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While one instance of furnishing supplies to belligerent war vessels at sea may not be sufficient to constitute United States ports a base of supplies, yet Department suspects that certain concerns are chartering a series of vessels which are loaded with coal and stores and despatched at well-timed intervals to supply warships at sea. It is conceivable that such operations may easily make United States ports a base of operations. It seems necessary, therefore, to take precautions to ascertain by an investigation of each vessel the name of the owner or charterer and the firm supplying the cargo, as well as the name and address of the consignee, in order that the data so determined may be checked up with a view to ascertaining the nature of a firm's transaction as whole.

The Acting Secretary of State (Lansing) to the Secretary of the Treasury (McAdoo), telegram of Nov. 1, 1914, MS. Department of State, file 763.72111/724; 1914 For. Rel. Supp. 630.

A German corporation and individuals combined to send out vessels from the United States after the outbreak of war in 1914 to carry fuel and supplies for German warships on the high seas, making false statements of the intended destination of the vessels and omitting certain supplies in the manifest filed with the customs officials. They were convicted of conspiracy to defraud the United States by filing false customs returns. The court said, however, that at the time of their actions

"there was nothing inherently wrong in an undertaking by the defendants to provide coal, provisions, and supplies for German warships on the high seas, as the United States and Germany were not at the time at war with each other. Neither the law of nations nor the municipal law of the United States prohibited such an undertaking." Hamburg-American Steam Packet Co. v. United States, 250 Fed. 747, 755 (C.C.A. 2d, 1918); certiorari denied, 246 U.S. 662 (1918).

A joint resolution approved Mar. 4, 1915 authorized the withholding of clearance from any foreign or American vessel when there was reasonable cause to believe that it was about to carry fuel, arms, ammunition, men, or supplies to any warship or tender or supply ship of a belligerent nation "in violation of the obligations of the United States as a neutral nation". 38 Stat. 1226; 1915 For. Rel. Supp. 851. This was repealed by section 11 of title V of the so-called "Espionage Act" of June 15, 1917 (40 Stat. 217, 223), section 1 of which provided:

"During a war in which the United States is a neutral nation, the President, or any person thereunto authorized by him, may withhold clearance from or to any vessel, domestic or foreign, which is required by law to secure clearance before departing from port or from the jurisdiction of the United States, or, by service of formal notice upon the owner, master, or person in command or having charge of any domestic vessel not required by law to secure clearances before so departing, to forbid its departure from port or from the jurisdiction of the United States, whenever there is reasonable cause to believe that any such vessel, domestic or foreign, whether requiring clearance or not, is about to carry fuel, arms, ammunition, men, supplies, dispatches, or information to any warship, tender, or supply ship of a foreign belligerent nation in violation of the laws, treaties, or obligations of the United States under the law of nations; and it shall thereupon be unlawful for such vessel to depart." 40 Stat. 217, 221.

"In view of the practical cessation of all commerce in German vessels as a result of British naval operations, it seems to me that any attempt of a German vessel to depart from an American port creates a presumption that the vessel does not intend to engage in peaceful commerce, but intends to engage in offensive operations against enemy commerce, or to furnish supplies to German warships.

"In view of this strong presumption of hostile purpose would it not be advisable to request the Treasury Department to instruct its collectors at New York and Boston to withhold clearances for all German vessels in their respective ports until the applications for clearance have been reported to Washington and specific instructions have been issued by the Treasury Department authorizing clearance?

"This action can be taken under the Joint Resolution approved March 4, 1915."

The Counselor for the Department of State (Lansing) to the Secretary of State (Bryan), Mar. 11, 1915, MS. Department of State, file 763.72111/17991⁄2 ; I The Lansing Papers, 1914-1920 (For. Rel.: 1939) 212.

On March 26, 1915 the German Embassy informed the Department of State that

the steamer Pisa, of the Hamburg-American Line, lying in New York Harbor since the outbreak of the present war, intends to apply for clearance papers. The Pisa is bound for Hamburg with a cargo of coal and provisions; if possible, the ship shall on that voyage try to communicate with a German cruiser in the Atlantic; afterwards ship to continue her journey to Hamburg. No supplies having been taken to any German man-of-war in that region within the last three months, the Embassy is entitled to assume that no legitimate objections are to be expected to that purpose.

The Embassy referred to the Department's note of December 24, 1914 (ante, this section) and continued

no supplies for the German men-of-war involved here left the United States of America within the last three months. The words "for belligerent warships at sea" make it clear, that it is immaterial whether the warship to be supplied is in port, off a port, or on the high sea. As a matter of fact in all three cases the only difference would be in the distance covered by the supplycarrying conveyance. Therefore no international law or agreement establishes such a difference. Nor is there any distinction made between furnishing supplies for a home journey or any other purpose. In fact, according to international law, there seems to be only one restriction put to supplying belligerent warships: that one ship can not be supplied from the same neutral port more than once within three months.

It is obvious that it is for the party making the charge that such supplies have been furnished more than once within three months, to prove the charge by substantiated evidence.

On April 10, 1915 the Department of State replied:

It is the opinion of this Government that the result of supplying warships in order that they may avoid the danger or inconvenience of visiting a neutral port would be in contravention of the rules of international law and the provisions of Hague Convention No. XIII. Both articles 19 and 20 of that convention indicate unquestionably that the coaling of warships from stores gathered at a neutral port or roadstead is to take place in that port or roadstead, and these provisions are regarded as consonant with the existing rules of international law on the subject. It is obvious that to carry fuel and supplies to a warship on its station at sea is not furnishing her with fuel within a neutral port. I am, therefore, under the necessity of disagreeing with your statement that "it is immaterial whether the warship to be supplied is in port, off port, or on the high seas."

The reasons for this rule are evident, when its application is considered. In the first place, as only sufficient coal and supplies may be furnished a warship to enable it to reach its nearest home port, neutrals must, in order to determine the amount, be specifically advised of the size of the vessel, the number of the crew, the amount of fuel and supplies already on board, and the place of transshipment. Without knowledge of these facts it would be impossible to limit the cargo of a vessel so that the warship could not take on board more coal or supplies than the rule of international law permits. In the second place after the departure of a supply boat from the jurisdiction of the United States, this Government would have no control over the vessel to prevent delivery to a different warship from the one supposed to be entitled to replenishment, even though the supplies furnished far exceeded the amount permitted by international law. In the third place, as a belligerent warship may not, in any event, supply itself in the ports of a neutral power more than once in three months, a neutral government, before allowing coal and supplies to be taken to a belligerent warship from its ports, should be satisfied that none had been obtained by the same vessel within the preceeding three months. This information can be had only from the warship itself, unless it has during the period entered a neutral port, or been in direct communication therewith. In any event the amount of the stores to be supplied, and the time when they may properly be furnished are questions of fact, and not matters of presumption.

Furthermore, the allowance of coal and supplies by a neutral to a belligerent warship is based on the presumption that the latter intends to return to its home port. There can, however, be no such presumption in the present case. In fact the presumption is that no German warship would attempt to return home when there is a virtual investment of German ports by hostile naval forces. On the contrary it may be assumed with reasonable certainty that a German warship which remains on the high seas, purposes to take supplies in order to continue hostile operations against vessels of belligerent nationality and to intercept and search neutral vessels. If, therefore, such a warship is

supplied with an amount of coal and supplies in excess of the amount permitted by law, the neutral territory from which such stores are derived, would clearly constitute a depot for the projection of the naval operations of a belligerent in contravention of the rules of international law and Article 5 of Hague Convention No. XIII of 1907.

Finally the application papers on which clearance is sought for the Pisa would manifestly contain misstatements. An application to clear for a voyage to the port of Hamburg, which is practically sealed by the warships of Germany's adversaries, with the intention of transferring the cargo at sea to a warship engaged in preying on belligerent commerce and interfering with neutral trade, impresses the application with a fictitious character and shows an intention of obtaining a false clearance. The statutes of the United States impose penalties upon making applications of this sort, and make the act a crime under Federal laws. If this Government, therefore, knowing the real purpose of the voyage, should issue such clearance, it would be subject to justifiable criticism as a party to a violation of its own laws.

Your Embassy's memorandum in the antepenultimate paragraph suggests that the burden of proving the charge that supplies have been furnished to a certain warship more than once in three months lies upon the neutral. With this suggestion this Government is unable to agree. A neutral, in matters pertaining to neutral obligations, may, in the opinion of this Government, require substantial evidence from a belligerent seeking special privileges that he is entitled to enjoy them.

The German Embassy to the Department of State, Mar. 26, 1915, MS. Department of State, file 763.72111/2065; the Acting Secretary of State (Lansing) to the German Ambassador (Count von Bernstorff), Apr. 10, 1915, ibid. /2082; 1915 For. Rel. Supp. 858, 859, 861, 862-864. See also I The Lansing Papers, 1914-1920 (For. Rel.: 1939) 213-214.

With reference to the asserted inconsistency of the course adopted by this Government in relation to the exportation of arms and ammunition and that followed in not allowing supplies to be taken from its ports to ships of war on the high seas, it is only necessary to point out that the prohibition of supplies to ships of war rests upon the principle that a neutral power must not permit its territory to become a naval base for either belligerent. A warship may, under certain restrictions, obtain fuel and supplies in a neutral port once in three months. To permit mer. chant vessels acting as tenders to carry supplies more often than three months and in unlimited amount would defeat the purpose of the rule and might constitute the neutral territory a naval base.

The Secretary of State (Lansing) to the Ambassador to Austria-Hungary (Penfield), telegram 846, Aug. 12, 1915, MS. Department of State, file 763.72111Em1/13; 1915 For. Rel. Supp. 794, 797.

Habana convention

ARTICLE 20. The merchantman supplied with fuel or other stores in a neutral state which repeatedly delivers the whole or part of its supplies to a belligerent vessel, shall not again receive stores and fuel in the same state.

ARTICLE 21. Should it be found that a merchantman flying a belligerent flag, by its preparations or other circumstances, can supply to warships of a state the stores which they need, the local authority may refuse it supplies or demand of the agent of the company a guaranty that the said ship will not aid or assist any belligerent vessel.

Convention on maritime neutrality signed at Habana, Feb. 20, 1928, 4 Treaties, etc. (Trenwith, 1938) 4743, 4747-4748; 47 Stat. 1989, 1994.

By section 10 of the Neutrality Act of 1939 the President was authorized to require a bond of any vessel about to carry out of a port of the United States "fuel, men, arms, ammunition, implements of war, supplies, dispatches, or information to any warship, tender, or supply ship" of a belligerent state named in a proclamation issued under section 1 of the act, when the evidence in his possession was not deemed sufficient to justify forbidding the departure of the vessel under section 1, title V, of the act approved June 15, 1917 (40 Stat. 217, 221; 18 U.S.C. §31). The same section authorized the President to detain for the duration of the war any vessel which had previously departed from a port of the United States during such war and had delivered men, fuel, etc., to a warship, tender, or supply ship of a state named in a proclamation issued under section 1 of the act. 54 Stat. 4, 9. Substantially similar provisions were contained in section 4 of the joint resolution of Aug. 31, 1935 (49 Stat. 1081, 1083) and section 7 of the joint resolution of May 1, 1937 (50 Stat. 121, 126).

In an aide-mémoire dated June 5, 1939 the British Embassy stated that it was not clear whether section 7 of the Neutrality Act of 1937 (50 Stat. 121, 126) should be applied to isolated cases of shipments of supplies or to repeated shipments only. The Department of State replied:

"... It [section 7 of the joint resolution approved May 1, 1937] was designed to cover cases where there exists cause to believe that the vessel is about to do the forbidden acts but there is not available sufficient evidence to justify the withholding of clearance under the act of 1917 [40 Stat. 217, 221; 18 U.S.C. §31]. In such cases the President may permit the vessel to sail conditioned upon her giving a bond that she will not deliver men or any part of her cargo to any warship, tender, or supply ship of a belligerent state. It will be noted that this provision does not refer to treaties or the law of nations as did the earlier acts. The President is to act, if in his 'judgment, such action will serve to maintain peace between the United States and foreign states, or to protect the commercial interests of the United States and its citizens, or to promote the security or neutrality of the United States'.

"On the question whether it should be applied in isolated cases or only in cases of repeated shipments, attention is called to paragraph (b) reading: "If the President, or any person thereunto authorized by him, shall find that a vessel, domestic or foreign, in a port of the United States, has previously cleared from a port of the United States during such war and delivered its cargo or any part thereof to a warship, tender, or supply ship of a belligerent state, he may prohibit the departure of such vessel during the duration of the war.'"

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