Mr. McCormick to Mr. Hay.
St. Petersburg, September 17, 1904.
Sir: With reference to the Department’s instructions Nos. 143 and 144 and to the cablegraphic instruction of yesterday, I have to say that I lost no time in communicating to Count Lamsdorff the contents of the first-named instruction by note, urging that he give me an early reply for reasons contained in that note.
I had already explained to his excellency that the ordinary commercial intercourse between the United States and Japan had been greatly disarranged by the decision of the prize court at Vladivostok in the case of the Arabia, and that any delay in removing all doubts as to the Russian Government’s position with regard to the decision and the interpretation to be placed upon its own prize rules was of vital importance, as well as the character of the decision when it should be rendered.
The statement made on yesterday by Count Lamsdorff to the British ambassador, seems to remove all doubt as to what Count Lamsdorff meant in referring to the decision of the prize court that “it was a matter of interpretation.” It would seem clear from this statement that Count Lamsdorff intended to convey the idea that, as between the Russian Government and its prize court, the decision of the court confiscating the portion of the cargo destined for Japanese ports was “a matter of interpretation,” and not as between the Government of the United States and the Russian Government. Thus far the statement made to Sir Charles Hardinge seems entirely satisfactory, but the statement made to Sir Charles Hardinge that “the conditional contraband character of articles used for peaceful as well as warlike purposes is admitted in the new instructions, but articles of dual use addressed to private individuals in the enemy’s country are not necessarily exempted from seizure and confiscation, as such persons might be employed as agents or contractors of the naval or military authorities,” seems to me to leave much to be desired, as only after seizure and the usual course in the prize court can it be absolutely decided that any of the articles referred to are not contraband.
The decision rendered by the Vladivostok prize court with reference to the Calchas cargo, while the special commission was still sitting, that the very articles referred to in the instructions sent to that prize court were contraband, does not, to my mind, point to the entirely satisfactory interpretation of the rules for which some have hoped as a result of the decision of the commission.
[Page 767]It may be, however, as I have intimated in a former dispatch, that the decision of the court of first instance will be reversed by the admiralty court.
I endeavored to see Count Lamsdorff to-day, but found that he had gone to Peterhof, although I would have preferred to have addressed him a note and asked for a reply in writing to the several notes which I have addressed him on this subject, as a verbal answer in a matter of so great importance can not but be far from satisfactory to you.
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I have, etc.,