The Birmingham age-herald., 1915-06-29
GERMANY URGED TO RECONSIDER
 HER POSITION ON
 THE FRYE CASE
tConfinued from Page One,

In this case the admitted facts show
 that pursuant 10 orders from the com
 mander of the German cruiser the mas
 ter of the Frye undertook to throw
 oA erboard the cargo of that vessel, but
 trat before the work of delivering out
 the cargo was finished the vessel with 1 the cargo was sunk by order of the German commander I For these reasons. even if it be as- | samed as your excellency has done, 1 that the cargo was contraband, your 1 contention that the destruction of the 1 v"ssel was Justified by the provisions l of article B, does not seem to be well | founded. The government of the Uni- | ted States has not thought it neees- sdry in the discussion of this case to go into the question of contraband or noncontraband character of the cargo The imperial German government has l admitted that this question makes no difference so far as its liability for damages is concerned and the result Is the same so far as the Justification for
 the sinking of the vessel is concerned.
 As shown above, If we assume that the cargo was contraband the master of the Frye should have been allowed 10 deliver it out and the vessel should
 have been allowed to proceed on her voyage.
 Cargo Nonc0ntraband On the other hand. if we assume that the cargo was noncontraband, the de- struction either of the cargo or the yes se could not be Justified inc the crcum-
 stances of this case under any accepted rule of international law. Attention is also called to the provisions of article i2 of the treaty of 17S5 between the Uni ted States and Prussia, which. like article l3 of the treaty of 1799 was continued in force by article 12 of the treaty Of 1928. So far as tho provisions of article 12 of the treaty of 17S5 apply to the question under consideration they are as follows: If one of the contracting parties should be engaged in war with any other power, the free intercourse and commerce of the subjects or citizens Of the party remaining neutral with the belligerent powers shah not be interrupted. On the contrary. in that case as in full peace the vessels of the neutral party may navigate freely to and from the ports and on the coasts of the belligerent parties. free vessels making free goods, insomuch that all things shall be adjudged free which shall be oh any vessel belonging to the neutral party, although such things belong to an enemy of the other.
 It seems clear to the government of the United States. therefore, that whether the cargo of the Frye is regarded as contraband or as noncontrapanc the de- struction of the vessel was as stated in | my previous communication on this sub ject. "a violation of the obligations inn posed upon the imperial German govern ment under existing treaty stipulations between the United States and Prussia
 For these reasons the government of the United States must disagree with the contention which it understands is now made by the imperial German government that an American vessel carrying con hoy, hA
 ty or accountability beyond the payment of such compensation for damages as may be fixed by German prize court. The issue thus presented arises on a disputed
 interpretation of treaty provisions. the settlement Of which requires direct diplo- matic discussion between the two gov ernments and cannot properly be based upon the decision of the German prize court which is in no way conclusive or binding upon the government of the Uni ted States.
 Moreover, even If no disputed questions of treaty Interpretation were involved, the admission by the imperial German gov ernment of it's liability for damages for sinking the vessel would seem to make 1t unnecessary, so far as this claim is concerned, to ask the prize court to decide | whether the destruction of the ship and | cargo was legal, and whether and under what conditions the property sunk was | liable to confisaction." which, you state in your note dated June ', are questions | which should be decided by the prize court. Insofar as these questions relate to the cargo, they are outside of the present | discussion, because, as pointed out in | my previous note to you on the sub | ject dated April IS. "the claim under dis cussion does not include damages for the destruction of the cargo"
 The real question between the two | governments Is what reparation must be made for breach of treaty obligatIons and that Is not question which falls within the Jurisdiction of a prize court.
 Tn my first note on the subject, the government of the United States request ed that full reparation be made by the imperial German government for the de- struction of the William P. Frye" Repa- ration necessarily includes an indemnity for the actual pecuniary loss sustained and the government of the United States takes this opportunity to assure the inn perial German government that such an indemnity, if promptly paid, will be ac- cepted as satisfactory reparation, but it does not rest with prize court to de- termine what repara ton should be made or what reparation would be satisfactory to the government of the United States.
 Would Hesitate
 Your excellency states in your note of June that in the event the prize court L should not grant indemnity in accord ance with the treaty requirements, the German government would not hesitate to arrange for equitable indemnity, but 1t is also necessary that the government of the United States should be satis- fled with the amount of the indemnity. and 1t would seem to be more appro- priate and convenient that an arrange ment for equitable indemnity should be agreed upon now, rather than later. The decision of the prize court even on the question of the amount of indemnity to be paid. would not be binding or conclu. sive on the government of the United States.
 The government of the United States also dissents from the view expressed in your note that there would be no foundation for claim of the Amer