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terned on January 1, 1940. On December 31 the German Minister protested against the decree, stating that the Tacoma by its "philanthropic assistance" to the crew of the Graf Spee "had performed no military action nor violated neutrality". The Uruguayan Government replied that the action of the Tacoma had assisted various members of the battleship Graf Spee and had facilitated its sinking, in violation of article I of Hague Convention XIII of 1907; that toleration of such acts would amount to a violation of neutrality; and that merchant vessels placing themselves at the service of belligerent war vessels would have to be regarded as auxiliary warships and treated as such.

Uruguay, Ministry of Foreign Affairs, Antecedentes Relativos al Hundimiento del Acorazado "Admiral Graf Spee" y a la Internación del Barco Mercante "Tacoma” (1940) 37–69, transmitted by the Minister to Uruguay (Wilson) to the Secretary of State (Hull), Feb. 7, 1940, MS. Department of State, file 740.0011 European War 1939/1666. See also Mr. Wilson to Mr. Hull, no. 95, Jan. 3, 1940 (enclosures), ibid. 862.8591/709.

Secretary Lansing took the position that a British merchant vessel, Requisitioned requisitioned by the British Admiralty and operating under its orders

merchant

vessel

but not commanded by naval officers or manned by the British Navy, should be treated as a merchant vessel if she was engaged in innocent merchant service and did not fly the naval pennant.

The Assistant Secretary of the Treasury (Peters) to the Secretary of State (Lansing), telegram received Jan. 4, 1916, and Mr. Lansing to Mr. Peters, Jan. 5, 1916, MS. Department of State, file 763.72111/3305.

The Princess Alice, a German merchant vessel, in Aug. 1914, in response to orders from the German cruiser squadron in the Pacific, carried provisions, equipment, and reservists to the German cruiser Emden. After losing contact with the Emden, she was discharged by wireless from further service on Aug. 20 and ordered to proceed on her own responsibility to a neutral port. She reached Cebu in the Philippines on Aug. 26, 1914 and remained there until possession of and title to her were taken by the United States on June 30, 1917. In holding that the Princess Alice remained a "merchant vessel" within the meaning of the War Claims Act, Arbiter Parker said (on Mar. 9, 1929) in Administrative Decision III:

"... She was never converted into an auxiliary cruiser. She was used by the German Admiralty for a portion of the month of August, 1914, for carrying supplies, provisions, and reservists to the cruiser squadron. These services were such as any merchant vessel flying the German flag would have been required to provide under similar circumstances, and such as any neutral merchant vessel might have been chartered to perform without affecting her status as a merchant vessel. The Princess Alice, far from being a helper, a tender, a part of the equipment of the Emden (as the competent officials of the Government of the United States found the Locksun to be to the Geier), was found by the Emden to be a handicap in that the latter felt responsibility for protecting this valuable mail steamer against possible capture by an enemy warship. Moreover, the Princess Alice had

been released from charter by the German Admiralty six days prior to her taking refuge in the port of Cebu, which she entered alone as a German merchant vessel privately-owned and operated, wholly unattached to any German vessel of war. She was unarmed, had no naval crew aboard, remained on the list of German merchant vessels, had none of the physical characteristics of a fighting ship, and was without the physical equipment or the legal right to engage in aggressive and hostile military operations. "On this record the Arbiter holds that the services rendered by the Princess Alice to the German cruiser squadron in the early days of August, 1914, did not operate to convert her from a merchant vessel into a naval vessel."

Printed Decisions and Opinions of the War Claims Arbiter 83, 101, 102; 23 A.J.I.L. (1929) 673, 688, 689–690.

". . . In considering the application of the 24-hour rule to an unarmed vessel under charter of a belligerent government it seems to me that the important factor in determining whether the stay of the vessel should be restricted to 24 hours is the bona fide destination of the vessel. That is, if the vessel is destined for a port of the belligerent, it should be considered and treated as a merchant vessel and not as a warship; it has no part in actual hostilities. On the other hand, if the vessel is destined to supply a fleet or warship of a belligerent, it becomes in fact a participant in offensive naval operations as a tender of the fleet or warship; in a word, it is infected with the character of the ships or ship to which its cargo is destined." Memorandum of the Counselor for the Department of State (Lansing), Sept. 30, 1914, MS. Department of State, file 763.72111/1739. In Apr. 1917 the Department of State took the position that neither the requisition nor the charter of a merchant vessel by the Government of the United States would give such vessel the status of a warship which neutral powers would be obligated to intern in case it remained more than 24 hours in port. The Counselor for the Department of State (Polk) to the Secretary of War (Baker), Apr. 19, 1917, MS. Department of State, file 102.2/382.

In May 1917 the United States inquired of the Chilean Government concerning the action it would take with respect to vessels owned by the United States Government and operated by the Panama Railroad Co. for commercial purposes. The Chilean Government said that such vessels would be treated as merchant vessels and not be subject to internment. In reply to a further inquiry the Chilean Government took the position that such vessels, if armed for their own defense against submarines, would be treated in Chilean ports as merchant vessels provided that the Government was previously informed with respect to the ship and that the circumstances (location of armament, absence of army or navy officers or men, passenger list, and merchandise) made the ship appear to be really a merchant vessel. The Secretary of State (Lansing) to the Ambassador to Chile (Shea), telegram of May 18, 1917, MS. Department of State, file 763.72111/4976; Mr. Shea to Mr. Lansing, telegram of May 19, 1917, and Mr. Lansing to Mr. Shea, telegram of May 24, 1917, ibid. /5035; Mr. Shea to Mr. Lansing, telegram of May 28, 1917, ibid. /5059; 1917 For. Rel., Supp. 2, vol. II, pp. 1285-1286.

The Peruvian Government replied to similar inquiries that it would regard such vessels as merchant vessels, although the property of the United States Government, "in consideration of their being operated by an industrial company solely for peaceful commercial purposes". The Minister to Peru (McMillin) to Mr. Lansing, telegram of May 29, 1917, MS. Department of

Reconversion into merchant-ships

State, file 763.72111/5062; 1917 For. Rel., Supp. 2, vol. II, pp. 1286-1287. Colombia likewise held that such vessels might call as armed merchant vessels. The Chargé d'Affaires ad interim in Bogotá (Belden) to Mr. Lansing, telegram of May 29, 1917, MS. Department of State, file 763.72111/5061; 1917 For. Rel., Supp. 2, vol. II, p. 1287.

Auxiliary ships of belligerents, converted anew into merchantmen, shall be admitted as such in neutral ports subject to the following conditions:

1. That the transformed vessel has not violated the neutrality of the country where it arrives;

2. That the transformation has been made in the ports or jurisdictional waters of the country to which the vessel belongs, or in the ports of its allies;

3. That the transformation be genuine, namely, that the vessel show neither in its crew nor in its equipment that it can serve the armed fleet of its country as an auxiliary, as it did before;

4. That the government of the country to which the ship belongs communicate to the states the names of auxiliary craft which have lost such character in order to recover that of merchantmen; and 5. That the same government obligate itself that said ships shall not again be used as auxiliaries to the war fleet.

Convention on maritime neutrality, signed at Habana, Feb. 20, 1928, art. 13, 4 Treaties, etc. (Trenwith, 1938) 4743, 4747; 47 Stat. 1989, 1993.

The British Minister in Santiago inquired on Feb. 4, 1915 whether the Chilean Government would regard as merchant vessels those British merchant-ships which had served as colliers for the British Admiralty, after they had resumed normal services as merchant vessels, saying that the British Government no longer regarded them as auxiliaries. The Chilean Government replied on Mar. 15, 1915 that it would treat such vessels as merchant vessels rather than auxiliaries, in case they met certain conditions. These conditions were identical with those later laid down by article 13 of the Habana convention of 1928. Alvarez, La Grande Guerre Européenne et la neutralité du Chili (1915) 254-256; 1916 U.S. Naval War College, Int. Law Topics 28.

On Nov. 11, 1915 the German Ambassador asked permission to have the necessary steps taken to put the German converted cruisers Kronprinz Wilhelm and Prinz Eitel Friedrich in full repair and to restore passenger accommodations on the former. Secretary Lansing replied that the United States could not consent to the extensive repairs, which involved the reconversion of the vessels into merchant-ships and the consequent loss of their naval character, saying:

"... The position of this Government is briefly that internment applies to vessels stamped with a naval character, and some question may arise as to the exercise of the right of interning the vessels in question and their officers and crews, if they were allowed to assume a merchant character." The German Ambassador (Count von Bernstorff) to the Secretary of State (Lansing), Nov. 11, 1915, MS. Department of State, file 763.72111K92/54; Mr. Lansing to Count von Bernstorff, no. 1706, Dec. 22, 1915, ibid. /56; 1915 For. Rel. Supp. 833, 843. See also Printed Decisions and Opinions of the War Claims Arbiter 83, 95; 23 A.J.I.L. (1929) 673, 684.

MERCHANT VESSELS

TREATMENT

8676

Fauchille wrote with respect to the treatment of belligerent merchant vessels in neutral ports that the problem had been neglected in Hague Convention XIII, by writers, and by the neutrality proclamations of the nineteenth century. He said that it required the World War of 1914-18 to call attention to the situation and that during that war:

The command of the sea held by the Entente Powers had from the outbreak of hostilities led the merchantships of Germany and her allies to seek as quickly as possible the ports of States near at hand which were not at war, and to refuse to leave the neutral ports where they were, in order not to run the risk of being captured. This fact showed certain States, notably in South America, the need of regulating rather carefully the situation of belligerent merchantships in relation to neutral territory.

II Fauchille, Traité de droit international public (1921) 726, translation. He discussed certain rules applied by Chile and Uruguay and added that under them "Belligerent merchantships can enter neutral ports, remain therein, and leave them, under certain conditions which the territorial authorities are to impose upon them. They can also, if they wish, prolong their stay therein indefinitely. .. Italy, while it was neutral ... declared that it was in no way obligated to demand the departure from its ports of belligerent merchantships which had sought shelter there; but at the same time it felt obliged to exercise surveillance over them." Ibid. 729, translation.

...

...

On the theoretical side Fauchille said that there was no reason to exclude belligerent merchant-ships from neutral territorial waters and that, with respect to their status in neutral ports, "The idea from which it is necessary to seek inspiration in principle is that the neutral State ought to treat belligerent merchantships as if war did not exist. Despite the war, such a State remains at peace with each of the belligerents. In time of peace nothing prevents a merchantship from remaining indefinitely in a foreign port; it should not be the same in case of war, if the ship belongs to a belligerent country. That ship ought to leave the neutral port it has gone into when it has completed the operations which necessitated its entry. A neutral power would fail in its duties of neutrality, if it let a ship remain in one of its ports after it had completed the unloading and loading of its cargo, since that would put an end to the danger [of capture] against which it sought shelter. . . . All that can be asked of a neutral State is not to increase the risk which property runs, but conversely it should do nothing to diminish it. Having a right of policing over foreign merchantships in its waters, the neutral State ought to see to it that during their stay they do not commit any act which would be a violation of its neutrality. It therefore will take the necessary

...

Refugee merchant

ships not "interned"

U.S., 1917

...

measures so that they cannot send
communications useful for opera-
tions of war, especially by radio. It must also do what is necessary to
keep them from taking on quantities of coal or food great enough to sup-
ply or revictual warships of their country." Ibid. 725-726, translation.
Cf. Raoul Genet, Droit maritime pour le temps de guerre, vol. 2, pp. 151-155.
With respect to the treatment of foreign merchant vessels in port in
time of peace, see vol. II, pp. 206 et seq., of this Digest.

Despite the fact that the United States customs authorities in Puerto Rico lacked sufficient forces to guard German merchant vessels which had taken refuge there, the Department of State said that "it would be inadvisable to disable the machinery of or place guards upon self-interned German vessels in American ports".

The Secretary of State (Lansing) to the Secretary of the Treasury (McAdoo), Mar. 11, 1916, MS. Department of State, file 763.72111/3518. The Department of State later wrote that it could not recommend that the German crew be removed from one of these German merchant vessels. Mr. Lansing to Mr. McAdoo, Apr. 29, 1916, MS. Department of State, file 763.72111/3518; 1916 For. Rel. Supp. 746, 748, 749.

In reply to a suggestion that German vessels described as being "interned" in Puerto Rico should be used in commerce between Puerto Rico and the United States, the Department of State said:

You, of course, understand that German vessels now lying in American ports are not "interned" in the sense in which that term is understood in international practice. These vessels have voluntarily sought refuge in American ports, and this Government would not appear to have any reason to object to their sailing from these ports provided the vessels are not used in such a way as to make American ports bases of belligerent operations.

The Acting Secretary of State (Polk) to Senator Broussard, May 18, 1916, MS. Department of State, file 862.85/24.

In late January and February 1917 authorities of the United States kept close watch over Austrian and German merchant vessels lying in American ports. In a few cases they were boarded and possession was taken by the United States.

See vol. VI, pp. 570-571, of this Digest.

Section 1 of title II of the Espionage Act of June 15, 1917 provides:

Whenever the President by proclamation or Executive order declares a national emergency to exist... the Secretary of the Treasury may make, subject to the approval of the President, rules and regulations governing the anchorage and movement of any vessel, foreign or domestic, in the territorial waters of the United States, may inspect such vessel at any time, place guards

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