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File No. 763.72111/473.

AMBASSADOR GERARD TO THE SECRETARY OF STATE.

[Telegram-Paraphrase..]

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AMERICAN EMBASSY,

Berlin, October 15, 1914p. m. Mr. Gerard transmits the following memorandum, which he says he has received from the German foreign office:

“An official notice appearing in the Westminster Gazette of September 21, 1914, states that the Department of State at Washington has ruled that ships of belligerent nations when equipped with ammunition and armament shall be treated, nevertheless, while in American ports, as merchant ships, provided the armament serves for defensive purposes only. This ruling wholly fails to comply with the principles of neutrality. The equipment of British merchant vessels with artillery is for the purpose of making armed resistance against German cruisers. Resistance of this sort is contrary to international law, because in a military sense a merchant vessel is not permitted to defend itself against a war vessel, an act of resistance giving the warship * * * [omission) with crew and passengers. It is a question whether or not ships thus armed should be admitted into ports of a neutral country at all. Such ships, in any event, should not receive any better treatment in neutral ports than a regular warship, and should be subject at least to the rules issued by neutral nations restricting the stay of a warship. If the Government of the United States considers that it fulfills its duty as a neutral nation by confining the admission of armed merchant ships to such ships as are equipped for defensive purposes only, it is pointed out that so far as determining the warlike character of a ship is concerned the distinction between the devensive and offensive is irrelevant. The destination of a ship for use of any kind in war is conclusive, and restrictions as to the extent of armament affords no guaranty that ships armed for defensive purposes only will not be used for offensive purposes under certain circumstances."

File No. 763.72111/473.

THE ACTING SECRETARY OF STATE TO AMBASSADOR GERARD.

[Telegram.]

DEPARTMENT OF STATE,

Washington, November 17, 1914. Your 515, October 15. The Government of the United States is obliged to dissent from the views of the German Government as expressed in your telegram in regard to the treatment to be accorded armed merchant vessels of belligerent nationality in neutral ports. The practice of a majority of nations and the concensus of opinion by the leading authorities on international law, including many German writers, support the proposition that merchant vessels may arm. for defense without losing their private character and that they may employ such armament against hostile attack without contravening the principles of international law.

The purpose of an armament on a merchant vessel is to be determined by various circumstances, among .which are the number and position of the guns on the vessel, the quantity of ammunition and fuel, the number and sex of the passengers, the nature of the cargo, etc. Tested by evidence of this character the question as to whether an armament on a merchant vessel is intended solely for defensive purposes may be readily answered and the neutral government should regulate its treatment of the vessel in accordance with the intended use of the armament.

This Government considers that in permitting a private vessel having a general cargo, a customary amount of fuel, an average crew, and passengers of both sexes on board, and carrying a small armament and a small amount of ammunition, to enjoy the hospitality of an American port as a merchant vessel, it is in no way violating its duty as a neutral. Nevertheless it is not unmindful of the fact that the circumstances of a particular case may be such as to cause embarrassment and possible controversy as to the character of an armed private vessel visiting its ports. Recognizing, therefore, the desirability of avoiding a ground of complaint this Government, as soon as a case arose, while frankly admitting the right of a merchant vessel to carry a defensive armament, expressed its disapprobation of a practice which compelled it to pass upon a vessel's intended use, which opinion if proven subsequently to be erroneous might constitute a ground for a charge of unneutral conduct.

As a result of these representations no merchant vessels with armaments have visited the ports of the United States since the 10th of September. In fact, from the beginning of the European war but two armed private vessels have entered or cleared from ports of this country, and as to these vessels their character as merchant vessels was conclusively established..

Please bring the foregoing to the attention of the German Government, and in doing so express the hope that they will also prevent their merchant vessels from entering the ports of the United States carrying armaments even for defensive purposes though they may possess the right to do so by the rules of international law.

LANSING. In August of last year, 1916, the status of belligerent submarines in American waters was announced. File No. 763.72111/3958.

MEMORANDUM FROM THE FRENCH EMBASSY."

(Identic memoranda were received from the embassies of Great Britain, Russia, and Japan, and on Sept. 2, 1916, from the Italian Embassy, and on Sept. 11, 1916, from the Portuguese Legation.)

[Translation.]

FRENCH EMBASSY, Washington, August 21, 1916.

MEMORANDUM. In the presence of the development of submarine navigation, under existing circumstances and by reason of what may unfortunately be expected from enemy submarines, the allied governments deem it necessary, in order to protect their belligerent rights and the freedom of commercial navigation, as well as to remove chances of conflict, to exhort the neutral governments, if they have not already done so, to take efficacious measures tending to prevent belligerent submarines, regardless of their use, to avail themselves of neutral · waters, roadsteads, and harbors.

In the case of submarines the application of the principles of international law offers features that are as peculiar as they are novel, by reason, on the one hand, of the facility possessed by such craft to navigate and sojourn in the seas while submerged and thus escape any supervision or surveillance, and, on the other hand, of the impossibility to identify them and determine their national character, whether neutral or belligerent, combatant or innocent, and to put out of consideration the power to do injury that is inherent in their very nature.

It may be said, lastly, that any submarine war vessel far away from its base, having at its disposal a place where it can rest and replenish its supplies, is afforded, by mere rest obtained, so many additional facilities that the advantages it derives therefrom turn that place into a veritable basis of naval operations.

In view of the present condition of things the allied governments hold that,

Submarine vessels must be excluded from the benefit of the rules heretofore accepted in international law regarding the admission and sojourn of war and merchant vessels in the neutral waters, roadsteads, and harbors; any submarine of the belligerents that once enters a neutral harbor must be held there.

The allied governments take this opportunity to warn the neutral powers of the great danger to neutral submarines attending the navi. gation of waters visited by the submarines of belligerents.

File No. 763.72111/3958.

MEMORANDUM TO THE FRENCH EMBASSY. (Same to the Embassies of Great Britain, Russia, and Japan, and, mutatis mutandis, to the Italian Embassy, Sept. 8, 1916, and to the Portuguese Legation, Sept. 13, 1916.)

DEPARTMENT OF STATE,

Washington, August 31, 1916.

MEMORANDUM. The Government of the United States has received the identic memoranda of the Governments of France, Great Britain, Russia, and Japan in which neutral Governments are exhorted “ to take efficacious measures tending to prevent belligerent submarines, regard

less of their use, to avail themselves of neutral waters, roadsteads, and harbors." These Governments point out the facility possessed by such craft to avoid supervision or surveillance or determination of their national character and their power “to do injury that is inherent in their very nature," as well as the “additional facilities" afforded by having at their disposal places where they can rest and replenish their supplies. Apparently on these grounds the allied Governments hold that “ Submarine vessels must be excluded from the benefit of the rules heretofore accepted under international law regarding the admission and sojourn of war and merchant vessels in neutral waters, roadsteads, or harbors; any submarine of a belligerent that once enters a neutral harbor must be held there," and therefore the allied Governments “ warn neutral powers of the great danger to neutral submarines attending the navigation of waters visited by the submarines of belligerents.”

In reply the Government of the United States must express its surprise that there appears to be an endeavor of the allied powers to determine the rule of action governing what they regard as a “novel situation” in respect to the use of submarines in time of war and to enforce acceptance of that rule, at least in part, by warning neutral powers of the great danger to their submarines in waters that may be visited by belligerent submarines. In the opinion of the Government of the United States the allied powers have not set forth any circumstances, nor is the Government of the United States at present aware of any circumstances, concerning the use of war or merchant submarines which would render the existing rules of international law inapplicable to them. In view of this fact and of the notice and warning of the allied powers announced in their memoranda under acknowledgment it is incumbent upon the Government of the United States to notify the Governments of France, Great Britain, Russia, and Japan that, so far as the treatment of either war or merchant submarines in American waters is concerned, the Government of the United States reserves its liberty of action in all respects and will treat such vessels as, in its opinion, becomes the action of a power which may be said to have taken the first steps toward establishing the principles of neutrality and which for over a century has maintained those principles in the traditional spirit and with the high sense of impartiality in which they were conceived.

In order, however, that there should be no misunderstanding as to the attitude of the United States, the Government of the United States announces to the allied powers that it holds it to be the duty of belligerent powers to distinguish between submarines of neutral and belligerent nationality, and that responsibility for any conflict that may arise between belligerent warships and neutral submarines on account of the neglect of a belligerent to so distinguish between these classes of submarines must rest entirely upon the negligent power.

On January 18, 1916, our Government addressed its confidential note to all entente belligerents on the issue of defensively armed merchant vessels. It is as follows:

It is a matter of deepest interest to my Government to bring to an end, if possible, the dangers of life which attend the use of submarines as at present employed in destroying enemy commerce on the high seas, since on any merchant vessel of belligerent nationality there may be citizens of the United States who have taken passage or members of the crew in the exercise of their recognized rights as neutrals. I assume your Government is equally solicitous to protect their nationals from the exceptional hazards which are presented by their passage on merchant vessels through these portions of the high seas.in which undersea craft of the enemy are operating

While I am fully alive to the appalling loss of life among noncombatants, regardless of their sex, which has resulted from the present method of destroying merchant vessels without removing the persons on board to places of safety, and while I view that practice as contrary to those humane principles which should control belligerents in the conduct of their naval operations, I do not feel that a belligerent should be deprived of the proper use of submarines in the invasion of commerce, since those instruments of war have proved their effectiveness in this particular branch of warfare on the high seas.

In order to bring submarine warfare within the general rules of international law and the principles of humanity without destroying their efficiency in the destruction of commerce, I believe that a formula may be found which, though it may require slight modification of the precedent generally followed by nations prior to the employment of the submarine, will appeal to the sense of justice and fairness cf all the belligerents in the present war.

Your Government will understand that in seeking the formula or rule of this nature I approach it of necessity from the point of view of a neutral, but I believe that it will be equally efficacious in preserving the lives of noncombatants on merchant vessels of belligerent nationalities.

My comments on this subject are predicted on the following propositions:

First. A noncombatant has a right to traverse the high seas in a merchant vessel entitled to fly a belligerent flag, to rely upon the observance of the rules of international law and principles of humanity, and if the vessel is approached by the naval vessel of another belligerent the merchant vessel of enemy nationality should not be attacked without being ordered to stop..

Second. An enemy merchant vessel, when ordered to do so by a belligerent submarine, should immediately stop.

Third. Such vessel should not be attacked after being ordered to stop unless it attempts to flee or to resist. In case it ceases to flee or to resist the attack should be discontinued.

Fourth. In the event that it is impossible to place a prize crew on board of an enemy merchant vessel or to convoy her into port the vessel may be sunk, provided the crew and passengers have been removed to a place of safety.

In complying with the foregoing principles, which, in my opinion, embody the principal rule, the strict observance of which will insure the life of a noncombatant on a merchant vessel which is intercepted by a submarine, I am not unmindful of the obstacles which would be met by undersea craft as commerce destroyers.

Prior to the year 1915 belligerent operations against enemy commerce on the high seas had been conducted with cruisers carrying

COIIIIued.

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