Harrisburg telegraph. (Harrisburg, Pa.) 1879-1948, August 05, 1915, Page 3, Image 3

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    CONTROVERSY OVER
FRYE IS UNSETTLED
[Continued From First Page.]
Text of German Note
Following Is the German note In
full:
"The undersigned has the honor to
inform his excellency, Mr. James W.
Gerard, ambassador of the United
States of America. In reply to the note
of the 26th ultimo, foreign office. No.
3990. on the subject of the sinking of
the American merchant vessel William
P. Frye by the German auxiliary
cruiser Prinz Eitel Friedrich, that the
w.points of view brought out in the note
4iave been careTully examined by the
imperial German government. This
examination has led to the following
conclusions:
"The government of the United
States believes that it is incumbent
upon it to take the position that the
treaty rights to which America is en
titled as contained in article 12 of the
Prussian-American treaty of amity and
commerce of September 10, 1785, in
article 13 of the Prussian-American
treaty of amity and commerce of July
11, 1799. were violated by the sinking
of the William P. Frye. It interprets
these articles as meaning that a mer
chantman of ithe neutral contracting
party carrying contraband cannot in
any circumstances be destroyed by a
warship of the belligerent contracting
party and that the sinking of the Wil
liam P. Frye was, therefore, in vio
lation of the treaty even if her cargo
should have consisted of contraband,
which it leaves outside of the discus
sion.
"The German government cannot
accept this view. It insists as hereto
fore that the commander of the Ger
man auxiliary cruiser acted in the legal
exercise of the rights of control of
trade of contraband enjoyed by war
ships of belligerent nations and that
the treaty stipulations mentioned
merely oblige the German govern
ment to make compensation for the
damage sustained by the American
citizens concerned.
"It is not disputed by the American
government that, according to general
principles of international law, a bel
ligerent is authorized in sinking neu
tral vessels under almost any condition
for carrying contraband. As is well j
known, those principles laid
down in articles 49 and 50 of the j
Declaration of London and were rec
ognized at that time by the duly em- j
powered delegates of all the nations I
which participated in the conference, I
including the American delegates to I
the declarative of existing international '
law (see preliminary clause of the
Declaration of London); moreover, at
the beginning of the present war the
American government proposed to the
belligerent nations to ratify the Decla
ration of London and give its pro
\ Uions formal validity also.
Justify Sinking ol Ship
"The German government has al
ready explained in its note of April 4
last for what reasons it considers that
the conditions justifying the sinking
under international law were present
in the case of the William P. Frye.
The cargo consisted of conditional con
traband. the destination of which for
the hostile armed forces was to be
presumed in the circumstances; no
proof to overcome this presumption
has been furnished. More than halt
the cargo of the vessel was contra
band, so that the vessel was liable to '
confiscation.
"The attempt to bring the Ameri
can vessel into a German port would
have duly imperiled the German vessel
in the given situation of the war and
at any rate practically defeated the
success of her further operation. Thus
the authority for sinking, the vessel
was given, according to general prin
ciples of international law.
"There only remains, then, to be
examined the question how far the
Prussian-American treaty stipulations
modify these principles of Inter
national law.
"In this connection Article 12 of
the treaty of 1785 provides that In the
event of a war between one of the con
tracting parties with another power,
the free commerce and intercourse of
the nationals of the party remaining
neutral with the belligerent powers
shall not be interrupted, but that, on
the contrary, the vessel of the neutral
party may navigate freely to and from
the ports of the belligerent powers,
even neutralizing enemy goods on
board thereof. However, this article
merely formulates general rules for
the freedom of maritime intercourse
and leaves the question of contraband '
untouched; the specific stipulations on |
this point are contained in the follow
ing article, which is materially iden- |
tilled with Article 13 of the treaty of l
1799. now in force.
"The plain intention of Article 13 is'
to establish a reasonable compromise 1
between the military interests of the j
belligerent contracting parties and the
commercial interest of the neutral j
party. On the one hand the belligerent
party is to have the right to prevent !
the transportation of war supplies to !
his adversary even when carried on
vessels of the neutral party; on the
other hand, the commerce and navi
gation of the neutral party is to be
interfered with a slittle as possible bv ;
the measures necessary for such pre
vention and reasonable compensation
is to be paid for any inconvenience
and damage which may nevertheless
ensue from the proceeding of the bel
ligerent party.
Carrying War Supplies
•♦Article 13 recites the following
means whereby the belligerent party
can prevent the vessels of the neutral
party from carrying war supplies to
his adversary. The detention of the
ship and cargo for such length of time :
as the belligerent may think neces- |
snry; furthermore, the taking over of
the war stores for his own use, paying I
the full value of the same, as ascer- I
tained at. the place of destination: the!
right of sinking is not mentioned ia [
'lie treaty, and is, therefore, neither
expressly permitted nor expressly pro- I
hibited. so that on this point the party
stipulation must be supplemented by i
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the general rule of international law.
"From the meaning and spirit of the
treaty it really appears out of the
question that it was intended to expect
of the belligerent that he should per
mit a vessel loaded with contraband,
foi example, a shipment of arms and
ammunition of decisive importance for
the outcome of the war, to proceed un
hindered to his enemy when circum
stances forbid the carrying of the ♦ • •
into port if the general rules of inter
national law allow sinking of the
vessel.
"The remaining stipulation of Ar
ticle 13 must likewise be considered in
this light; they provide that the cap
tain of a vessel stopped shall be al
lowed to proceed on his voyage if he
delivers out the contraband to the war
ship which stopped his vessel. For
such delivery out cannot, of course, be
considered when the ensuing loss of
time imperils either the warship her
self or the success of her other op
. erations.
Would Kxpose Ship to Attack
"In the case of the William P. Frye
the German commander at first tried
to have matters settled in the delivery
of contraband, but convinced himself
of the impracticability of this attempt
in that it would expose his ship to at
ack by whatever superior force ot
enemy war vessels might have been
pursuing him, and was accordingly
obliged to determine upon the sinking
of the Frye. Thus he did not exceed
on this point the limits to which he
was bound by Article 13.
BAKRISBURG TELEGRAPH
"However, Article 13 asserts itself
here to the extent that it founds the
obligation to compensate the American
citizens affected, whereas, according to
thp general rules of international law,
the belligerent party does not need to
grant compensation for a vessel law
fully sunk. For, if by Article 13 the
mere exercise of right of highways
makes the belllgirenet liaMe for com
pensation. this must apply a fortiori to
the exercise of the right of sinking.
"The question whether the German
commarwler acted legally was pri
marily a subject for the consideration
of the German prize court, according
to general principles of international
law as laid down also in Article 1 of
The Hague convention for the estab
lishment of an International prize
court and in Article 51 of the Decla
ration of London. The German gov
ernment consequently laid the case of
makes the belligerent liable for com
petent prize court at Hamburg, as was
stated in its note of the 7th ultimo.
"This court found by its judgment
of the 10th instant that the cargo of
the American vessel William P. Frye
was contraband, that the vessel could
not be carried into port, and the sink
ing was therefore Justified; at the
same time the court expressly rec
ognized the validity of the Prussian-
American treaty stipulation severally
♦ * • model for the relations be
tween the German empire and AmeriCT
so that the sinking of the ship and
cargo so far as American propertv
makes the German empire liable for
AUGUST 5, 1915.
indemnity. The prize court was unable
to fix the indemnity itself since it had
no data before it. failing the receipt
of the necessary details of the parties
interested.
Settlement of Points
"It will now he necessary to settle
these points in a different way. The
German government suggests as th*
simplest way that each of the two gov
ernments designate an expert, and that
the two experts jointly fix the amount
of indemnity for the vessel and any
American property which may have
been sunk with her. The German gov
ernment will promptly pay the amount
of indemnity thus ascertained; it ex
pressl.v declares, however, reverting to
what has been stated above, that this
payment does not constitute satisfac
tiun for the violation of American
treaty riffhts, but a duty or policy of
this government founded on the exist
ing treaty stipulations.
"Should the American government
not agree to this manner of settling
thu matter the German government is
prepared to submit the difference of
opinion us being a question of the In
tel pretation of the existing treaties be
tween Germany and the United States
to the tribunal at The Hague, pur
suant to Article 3 8 of The Hague Con
vention for the pacific settlement of
international disputes.
"The undersigned begs to suggest
that the ambassador bring the above
to the attention of his government and
avail himself, etc.
"VON JAOOW."
3