permit it to be recognized that the commander of the submarine granted the steamer full 45 minutes; that is more than sufficient time to afford the persons on board opportunity for disembarkation. Then when the people had still not been rescued he effected the torpedoing in such a way that the ship would remain above water as long a time as possible; this with the inten- · tion of enabling the disembarkation in the boats still available. As the steamer remained above water 45 minutes more, he would indeed have accomplished this purpose if the crew had not in violation of their duty left the passengers in the lurch.
“Notwithstanding all appreciation of this procedure of their commander aiming at the rescue of the crew and passengers, the imperial and royal naval authorities came to the conclusion that he had failed to take into sufficient consideration the panic which occurred amongst the passengers rendering the embarkation more difficult, and the · spirit of the regulation that imperial and royal naval officers should not refusé help to anyone in distress, not even to the enemy. Hence the officer has been punished in accordance with the rules in force in this matter for exceeding his instructions.
“In this state of affairs the Imperial and Royal Government does not hesitate to draw the appropriate conclusions with reference to the indemnification of the American citizens affected by the sinking of the prize.
“In this respect it must, however, make the following observations: .As a matter of course the investigation into the sinking of the Ancona could not establish to what degree American citizens are entitled to a claim for indemnity. Even according to the view of the Washington Cabinet, the Imperial and Royal Government can not be held answerable for the injuries which were caused by the undoubtedly justified firing upon the fleeing ship. Just as little might it have to answer for the injuries which occurred before the torpedoing due to the faulty rigging out of the boats or to the capsizing of the boats which had been lowered.
" The Imperial and Royal Government must assume that the Washington Cabinet is able and willing to furnish it with the information which is required in this respect and which is certainly not immaterial. However, should the more precise circumstances under which the American citizens were injured be unknown to the Government of the United States due to a lack of the proper material evidence, the Imperial and Royal Government in consideration of the humanely deeply deplorable incident, and guided by the desire of again manifesting to the Government of the United States its 'friendly sentiments, would be readily willing to overlook this gap in the evidence and to extend the indemnity also to those injuries the direct cause of which could not be ascertained..
“ While the Imperial and Royal Government may well regard the Ancona case as cleared up by the foregoing representations, it at the same time reserves to itself for a future time the discussion of the
difficult questions of international law in connection with submarine warfare.
“ The undersigned has the honor to have recourse to the kindness of his excellency the ambassador of the United States of America with the most respectful request that he be good enough to communicate the foregoing to the Government of the United States and at the same time avails himself, etc.
PENFIELD. Our relation with Austria was again disturbed by the attack on the steamer Petrolite. Our note follows:
THE SECRETARY OF STATE TO AMBASSADOR PENFIELD.
DEPARTMENT OF STATE,
Washington, June 21, 1916. Evidence obtained from the captain and members of crew of the steamer Petrolite, and from examination made of the vessel under direction of the Navy Department, convinces this Government that the Austro-Hungarian Government has obtained an incorrect report of the attack on the steamer. With particular reference to the explanation made by the foreign office, the following information, briefly stated, has been obtained from sworn statements of the captain and members of crew :
No shot was fired across the bow of the steamer as a signal to stop. When the first shot was fired the captain was under the impression that an explosion had taken place in the engine room. Not until the second shot was fired did the captain and crew sight the submarine, which was astern of the steamer and therefore they positively assert that neither the first nor the second shot was fired across the bow of the vessel.
The steainer did not swing around in a course directed toward the submarine as alleged in the report obtained by the Austro-Hungarian Government, but the captain at once stopped the engines and swung the vessel broadside to the submarine and at right angles to the course of the vessel, in order to show its neutral markings, which was manifestly the reasonable and proper course to follow, and it ceased to make any headway. On the steamer was painted its name in letters approximately 6 feet long, and the name of the hailing port, and, as has previously been made known to Austro-Hungarian Government, the steamer carried two large flags some distance above the water line which it is positively stated by the officers and crew were flying before the first shot was fired, and were not hoisted after the first shot, as stated by the submarine commander.
The submarine commander admits that the steamer stopped her engines. The captain of the Petrolite denies that the vessel was ever headed toward the submarine, and the examination of the steamer made by an American naval constructor corroborates this statement, because, as he states, the shell which took effect on vessel, striking the deck house which surrounds the smokestack, was fired from a point 45° on the starboard bow. This was one of the last shots fired,