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against the proposed policy in a note dated February 10, 1915. It took the position that a belligerent's rights as to neutral ships on the high seas are confined to “visit and search unless a blockade is proclaimed and effectively maintained.” And inasmuch as the proclamation did not provide for that, Germany had no warrant under international law to sink an American ship. A warning as to the consequences in case American ships or lives were destroyed was conveyed to the Imperial Government in strong terms as follows:
If the commanders of German vessels of war should act upon the presumption that the flag of the United States was not being used in good faith and should destroy on the high seas an American vessel or the lives of American citizens, it would be difficult for the Government of the United States to view the act in any other light than as an indefensible violation of neutral rights which it would be very hard indeed to reconcile with the friendly relations now so happily subsisting between the two Governments.
If such a deplorable situation should arise, the Imperial German Government can readily appreciate that the Government of the United States would be constrained to hold the Imperial German Government to a strict accountability for such acts of their naval authorities and to take any steps it might be necessary to take to safeguard American lives and property and to secure to American citizens the full enjoyment of their acknowledged rights on the high seas.
The reply of Von Jagow, German foreign 2 Jour. (9), 86–88.
minister, to Secretary Bryan's note was made on February 16. It reiterated the reasons alleged for Germany's action, namely, that Great Britain was violating international law and that the policy proposed was necessary as an act of defense. He explained that it was far from the intention of the German Government “ever to destroy neutral lives and neutral property, but on the other hand they cannot be blind to the fact that dangers arise through the action to be carried out against England which menace without discrimination all trade within the area of maritime war." If neutral ships should enter this war zone they would “bear their own responsibility for any unfortunate accidents." The German Government would “expressly decline all responsibility for such accidents and their consequences.”
It was pointed out to our Government, however, that the German Government had “announced merely the destruction of enemy merchant vessels found within the area of maritime war."
It was intimated that such accidents were quite likely to happen inasmuch as British vessels were using neutral flags and it would be "very difficult for the German submarines to recognize neutral merchant vessels as such." Besides, it would be dangerous and therefore “not possible in the majority of cases” for the submarines to practice visit and search owing
to the fact that many English merchant ships were armed and the submarine commander who would be conducting the search would "in the case of a disguised English ship” be exposed to destruction.3
The policy announced by the German foreign office would, if enforced, be clearly a violation of international law. The Teutonic allies were not maintaining an effective blockade of the British Isles, as numerous vessels came to and went from the British ports after the announcement of the new policy. Germany, therefore, did not even have the right to seize a neutral vessel on the high seas (including in that term the war zone) unless it carried a cargo of contraband. A belligerent does have, however, the right to seize enemy merchant ships and even to destroy them provided it is not feasible to bring them into a prize court. There is also precedent in favor of the right of a belligerent to destroy in extreme cases neutral vessels carrying contraband; but in all cases no merchant vessel, neutral or enemy, can be destroyed until adequate provision has been made “for the safety of all persons on board.” This view is supported by the unanimous opinion of the authorities on international law and the universal practice of belligerents before 1914. Germany's defense of her policy rested on the
3 Jour. (9), 90–96.
contention that the submarine cannot be effective if international law is observed and, therefore, an exception ought to be made in its favor. Our Government rightfully took the position that the dictates of humanity and the time-honored principles of international law should be upheld even at the cost of submarine efficiency.
The fact that the submarine was placed at a disadvantage by virtue of England's sea methods did not in the least relieve Germany of the obligation to respect the rights accorded to neutrals by international law. Our Government was in no wise responsible for nor obligated to relieve the embarrassment in which the submarine was placed by British practices, even if those practices had overstepped the limits prescribed by international law. It is true that Secretary Bryan did on February 10 send a protest to the British Government against the “general use of the flag of the United States by British vessels traversing” the war zone; but in so doing he did not assume the responsibility of compelling Great Britain to conduct her naval warfare in accordance with the requirements of international law. It ought also to be remembered that while Germany complained of the acquiescence of the
4 Garner, Inter. Law Jour., Vol. 9, 615, 617-19, 624; Vol. 10, 12–31; Rogers, 48–56.
neutral governments in England's alleged violations of international law, she did not charge that the United States had compromised her neutrality by such acquiescence. On the contrary, she stated in this same note that "the exercise of rights and the toleration of wrong on the part of neutrals is limited by their pleasure alone and involves no formal breach of neutrality. The German Government have not in consequence made any charge of formal breach of neutrality." 5 Since the United States, according to the admission of Germany, had been guilty of no breach of neutrality, her rights on the sea were in no sense affected by the alleged ill conduct of Great Britain.
The submarine controversy entered upon the acute stage when Germany proceeded to act upon the policy outlined in her note of February 4. Our Government soon had reason for complaint against Germany because of the destruction of American lives and ships. These minor grievances were all reduced to compara
5 Jour (9), 88–89, 92.
6 A citizen of the United States had lost his life on March 28, when the British steamer Falaba was sunk by a German submarine. The Gulflight, an American vessel, had been sunk by a submarine on May 1, and three American lives were lost. Another American vessel, the William P. Frye, had been sunk on January 28 by a German auxiliary cruiser, but the Imperial Government had on April 5 expressed its willingness in this case to compensate the owners for ship and cargo under the terms of the Prussian-American treaty of 1799. The other cases were still pending when the Lusitania was destroyed. Jour. (9), 130, 181–2.