LETTERS, BRIEFS, AND MEMORANDUMS

MEMORANDUM BY COL. JOSEPH I. MCMULLEN, WAR DEPARTMENT, ON GERMAN SHIPS SEIZED DURING THE WAR

DECEMBER 1, 1926.

German tonnage taken over at the outbreak of the war transported to France an army of 522,103, and up to June 30, 1919, had returned 409,516 of that number to the United States. In all, they transported safely both ways 931,619 American troops, and of this number the transport Leviathan alone carried 175,571.

Between July 1, 1918, and June 30, 1919, 5,185,000 tons of American cargo were shipped to the American Expeditionary Forces and there was returned to the United States during the fiscal year 1919, 533,797 short tons.

Out of a total of 616 vessels in Army service between the declaration of war and September 10, 1919, 33 vessels were lost.

Up to June 30, 1919, 2,068,029 personnel had been shipped overseas.

Up to October 31, 1918, 742 of Army personnel had been lost at sea, of whom 384 were lost as a result of the ships being torpedoed by German submarines or struck by German mines.

In the transportation of troops to and from France, 19 of the original German interned ships were used for these purposes and the number of troops transported each way is as appears in the following statement:

The value of this service to the United States, based upon the average prices paid to the British Government for transportation of troops to and from France is as follows: 931,619, at $81.75 each, $75,159,853.25.

The value to the United States of the Leviathan alone, based on these figures and this same rate of computation, amounts to $14,352,929.25.

On September 1, 1918, there was a total of 8,389,000 dead weight tonnage of ships in the service of the United States. Of this total the ex-German and Austrian ships represented 605,000, or 7 per cent.

On November 1, 1918, there was in the trans-Atlantic cargo service a total of 2,430,000 dead weight tons, of which the German ships represented 204,000 -dead weight tons.

The number of troops carried per thousand tons per day of various was as follows:

America, Ex-German__.

George Washington, Ex-German__

Leviathan, Ex-German__.

Great Northern, American__

Northern Pacific, American_.

Martha Washington, Ex-Austrian_.

Orizaba, American..........

145 11:.

14

The general average of all ships for troops transported per 1,000 tons pe day was 7.19.

The record of the United States Army transport Great Northern, builk ; the Great Northern Railway Co. and taken over by the Government in the early days of the war, is so outstanding that it should be mentioned. Fas the date the Great Northern reached New York, early in 1918, it was operas 410 days and traveled over 123,000 miles, during which period 18 turn-aroun had been accomplished on an average of 23 days per turn-around, and a ta of 53,509 troops transported. The Great Northern made the remarkable spes record of a trip from Hoboken to Brest and return of 12 days 5 hours and ↳ minutes and also made the best record on tonnage for troops carried.

Of the various vessels sunk, 23 were torpededoed with a gross tonnage « 130.575; a dead weight tonnage of 167,288. The value of the ships so lost w $25,531,752.55 and the value of cargo so lost, $17,391,123.96. Two ships wer lost through striking German mines, with a gross tonnage of 8,531 and des weight tonnage of 13,245. The value of the ships so sunk was $2,322,98612 The value of the cargo, $3,103,960.90.

Eleven ships were lost as result of other causes, such as being ground collision, and going on the rocks, the figures for which are unnecessary to in this paper but, including those ships, the grand total of gross tonnage b is 204,694 tons and a dead-weight tonnage of 267,891 and a loss in valu ships of $46,100,824.61 and cargo value of $36,185,891.02, resulting in a loss of ships and cargo of $82,286,715.63. It is to be observed that the * of ships by the United States as a result of German torpedoes and mines is more than 33% per cent of the total tonnage of ships seized from Geruz owners, and the value of such ships and cargoes so lost is $47,584,71627.

The total tonnage shipped overseas to June 30, 1919, was 5.185,000 tons, and return 533,797, making a grand total of 5,718,797 tons transported.

As I have before stated the amount of German tonnage utilized for transportation of supplies amounted to approximately 8 per cent, be 206,550 dead-weight tons of the 2,430,000 dead-weight tons engaged in t service. The share of cargo, therefore, to be credited to the German sh would be 486.098 short tons. At the average cost per short ton of $60, whic was paid the British, this would amount to a total credit to German of $29,165,880. To summarize, we could place on the credit sideGerman seized ships, troop transport_ Transportation of freight___.

Total.

$75, 159, 83. S

29, 165, 880, X

104, 325, 7337

On the debit side we would place the loss of ships and cargo at $2,286, 715. 6 And considering that the Government lost no more than the insurance on the lives of the soldiers so lost, amounting to $10,000 each, we would charge to that item____.

An additional charge would be those damages to ships and cargoes which were not sunk and estimated to be---

Total_.

Less---

3,840,000.

27,500,000.

113, 626. 7156 104, 325, 733

9.300.9825

Balance chargeable to German depredations____ The values placed on ships above as lost are based on the rate of $150 for dead-weight ton and $192 for gross ton. Placing this same value on the 605,000 tons of the German seized ships, you would have a total value at $15 per dead-weight ton of $90.750,000 and at $192 per gross ton, $116,160,000. Jos. I. MCMULLEN,

Lieutenant Colonel, Judge Advocate General's Department.

IEMORANDUM BY MR. LESTER H. WOOLSEY, WASHINGTON, D. C., ON THE USE OF ALIEN PROPERTY AND THE PAYMENT OF AMERICAN CLAIMS

THE STATUS OF GERMAN MERCHANT SHIPS

NOVEMBER 29, 1926.

The German ships in American harbors at the date of declaration of war,. vere taken over by the United States under the joint resolution approved May 12, 1917. This resolution reads as follows:

66

Resolved, etc., That the President be, and he is hereby authorized to take ver to the United States the immediate possession and title of any vessel vithin the jurisdiction thereof, including the Canal Zone and all territories nd insular possessions of the United States except the American Virgin slands, which at the time of coming into such jurisdiction was owned in vhole or in part by any corporation, citizen, or subject of any nation with which the United States may be at war when such vessel shall be taken, or vas flying the flag of or was under register of any such nation or any political subdivision or municipality thereof; and, through the United States Shipping 3oard, or any department or agency of the Government, to operate, lease,. harter, and equip such vessel in any service of the United States, or in any commerce, foreign or coastwise.

"SEC. 2. That the Secretary of the Navy be, and he is hereby, authorized and directed to appoint, subject to the approval of the President, a board of survey, whose duty it shall be to ascertain the actual value of the vessel, its equipment, appurtenances, and all property contained therein, at the time of ts taking, and to make a written report of their findings to the Secretary of he Navy, who shall preserve such report with the records of his department. These findings shall be considered as competent evidence in all proceedings on any claim for compensation."

In the debates on this resolution in the House, the question of compensaion for the German shipowners was considered and different views of Members were expressed, but it was admitted that this resolution did not commit the United States to granting compensation nor prevent from granting compensation for the taking of the German vessels in question.

However, it clearly was the opinion of Mr. Alexander, in charge of the resolution in the House, that in acting under this resolution the President was authorized to take over the possession and title of these vessels. He said: "Mr. Chairman, attention has been called to the fact that the joint resolution under consideration does not make any provision for payment for the vessels, the possession and title of which the President is authorized to take over to the United States. The failure of the committee to do so was not the result of oversight. In section 2 of the joint resolution we do make provision for the survey and valuation of the vessels. The rights of the owners and all intervening equities are left for the consideration of the Congress at some future time." (Cong. Rec., May 7, 1917, p. 1905.)

Any doubt on this point was cleared up by President Wilson's Executive order of November 24, 1919, under this joint resolution, by which the President declared

"Now, therefore, the possession and title of the United States in all such vessels is taken over in accordance with the joint resolution adopted by Congress and approved by the President May 12, 1917."

Special attention should be called to the fact that the German vessels wereseized by the United States under the resolution above quoted and not under the enemy trading act of October 6, 1917. Whatever may be the status of the alien property seized under the enemy trading act, this has no bearing whatever on the status of the German vessels which were seized under the joint resolution mentioned, and to which the United States acquired legal possession and title.

These German vessels have an entirely different status in international law from private enemy property on land. The vessels were in American ports at the time the United States declared war and were at that time under the guard of American authorities to prevent their destruction by the officers and men on board. It is a fact that these vessels were seriously and intentionally disabled at the time they were taken over by the United States. The damage done to the German vessels by the officers and crews included among other things the disabling of the boilers and machinery. In some cases the machinery

was totally wrecked, and in other cases important parts were taken away, in at least one case the vessel was sunk. These acts of violence occu between the breaking off of relations with Germany on February 3, 1917, 12 the date when the vessels were put under guard before the declaration of te on April 6, 1917.

It was reported at the time that the efforts to disable these vessels by 2 officers and men had been ordered by the German Government. Capte Polack, commander of the Kronprinzessin Cecilie, testified in the Federal or at Boston, according to a newspaper report of February 17, 1917, that be à been ordered by a gentleman connected with the German Embassy to disk the machinery of his vessel in order to prevent the ship's use by the [1States Government in the event of hostilities with Germany. He also texter that he was an officer of the German Navy and would be tried for treas he disclosed the name of this gentleman.

The testimony of Captain Polack is confirmed by the statement contin in the Providence Journal of April 27, 1916, to the effect that a confert: was held at the office of the Austro-Hungarian consul general at New IG on the afternoon of April 18, at which the German consul general, a rec sentative of the German Embassy, and at least seven of the captains of a German and Austrian liners that were then tied up in the Hudson River w present.

The purpose of the conference, it was stated, was to discuss the best men for making interned vessels worthless for seagoing purposes the momen became certain that relations between the United States and Germany Austria approached a condition of war. One captain suggested the use an electric bomb, which on pressing a button would destroy essential pr of the machinery; another the use of bags of sand and a few turns of cert parts of machinery or the dropping overboard of the essential parts of i machinery.

These reports are confirmed in Count Bernstorff's book, My Three Years L America, in which he recounts the incidents during the time he was Gera ambassador to the United States. In this book Count Bernstorff refers: the matter of disabling German ships by order of his Government, as follows "On January 31, at 5 o'clock in the afternoon, I handed Mr. Lansing t official communication about the U-boat war. This was my last political in view in America. We both knew that the end had come, but we did not adz the fact to each other. The Secretary of State contented himself with repit ing that he would submit my communication to the President. I cheriste! no illusions regarding the expected outcome of this interview, for the matum of April 18, 1916, no longer allowed of any chance of preventing → rupture of diplomatic relations. Consequently on the morning of the 31st 4 January I had already given the order that the engines of all ships lying American harbors were to be destroyed. I had already been given instructier to this effect at the time of the Sussex cris s. and these instructions had Da 'been repeated from Berlin. As a matter of fact it was dangerous to all of any delay, for on the evening of January 31 our ships were already set by the American police. As far as I know, however, all of them without eception were made unfit for use before this occurred" (pp. 379–380).

The same tactics were followed by the officers and crews of the Germ vessels in Portugese ports apparently upon orders issued to the German ister at Lisbon, February 14, 1916, by the German Government. The trans tion of the German instructions and of the replies showing that they wat carried out by the German vessels, as given to me, are as follows:

"Imperial German Legation. B. 191, Lisbon, 14th of February, 1916 "As the possibilities of the sequestration by the Portugese Government ? the German ships anchored in Portugese ports have increased owing to a net 'law, I request you, in compliance with superior orders, to direct the captain of the German steamers within your consular district to inutilize imme diately' in a permanent manner, without in any way attracting attention, the steam cylinders of the main engines. Besides this, all the plans of the machinery on board should be destroyed. I request you to see that the shore measures are strictly carried out and that the captains and members of the crews concerned are verbally and in writing bound to absolutely secrecy (Signed) Rosen, Imperial Minister, to Emil Katzenstein, in charge of the Imperial Consulate, Oporto."

"Steamer Westa J. H. S., Bremen. We, the undersigned, have to-day ceived through the German consulate at Oporto the instructions from the

German Legation at Lisbon, of the 14-2-16, by which and in obedience to superior orders the steam cylinders of the main engines have to be inutilized in a permanent manner and immediately. These instructions were immediately carried out without attracting attention. W. Schmidt, fiirst engineer S. S. Westa; H. Bauer, boatswain, German S. S. Westa."

"We the undersigned members of the crew by order of the first engineer and with him completely inutilized the main engines of the ship. We solemnly bind ourselves to secrecy as regards the above, and not to make any one any communication whatever in this respect either verbally or by writing: W. Schmidt, first engineer; M. Coobs, second mate; A. Brenert, cook; E. Albrecht, seaman: A. Teige, fireman. H. Bauer, boatswain of the Westa also bound himself. Oporto 15.2.1916."

It will not be denied, morevover, that the German officers on these vessels were all or nearly all reservists in the German Navy and that all the vessels, or at least most of them, belonged to a class of vessels which is regarded in international practice as hostile vessels at the outbreak of war and not entitled to the days of grace usually granted to private ships for departure, or to any other act of leniency. They belonged to the class of vessels which President McKinley, in his proclamation of April 26, 1898 (30 Stat. L. 1771), exempted from his license to depart from the ports of the United States at the outbreak of the Spanish-American War. The proclamation reads in part as follows:

4. Spanish merchant vessels, in any ports or places within the United States, shall be allowed till May 21, 1898, inclusive, for loading their cargoes and departming from such ports, or places; and such Spanish merchant vessels, if met at sea, by any United States ship, shall be permitted to continue their voyage, if, on examination of their papers, it shall appear that their cargoes were taken on board before the expiration of the above term: Provided, That nothing herein contained shall apply to Spanish vessels having on board any officer in the military or naval service of the enemy, or any coal (except such as may be necessary for their voyage), or any other articles prohibited or contraband of war, or any despatch of or to the Spanish Government." This proclamation was construed by the United States Supreme Court in the Panama (1900), (176 U. S. 535).

The Panama was under contract with the Spanish Government, whereby, among other things, that Government had the right to take possession of the steamer in case of war, and to require that the ships of this line should be especially adapted to use in war.

Furthermore, the doctrine of days of grace, or "delai de faveur," was never intended to apply to merchant vessels laid up in a harbor to avoid capture by an enemy. It was originated merely to facilitate commerce, and to allow a vessel which has entered port for purely commercial purposes, to achieve that purpose by taking on her cargo and departing. It is difficult to see on what theory the doctrine would be applicable to vessels which had lain in port for two and one-half years to escape capture. But in any event if "days of grace did apply to these vessels they could not take advantage of it because they had been earlier disabled by the German reservist commanders.

Not only were these German vessels commanded and officered by naval reservists in the German Navy, but practically all of the vessels were so constructed that they might be converted into war vessels, and they were built with that end in view. Indeed, as I understand, these German ships were designed to be taken over by the German Government as auxiliary war vessels in time of war under contracts or agreements to that effect with the German owners. Hence, they were of the class of vessels which are expressly excluded from days of grace or right of departure by the rule laid down in the Hague Convention relative to the status of enemy merchant ships at the outbreak of hostilities. The rule is stated in section 5 of the convention, as follows: "The present convention does not affect merchant ships whose build shows that they are intended for conversion into war ships." 1

It is undeniable, therefore, that these German ships in American ports were hostile vessels. Most of them were built to be converted into auxiliary cruisers, were officered by German naval reservists, were destroyed or disabled by them by order of the German Government with hostile intent and were not in any sense entitled to the privileges usually accorded to innocent merchant vessels.

The United States has not, however, ratified this convention.