vessels, armed or unarmed, of degaussing equipment or any other equipment which can be used solely for protective purposes.

The Secretary of State (Hull) to the Secretary of the Treasury (Morgenthau), May 14, 1940, MS. Department of State, file 740.00111A Armed Merchantmen/39.

SUPPLY OF BELLIGERENT VESSELS AT SEA

$667

On September 19, 1914 the Department of State transmitted to the diplomatic representatives in Washington of the belligerent governments the following memorandum with respect to merchant vessels suspected of carrying supplies from American ports to belligerent warships:

1. A base of operations for belligerent warships is presumed when fuel or other supplies are furnished at an American port to such warships more than once within three months since the war began, or during the period of the war, either directly or by means of naval tenders of the belligerent or by means of merchant vessels of belligerent or neutral nationality acting as tenders.

2. A common rumor of suspicion that a merchant vessel laden with fuel or other naval supplies intends to deliver its cargo to a belligerent warship on the high seas, when unsupported by direct or circumstantial evidence, imposes no duty on a neutral government to detain such merchant vessel even for the purpose of investigating the rumor or suspicion, unless it is known that the vessel has been previously engaged in furnishing supplies to a belligerent warship.

3. Circumstantial evidence, supporting a rumor or suspicion that a merchant vessel intends to furnish a belligerent warship with fuel or other supplies on the high seas, is sufficient to warrant detention of the vessel until its intention can be investigated in the following cases:

(a) When a belligerent warship is known to be off the port at which the merchant vessel is taking on cargo suited for naval supplies, or when there is a strong presumption that the warship is off the port;

(b) When the merchant vessel is of the nationality of the belligerent whose warship is known to be off the coast;

(c) When a merchant vessel which has on a previous voyage between ports of the United States and ports of other neutral states failed to have on board at the port of arrival a cargo consisting of naval supplies shipped at the port of departure seeks to take on board a similar cargo;

(d) When coal or other supplies are purchased by an agent of a belligerent government and shipped on board a merchant. vessel which does not clear for a port of the belligerent but for a neighboring neutral port;

(e) When an agent of a belligerent is taken on board a merchant vessel having a cargo of fuel or other supplies and clearing for a neighboring neutral port.

4. The fact that a merchant vessel, which is laden with fuel or other naval supplies, seeks clearance under strong suspicion that it is the intention to furnish such fuel or supplies to a bellig. erent warship, is not sufficient ground to warrant its detention if the case is isolated and neither the vessel nor the warship for which the supplies are presumably intended has previously taken on board similar supplies since the war began or within three months during the period of the war.

5. The essential idea of neutral territory becoming the base for naval operations by a belligerent is repeated departure from such territory by a naval tender of the belligerent, or by a merchant vessel in belligerent service which is laden with fuel or other naval supplies.

6. A merchant vessel, laden with naval supplies, clearing from a port of the United States for the port of another neutral nation, which arrives at its destination and there discharges its cargo, should not be detained if, on a second voyage, it takes on board another cargo of similar nature.

In such a case the port of the other neutral nation may be a base for the naval operations of a belligerent. If so and even if the fact is notorious, this Government is under no obligation to prevent the shipment of naval supplies to that port. Commerce in munitions of war between neutral nations can not as a rule be a basis for a claim of unneutral conduct, even though there is a strong presumption or actual knowledge that the neutral state, in whose port the supplies are discharged, is permitting its territory to be used as a base of supply for belligerent warships. The duty of preventing an unneutral act rests entirely upon the neutral state whose territory is being used as such a base.

In fact this principle goes further in that, if the supplies were shipped directly to an established naval base in the territory or under the control of a belligerent, this Government would not be obligated by its neutral duty to limit such shipments or detain or otherwise interfere with the merchant vessels engaged in that trade. A neutral can only be charged with unneutral conduct when the supplies, furnished to a belligerent warship, are furnished directly to it in a port of the neutral or through naval tenders or merchant vessels acting as tenders departing from such port.

7. The foregoing propositions do not apply to furnishing munitions of war included in absolute contraband, since in no event can a belligerent warship take on board such munitions in neutral waters, nor should it be permitted to do so indirectly by means of naval tenders or merchant vessels acting as such tenders.

The Acting Secretary of State (Lansing) to the diplomatic representatives of belligerent states, Sept. 19, 1914 (enclosure), MS. Department of State, file 763.72111/226a; 1914 For. Rel. Supp. 611, 618–620.

With respect to the right of a belligerent to seize and condemn, for unneutral service, neutral vessels which attempt to carry supplies to enemy warships at sea, see ante, ch. XXII, § 622, of this Digest.

On December 15, 1914 the German Ambassador informed Secretary Bryan that

The position taken by the Government of the United States as to the delivery of coal and other necessaries to warships of the belligerent states constituting a violation of neutrality is, in the opinion of the Imperial German Government, untenable in international law.

He added in an accompanying memorandum:

of contraband

Under the general principles of international law no exception can be taken to neutral states letting war material go to Ger- Compared many's enemies from or through their territory. This is in This is in with export accordance with Article 7 of the Hague conventions of October 18, 1907, concerning the rights and duties of neutrals in naval and land war. If, however, a state avails itself of that liberty in favor of our enemies, then it must, in accordance with a rule generally accepted in international law and confirmed in Article 9 of the two conventions above cited [Hague Conventions V and XIII], place no obstacle to the German military force procuring contraband from or through its territory.

The neutrality declaration of the United States takes this construction into full account when it allows contraband of war to be delivered equally to all belligerents.

In spite thereof, various American port authorities have denied clearance from American ports to vessels of the merchant marine seeking to convey needed supplies or fuel to German warships either on the high seas or in other neutral ports.

According to the principles of international law above cited, a neutral state need not prevent furnishing supplies of this character; nor may it, after allowing the adversaries to be furnished with contraband, either detain or disable a merchant ship carrying such a cargo. Only if contraband trade should turn the ports into bases of German military operations, would the unilateral stoppage of the trade of those vessels become a duty. Such, perhaps, would become the case if German coal depots were established in the ports, or if the vessels called at a port in regular voyages on the way to German naval forces. But it stands to reason that an occasional sailing of one merchant vessel with coal or supplies for German warships does not turn a neutral port into a German base in violation of neutrality.

Our enemies draw from the United States contraband of war, especially arms, worth several billions of marks. This in itself they are authorized to do. But if the United States prevents our warships from occasionally drawing supplies from its ports, a great injustice grows out of the authorization, for it would amount to an unequal treatment of the belligerents and constitute a breach

of the generally accepted rules of neutrality to Germany's detriment.

Secretary Bryan said in reply:

Although as a rule there is on the part of the nationals of neutral countries entire freedom of trade in arms, ammunition. and other articles of contraband, nevertheless the Imperial German Government will recall that international law and the treaties declaratory of its principles make a clear distinction between ordinary commerce in contraband of war and the occasional furnishing of warships at sea or in neutral ports. In this relation I venture to advert to Articles 18 to 20, inclusive, of Hague Convention XIII, 1907. From these articles it will be observed that a warship which has received fuel in a port belonging to a neutral power may not within the succeeding three months replenish her supply in a port of the same power. It is, I am sure, only necessary to call your attention to these articles to make it perfectly clear that if a number of merchant vessels may at short intervals leave neutral ports with cargoes of coal for transshipment to belligerent warships at sea, regardless of when the warships last received fuel in the ports of the same neutral power, the conventional prohibition would be nullified, and the three months' rule rendered useless. By such practice a warship might remain on its station engaged in belligerent operations without the inconvenience of repairing to port for fuel supplies.

Furthermore, Article 5 of the same convention forbids belligerents to use neutral ports and waters as a base of naval operations against their adversaries. As stated in the Department's statement on "Merchant vessels suspected of carrying supplies to belligerent vessels," dated September 19 last... the essential idea of neutral territory becoming the base for naval operations by a belligerent is, in the opinion of this Government, repeated departure from such territory of merchant vessels laden with fuel or other supplies for belligerent warships at sea. In order to ascertain the vessels which are thus operating, the Government has been obliged to investigate certain cases in order that it might determine whether there have been or are about to be repetitions of such acts. But in all respects equality of treatment has been observed toward all merchant vessels suspected of carrying supplies to belligerent vessels.

It is hardly necessary to recount in this note the provisions of the Hague conventions in regard to the fitting out or arming of vessels within the jurisdiction of a neutral power, or the stipulations in the same conventions regarding the departure of vessels intended to cruise or engage in hostile operations which have been. adapted entirely, or in part, for such use within neutral jurisdiction. To the extent of these restrictions the furnishing of munitions of war included in absolute contraband is prohibited in neutral waters, and therefore should not be permitted indirectly by means of naval tenders, or merchant vessels acting as

tenders, carrying such materials from a neutral jurisdiction to belligerent warships at sea.

The German Ambassador (Count von Bernstorff) to the Secretary of State (Bryan), Dec. 15, 1914, and Mr. Bryan to Count von Bernstorff, Dec. 24, 1914, MS. Department of State, file 763.72111Em1/1; 1914 For. Rel. Supp. 646, 647, 648-649.

A German merchant-ship, the Barbarossa, took on 5,000 tons of coal, placing it both in the bunkers and in the cargo hatches, although it required only 1,500 tons for the voyage to Bremen. Beams, coal buckets, and wire cable, apparently to facilitate transfer of coal at sea, were lying alongside the steamer. Despite the suspicion that the coal might be destined for belligerent warships on the high seas, the Department of State took the position that there was no ground for refusing clearance. The Acting Secretary of the Treasury (Newton) to the Secretary of State (Bryan), Aug. 11, 1914, and Mr. Bryan to the Secretary of the Treasury (McAdoo), telegram of Aug. 17, 1914, MS. Department of State, file 763.72111/21; 1914 For. Rel. Supp. 615-616.

In the case of the Mazatlan the Secretary of State said:

"I have the honor to acknowledge receipt of your letter of the 20th instant in which you inclose a telegram from the Collector of Customs at San Francisco regarding the clearance of the Mexican steamer Mazatlan flying the German flag and carrying a cargo of coal apparently destined to German cruisers in Pacific waters. I also acknowledge the receipt over the telephone of a further telegram from the Collector stating that the acting German Consul has offered to give a written guarantee that while this coal was an excess supply purchased for the Leipsig, the coal will be delivered in Guaymas, Mexico. The ship owner also volunteers to give bond guaranteeing the delivery of the coal at this Mexican port.

"All the facts of this case before this Department have been laid before the Joint State and Navy Neutrality Board for its opinion. On the basis of that opinion the Department recommends under the circumstances of this special case that the Collector be instructed to give clearance to the Mazatlan with coal on board on condition that in addition to the written guarantee which the German Consul offers to give as described in the telegram of the Collector, he give further written assurances (1) that the coal shipped by the Mazatlan will not be delivered to any German war vessel that has already received coal in a United States port since the outbreak of hostilities within three months after such receipt; and, (2) that if the coal be delivered to any other German war vessel the fact of such delivery will prevent the last named war vessel from receiving coal in any United States port within a period of three months after said delivery. Failing the receipt of these written assurances from the German Consul it is recommended that clearance to the S.S. Mazatlan be denied unless the coal in question is first discharged."

The Acting Secretary of State (Lansing) to the Secretary of the Treasury (McAdoo), Aug. 22, 1914, MS. Department of State, file 763.72111/54; 1914 For. Rel. Supp. 617-618. See also ante, pp. 227-231.

With respect to the Berwind, see the British Ambassador (Spring Rice) to the Secretary of State (Bryan) and Mr. Bryan to Mr. Spring Rice, Nov. 20 and 25, 1914, MS. Department of State, file 763.72111B46/5; 1914 For. Rel. Supp. 633 and 639.