The Government of the United States, replying on June 24, expressed regret that it was unable to concur in the contention of the German Government. The only question at issue, it considered, was the method of ascertaining the amount of indemnity due. The destruction of the Frye found no warrant in the treaty; on the contrary, "these treaty provisions do not authorize the destruction of a neutral vessel, in any circumstances. By its express terms the treaty prohibits even the detention of a neutral vessel carrying contraband if the master of the vessel is willing to surrender the contraband." This was the case with the Frye. The question of the contraband or non-contraband character of the cargo was not essential, for in neither case was there any right to destroy. The point at issue, since Germany's liability to pay compensation had been admitted, was a question of interpretation of treaties, always a subject for diplomatic discussion and settlement. Reparation for a breach of treaty was not within the jurisdiction of the German prize court nor was its decision binding upon the United States. Reparation, as understood by the Government of the United States, necessarily included "indemnity for the actual pecuniary loss sustained," and such indemnity, it was stated, if promptly paid, would be considered as reparation, "but it does not rest with a prize court to determine what reparation should be made or what reparation would be satisfactory to the Government of the United States." The claim was "for an indemnity for a violation of a treaty, in distinction from an indemnity in accordance with the treaty." Other neutral or enemy claims, urged as reasons for prize proceedings, were of no concern to the Government of the United States, whose claim, it was again suggested, was properly the subject for direct settlement by diplomacy.

In its third note (July 30) the German Government reaffirmed its former contentions. The general principles of international law justified destruction of the Frye, which principles, as set forth in the Declaration of London, were "recognized at that time by the duly empowered delegates of all the nations in the conference, including the American delegates, to be declarative of existing international law." As for the treaties, Article 12 of the Treaty of 1785 merely laid down a general principle of freedom of inter

course; Article 13 of the Treaty of 1799 gave the specific rule for contraband, which, in effect, was a compromise between the military interests of the belligerent and the commercial interests of the neutral. The belligerent had the means, under the treaties, of preventing contraband reaching his enemy (1) by detention, (2) by taking it over for his own use on payment of full value. The right of sinking was not mentioned, hence "on this point the party stipulations must be supplemented by the general principles of international law." It was not to be thought that a belligerent would allow the carriage of contraband to the enemy against his own military interest, and delivering over the contraband could not be considered if the delay imperiled the existence or the operations of the captor. The legality of the action of the German commander should be examined by the prize court in accordance with (1) the general principles of international law; (2) Article I of the Convention establishing the International Prize Court, and (3) Article 53 of the Declaration of London. In fact, a German prize court had heard the case on July 10 and had delivered a judgment sustaining the contention of the German Government, but had not fixed the indemnity from lack of data upon which to base an estimate. The German Government, however, suggested that the amount due be determined by two experts to be appointed by the respective parties, payment to be regarded not as constituting "satisfaction for the violation of American treaty rights, but a duty or policy of this Government founded on the existing treaty stipulations." Failing this method of settlement, the German Government expressed its readiness to submit the question of treaty interpretation to the Permanent Court of Arbitration at The Hague.

These suggestions for settlement were welcomed by the Government of the United States in its note of August 10, but it proposed that the two methods be combined. First, the two experts should determine the amount of indemnity, referring the matter to an umpire, if necessary, it being understood that the acceptance of indemnity was not to prejudice the contention that the sinking of the Frye was not legally justified. Secondly, this question of justification should be settled by the arbitral means proposed by the German Government. Meanwhile, pending

arbitration, it was necessary to arrive at an understanding as to future German action under similar circumstances.

On September 19 the German Government accepted these proposals, suggesting, however, that in case of disagreement between the experts, the matter be settled, not by an umpire but by direct negotiation. In accepting the offer to arbitrate the question of treaty interpretation, it thought it best that the compromis of arbitration be arranged between the German Foreign Office and the American Ambassador at Berlin, because of the difficulty of instructing the German Ambassador at Washington. With respect to the request for an understanding for the future, while holding itself justified in destroying American ships carrying contraband, even while the arbitration was pending, it announced its intention to compromise, as follows: "Nevertheless the German Government, in order to furnish to the American Government evidence of its conciliatory attitude, has issued orders to the German naval forces not to destroy American merchantmen which have loaded conditional contraband, even when the conditions of international law are present, but to permit them to continue their voyage unhindered if it is not possible to take them into port. On the other hand, it must reserve to itself the right to destroy vessels carrying absolute contraband whenever such destruction is permissible according to the provisions of the Declaration of London."

The Government of the United States, however, was not yet satisfied. In its note of October 12 it declared that it could not consider that passengers and crews of merchant vessels were removed to a place of safety, as required by international law, by merely putting them in small boats on the open sea, as was the German practice in its submarine warfare. But on the understanding that Germany would give assurance that life should not be endangered by the destruction of ships carrying absolute contraband, the Government of the United States agreed to refer the question of treaty interpretation to arbitration, expressing its preference for the method of summary procedure provided for in Articles 86-90 of the Convention of 1907.

The German Government replied on December 2. While still unwilling to agree to the appointment of an umpire in the matter

of ascertaining the amount of indemnity, it submitted a draft of a compromis for the arbitration of the principles at issue. But it declined the suggestion to employ summary procedure because the latter "is intended only for differences of opinion of inferior importance, whereas the German Government attaches very particular importance to the interpretation of the PrussianAmerican treaties which have existed for over 100 years.' On the question of destruction of merchant vessels, the German Government shared the view of the American Government "that all possible care must be taken for the security of the crew and passengers of a vessel to be sunk. Consequently, the persons found on board of a vessel may not be ordered into her life-boats except when the general conditions, that is to say, the weather, the condition of the sea, and the neighborhood of the coasts afford absolute certainty that the boats will reach the nearest port."

The compromis submitted provided for a tribunal of five to be chosen from the Permanent Court at The Hague. Two were to be designated by each party, only one of whom could be a national. These four were to choose an umpire within four weeks after they had been notified of their nomination; failing a choice, the President of the Swiss Federal Council was to be requested to select the umpire. The tribunal was designated to meet at The Hague on June 15, 1916, charged with the decision of the following question:

"Whether, according to the treaties existing between the parties, in particular Article XIII of the Prussian-American treaty of amity and commerce of July 11, 1799, the belligerent contracting party is prevented from sinking merchant vessels of the neutral contracting party for carrying contraband when such sinking is permissible according to general principles of international law."1

(American Journal of International Law, Supplement, July, 1915, pp. 180-93; also, later White Papers, published by the Government of the United States.)

1 The arbitration in the case of the William P. Frye has not yet taken place (November, 1916). — Ed.

$47. SALVAGE FOR RESCUE

THE PONTOPOROS (1916)

High Court of Justice, Admiralty Division, April 3, 1916

IN September, 1914, the Pontoporos, a Greek steamer with a cargo of coal belonging to British merchants, was captured by the German cruiser Emden, while on a voyage from Calcutta to Karachi. For a month or more she was compelled to follow the Emden and her supply ship, the Markomannia. On October 14, while the latter was receiving coal from the Pontoporos, they were sighted by the British cruiser Yarmouth, which at once bore down upon them, captured and sank the Markomannia and recaptured the Pontoporos. Two days later she was transferred to the charge of a French cruiser and taken to Penang. In due time the Prize Court of the Straits Settlements restored the ship to her owners, subject to bail in respect of a claim for prize salvage entered by the officers and crew of the Yarmouth. The proceeds of the cargo were also restored to its owners after a deduction of one-eighth as salvage in accordance with the Naval Prize Act, 1864. The value of the vessel was fixed at £44,000 and that of the cargo at £6,000.

The claim to salvage in the case of the vessel was based upon the contention that otherwise she would have been lost to her owners as being lawful prize under the German Prize Code. The defendants maintained that she would have been released by the German captors after her cargo of coal had been transshipped, and hence had been rescued from no peril that could give rise to a claim for salvage.

The President (Sir Samuel Evans) delivered his judgment, in part, as follows:

". . . This is the first case in which proceedings for prize salvage have been taken during the present war. The claim is made only against the owners of the vessel, and not against the cargo owners.

"By the law of nations, the general rule is that no salvage is