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indemnity be made for the citizens of the United States who were killed or injured by the attack on the vessel.

"The Government of the United States expects that the AustroHungarian Government, appreciating the gravity of the case, will accede to its demand promptly; and it rests this expectation on the belief that the Austro-Hungarian Government will not sanction or defend an act which is condemned by the world as inhuman and barbarous, which is abhorrent to all civilized nations, and which has caused the death of innocent American citizens.'

LANSING.

The Austrian reply:

AMBASSADOR PENFIELD TO THE SECRETARY OF STATE.

[Telegram.]

AMERICAN EMBASSY, Vienna, December 15, 1915. ·

Department's 1011, December 6, 6 p. m. 1

Following note received from Minister for Foreign Affairs noon to-day:

"In reply to the much-esteemed note, No. 4167, which his excellency, Mr. Frederic Courtland Penfield, ambassador extraordinary and plenipotentiary of the United States of America, directed to him in the name of the American Government under date of the 9th instant in the matter of the sinking of the Italian steamer Ancona, the undersigned, preliminary to a thorough, meritorious treatment of the demand, has the honor to observe that the sharpness with which the Government of the United States considers it necessary to blame the commanding officer of the submarine concerned in the affair and the firmness in which the demands addressed to the Imperial and Royal Government appear to be expressed might well have warranted the expectation that the Government of the United States should precisely specify the actual circumstances of the affair upon which it bases its case. As is not difficult to perceive, the presentation of the facts in the case in the aforesaid note leaves room for many doubts; and even if this presentation were correct in all points and the most rigorous legal conception were applied to the judgment of the case, it does not in any way sufficiently warrant attaching blame to the commanding officer of the war vessel or to the Imperial and Royal Government.

"The Government of the United States has also failed to designate the persons upon whose testimony it relies and to whom it apparently believes it may attribute a higher degree of credibility than to the commander of the imperial and royal fleet. The note also fails to give any information whatsoever as to the number, names, and more precise fate of the American citizens who were on board of the said steamer at the critical moment.

"However, in view of the fact that the Washington Cabinet has now made a positive statement to the effect that citizens of the United States of America came to grief in the incident in question, the Imperial and Royal Government is in principle ready to enter into an exchange of views in the affair with the Government of the United States. It must, however, in the first place, raise the question

why that Government failed to give juridicial reasons for the demands set forth in its note with reference to the special circumstances of the incriminating events upon which it itself lays stress, and why, in lieu thereof, it referred to an exchange of correspondence which it has conducted with another Government in other cases. The Imperial and Royal Government is the less able to follow the Washington Cabinet on this unusual path, since it by no means possesses authentic knowledge of all of the pertinent correspondence of the Government of the United States, nor is it of the opinion that such knowledge might be sufficient for it in the present case, which, in so far as it is informed, is in essential points of another nature than the case or cases to which the Government of the United States seems to allude. The Imperial and Royal Government may therefore leave it to the Washington Cabinet to formulate the particular points of law against which the commanding officer of the submarine is alleged to have offended on the occasion of the sinking of the Ancona.

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The Government of the United States has also seen fit to refer to the attitude which the Berlin Cabinet assumed in the abovementioned correspondence. The Imperial and Royal Government finds in the much esteemed note no indication whatever of the intent with which this reference was made. Should, however, the Government of the United States thereby have intended to express an opinion to the effect that a precedent of whatever nature existed for the Imperial and Royal Government with respect to the juridical consideration of the affair in question this Government must, in order to preclude possible misunderstandings, declare that as a matter of course it reserves to itself full freedom of maintaining its own legal views in the discussion of the case of the Ancona.

"In having the honor to have recourse to the kindness of his excellency the ambassador of the United States of America, with the most respectful request to be good enough to communicate the foregoing to the American Government, and on this occasion to state that the Imperial and Royal Government, in no less degree than the American Government and under all circumstances, most sincerely deplores the fate of the innocent victims of the incident in question, the undersigned at the same time avails himself of this opportunity to renew the expression of his most distinguished consideration to his excellency the ambassador.

The American reply:

66

(Signed,

BURIAN." PENFIELD.

THE SECRETARY OF STATE TO AMBASSADOR PENFIELD.

[Telegram.]

No. 1039.]

DEPARTMENT OF STATE, Washington, December 19, 1915.

You are instructed to address a note to the Austro-Hungarian minister of foreign affairs, textually as follows:

"The Government of the United States has received the note of your excellency relative to the sinking of the Ancona, which was de

66

livered at Vienna on December 15, 1915, and transmitted to Washington, and has given the note immediate and careful consideration. 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 Ancona, 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."

Second Austrian reply:

LANSING.

AMBASSADOR PENFIELD TO THE SECRETARY OF STATE.

[Telegram.]

AMERICAN EMBASSY, 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.

"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 Government that a solid shot was immediately fired toward the steamer is

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