"The German Government is unable, however, to acknowledge any obligation to grant indemnity in the matter, even if the commander should have been mistaken as to the aggressive intentions of the Arabic.
"If it should prove to be the case that it is impossible for the German and American Governments to reach a harmonious opinion on this point, the German Government would be prepared to submit the difference of opinion, as being a question of international law, to The Hague Tribunal for arbitration, pursuant to Article 38 of The Hague Convention for the Pacific Settlement of International Disputes.
"In so doing it assumes that, as a matter of course, the arbitral decision shall not be admitted to have the importance of a general decision on the permissibility or the converse under international law of German submarine warfare."
Here Germany affirmed that submarine commanders were forbidden to attack liners without warning and safeguarding passengers' lives, but that commanders could justifiably disregard this precaution if they deemed that a vessel's movements, designedly or otherwise, jeopardized the safety of the attacking submarine. On this reasoning a submarine commander could excuse a wanton act on the plea of self-defense, which Germany appeared eager to accept, whether the need of self-defense was actual or fancied.
The Washington Government declined to consent to clothing a submarine commander with the discretionary power of determining whether a vessel should be sunk on sight because of movements he considered suspicious. The German Government would absolve him from blame and repudiate any obligation to grant indemnity, even if the commander was mistaken in attributing aggressive intentions in a vessel's movements. Germany's precept, as laid down by Count von Bernstorff in his note of September 1, 1915, and Germany's practice, as illustrated by the foregoing defense for the sinking of the Arabic, were thus widely divergent.
The situation receded to the Lusitania stage. Ambassador von Bernstorff's assurances as to warning and safety to passengers were negatived by the new condition that submarine commanders could disregard instructions, whether right or wrong, in doing so. The Administration accepted as convincing the abundant evidence before it that the Arabic made no attempt to ram the submarine. According to this testimony, no one on board the Arabic even saw the submarine; only the torpedo was seen coming from the direction of the sinking Dunsley, behind which, it was supposed, the submarine had been screened when the Arabic came in view, whereupon it submerged. Moreover, the Arabic was struck astern from a direction which showed that the submarine was at right angles to her. If the Arabic had been heading toward the submarine with the intention of ramming it, the torpedo should have struck her at the bow. But the Arabic testimony was that the submarine was invisible.
Germany's explanation was so unsatisfactory, so discredited by the overwhelming evidence of the Arabic survivors, as well as being qualified by an indirect recognition of the possibility that the submarine commander might have erred, that the question of severing diplomatic relations again became imminent. A resort to arbitration, as proposed by Germany, with the nullifying condition that any decision of a Hague tribunal was not to affect Germany's conduct of submarine warfare, was not deemed worthy of serious consideration. The question now was whether, after the pledge given by Count von Bernstorff, the German Government intended to allow submarine commanders a broad discretion in deciding the circumstances under which passenger ships may be torpedoed. The ambassador was informed of the Administration's conviction that the torpedoing of the Arabic could not have been a mistake, justified or unjustified. Germany's unreadiness to disavow responsibility for the act of the submarine commander as "arbitrary" and "unsanctioned," to quote the German Chancellor, showed that she accepted her submarine commander's purported report, not the Arabic testimony. In this impasse the Administration was credited with being almost ready to break off relations with Germany, but deferred doing so until the German Government had studied the evidence on which the American Government had decided that the submarine commander was solely to blame.
In the negotiations which followed, the Arabic issue went the way of the unsettled Lusitania case by its withdrawal from being threshed out in public. The exchange of notes was abandoned for pourparlers, which were resorted to as seeming to afford a more supple means of arriving at a settlement. Germany was afforded an opportunity of privately establishing her good faith—which was in serious question—by reconciling her acts on the seas with her pledge not to attack passenger vessels without warning. No official disclosure was made to enlighten a forgetful public as to the extent to which she had done so in the negotiations which occupied the American and German Governments throughout September, 1915. But a communication from Count von Bernstorff to Secretary Lansing, which passed October 2, 1915, was permitted to be revealed acknowledging that the submarine commander was mistaken in believing that the Arabic intended to ram his vessel, and disavowing the act. The Von Bernstorff note contained this passage: "The order issued by His Majesty the Emperor to the commanders of the German submarines, of which I notified you on a similar occasion, has been so stringent that the recurrence of incidents similar to the Arabic case is considered out of the question."
The United States had thus brought Germany to an admission that the sinking of the liner was unjustified. This important point gained, the issue was removed from the acute stage at which it had dangerously lingered, and only left undetermined the question of indemnity to be paid by Germany to the Arabic victims.
It cleared the diplomatic decks sufficiently to enable the deferred negotiations on the Lusitania dispute to be resumed; but these had made little headway when both the Lusitania and Arabic issues were overshadowed by the sinking of the Ancona.[Back to Contents]