¹ Concerning the stay of the vessel at Tromso, see statement by the Norwegian Government, Nov. 5, 1939, as set forth in Associated Press despatch of that date, published in New York Times, Nov. 6, 1939.

In the course of a statement broadcast by Captain Joseph A. Gainard, as printed in New York Times, Nov. 7, 1939, it was said: “When it was evident that we could take aboard thirty-eight male passengers, the crew of a British ship were placed on board. A total of three officers and eighteen Germans were placed on board as a prize crew. They brought with them sixty hand grenades, twenty revolvers, twenty bayonets, twelve dynamite bombs and one machine gun. They used none of these, however, during the whole voyage, but eventually delivered them to the Norwegian authorities.

“The lieutenant in charge of the prize crew addressed our crew in good English as follows: ‘I must tell you we proceed as a prize to Germany, where the Prize Court decides what becomes of your cargo. You are, as usual, to obey your own captain and his officers.’”

² It was added that an official of the German Foreign Office, when transmitting the memorandum, stated to the Chargé that the Foreign Office had no details as to the damage which necessitated taking the ship to Murmansk, but that he had maintained, in response to an inquiry, that the term “damage” would cover the case of a ship lacking charts with which to navigate the waters through which it had to proceed.

³ The statement of facts in the text reproduces a statement released by the Department of State Oct. 28, 1939, published in Dept. of State Bulletin of that date, p. 431.

⁴ Mr. Steinhardt, the American Ambassador at Moscow, reported under date of Oct. 27, a statement by Assistant Commissar of Foreign Affairs Potemkin in the following words: “The City of Flint had come into the port of Murmansk in charge of a German prize crew without any previous knowledge on the part of the Soviet Government and through no act on its part. The reason ascribed by the prize crew for the entry was damaged machinery making the ship unseaworthy. When the Soviet authorities at Murmansk judged that the vessel was again fit to put to sea, and being desirous of preserving its neutrality, the Soviet Government had ordered the vessel to leave the port of Murmansk immediately under the same conditions as those of her entry, namely, with both the German and American crews on board and her cargo intact. He added that the order would be enforced immediately and that the Soviet Government felt that its decision was not only in accordance with the well-recognized principles of international law and consonant with the obligations of a neutral but it was also the correct position to take as between the conflicting claims of the United States and Germany to possession of the vessel and her cargo and that by this he meant ‘to send her out in the same status as she had entered one of the ports.’

“He said that his government did not consider that it had the right to turn the vessel and her cargo over to the American crew unless the German prize crew refused to take her out, as in the opinion of his government to do so would be an unneutral act. In reply to a question he stated that the decision of the Soviet Government to permit the German prize crew to take the vessel to sea was final.

“I then asked him who had verified the alleged damage to the machinery, to which he replied that he had no information on this subject, but assumed this had been done by the authorities at Murmansk.

“I again inquired concerning the welfare of the American crew and he said that it was his understanding that they had been on board the ship all of the time and were well.

“I then referred to my difficulties in making contact with the captain or members of the crew, reciting my repeated attempts to get into communication with them by telegram and telephone, as well as my inability to obtain a plane today. He disclaimed any responsibility for these difficulties, passing over the subject lightly by pointing out that the crew being on board the ship in the roadstead, in conjunction with the average delays in long distance telephone communication had probably brought about this ‘unfortunate result.’

“I am again endeavoring to complete a telephone connection with the captain of the City of Flint at midnight.” (Dept. of State Bulletin, Oct. 28, 1939, p. 430.) In the same report the Ambassador stated that he had vigorously reiterated his indignation at the lack of cooperation by the Soviet Government in withholding information from him while issuing communiqués with respect to the City of Flint through the medium of the Tass agency.

⁵ See statement by Norwegian Government of Nov. 5, 1939, contained in Associated Press despatch of that date, as printed in New York Times of Nov. 6, 1939.

On Nov. 3, 1939, it was announced that the American Chargé in Berlin had reported the receipt of information from the German Foreign Office that appropriate German naval authorities had been requested to comply with the desire of the United States that all precautions be taken to avoid exposing the members of the American crew of the City of Flint to unnecessary danger. (Dept. of State Bulletin, Nov. 4, 1939, p. 458.)

On Nov. 27, 1939, the City of Flint left Bergen for Haugesund. See New York Times, Nov. 28, 1939, p. 3.

⁶ Declared the Department of State on Oct. 28, 1939: “A prize crew may take a captured ship into a neutral port without internment only in case of stress of weather, want of fuel and provisions, or necessity of repairs. In all other cases, the neutral is obligated to intern the prize crew and restore the vessel to her former crew.” (Dept. of State Bulletin, Oct. 28, 1939, p. 432.)

⁷ Comment by the Reporter on Art. 29 of Harvard Draft Convention on Rights and Duties of Neutral States in Naval and Aerial War, this Journal, Supp., Vol. 33 (1939), p. 458.

⁸ The statutory regulations enacted since that event and prior to the European war initiated in 1939, as revealed in the texts published in Deák and Jessup, Neutrality Laws, have been obviously designed to make appropriate provision to harmonize with the Hague Convention, a fact which in some instances has been acknowledged in terms.

⁹ It may be noted that the United States did not sign the convention, but deposited its adherence subsequently, with the reservation and exclusion of Art. XXIII.

¹⁰ It is perhaps, therefore, unnecessary to seek to appraise the significance of acts on the part of Germany or Russia in connection with the negotiation of the convention or thereafter, which may point to acceptance of the terms of the adherence by the United States. Nevertheless, certain statements that have been made in relation to the matter are of interest: “With reference to the action taken by the Government of the United States, in its declaration of adherence to the Convention, in reserving and excluding Article XXIII, I have to inform you that it does not appear from the official records of this Government that any formal acknowledgment or acceptance of this reservation was made on the part of any of the contracting parties.” ( Mr.Barnes, Charles M., in Chief, Treaty Division, Dept. of State, to the writer, Dec. 18, 1939 Google Scholar.)

Declares Mr. Hunter Miller: “It thus appears to have been within the contemplation of the Powers, particularly in view of the very numerous reservations made at signature to the different conventions of 1907, that a non-signatory Power might make its reservations upon adhesion, at least in the case when such Power has made what may be called a general reservation, such as was made by China, and, as to Convention XIII, by the United States.” ( Miller, David Hunter, Reservations to Treaties, Washington, 1919, pp. 152 and 154Google Scholar.) Mr. Miller also adverts to the fact that the delegation of the United States made an express general reservation in regard to the convention itself at the eighth plenary session of the Conference on October 9, 1907, id., 153.

It may be noted that in the Reichs-Gesetzblatt, 1910 (No. 3715), p. 382, is printed the text of the reservation by the United States, from which may be fairly drawn the conclusion that Germany formally accepted the terms of the American adherence.

¹¹ Malloy’s Treaties, II, 2362.

¹² It may have been realized at Berlin as well as Moscow that sequestration was a dangerous matter to inject into any diplomatic controversy concerning the treatment of the ship. It must have been perceived that the Government of the United States was shrewd enough and likely to be persistent enough to expose the weakness of an acknowledgment that sequestration had been sought by the captor or yielded however briefly by the neutral sovereign at Murmansk. In the circumstances of the case it was more convenient to allege the need of legitimate succor, even though the allegation lacked a solid foundation and was merely to be utilized as a face-saving device.

¹³ Declared the Department of State in its statement of Oct. 28, 1939: “The conclusion from the foregoing facts and circumstances indicates that when the City of Flint entered the harbor at Murmansk, any plea relating to the chart requirements if advanced must have been ignored since the German crew was interned. A second and entirely different reason for entering at Murmansk, namely, defective machinery which called for immediate repairs, was not advanced until later. A subsequent cable from the American Chargé d’Affaires at Berlin, also dated October 26, quoted a statement of the Foreign Office at its noon press conference to the effect that the fact that the Russians have freed the German crew indicates that the Soviet authorities have confirmed the view of the prize crew that the City of Flint was unsea worthy and it was therefore permissible to take the ship into a neutral harbor. ... It seems manifest that even if it is assumed that the German crew was proceeding legally prior to the entry of the City of Flint into the harbor of Murmansk, the known facts and circumstances support the contention of the American Government that the German crew did not at the time of entry offer any reasonable or justifiable grounds such as are prescribed by international law for taking the vessel into this port, and that therefore it was the clear duty of the Soviet Government to turn the City of Flint over to the American crew. This has been the major contention of the American Government.

“In view of the foregoing facts and circumstances, each person can judge for himself the question as to how much light is shed on this entire transaction by the action of the Soviet Government in withholding adequate cooperation with the American Government with respect to assembling and disclosing to the American Embassy in Moscow the essential facts pertaining to the landing, the whereabouts, and welfare of the American crew; by the fact that it was first alleged by the German authorities that the need for charts was the ground for bringing the vessel into port; and by the fact that later this ground seems to have been abandoned and a new ground or theory relating to defective machinery was set up.” (Dept. of State Bulletin, Oct. 28, 1939, p. 432.)

¹⁴ On Oct. 30, 1939, the Department of State announced a Tass agency report, communicated by the American Ambassador at Moscow, stating that “on October 28 in the evening the steamship City of Flint, after the machinery had been repaired, left the port of Murmansk.” (Dept. of State Bulletin, Nov. 4, 1939, p. 457.)

¹⁵ See report from the American Minister to Norway, released Nov. 3, 1939, Dept. of State Bulletin, Nov. 4, 1939, p. 458.