File No. 462.11Se8/30
The Ambassador in Germany (Gerard) to the Secretary of State
[Received June 8, 11.40 p. m.]
2391. My 2278, May 22, 1 p. m.1 The following is the text of the reply of the German Government in the Frye case:
Berlin, June 7, 1915.
The undersigned has the honor to make the following reply to the note of his excellency Mr. James W. Gerard, Ambassador of the United States of America, dated April 30 [28], 1915,2 Foreign Office No. 3291, on the subject of the sinking of the American sailing vessel William P. Frye by the German auxiliary cruiser Prinz Eitel Friedrich:
The German Government can not admit that, as the American Government assumes, the destruction of the sailing vessel mentioned constitutes a violation of the treaties concluded between Prussia and the United States at an earlier date and now applicable to the relation between the German Empire and the United States or of the American rights derived therefrom. For these treaties did not have the intention of depriving one of the contracting parties engaged in war of the right of stopping the supply of contraband to his enemy when he recognizes the supply of such [contraband] as detrimental to his military interests. On the contrary, Article 13 of the Prussian-American treaty of July 11, 1799, expressly reserves to the party at war the right to stop the carrying of contraband and to detain the contraband; it follows then that if it can not be accomplished in any other way, the stopping of the supply may in the extreme case be effected by the destruction of the contraband and of the ship carrying it. As a matter of course, the obligation of the party at war to pay compensation to the interested parties of the neutral contracting party remains in force whatever be the manner of stopping the supply.
According to general principles of international law, any exercise of the right of control over the trade in contraband is subject to the decision of the prize courts, even though such right may be restricted by special treaties. At the beginning of the present war Germany, pursuant to these principles, established by law prize jurisdiction for cases of the kind under consideration. The case of the William P. Frye is likewise subject to the German prize jurisdiction, for the Prussian-American treaties mentioned contain no stipulation as to how the amount of the compensation provided by Article 13 of treaty cited is to be fixed. The German Government therefore complies with its treaty obligations to a full extent when the prize courts instituted by it in accordance with international law proceed in pursuance of the treaty stipulations and thus award the American interested equitable indemnity. There would therefore be no foundation for a claim of the American Government unless the prize courts should not grant indemnity in accordance with the treaty; in such event, however, the German Government would not hesitate to arrange for equitable indemnity notwithstanding. For the rest, prize proceedings of the case of the Frye are indispensable, apart from the American claims, for the reason that other claims of the neutral and enemy interested parties are to be considered in the matter.
[Page 436]As was stated in the note of April 4 last, the prize court should have to decide the questions whether the destruction of the ship and cargo was legal; whether and under what conditions the property sunk was liable to confiscation, and to whom and in what amount indemnity is to be paid provided application therefore is received. Since the decision of the prize court must first be awaited before any further position is taken by the German Government, the simplest way for the American interested parties to settle their claims would be to enter them in the competent records in accordance with the provisions of the German code of prize proceedings.
The undersigned begs to suggest that the Ambassador bring the above to the knowledge of his Government, and avails himself [etc.]
v. Jagow