The Washington herald., 1915-08-05

Berlin, July 80. 1915.
The undersigned has the honor to
inform his excellency. Mr.. James W.
Gerard, Ambassador of the United
States of America, in reply to the
note of the 18th ultimo, Foreign Of
fee No. 1880. on the subject of the
sinking of the American merchant
vessel. William z. Frye. by the Ger
man auxiliary cruiser. Prince Eitel
Friedrich. that the points of view
brought out in the note have been
carefully examined by the imperial
German government. This eXamina-
tion has led to the following con-
clusions:
The government Of the United States
believes that it is incumbent upon II
to take the position that the treaty
rights to which America is entitled.
as contained in article II of the Prus-
sian-American treaty Of amity and
commerce of September 10. 17S5 in
article 13 of the Prussian-American
treaty of amity and commerce of
July II, 1879, were violated by tine
sinking of the William P. Frye. 1t
interprets these articles as meaning
that a merchantmen Of the neutral
contracting party carrying contra
band cannot in any circumstances be
destroyed by a warship Of the belli-
gerent contracting party. and that
the sinking of the William y. Frye
was, therefore, in violation of the
treaty: even IL her cargo should have
consisted of contraband, which 1t
leaves outside Of the discussion.
The German government cannot ac-
cept this view. 1t insists as hereto
fore that the commander of the Ger
man auxiliary cruiser acted In the
legal exercise of the right OF control
of trade in contraband enjoyed by
warships of belligerent nations, and
that the treaty stipulations mention
ed merely oblige the German govern
ment to make compensation for the
damage sustained by the American
citizens concerned.
Declaration of London Cited.
1t is not disputed by the American
government that according to general
principles of international law a belli-
Gerent is authorized in sinking neutral
vessels under almost any conditions
for carrying contraband As is we'll
known. these principles were laid
down in articles 40 and 50 OF the
Declaration of London. and were
recognized at that time by the duly
empowered delegates of all the ma
tions which participated in the con-
ference. including the American dele
gates, to be declarative of existing
international law (see preliminary
clause of the Declaration of London);
moreover. at the beginning of the
present war. the American govern
ment proposed to the belligerent ma
tions to ratify the Declaration of
London and give its provisions for
NAL validity also.
The German government has al
ready explained in its note of April
4 last for what reasons it considers
that the conditions justifying the
sinking under international law We're
present in the case of the William p.
Frye. The cargo consisted of Cond-
tional contra band. The destination of
which for the hostile and armed
forces was to be presumed under the
circumstances: no proof to overcome
this presumption has been furnished.
More than half the cargo of the ves-
sci was contraband. SO that the YES
sci was liable to confiscation. The
attempt to bring the American yes
sci into a German port would have
greatly imperiled the German vessel
in the given situation of the war. and
at any rate practically defeated the
success OF her further operations
Thus the authority for sinking the
vessel was given according to general
principles of international law.
There only remains then to he ex-
amined the question how far the
Prussian- American treaty stipulations
modify these principles Of internation-
al law.
In this connection Article ~. OF the
treaty of 1IS5 provides that IN the
event OF a war between one OF the
contracting parties with another pow
er the free commerce and intercourse
of the nationals of the party remain
ing neutral with the belligerent pow
ers shall not be interrupted. but that
on the contrary the vessel Of the neu-
trail party may navigate freely to and
from the ports of the belligerent pow
ers. even neutralizing enemy goods
on board thereof. However this ar
ticle merely formulates general rules
for the freedom of maritime inter-
course and leaves the question of con-
traband untouched: the specific stipu-
lations on this point are contained in
the following article. which is ma
terially identical with Article 15, of
the treaty of 1879 now In force.
The plain intention of Article 13
is to establish a rea sonable compro-
mise between the military interests of
the belligerent contracting party and
the commercial interests of the neu-
trail party. On the one hand the bel
ligerent party is to have the right
to prevent the transportation of war
supplies to his adversaries even when
carried on vessels of the neutral party: ,
on the other hand the commerce and