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$193]

SUBMARINE CONTROVERSY

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guns on board, which were mounted under decks and mast." (b) British merchant vessels were instructed to ram and destroy submarines and hence could not be considered "any longer as 'undefended territory' in the zone of maritime war." (c) That the ship was carrying Canadian troops and munitions. (d) That American citizens on board were not entitled to protection because the company violated American law as passengers on ships which had explosives on board. "The company thereby wantonly caused the death of so many passengers." (e) The sinking of the Lusitania was not due to the torpedo, but to the explosion of the ammunition on board.

June 1, 1915—German note apologizing for the sinking of the Gulflight.

June 8, 1915-Resignation of Secretary Bryan from the State Department because of the President's note, "in which I cannot join without violating what I deem to be an obligation to my country."

June 9, 1915-Second American note on the Lusitania calling "the attention of the Imperial German Government to the grave responsibility which the Government of the United States conceives that it has incurred in this tragic occurrence." "The Government of the United States deems it reasonable to expect that the Imperial Government will adopt the measures necessary to put these principles into practice in respect of the safeguarding of American lives and American ships, and asks for assurances that this will be done."

June 17, 1915-British memorandum defending their interference with the neutral commerce with the United States with . Germany, and with other neutral powers.

June 28, 1915-Sinking of British merchantman Armenian by a German submarine. (Fourth case, 11 Americans killed.)

July 8, 1915-Second German note, defending the sinking of the Lusitania, on the grounds: (a) That "we have been obliged to adopt a submarine warfare to meet the declared intentions of our enemies and the method of warfare adopted by them and the contravention of international law." (b) The British have obliterated all distinctions between merchantmen and war vessels. (c) If the commander of the German submarine which destroyed the Lusitania had caused the crew and passengers to take to the boats before firing the torpedo, this would have meant the sure destruction of his own vessel. (d) If the Lusitania has been spared, thousands of cases of munitions would have been sent to Germany's enemies. (e) The German Government proposes that passengers from the United States to Europe shall travel only on certain designated vessels which shall have a safe conduct from Germany.

July 17, 1915-Attack on the British merchantman Orduna by a German submarine. (Fifth case, ship escaped.)

July 21, 1915-Third American note, reasserting the freedom of the seas to American vessels and citizens, and declaring that "If a belligerent cannot retaliate against an enemy without injuring the lives of neutrals, as well as their property, humanity, as well as justice and a due regard for the dignity of neutral powers, should dictate that the practice be discontinued. If per

sisted in it would in such circumstances constitute an unpardonable offense against the sovereignty of the neutral nation affected."

July 24, 1915-British defense of and insistence upon its system of so-called "blockade," including the stoppage of cargoes bound from the United States to neutral ports.

August 19, 1915-Sinking of the British merchantman Arabic by a German submarine. (Sixth case, 2 Americans killed.)

GERMAN ARGUMENT AS TO SUBMARINES.

August 24, 1915-Communication by the German Ambassador Von Bernstorff: "If Americans should actually have lost their lives, this would naturally be contrary to our intentions. The German Government would deeply regret the fact and begs to tender its sincerest sympathies to the American Government."

September 1, 1915-Memorandum by German Ambassador: "My instructions concerning our answer to your last Lusitania note contains the following passage: ('Liners will not be sunk by our submarines without warning and without safety of the lives of non-combatants, provided that the liners do not try to escape or offer resistance.')"

September 7, 1915-German note on the Arabic in which it ("most deeply regrets that lives were lost through the action of the commander. It particularly expresses this regret to the Government of the United States on account of the death of American citizens. The German Government is unable, however, to acknowledge any obligation to grant indemnity in the matter, even if the commander should have been mistaken as to the aggressive intentions of the Arabic”).

October 5, 1915-Apology of the German Government for the Arabic, including the phrase: "The attack of the submarine, therefore, was undertaken against the instructions issued to the commander. The Imperial Government regrets and disavows this act and has notified Commander Schneider accordingly.

"Under these circumstances my Government is prepared to pay an indemnity for the American lives which to its deep regret have been lost on the Arabic. I am authorized to negotiate with you about the amount of this indemnity."

ANCONA CASE.

November 7, 1915-Sinking of the Italian merchantman Ancona by an Austrian submarine. (Seventh case, 9 American lives lost.)

December 6, 1915-American note protesting against the sinking of the Ancona and demanding an indemnity. "The Government of the United States expects that the Austro-Hungarian Government, appreciating the gravity of the case, will accede to its demand promptly; and it rests this expectation on the belief that the Austro-Hungarian Government will not sanction or defend an act which is condemned by the world as inhumane and barbarous, which is abhorrent to all civilized nations and which has caused the death of innocent American citizens."

December 15, 1915-Austro-Hungarian note denying that it had any official information that the United States had protested against the sinking of submarines.

§§193-194]

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December 29, 1915-Austro-Hungarian note announcing that the officer of the submarine had been punished "for exceeding his instructions," and intimating the willingness to pay an indemnity.

December 30, 1916–Sinking of the British merchantman Persia in the Mediterranean, probably by a submarine. (Eighth case, loss of an American Consul.)

SUSSEX CASE.

March 24, 1916–Sinking of the British merchantman Sussex in the British Channel by a German submarine. (Ninth case, several Americans injured.)

April 18, 1916-Note of Secretary Lansing protesting against the sinking of the Sussex, which the United States Government considered "only an instance, even though one of the most extreme and most distressing instances, of the deliberate method and spirit of indiscriminate destruction of merchant vessels of all sorts, nationalities and destinations which have become more and more unmistakable as the activity of German undersea vessels of war has in recent months been quickened and extended. "The use of submarines for the destruction of an enemy's commerce is, of necessity, because of the very character of the vessels employed and the very methods of attack which their employment of course involves, utterly incompatible with the principles of humanity, the long-established and incontrovertible rights of neutrals, and the sacred immunities of non-combatants. "Unless the Imperial Government should now immediately declare and effect an abandonment of its present methods of submarine warfare against passenger and freight-carrying vessels, the Government of the United States can have no choice but to sever diplomatic relations with the German Empire altogether."

(New York Times Magazine.)

(c) [§194] German Position as to Armed Ships.

BY GERMAN FOREIGN OFFICE. (October 15, 1914.)

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

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 defensive 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 afford no guarantee that ships armed for defensive purposes only will not be used for offensive purposes under certain circumstances.

(Am. Journal of International Law, Suppl. 238.)

(d) [§195] American Position on Armed Ships.

BY ACTING SECRETARY OF STATE ROBERT LANSING

(November 7, 1914.)

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 consensus 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 acccordance 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.

§§195-196]

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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.

(Am. Journal of International Law, IX, Spec. Suppl. 238-240.)

(e) [§196] German War Zone Order.

BY CHIEF OF ADMIRAL STAFF VON POHL (February 4, 1915).

PROCLAMATION.

1. The waters surrounding Great Britain and Ireland, including the whole English Channel, are hereby declared to be war zone. On and after 18th of February, 1915, every enemy merchant ship found in the said war zone will be destroyed without its being always possible to avert the dangers threatening the crews and passengers on that account.

2. Even neutral ships are exposed to danger in the war zone, as in view of the misuse of neutral flags ordered on January 31 by the British Government and of the accidents of naval war, it cannot always be avoided to strike even neutral ships in attacks that are directed at enemy ships.

3. Northward navigation around the Shetland Islands, in the eastern waters of the North Sea and in a strip of not less than 30 miles width along the Netherlands coast is in no danger.

NOTE.

The time has come for Germany also to invoke such vital interests. It therefore finds itself under the necessity, to its regret, of taking military measures against England in retaliation of the practice followed by England. Just as England declared the whole North Sea between Scotland and Norway to be comprised within the seat of war, so does Germany now declare the waters surrounding Great Britain and Ireland, including the whole English Channel, to be comprised within the seat of war, and will prevent by all the military means at its disposal all navigation by the enemy in those waters. To this end it will endeavor to destroy, after February 18 next, any merchant vessels of the enemy which present themselves at the seat of war above indicated, although it may not always be possible to avert the dangers which may menace persons and merchandise. Neutral powers are accordingly forewarned not to continue to entrust their crews, passengers or merchandise to such vessels. Their attention is furthermore called to the fact that it is of

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