CHAPTER VIII

ARMED MERCHANTMEN

At the outbreak of the war the American Department of State had very definitely passed upon the question of armed merchantmen. The British Embassy at Washington informed the Secretary of State that a certain number of merchantmen had been armed, but solely for defense, and that since the British naval regulations did not permit the conversion of merchantmen into warships on the high seas or in neutral ports, these armed merchantmen did not have even a potential combatant status. These communications were merely acknowledged, but on September 19, 1914, the Department of State issued a comprehensive memorandum defining the status of merchant ships carrying guns.

The memorandum stated that a merchant vessel of belligerent nationality might carry an

armament for the sole purpose of defense without acquiring the character of a ship of war, but that the presence on board of an armament created a presumption that it was for offensive purposes. This might be rebutted by suitable proof that the number of guns was small and that their caliber did not exceed six inches; that they were not mounted on the forward part of the vessel; that the quantity of ammunition was small; that the ship carried only its usual crew; that the purpose to engage in trade, as before the outbreak of war, was clearly evident, only sufficient fuel for this purpose being carried; that the cargo was not suited for a vessel engaging in hostile operations; that passengers were carried, and that the speed of the ship was slow.

Against this ruling Germany protested on the ground that it failed "to comply with the principles of neutrality. This equipment of British merchant vessels with artillery is for the purpose of making armed resistance against German cruisers. Resistance of this sort is contrary to international law, because, in a military sense, a merchant vessel is not permitted to de

fend itself against a war vessel." This protest was received on October 15th and the reply of the United States was made on November 7th. It said that "the practice of a majority of nations and the consensus of opinion by the leading authorities on international law, including many German writers, support the proposition that merchant vessels may arm for defense without losing their private character, and that they may employ such armament against hostile attack without contravening the principles of international law."

Now, this was a vigorous and exact statement of the accepted international law of the question. Chief Justice Marshall in the famous case of the Nereide had decided that a belligerent vessel had a perfect right to arm in selfdefense and that a neutral had a right to transport his goods in such an armed vessel. The armed vessel in this case "had a right to defend herself, did defend herself, and might have captured an assailing vessel; but to search for the enemy would have been a violation of her charter party and of her duty."

The practice of arming ships in self-defense

is a very old one, and dates from the time when the seas were infested by pirates. With the disappearance of pirates and the abolition by the Declaration of Paris (1856) of privateering, the necessity of ships arming to defend themselves was diminished, because against a modern cruiser a defensively armed merchantman would be almost impotent. But at the Second Hague Peace Conference a convention was adopted providing for the conversion of merchant vessels into war ships and against these a defensively armed merchant vessel would have the same chance of escape that it formerly had against a privateer or a pirate. A reason for the armament therefore came into existence at the Second Hague Peace Conference, and in March, 1913, it was announced that British merchant vessels were to be defensively armed. That this was perfectly legal was recognized, as I have said, by established practice, the United States Supreme Court, a Hague Convention, and the publicists of Great Britain, the United States, France, Italy, Belgium, and Holland. The consensus of international opinion was in its favor, as correctly stated by the

memorandum of the United States in reply to the German protest.

Furthermore, in 1913, the Institute of International Law at its Oxford meeting in Article 12 of the "Manuel des Lois de la Guerre Maritime" said that the use of force against the attack of a naval enemy was permissible. This view was combated by one of the German representatives but was adopted by a large majority. Some German opinion, however, has been opposed to the rule, but as a leading authority on the subject points out:

"The right of a merchant ship to defend herself, and to be armed for that purpose, has not, so far as I am aware, been doubted for two centuries, until the question has again become one of practical importance. The historical evidence of the practice down to the year 1815 is overwhelming. Dr. Schramm [a German writer], in his elaborate denial of the right, fails to distinguish between the position in which a belligerent warship stands to an enemy merchant ship, and that in which it stands to a neutral merchant ship. This failure is important, and goes to the root of the matter, for whereas the visit of a belligerent warship to an enemy merchant ship is, under existing law, merely the first step to capture and is itself a hostile act, and is undertaken solely