Another similar case was the torpedoing on May 25, 1915, of the American vessel Nebraskan while proceeding in ballast from Liverpool to the United States. The commander of the submarine claimed to have mistaken it for an English vessel because of insufficient markings. The German government expressed regret for the act and offered to make compensation to the owners. The captain, however, testified that the ship had painted on its side in large letters the words, "Nebraskan of New York," which must have been seen by the submarine commander.

§ 485. Case of the Frye. A case which attracted particular attention, and which was the subject of prolonged diplomatic controversy between the American and the German governments, was the sinking of the William P. Frye on January 28, 1915, by the German cruiser Prinz Eitel Friedrich. The Frye, while proceeding on a voyage from Seattle to Queenstown, Falmouth, and Plymouth with a cargo consigned "to order," was stopped, a searching party was sent aboard, and after examining the papers the commander directed that the cargo be thrown overboard. Subsequently, "after having tried to remove the cargo," the commander took the papers and crew aboard and sunk the ship.

In a note dated March 31, 1915, the secretary of state after reciting briefly the facts of the case and without entering into an argument concerning the illegality of the sinking, presented a bill to the German government for $228,059.54 to cover the value of the vessel, freight, travelling and other expenses of the captain and its agents, the personal effects of the captain, and damages on account of the loss of the ship. In a note dated April 5, the German government replied that the commander had "acted in accordance with the principles of international law as laid down in the Declaration of London and the German prize regulations." The ports to which the vessel was destined, it was asserted, were "strongly fortified" and were moreover serving as bases for the British naval forces; consequently the cargo was to be considered as destined for the use of the armed forces of the enemy, and since it was not possible to take the prize into a German port without exposing the captor to danger

1 Memorandum of the German foreign office delivered to Mr. Gerard July 12,

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271

or without impeding the success of his operations, he was justified in destroying it, and this he did after taking off the papers and the crew.

§ 486. Case of the Maria. The Maria was a Dutch vessel laden with a cargo of wheat, which had sailed from Portland, Oregon, before the outbreak of the war. Both the ship and cargo were sunk by the Karlsruhe in September, 1914. Part of the cargo was consigned "to order" to Belfast and part to Dublin. The legality of the sinking was upheld by the superior prize court at Hamburg on the ground that the cargo was conditional contraband destined for the use of the armed forces of the enemy, the captor being unable to take the prize into a home port owing to his inability to spare a prize crew and because of the risk of recapture due to the proximity of the enemy's war-ships. The Imperial prize court at Berlin affirmed the decision of the lower court. Article 113 of the German prize code authorizes the destruction of a neutral vessel which is liable to condemnation whenever the taking of it into port would subject the captor vessel to danger or would impede the success of the operations in which it is for the time engaged. Various circumstances are held to establish such a presumption, such as the proximity of the enemy's forces, lack of an adequate prize crew, etc.1

§ 487. Case of the Medea. Still another notable case which fairly illustrates German practice and interpretation of the law arose in connection with the sinking on March 25, 1915, by a German submarine of the Dutch steamer Medea laden with a cargo of oranges consigned to private parties in London. The government of the Netherlands formally protested against the sinking of the Medea on the ground "that the destruction of a neutral prize is an act which international law has never sanctioned." It was true, said the Dutch note, that the Declaration of London recognized it, but the Declaration had never been ratified. Even admitting that it was in force, the destruction of the Medea was unlawful, because the Declaration affirmed the general principle that a captor must take his prize in for adjudication, and it admitted the right of destruction only under exceptional conditions, such as were not present in 1 Huberich and King, The German Prize Code, p. 66; Grotius Annuaire, 1917, pp. 73 ff.

the case of the Medea. The signatories of the Declaration, it was affirmed, never intended to sanction the employment of submarines against neutral commerce, because they do not possess the facilities for taking care of crews and passengers. In the present case the crews were put into small life-boats and abandoned in the open sea. Finally, the cargo of the Medea consisted of oranges, which could not be regarded as subsistence for armies and was not therefore contraband of war; in any case, they were destined for the use of the civil population of England and not for the armed forces. To this remonstrance the German government replied that the contention of the Dutch government that the right to destroy neutral prizes was not sanctioned by international law, was contrary to the facts. It called attention to the rule of the Declaration of London which admitted the right of destruction in certain cases and pointed out that, although it had never been ratified, the Declaration itself affirmed that the rules which it laid down corresponded in substance to the generally recognized principles of international law, and that practice in recent wars fully sustained the right of destruction under certain conditions. The conditions justifying destruction, it was added, were fully present in the case at issue. The capture took place in close proximity to the English coast and in the presence of superior naval forces of the enemy, so that an attempt to take the prize into a German port would have exposed the German submarine to grave danger and possible destruction. Regarding the character of the cargo, the German government denied the Dutch contention that oranges could not be regarded as "provisions" (vivres) and asserted that it had evidence that the British government was in fact furnishing its troops with fruits of this kind. As to the contention that the cargo was intended for the civil population, the German government replied that for the captor it was sufficient that its destination was an enemy fortified port which at the same time served as a base of supplies for the army. London was clearly such a place; its approaches were defended by mines and batteries; it possessed docks, arsenals, and warehouses, and it was surrounded by a ring of forts, redoubts, and batteries. The legality of the sinking of the Medea was upheld by the German prize court at Hamburg, and the decision was affirmed by the superior

SINKING OF SPANISH VESSELS

273 prize court of Berlin. The Dutch government continued to protest against the decision as contrary to international law and again affirmed that the destruction of a neutral prize is under all circumstances an illegal act. Finally, it proposed to submit the differences between the two governments to the decision of an international tribunal, but this proposal the German government declined to accept.1

§ 488. Losses of the Spanish Merchant Marine. During the first year of the war Spanish losses were rare, but with the inauguration of submarine warfare in the Mediterranean, the sinkings of Spanish ships became frequent, and in June, 1917, it was stated that one-seventh of the entire Spanish merchant marine had been sunk by Teutonic submarines. During the spring and summer of 1918 the German war upon Spanish commerce was carried to such lengths that a crisis in the relations of the two countries was precipitated, and for a time the Spanish government appears to have been on the point of breaking off diplomatic relations with Germany. In August, 1918, the cabinet issued a statement in which it asserted that German submarines had sunk more than 20 per cent of the Spanish merchant marine; that more than one hundred Spanish sailors

1 The correspondence between the two governments regarding the sinking of the Medea may be found in a Dutch white book entitled Overzicht der Voornaamste van July 1914 tot October 1915, etc., published by the Dutch ministry of foreign affairs (pp. 19 ff.), and a Dutch orange book entitled Mededeelingen van den minister van Butenlandsche Zaken aan de Staten-Generaal July-Dec. 1916, pp. 11 ff. Cf. also the Rev. Gen. de Droit Int. Pub., 1917, Docs., pp. 17, 90, 95, 98.

Other notable sinkings of Dutch ships were those of the Batavier V, the Zaanstroom, the Sidney Albert, the Katwijk, the Rijndijk and the Blommersdijk. In the three last-mentioned cases the German government admitted that the vessels were wrongfully torpedoed. In the case of the Batavier V the German prize court repudiated the doctrine of the "older literature that prize courts are bound to apply international law even when it is not in conformity with the municipal law," and asserted that the German prize courts must judge according to the law of their own State. This law was contained in the prize ordinance of September 13, 1909.

"International law," said the court, “only, lays down rights and duties as between different States. The prize courts, when judging of the legality of prize actions, can take general international principles only into account when the prize regulations contain no instructions and, therefore, tacitly refer to the principles of international law. Therefore, the question whether an instruction of the prize regulations agrees with general international law is not for the prize court to decide. If a contradiction in this connection is asserted, the point in controversy is to be settled in another manner."

For a review of the German decisions in respect to the destruction of Dutch Merchant Vessels see the Grotius Annuaire International, 1916, pp. 104 ff., and 1917, pp. 68 ff.

VOL. II-18

had lost their lives in consequence of the sinkings, and that many others had been exposed to suffering from having been abandoned in life-boats at sea. "Ships needed exclusively for Spanish use," it added, "have been torpedoed without the slightest pretext." 1

The Spanish government protested in a succession of notes to the German government and pointed out that Germany had derived special benefit from Spain's policy of neutrality, that the Spanish government had received and cared for numerous German refugees from the Cameroons, and that it had undertaken and faithfully performed the task of looking after German interests in various belligerent countries. In return for these services and evidences of friendship, Spanish ships were torpedoed in large numbers without reason and Spanish seamen drowned or left to endure tortures from exposure in small life-boats at sea. As a last resort the Spanish government finally decided to seize a number of German merchant vessels which had taken refuge in the ports of Spain at the outbreak of the war 3 and use them in Spanish commerce to replace those destroyed by German submarines. There was no thought, however, of confiscating them; the government of Spain was actuated only by the necessity of finding vessels to carry on its commerce, and it informed the German government that the solution determined upon was intended to be only temporary, and at the conclusion of the war the vessels would be restored to Germany with adequate compensation for all damages. The German government, however, threatened to take action against Spain in case

1 Text in New York Times of August 22, 1918. The Times in an editorial of the same date stated that the Germans had sunk eighty-one Spanish ships.

? The United States war trade board in March, 1918, charged that the German policy of "ruthlessness" against Spanish ships was inaugurated for the purpose of preventing the United States from sending food to Switzerland. The sinking of the Spanish steamer Sardinero was cited as proof of this charge. The Sardinero, while carrying a cargo of grain intended for Switzerland and while en route to a port to which the German government had promised to leave open a safe passage, was torpedoed outside the barred zone. The vessel was sunk after the submarine commander had made an examination of the ship's papers and satisfied himself of the nature and destination of the cargo, so that the plea of "mistake" was not admissible. "The evident intent and result of the act," the war trade board declared, "was to prevent Switzerland, whose urgent and immediate need of food is well known to Germany, from receiving American grain."

There were at the time ninety German ships in Spanish ports.

Text in the New York Times, August 22, 1918, and the Paris Journal, same date.