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 intention 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 refuse 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.

"BURIAN." 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.

[Telegram.]

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:

Not

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. 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 stearner 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,

and indicates that ship was not headed toward the submarine even up to the time when the submarine ceased firing. The captain states that the submarine appeared to be maneuvering so as to direct her shots from ahead of the steamer. The submarine fired approximately 12 shots. The majority of the shots were fired after the ship had stopped and had swung broadside, and while, as even the commander of submarine admits, the steamer was flying the American flag. The captain of the steamer denies that he advised the commander of the submarine that the damage to the steamer was insignificant. He states that he advised him that steamer had been damaged, but that he not then had an opportunity to ascertain the extent of the damage. The seaman who was struck by a fragment of shell sustained severe flesh wounds.

If the ship had intended to ram the submarine, she would not have stopped her engines, and this must have been evident to the submarine commander. Naval authorities here agree that there could have been no donger of the ship ramming the submarine until it was headed straight for the submarine and was under power, and even then the submarine could have so maneuvered as to avoid collision. The Petrolite was 2 miles away from the submarine. The engines and funnel of the Petrolite were at the stern, and from the general appearance of the ship no experienced naval officer could have believed that it had opportunity or sufficient speed to attack, even if it had been steaming directly toward the submarine. The conduct of the submarine commander showed lack of judgment, self-control, or willful intent amounting to utter disregard of the rights of a neutral. According to the sworn statements of the captain of steamer and a seaman who accompanied him to the submarine, the commander of the latter stated that he mistook the steamer for a cruiser. This statement is at variance with the statement in the Austro-Hungarian Government's note that the captain of the submarine asserted a false maneuver on the part of the steamer prompted the submarine to continue to fire.

The captain of the steamer swears that he informed the commander of the submarine that he had only sufficient provisions to reach the port of Algiers, and that he would deliver provisions only under compulsion. He states positively in his affidavit and in conversation with officials of the department that he did not give provisions readily nor did he say it was the duty of one seaman to help another, and that he refused payment because he felt that he was being compelled to deliver food in violation of law. The statement of the captain of the Petrolite is entirely at variance with the report of the submarine commander. The correctness of the captain's opinion that the wounded seaman was held as a hostage to guarantee the delivery of food seems clear. Obviously the commander of the submarine had no right to order the seaman to remain on board. The fact that this order was given showed that the commander insisted that food was to be delivered to him, otherwise the seaman would naturally have accompanied the captain back to his vessel. The outrageous conduct of the submarine commander and all the circumstances of the attack on the Petrolite warranted the captain in regarding himself as being compelled in order to avoid further violence to deliver food to the commander of the submarine.

1

In the absence of other and more satisfactory explanation of the attack on the steamer than that contained in the note addressed to you by the foreign office, the Government of the United States is compelled to regard the conduct of the commander of the submarine in attacking the Petrolite and in coercing the captain as a deliberate insult to the flag of the United States and an invasion of the rights of American citizens, for which this Government requests that an apology be made; that the commander of the submarine be punished; and that reparation be made for the injuries sustained by the payment of a suitable indemnity.

Please communicate with foreign office in sense of foregoing.

You may add that this Government believes that the AustroHungarian Government will promptly comply with these requests, in view of their manifest justness and the high sense of honor of that Government, which would not, it is believed, permit an indignity to be offered to the flag of a friendly power or wrongs to its nationals by an Austro-Hungarian naval officer without making immediate and ample amends.

LANSING.

About this time the question of the armed merchantmen came up. The custom of permitting merchant vessels to arm for defense was contested by Germany. This matter had received careful and detailed attention soon after the war began, as shown by the following diplomatic correspondence with both England and Germany:

DEFENSIVE ARMAMENT AND THE RIGHT OF DEPARTURE FROM NEUTRAL PORTS OF BELLIGERENT MERCHANT SHIPS TO ARM AT SEA.

File No. 763.72111/85.

No. 252.]

THE BRITISH CHARGÉ TO THE SECRETARY OF STATE.

BRITISH EMBASSY, Washington, August 4, 1914.

SIR: In view of the state of war now existing between Great Britain and Germany, I have the honor, under instructions from His Majesty's principal secretary of state for foreign affairs, to make the following communication to you in respect to the arming of any merchant vessels in neutral waters.

As you are aware, it is recognized that a neutral government is bound to use due diligence to prohibit its subjects or citizens from the building and fitting out to order of belligerent vessels intended for warlike purposes and also to prevent the departure of any such vessel from its jurisdiction. The starting point for the universal recognition of this principle was the three rules formulated in article 6 of the treaty between Great Britain and the United States of America for the amicable settlement of all causes of differences between the two countries, signed at Washington on May 8, 1871. These rules, which His Majesty's Government and the United States Government agreed to observe as between themselves in future, are as follows:

"A neutral government is bound

"First. To use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has reason

able ground to believe is intended to cruise or to carry on war against a power with which it is at peace; and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction to warlike use. Secondly. Not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men.

66

Thirdly. To exercise due diligence in its own ports and waters, and, as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties."

The above rules may be said to have acquired the force of generally recognized rules of international law, and the first of them is reproduced almost textually in Article VIII of The Hague convention No. 13 of 1907 concerning the rights and duties of neutral powers in case of maritime warfare, the principles of which have been agreed to by practically every maritime State.

It is known, however, that Germany, with whom Great Britain is at war, favors the policy of converting her merchant vessels into armed ships on the high seas, and it is probable, therefore, that attempts will be made to equip and dispatch merchantmen for such conversion from the ports of the United States.

It is probable that, even if the final completion of the measures to fit out merchantmen to act as cruisers may have to be effected on the high seas, most of the preliminary arrangements will have been made before the vessels leave port, so that the warlike purpose to which they are to be put after leaving neutral waters must be more or less manifest before their departure.

In calling your attention to the above-mentioned "Rules of the treaty of Washington" and The Hague convention, I have the honor to state that His Majesty's Government will accordingly hold the United States Government responsible for any damages to British trade or shipping, or injury to British interests generally, which may be caused by such vessels having been equipped at, or departing from, United States ports.

I have, etc.,

File No. 763.72111/87.

COLVILLE BARCLAY.

THE BRITISH CHARGÉ D'AFFAIRES TO THE SECRETARY OF STATE.

No. 259.]

BRITISH EMBASSY, Washington, August 9, 1914.

SIR: With reference to my note No. 252 of the 4th instant, I have the honor to inform you that I have now received instructions from Sir Edward Grey to make a further communication to you in explanation of the position taken by His Majesty's Government in regard to the question of armed merchantmen.

As you are no doubt aware, a certain number of British merchant vessels are armed, but this is a precautionary measure adopted solely for the purpose of defense, which, under existing rules of international law, is the right of all merchant vessels when attacked.