been destroyed during the present war, the destruction was wrought by German submarines, although in a very few cases there has been doubt as to whether it was done by submarines or mines, and if by mines whether they were laid by Great Britain or by Germany. In a very few cases, like those of the Frye, and the Maria the destruction was wrought by a cruiser.

Regarding the procedure of destruction, the rule in respect to making provision for the safety of crews and passengers has not always been observed by the commanders of the German submarines, and in a number of cases persons on board have lost their lives in consequence of the failure to give warning or, in case warning was given, to allow sufficient time for the passengers and crew to save themselves. According to a statement of the British Admiralty, 1550 persons on British merchantmen had lost their lives in consequence of attacks by German submarines down to July 27, 1915, and twenty-two persons on neutral merchantmen had suffered a similar fate.

In the great majority of cases in which neutral merchantmen have been destroyed, the reason alleged, so far as appears from the press dispatches, was the presence of contraband on board the vessel; but in a number of cases the act of destruction was due, as has been said, to alleged inability of the submarine commanders to distinguish the marking of the suspected ship. It being impossible, it was claimed, for the commander to bring the vessel to, send a searching party aboard or otherwise verify its nationality, the ship was destroyed upon suspicion. Thus in the case of the American steamer Gulflight, torpedoed on May 7, 1915, without warning and with the loss of three lives, all Americans, it was alleged that the ship was convoyed by an English merchant vessel, which it was assumed was armed, and being unable to distinguish the neutral markings of the Gulflight and considering it dangerous to approach the vessel for the purpose of verifying its nationality, in view of the presence of the convoying ship of the enemy, the submarine submerged and torpedoed it.70 The destruction of the ship was, therefore,

70 See the note of the German Minister for Foreign Affairs to the American Ambassador at Berlin, of June 1, 1915. The chief officer of the Gulflight in a sworn statement filed with the Department of State, declared that the ship was flying a large American ensign six by ten feet in size at the time it was torpedoed.

an "unfortunate accident" for which the German Government expressed regret and declared itself ready to make full compensation. The obvious duty of naval commanders in cases of doubt such as this is to refrain from attack; in any case, the destruction of a neutral vessel is permissible only under the most exceptional circumstances, and the naval commander who assumes to destroy where there is doubt as to the nationality of the vessel is guilty of an outrage upon the rights of neutrals and incurs the risk of involving his own government in serious controversy.

The aerial bombardment of the American steamer Cushing on April 28th, while it was on a voyage to Rotterdam, on the alleged ground that its neutral markings were not recognizable by the aviator, who mistook the ship for an enemy vessel, was another case of the kind, and for which the German Government offered to make reparation." Still another similar case was the torpedoing on May 25, 1915, of the American vessel Nebraskan while proceeding in ballast from Liverpool to the United States. The commander of the submarine claimed to have mistaken it for an English vessel because of insufficient markings. The German Government expressed regret for the act, and offered to make compensation to the owners.72 The captain, however, testified that the ship had painted on its side in large letters the words "Nebraskan of New York," which he added, must have been seen by the submarine commander. The stopping of the American steamer Normandy on July 9th and the verification of its nationality by an examination of its papers would seem to show that it is not impossible for submarines to comply with the rules of international law governing naval warfare when their commanders are so disposed. At any rate, this is the proper procedure to be followed, and where it cannot be done without danger to the captor, he should refrain from attacking under any circumstances if there is doubt as to the enemy character of the ship.

The destruction of the American steamer Leelanaw by a German submarine on July 25, 1915, while the ship was proceeding with a Russian cargo of flax from Archangel to Belfast, was still another case of the kind. The crew was taken aboard the submarine without loss of life. Before

71 Communication of Herr von Jagow to Mr. Gerard, June 1, 1915.

72 Memorandum of the German Foreign Office delivered to Mr. Gerard, July 12,

1915.

destroying the vessel, the commander of the submarine examined the ship's papers and satisfied himself of its nationality and of the character of its cargo according to the established procedure. The American consul general at first reported that the Leelanaw attempted to escape after it had been hailed, but the captain testified that after the first shot was fired he turned and headed for the submarine. In any case, the right to destroy for attempting to escape is admitted only after repeated attempts to evade capture or in consequence of forcible resistance. The fact that the captain submitted to search removed all reason for destruction on the ground of attempt to escape. His proposal that the cargo be jettisoned and the ship allowed to proceed was rejected by the commander of the submarine, who is reported to have replied that he was not in the habit of throwing contraband cargoes overboard. The destruction of the ship was in violation of the treaty of 1828 between Prussia and the United States, to which reference is made below, and a claim for compensation was presented to the German Government.

A case which attracted more attention than any of those above mentioned, and which was the subject of prolonged diplomatic controversy between the American and the German Governments, was the sinking of the American sailing vessel, William P. Frye, on January 28, 1915, by the German cruiser Prinz Eitel Friedrich. The Frye, while proceeding on a voyage from Seattle to Queenstown, Falmouth or Plymouth with a cargo consigned "to order" was stopped, a searching party was sent aboard, and after examining the papers, the commander directed that the cargo be thrown overboard. Subsequently, "after having tried to remove the cargo," the commander took the papers and crew aboard and sunk the ship.

In a note dated March 31, 1915, the Secretary of State, after reciting briefly the facts of the case and without entering into an argument concerning the illegality of the act, presented a bill to the German Government for $228,059.54 to cover the value and equipment of the vessel, freight, traveling and other expenses of the captain and its agents, the personal effects of the captain and damages on account of the loss of the ship.

In a note dated April 5th, the German Government replied that the

commander had "acted in accordance with the principles of international law as laid down in the Declaration of London and the German prize regulations." The ports to which the vessel was destined, it was asserted, were "strongly fortified" and were, moreover, serving as bases for the British naval forces; consequently, the cargo was to be considered as destined for the use of the armed forces of the enemy, and since it was not possible to take the prize into a German port without exposing the captor to danger or without impeding the success of his operations, he was justified in destroying it, and this he did after taking off the papers and the crew. The question of the legality of the act, and the amount of indemnity due, if any, would in due course be submitted to a German prize court for determination in accordance with the Declaration of London and the code of German prize procedure, and there the owners would be given an opportunity to present evidence that the destination of the cargo was innocent. If such proof were not adduced, the German Government would not, according to the general principles of international law, be liable for any compensation whatsoever; but in view of the provisions of Article 13 of a treaty between Prussia and the United States of July 11, 1799, taken in connection with Article 12 of the treaty of May 1, 1828, "which as a matter of course were binding. on the German prize courts," the American owners would receive compensation even if the court should find that the cargo consisted of contraband. Proceedings by the prize court, it was added, were necessary not only to pronounce on the legality of the act, but also to determine the standing of the claimants and the amount of the indemnity.

The American Government replied in a note of April 28th, saying that it would be "inappropriate " in the circumstances and would involve unnecessary delay to adopt the suggestion of the German Government that the questions referred to above should be submitted to a prize court. Unquestionably, the note added, the destruction of the Frye was a violation of the treaty obligations of Germany, the German Government had already admitted its liability, and the status of the claimants. and the amount of the indemnity were appropriate matters for settlement by diplomatic negotiation. In view of the admission of liability by reason of treaty stipulations, it was unnecessary to enter into a discussion of the meaning and effect of the Declaration of London, which

had been given considerable prominence in the German note of April 5th.

To this note the German Government replied on June 7th, disclaiming having admitted that the destruction of the Frye was a violation of the treaties of 1799 and 1828. The treaty of 1799, it was argued, expressly reserved the right to stop and to detain contraband; it followed, therefore, that if it could not be stopped in any other way than by destruction of the ship carrying it, that mode of procedure was permissible, and whatever the mode of procedure adopted, it must be passed on by the prize court.

The Secretary of State of the United States replied at some length in a note of June 24, in which he stated that the American Government could not concur in the conclusions of the Imperial Government. The only question at issue was the method to be adopted for ascertaining the amount of the indemnity to be paid under an admitted liability, and he noted with surprise that the Imperial Government desired to raise in addition questions regarding the meaning and effect of the treaty provisions under which it had admitted its liability. The view put forward by the German Government in its last note that the treaty recognized, at least by indirection, the right to destroy a neutral prize, was denied, and again it was asserted that prize proceedings for the purpose of determining the amount of the indemnity were inappropriate. The Secretary of State then quoted Article 13 of the treaty of 1799, which, by its express terms, prohibits not only destruction, but even detention. This article reads as follows:

In the case supposed of a vessel stopped for articles of contraband, if the master of the vessel stopped will deliver out the goods supposed to be of contraband nature, he shall be admitted to do it, and the vessel shall not in that case be carried into any port, nor further detained, but shall be allowed to proceed on her voyage.

That the master of the Frye undertook to jettison the cargo, but before it was completed the commander of the German cruiser sank the vessel, had been fully admitted by the German Government. Attention was also called to Article 12 of the treaty of 1785 which, like Article 13 of the treaty of 1799, was continued in force by Article 12 of the treaty of 1828. This article reads as follows: