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with the practice followed in the great wars of history, to arm a cer. tain number of British merchant ships for self-defense only.
The practice of arming ships in self-defense is very old and has been ordered by Royal proclamation in England from early in the seventeenth century. During the Napoleonic wars the right to arm in self-defense was recognized by British and United States prize courts in the cases of the Catherine Elizabeth (British) and the Nereide (United States). The right of a merchant ship of a belligerent to carry arms and resist capture is clearly and definitely laid down in modern times. The right of resistance of merchant vessels is recognized by the United States Naval War Code, by the Italian Code for Mercantile Marine, and by the Russian Prize Regulations. Writers of authority in many European countries also recognize the right. To mention a German authority, it may be stated that the late Dr. Perels, at one time legal adviser to the German Admiralty, quotes with approval Article 10 of the United States Naval War Code, which states “the prisoners of merchant vessels of an enemy who in self-defense and in protection of the vessel placed in their charge resist an attack, are entitled to the status of prisoners of war.” The Institute of International Law at its meeting in 1913 prepared and adopted a manual of the laws of naval warfare, Article 10 of which expressly declared that private ships are allowed to employ force to defend themselves against the attack of an enemy ship.
A merchant vessel armed purely for self-defense is therefore en. titled under international law to enjoy the status of a peaceful trading ship in neutral ports, and His Majesty's Government do not ask for better treatment for British merchant ships in this respect than might be accorded to those of other powers. They consider that only those merchant ships which are intended for use as cruisers should be treated as ships of war and that the question whether a particular ship carrying an armament is intended for offensive or defensive action must be decided by the simple criterion whether she is engaged in ordinary commerce and embarking cargo and passengers in the ordinary way. If so, there is no rule in international law that would justify such vessel, even if armed, being treated otherwise than as a peaceful trader. File No. 763.72111/411.
MEMORANDUM FROM THE BRITISH IMBASSY.
Washington, September 9, 1914. In a memorandum of to-day's date the British Ambassador has set forth the grounds upon which His Majesty's Government hold that British merchant vessels which are armed for defensive purposes only are entitled to be treated as peaceful trading vessels.
In urging this view upon the consideration of the United States Government the British Ambassador is instructed to state that it is believed that German merchant vessels with offensive armanent have escaped from American ports, especially ports in South Amarica, to prey upon British commerce in spite of all the precautions taken. German cruisers in the Atlantic continue, by one means or another, to obtain ample supplies of coal shipped to them from neutral ports, and if the United States Government take the view that British merchant vessels which are bona fide engaged in commerce and carry guns at the stern only are not permitted purely defensive armament, unavoidable injury may ensue to British interests and indirectly also to United States trade which will be deplorable..
File No. 763.72111/226a.
THE ACTING SECRETARY OF STATE TO THE GERMAN AMBASSADOR..
(Same to the British, French, and Japanese ambassadors in Wash
ington, and the Belgian minister.)
DEPARTMENT OF STATE,
Washington, September 19, 1914. DEAR MR. AMBASSADOR: I am inclosing for your information two memoranda which the department has issued to-day and which define the general rules which this Government will follow in dealing with cases involving the status of armed merchant vessels visiting American ports, and with cases of merchant vessels suspected of carrying supplies to belligerent warships from American ports. I am, etc.,
ROBERT LANSING. [Inclosure 1.)
THE STATUS OF ARMED MERCHANT VESSELS.
A. A merchant vessel of belligerent nationality may carry an armament and ammunition for the sole purpose of defense without acquiring the character of a ship of war.
B. The presence of an armament and ammunition on board a merchant vessel creates a presumption that the armament is for offensive purposes, but the owners or agents may overcome this presumption by evidence showing that the vessel carries armament solely for defense.
C. Evidence necessary to establish the fact that the armament is solely for defense and will not be used offensively, whether the armament be mounted or stowed below, must be presented in each case independently at an official investigation. The result of the investigation must show conclusively that the armament is not intended for, and will not be used in, offensive operations.
Indications that the armament will not be used offensively are: 1. That the caliber of the guns carried does not exceed 6 inches. 2. That the guns and small arms carried are few in number. 3. That no guns are mounted on the forward part of the vessel. 4. That the quantity of ammunition carried is small.
5. That the vessel is manned by its usual crew, and the officers are the same as those on board before war was declared.
6. That the vessel intends to and actually does clear for a port lying in its usual trade route, or a port indicating its purpose to continue in the same trade in which it was engaged before war was declared.
7. That the vessel takes on board fuel and supplies sufficient only to carry it to its port of destination, or the same quantity substantially which it has been accustomed to take for a voyage before war was declared.
8. That the cargo of the vessel consists of articles of commerce unsuited for the use of a ship of war in operations against an enemy.
9. That the vessel carries passengers who are as a whole unfitted to enter the military or naval service of the belligerent whose flag the vessel flies, or of any of its allies, and particularly if the passenger list includes women and children.
10. That the speed of the ship is slow.
D. Port authorities, on the arrival in a port of the United States of an armed vessel of belligerent nationality, claiming to be a merchant vessel, should immediately investigate and report to Washington on the foregoing indications as to the intended use of the armament, in order that it may be determined whether the evidence is sufficient to remove the presumption that the vessel is, and should be treated as, a ship of war. Clearance will not be granted until authorized from Washington, and the master will be so informed upon arrival.
E. The conversion of a merchant vessel into a ship of war is a question of fact which is to be established by direct or circumstantial evi. dence of intention to use the vessel as a ship of war.
DEPARTMENT OF STATE, September 19, 1914.
MERCHANT VESSELS SUSPECTED OF CARRYING SUPPLIES TO BELLIGERENT
1. A base of operations for belligerent warships is presumed when fuel or other supplies are furnished at an American port to such warships more than once within three months since the war began, or during the period of the war, either directly or by means of naval tenders of the belligerent or by means of merchant vessels of belligerent or neutral nationality acting as tenders.
2. A common rumor or suspicion that a merchant vessel laden with fuel or other naval supplies intends to deliver its cargo to a belligerent: warship on the high seas, when unsupported by direct or circumstantial evidence, imposes no duty on a neutral Government to detain such merchant vessel even for the purpose of investigating the rumor or suspicion, unless it is known that the vessel has been previously engaged in furnishing supplies to a belligerent warship.
3. Circumstantial evidence supporting a rumor or suspicion that a merchant vessel intends to furnish a belligerent warship with fuel or other supplies on the high seas is sufficient to warrant detention of the vessel until its intention can be investigated in the following cases:
(a) When a belligerent warship is known to be off the port at which the merchant vessel is taking on cargo suited for naval supplies, or when there is a strong presumption that the warship is off the port.
(b) When the merchant vessel is of the nationality of the belligerent whose warship is known to be off the coast.
(c) When a merchant vessel which has on a previous voyage between ports of the United States and ports of other neutral States failed to have on board at the port of arrival a cargo consisting of naval supplies shipped at the port of departure seeks to take on board a similar cargo.
(d) When coal or other supplies are purchased by an agent of a belligerent Government and shipped on board a merchant vessel which does not clear for a port of the belligerent but for a neighboring neutral port.
(e) When an agent of a belligerent is taken on board a merchant vessel having a cargo of fuel or other supplies and clearing for a neighboring neutral port.
4. The fact that a merchant vessel, which is laden with fuel or other naval supplies, seeks clearance under strong suspicion that it is the intention to furnish such fuel or supplies to a belligerent warship is not sufficient ground to warrant its detention, if the case is isolated and neither the vessel nor the warship for which the supplies are presumably intended has previously taken on board similar supplies since the war began or within three months during the period of the war.
5. The essential idea of neutral territory becoming the base for naval operations by a belligerent is repeated, departure from such territory by a naval tender of the belligerent or by a merchant vessel in belligerent service which is laden with fuel or other naval supplies.
6. A merchant vessel, laden with naval supplies, clearing from a port of the United States for the port of another neutral nation, which arrives at its destination and there discharges its cargo, should not be detained if, on a second voyage, it takes on board another cargo of similar nature.
In such a case the port of the other neutral nation may be a base for the naval operations of a belligerent. If so, and even if the fact is notorious, this Government is under no obligation to prevent the shipment of naval supplies to that port. Commerce in munitions of war between neutral nations can not, as a rule, be a basis for a claim of unneutral conduct, even though there is a strong presumption or actual knowledge that the neutral State in whose port the supplies are discharged is permitting its territory to be used as a base of supply for belligerent warships. The duty of preventing an unneutral act rests entirely upon the neutral State whose territory is being used as such a base.
In fact, this principle goes further in that, if the supplies were shipped directly to an established naval base in the territory or under the control of a belligerent, this Government would not be obligated by its neutral duty to limit such shipments or detain or otherwise interfere with the merchant vessels engaged in that trade. A neutral can only be charged with unneutral conduct when the supplies furnished to a belligerent warship or furnished directly to it in a port of the neutral or through naval tenders or merchant vessels acting as tenders departing from such port.
7. The foregoing propositions do not apply to furnishing munitions of war included in absolute contraband, since in no event can a belligerent warship take on board such munitions in neutral waters,
nor should it be permitted to do so indirectly by means of naval tenders or merchant vessels acting as such tenders.
DEPARTMENT OF STATE, September 19, 1914.
File No. 763.72111/156.
THE ACTING SECRETARY OF STATE TO THE BRITISH AMBASSADOR.
DEPARTMENT OF STATE,
Washington, September 26, 1914. EXCELLENCY: I have the honor to acknowledge the receipt of your note of the 4th instant, in which, with reference to the presence in American ports of the British armed merchant vessels Adriatic and Merion, you advise the department of the receipt of a dispatch from Sir Edward Grey, in which he states that His Majesty's Government holds the view that it is not in accordance with neutrality and international law to detain in neutral ports merchant vessels armed with purely defensive armaments.
In reply I have the honor to state that this Government has had the matter of the status of armed merchant vessels under consideration, and that it has already made a public announcement thereon.
In this relation I have also the honor to acknowledge the 'receipt of your embassy's memorandum of the 7th instant, announcing the departure of the Adriatic from New York, and pointing out that, as she had no war material on board and carried no army reservists, these data bear out the assurances that the Adriatic was bound on a peaceful commercial voyage and that her armament was destined solely for defensive purposes. I have, etc.,
File No. 763.72111/227.
THE SECRETARY OF STATE TO AMBASSADOR GERARD.
DEPARTMENT OF STATE,
Washington, September 29, 1914. Sir: I transmit herewith, for the information of the German Government, copies of two memoranda issued by this department which define the general rules which the Government of the United States will follow in dealing with cases involving the status of armed merchant vessels visiting American ports and with cases of merchant vessels suspected of carrying supplies to belligerent warships from American ports.
Copies of these memoranda were also sent to the German ambassador here, and it is at his request that the copies herewith are sent for communication to his Government.
I am, etc.