WAR & PEACE: The Law

It was a cold, foggy morning. In the grey dawn, under the guns of Fort Monroe, a ghost ship slipped into the harbor at Hampton Roads, Va. There were 451 persons aboard. Of them, 429 were captives. Twenty-two were members of a German prize crew who had kept the prisoners subdued while dodging British pursuit, sailing the ship across the South Atlantic. The ship was the British-owned liner Appam, captured off the African coast by a German raider that had already sunk or captured seven vessels. And as the Appam dropped anchor in the harbor of a troubled neutral, it gave the U. S. one of the complex, confused, unprecedented and yet precedent-ridden problems that are the test of the skill of a country’s diplomats, the Tightness of its foreign policy, the humanity and firmness of its foreign dealings in a time of international stress.

That was 23 years ago. Last week, into Kola Bay, north of the Russian harbor of Murmansk, the U. S. freighter City of Flint dropped anchor and thereby posed for Russia a far less crucial test of its neutrality, the skill of its diplomats, the wisdom of its foreign policy. City of Flint was flying the German flag. It carried a German prize crew. Dramatic was the story of its seizure and flight. But last week the swift routine moves of the Russian Foreign Commissariat, the swift routine countermoves of the U. S. State Department, unexpectedly turned into something bigger, a first-class demonstration of diplomatic action, a maneuver that illuminated a basic difference between dictatorial and democratic diplomacy.

Problem. Hardheaded diplomats deplored the rocketing headlines over the case of City of Flint. U. S. diplomatic history is crammed with such cases; the U. S. has an impressive record of skill in litigation over them. The likelihood that the future will see more important issues made it desirable that this one should be kept in perspective. Quickly Government spokesmen made cold and quiet statements: although the U. S. position was that City of Flint’s, voyage was legal, Germany acted according to international law in seizing the ship, putting a prize crew aboard, declaring the cargo contraband. True, nations have never been able to agree about what is contraband. But that is what is argued about in prize courts.

When a belligerent seizes a neutral ship, it usually runs the neutral into its own port, seizes its contraband cargo, and if more than 50% is contraband, condemns the ship. The neutral protests with as much vehemence as is compatible with the strength of its case. It may try to gain the ship’s release, lay the basis for claims for damages after the war. If the belligerent captor, hard-pressed by enemy raiders, sinks the neutral vessel, procedure is for the crew and ship’s papers to be taken off, the crew for the sake of humanity, the papers to establish the belligerent’s case that the cargo is contraband.

But when the belligerent pops the prize into a neutral port, as Germany did last week, vexed questions accumulate like barnacles on an interned hulk.

Precedent. Last week, when Germany embarrassed Russia by anchoring City of Flint at Murmansk, the U. S. State Department moved with calm deliberation. It asked its officials in Oslo, Moscow and Berlin for information. Alexander Kirk, chargé d’affaires in Berlin, made informal inquiries, reported the German claim that inadequate charts had forced the City of Flint to take refuge at Murmansk. What Germany demanded of Russia was not known. What the U. S. wanted was clear: it wanted information about the whereabouts and welfare of the crew. Coupled with U. S. playing down of the case, that looked like leading with the deuce. But it turned out to be a big card. Property rights are controversial in such cases; human rights are plain.

Russia grabbed the proffered deuce. Heavy-featured, impassive Vice Commissar for Foreign Affairs Vladimir Potemkin promised thin-featured, intense U. S. Ambassador Laurence Steinhardt full information as soon as it was available. Seldom has a simple request produced such odd results. The U. S. was absolved from taking a stand until the promise was kept. Russia announced that the German prize crew had been interned. That would imply that the ship would be released to its U. S. crew. Ambassador Steinhardt pressed for more information. Russia announced that the German crew had been released. That would suggest that the ship should sail under her German crew within 24 hours. Ambassador Steinhardt pressed for more information, tried to telephone Murmansk, sat at his desk till 5 a.m., daily prodded the Foreign Commissariat, tried to get permission to charter a plane to send an Embassy secretary to Murmansk, once got Murmansk on the telephone, only to be cut off—all for information about the welfare of the crew. But this information Russia apparently could not or would not provide.

Procedure. Russia’s position was beginning to look embarrassing. Plain fact was that, as soon as City of Flint sailed under the German flag, it risked capture by British warships, faced at the minimum a 1,300-mile voyage through blockaded waters, at least 50 miles of known mine fields, to reach a German port. Equally plain was it that, if Russia permitted the ship to remain in port, she violated international law, that if she released it to her U. S. owner (as the U. S., after a Supreme Court decision, eventually released the Appam), she would antagonize Germany. While Germany had put Russia on the spot, as she had put the U. S. on the spot with the Appam in 1916, the U. S. evaded the legal tangle, hammered away at its unquestioned right for information about the crew.

At 10 p.m. on the third day of City of Flint’s stay, Ambassador Steinhardt, armed with new instructions from Washington, talked over the case with Foreign Commissariat officials. Hour and a half later the Soviet radio announced that Russia was releasing the ship on condition that she leave Murmansk at once. Next day Ambassador Steinhardt slapped down his trumps. With an indignation compatible with the strength of his position, he: > Accused the SovietGovernment of refusing to cooperate in providing information.

> Accused it of withholding information from the U. S. Ambassador while issuing communiques about City of Flint to the public.

> Demanded that the vessel and cargo be turned over to the U. S.> Asked who had verified the alleged damage to the City of Flint’s machinery that Vice Commissar Potemkin asserted to be the reason for the ship’s remaining at Murmansk.

> Repeated his inquiries about the welfare of the U. S. crew, which was beginning to look like the unluckiest pawn in the game.

> Reported his action in a long, sharply worded communique which the State Department promptly made public, and added that he was still trying to telephone City of Flint’s Captain Joseph Gainard, hardbitten Yankee seafarer who appeared in the news two years ago as captain in the Algic mutiny case.

Commissar Potemkin based his reply on various inadequacies of the Russian communication system, customs of the country, lack of information, “well-recognized principles of international law,” and the obligations of a neutral. As for turning the vessel and her cargo over to her U. S. crew, Russia had made a final decision that to do so, unless the German prize crew refused to take it out, would be an “un-neutral act.”

Responsibility. All this was no game. It was no mean-spirited attempt to increase Russia’s difficulties. It was no matter of “taking sides.” There were 41 U. S. sailors on City of Flint. Had the U. S. followed another policy it might have been placed in the position of evading its responsibility to them. Unexpected refusal of the Russians to permit U. S.access to the crew opened a hole as big as the blast of a torpedo in the Russian case. Newspaper dispatches called the case a U. S. diplomatic victory. There could scarcely be a victory over such a problem; the outcome appeared rather to be an instance in which a simple demand for candor, and an insistence on simple humanitarian considerations, exercised an astonishing force. In Washington Secretary of State Hull issued a stinging resume of the case that listed contradictions in Russia’s position, reiterated the U. S. claim that the ship be returned, and sounded the democratic note again by concluding: “Each person can judge for himself . . . 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 the . . . essential facts pertaining to … the whereabouts and welfare of the American crew.”

On the record, if nothing happened to the U. S. crew during the voyage of City of Flint to Germany, Russian diplomacy looked like a tricky sequence of twists, evasions, contradictions. Nobody needed to point out the main consequence: if anything happened to the 41 U. S. sailors, Russia’s refusal to permit Ambassador Steinhardt to get in touch with them would become a diplomatic blunder of the first magnitude.

The 41 were still aboard early this week when the City of Flint, flying the Swastika, still manned by a Nazi prize crew, put into Tromsoe, Norway, seeking supplies. Nazi Consul Herr Henrik Jebens boarded her, saw the Americans, talked to the Germans. Uneasy Norwegian authorities furnished no supplies, four hours later escorted her out to sea again.