Mr. Lansing to Mr. Gerard, telegram 3857, Feb. 2, 1917, ibid. /7; Mr. Gerard The United States subsequently received, through the Spanish Ambassador in Berlin and the American Legation at The Hague, a memorandum from the German Government "Relative to the Treatment of Neutral Members of Crews of Enemy Merchantmen" dated Mar. 30, 1917, in which it was stated: "The sole treaty which might be considered in this connection is a collective treaty, the ... Hague convention of October 18, 1907, regarding certain restrictions of the right of capture in maritime war. [Ante.] Article 5 of this convention provides that neutral seamen serving on board of enemy merchant ships can not be made prisoners of war and that officers can not be made prisoners unless they refuse to promise not to serve any more on an enemy ship. "This treaty stipulation is, however, not binding on any of the belligerent powers in the present naval war. For pursuant to Article 9, the convention does not apply unless all the belligerents are contracting parties . . . "The action of the German naval forces is likewise unimpeachable according to general principles of international law, for these principles undoubtedly permit neutral seamen serving on enemy merchantmen to be made prisoners of war. In the proceedings relative to the . . . Hague convention [above referred to] this was universally conceded." It was also stated that Germany was "undoubtedly justified in applying the existing stricter rules in the treatment of neutral crews of enemy merchantmen in the present naval war". The Chargé d'Affaires in the Netherlands (Langhorne) to the Secretary of State (Lansing), no. 879, Apr. 18, 1917 (with enclosure and translation), MS. Department of State, file 763.72111M72/9; 1917 For. Rel., Supp. 1, pp. 215, 216, 217. The Secretary of Labor informed the Secretary of State in June 1917 that the officers and crews of the German merchant vessels that had come into ports of the United States during the period of its neutrality and had remained there had not been regarded as prisoners of war and that they were not then being so regarded and treated. He stated that they were considered "as aliens who, while physically within the jurisdiction of this country, were constructively outside and in the same situation as any other alien arriving in a United States port and applying for admission but not yet formally admitted". He said that upon the issuance of the President's proclamation defining alien enemies, it was necessary to regard the officers and crews "as alien-enemy applicants for admission in addition to their general status of aliens at the portals but not yet within the United States". They had therefore, he stated, been excluded and their deportation not being practicable they had been detained. Arrangements were being made, he said, for their further detention in internment camps. Personnel of vessel resisting capture In response to the inquiry of the Swiss Minister to the United States, in charge of German interests, whether the Government of the United States was prepared to apply to the crews of German merchant vessels the provisions of articles VI and VII of Hague Convention XI of 1907 (ante), the Secretary of Labor stated that his Department had not applied these provisions to the cases in question presumably on the theory that chapter III of that convention (which contained articles VI and VII) related to "crews of enemy merchant ships captured by a belligerent" and that the vessels, officers, and crews under discussion were not "captured" within the meaning of that chapter. The Secretary of Labor (Wilson) to the Secretary of State (Lansing), no. 54274, June 26, 1917, MS. Department of State, file 763.72111/5214; 1918 For. Rel., Supp. 2, p. 224. With respect to the treatment of crews of belligerent vessels interned in the United States while the latter was neutral, see §671, post. 92. The captain, officers, and crew of an enemy merchant ship which has resisted capture may be made prisoners of war. Instructions for the Navy of the United States Governing Maritime Warfare (June 1917). The German Prize Ordinance of Sept. 30, 1909 provided: "99. If a ship is captured under 16b (resistance) or 55a (taking part in hostilities), those persons who without being enrolled in the enemy forces have taken part in the hostilities or have exerted forcible resistance may be dealt with according to the customs of war. The other persons of the crew will be made prisoners of war." Reichsgesetzblatt (1914) 275, 294; 1925 U.S. Naval War College, Int. Law Docs. 59. In reply to an inquiry by the United States concerning the British attitude with respect to the status of British officers and crews of British or foreign armed merchant vessels captured and interned by Germany, the British Foreign Office stated: "1. His Majesty's Government admit the right of capture, and regard the officers and crews of the mercantile marine when captured as civilian prisoners of war. The German Government have claimed to treat such persons as combatants in all cases when they belong to the crews of prizes. "The object of this claim is to justify the German Government in their policy of indiscriminate submarine warfare. This claim if conceded would result in the assimilation of the status of merchant ships subsidiary [to that] of warships and in the abandonment of their right to defend themselves against attack without losing their noncombatant character. The German Government have a further interest in treating seamen of the mercantile marine as combatants inasmuch as in some capacity they can be compelled to work. "You will therefore understand the extreme importance which His Majesty's Government attach to maintaining their view of the civilian status of members of the mercantile marine who are prisoners of war. "2. No allowances are paid by His Majesty's Government to the captured officers and men of the mercantile marine except in the cases of officers to the extent mentioned below nor is there any legal liability on the part of the shipping companies to pay salaries or wages to their captured em ployees. The companies, however, in nearly all cases provide relief voluntarily for their interned employees. "3. Although His Majesty's Government refuse to recognize captured merchant seamen as combatant prisoners, they have found it necessary, in order to obviate the hardships which result from the internment of the officers of merchant ships in combatant camps where they would be compelled to work and otherwise treated as prisoners of the rank and file, to make arrangements by which allowances amounting to 100 marks and 60 marks a month respectively, according to rank, are paid to the officers in the event of their being transferred by the German Government to camps for combatant officers. Although the German Government claim to treat these officers as combatants, they would not intern them in combatant officers' camps as a matter of course because the contention of His Majesty's Government that these prisoners are civilians precludes them from guaranteeing the repayment to the German Government at the termination of hostilities of pay advanced in accordance with the article 17 of the annex to the Hague convention of 1907, as would be done in the case of combatant officers. Under the arrangement made for the payment of allowances to the officers of the mercantile marine their transfer to officers' camps cannot of course be claimed by His Majesty's Government as a matter of right." The Chargé d'Affaires ad interim in London (Laughlin) to the Secretary of State (Lansing), telegram 10710, June 19, 1918, MS. Department of State, file 763.72114/3722; 1918 For. Rel., Supp. 2, pp. 229–230. The German Prize Ordinance of Sept. 30, 1909 provided: "101. If a neutral ship is captured according to 39, for contraband, or under 77, 78, for breach of blockade, or under 51, for unneutral service, the entire crew, including the master and officers, will be released unconditionally." Reichsgesetzblatt (1914) 275, 294; 1925 U. S. Naval War College, Int. Law Docs. 61. The Japanese regulations of 1914 provided: "118. Members of the crew of a captured neutral vessel shall not be made prisoners of war. However, they may be detained if it is considered that they are needed as witnesses." Ibid. 61. nationals on neutral On November 5, 1914 the British Government informed the Ameri- Enemy can Ambassador and, through American representatives, the German Government that, in view of the action taken by German forces in vessels Belgium and France in removing as prisoners of war all persons liable to military service, the British Government had given instructions that all enemy subjects liable to military service who might be found on neutral vessels would be made prisoners of war. The Ambassador to Great Britain (Page) to the Secretary of State (Bryan), telegram of Nov. 6, 1914, and the Acting Secretary of State (Lansing) to the American Embassy in Berlin, telegram of Nov. 7, 1914, MS. Department of State, file 763.72115/201. The Instructions for the Navy of the United States Governing Maritime Warfare (June 1917) provided: 91. Persons on board captured vessels who are actually embodied in the military forces of the enemy may be made prisoners of war. Persons in enemy mili tary forces Passengers and crew of destroyed vessel The rules adopted with respect to submarines, contained in part IV of the London naval treaty of 1930 and incorporated in a protocol of 1936, as "established rules of International Law", provide: (1) In particular, except in the case of persistent refusal to stop on being duly summoned, or of active resistance to visit or search, a warship, whether surface vessel or submarine, may not sink or render incapable of navigation a merchant vessel without having first placed passengers, crew and ship's papers in a place of safety. For this purpose the ship's boats are not regarded as a place of safety unless the safety of the passengers and crew is assured, in the existing sea and weather conditions, by the proximity of land, or the presence of another vessel which is in a position to take them on board. 4 Treaties, etc. (Trenwith, 1938) 5268, 5281. See also vol. II, pp. 691692, and vol. VI, pp. 466-467, of this Digest. The Instructions for the Navy of the United States Governing Maritime Warfare (June 1917) provided: 97. In no case after a vessel has been brought to may it be destroyed until after visit and search has been made and all persons on board have been placed in safety, and also, if practicable, their personal effects. Hague Convention VI of 1907, to which the United States is not a party, makes provision in article III for the destruction of vessels in certain circumstances and adds, "but in such case provision must be made for the safety of the persons on board as well as the security of the ship's papers". 1907 For. Rel., pt. 2, pp. 1247, 1248. Article 50 of the Declaration of London provides: "Before the vessel is destroyed all persons on board must be placed in safety, and all the ship's papers and other documents which the parties interested consider relevant for the purpose of deciding on the validity of the capture must be taken on board the warship." 1909 For. Rel. 318, 328. Provisions to similar effect are uniformly included in the prize regulations of maritime powers so far as the subject is mentioned. See 1925 U.S. Naval War College, Int. Law Docs. 78-79. The German Prize Code of 1939 contains the following provision in article 74: "(1) The destruction of vessels in accordance with Articles 72 and 73 is admissible only if the passengers, crew, and papers of the vessel have been brought to a place of safety before destruction. "(2) Ship's boats are not to be regarded as a place of safety unless the safety of passengers and crew under the existing conditions of the sea and the weather is assured by the proximity of land or the presence of another vessel which is able to take them on board." Reichsgesetzblatt (1939) 1592; Department of Commerce, III Comparative Law Series (1940, no. 1) 35, 48. The Italian Laws of War of 1938 contain a similar provision in article 196. Italy, Gazzetta ufficiale, Sept. 15, 1938, no. 211. See also §643, post. In the proceedings brought by the owners of the Lusitania for limitation of liability, Judge Mayer said: There is, of course, no doubt as to the right to make prize of an enemy ship on the high seas, and, under certain conditions, to destroy her, and equally no doubt of the obligation to safeguard the lives of all persons aboard, whether passengers or crew. The Lusitania, 251 Fed. 715, 734 (S.D.N.Y., 1918). In reply to the American note presenting a claim for the destruction of the American sailing vessel William P. Frye, the German Government, in a note of April 4, 1915 upholding the action of the German commander as conforming to general legal principles, pointed out: The duties devolving upon the cruiser before destruction of the ship, pursuant to Article 50 of the Declaration of London and Article 116 of the German prize ordinance, were fulfilled by the cruiser in that it took on board all the persons found on the sailing vessel, as well as the ship's papers. The Ambassador to Germany (Gerard) to the Secretary of State (Bryan), telegram 1984, Apr. 5, 1915, MS. Department of State, file 462.11Se8/16; 1915 For. Rel. Supp. 360. In later correspondence regarding the same case the German Foreign Minister said: "... the German Government quite shares the view of the American Government that all possible care must be taken for the security of the crew and passengers of a vessel to be sunk. Consequently, the persons found on board of a vessel may not be ordered into her lifeboats except when the general conditions, that is to say, the weather, the condition of the sea, and the neighborhood of the coasts afford absolute certainty that the boats will reach the nearest port." Enclosure in despatch no. 1964, Mr. Gerard to Secretary Lansing, Dec. 2, 1915, MS. Department of State, file 462.11Se8/54; 1915 For. Rel. Supp. 644, 645. A German submarine torpedoed the Netherlands merchant vessel Sliedrecht on Nov. 16, 1939, after giving the crew half an hour in which to take to the lifeboats. The Netherlands Government protested to Germany on the ground that destruction of the vessel was not justified, stressing the fact that the persons on board were not put in a place of safety as required by the London protocol of 1936. The Netherlands, Overzicht van de voornaamste in verband met den oorlogstoestand door het Ministerie van Buitenlandsche Zaken behandelde en voor openbaarmaking geschikte aangelegenheden, November 1939-April 1940 (Orange Book, Apr. 1940) 8-14. See also the correspondence between the Netherlands Minister in Berlin and the German Ministry of Foreign Affairs with respect to the sinking of the Netherlands vessel Arendskerk by a German submarine on Jan. 15, 1940, ibid. 20-22. |