711.00111/132
The British Embassy to the Department of State 3
Section 7 of the Neutrality Act of May 1st 19374 (Public Resolution No. 27, 75th Congress) runs as follows:—
“Use of American ports as base of supply.
[Here follows the text of section 7.]”
Section 7 provides in brief that the United States authorities shall have power to demand a bond from any vessel which is suspected of being about to carry “fuel, men, arms, ammunition, implements of war or other supplies to any warship, tender or supply ship of a belligerent state”. It is not clear, however, whether it is the intention that this section of the Act should be applied in isolated cases of individual shipments of supplies from United States ports to belligerent vessels or only in cases of repeated shipments, made in such a manner as to constitute the United States port a regular base of supply for the belligerent vessel.
When the similar problem presented itself in 1914–15, the United States authorities took the view, which is that generally supported by International Law, that the duties of a neutral did not require that foreign belligerent warships should be refused all supplies in neutral ports provided that these were limited in nature or quantity to what is permitted by International Law. Nor was a neutral obliged to prevent all sailings of ships from its ports for the purpose of supplying warships at sea. All that was required of a neutral was that it should not allow its ports to become a regular base of supply for belligerents. Or in other words whereas any regular system of supplies to belligerents from a United States port would have been inconsistent with the position of the United States as a neutral, occasional and isolated sailings from United States ports for the same purpose did not conflict with the neutrality of the United States.
That this was the position adopted by the United States authorities at that time is shown by the State Department’s memorandum of September 19th, 1914, regarding “Merchant vessels suspected of carrying supplies to belligerent vessels” (see page 44 of the White Book European War 2). In this memorandum it was stated that:
[Here follows the text of memorandum printed in Foreign Relations, 1914, Supplement, page 618.]
Furthermore, in March 1915, Congress passed a Resolution (Public Resolution No. 72) which ran as follows:
[Here follows the text, preamble omitted, of the resolution approved March 4, 1915, printed in Foreign Relations, 1915, Supplement, page 851.]
It will be seen that this resolution only provided that the United States authorities might withhold clearance from vessels suspected of supplying belligerent ships when such supply would be “in violation of the obligations of the United States as a neutral nation”. This limitation clearly meant that clearance would only be refused in those cases in which belligerent ships were suspected of making use of United States ports as a regular base of supply.
[Page 659]There is, however, no similar limiting phrase in Section 7 (a) of the Act of 1937, and it would therefore be appreciated if the exact meaning of this section could be clarified. It is assumed that its intention is merely to prevent the use of the United States ports as regular bases of supply and that it is not contemplated that objection would be taken to occasional sailings.
Section 8 of the Act of May, 1937 runs as follows:—
“Submarines and armed merchant vessels.
[Here follows the text of Section 8.]”
It would be appreciated if the exact meaning of the words “armed merchantmen” could be given. There are in fact two kinds of “armed merchantmen”. The first consists of merchant vessels which are taken over on the outbreak of war by the authorities of their own country for service as naval vessels. In accordance with the provisions of the Hague Convention No. VII of 1907,5 such vessels have to receive a commission as war vessels. The Commander must be commissioned as a Naval officer and the crew must be placed under naval discipline. The vessel itself must bear the external marks of a warship of her nation. In fact such a vessel, though they are commonly misnamed “armed merchant cruisers” acquire the status of warships as part of their country’s navy with all the rights and disabilities of warships. There is no differentiation in International Law between the treatment to be accorded to them and to ordinary warships. It is presumed therefore that if the expression “armed merchantmen” in the Act of May 1st, 1932 [1937] means this type of vessel, there is no intention in practice of according to them any treatment different from that which the United States authorities propose to accord to warships in general.
The second type of “armed merchantmen” consists of ordinary merchant vessels which continue to operate as such and are in no sense naval vessels, but which carry a limited armament for purely defensive purposes. In the war of 1914–1918, it was agreed by every country except Germany that such vessels in no way lost their status as merchantmen and that they were entitled to carry arms in self defence. This view was shared by the United States Government. Furthermore, from 1914 to 1918 such ships were allowed to enter the ports of all neutral countries except Holland and were there treated as ordinary merchantmen.
It seems clear that the conditions in which any future war will be carried on may well be such as to make it essential for merchantmen to be armed for purposes of self defence. If, therefore, the Act of 1937 were to be so applied as to exclude such merchant vessels from [Page 660] American ports, trade between the United States and belligerents would obviously be seriously handicapped. In fact if American vessels were to be forbidden to enter combat areas near belligerent shores or if exports to belligerents were not permitted to be carried on American vessels, then to exclude armed merchant vessels of the second type would very gravely interfere with trade between the United States and any belligerent nation.
- Marginal notation: “Left by Mr. Mallet (with Mr. Moffat). Mr. Mallet requested that it be considered an oral inquiry” V. A. L. Mallet was Counselor of the British Embassy.↩
- 50 Stat. 121.↩
- Foreign Relations, 1907, pt. 2, p. 1250.↩