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The Government of the United States of America refers again to the destruction on July 29, 1953 by Soviet military aircraft of a United States Air Force B-50 type aircraft off Cape Povorotny in the international air space over the Sea of Japan. On January 26, 1954, following an intensive investigation and study of the incident, the United States Government delivered to the Government of the Union of Soviet Socialist Republics a note(2) requesting certain detailed information with respect to the incident and with respect to the various allegations made by the Soviet Government in prior notes of July 30, 1953,(3) August 4, 1953(4) and August 26, 1953 (5). The Soviet Government having failed to reply to the United States Government's note of January 26, 1954, the United States Government, through its Embassy at Moscow, transmitted another note on May 25, 1954 (6) to the Soviet Ministry of Foreign Affairs inquiring when a reply might be expected to the note of January 26, 1954. The Soviet Government has made no reply or acknowledgement whatever to either note, although far more than sufficient time has elapsed to enable the Soviet Government to make a reply or to state its intentions with respect to such reply. The United States Government must conclude, therefore, that the Soviet Government is fully aware that it is not in a position to make a responsive or adequate reply to the United States Government's note of January 26, 1954.
This circumstance, the United States Government concludes, reinforces and confirms the essential accuracy of the findings of fact resulting from the United States Government's own investigation and study, as well as of the statements made in the various communications of the United States Government to the Soviet Government on this subject, particularly the United States Government's note of August 4, 1953 (7)
The United States Government therefore takes this opportunity to place solemnly upon the record the facts relevant to the Soviet Government's liability and to prefer against the Soviet Government a formal international diplomatic claim for damages as set forth below.
The United States Government is prepared to prove by evidence in an appropriate forum, and it charges, the following:
1. Early in the morning of July 29, 1953 a four-engine aircraft of the United States Air Force, of the B-50 type, was duly dispatched from its base in Japan by United States Air Force authorities to perform a routine navigational mission in the air space over the international waters of the Sea of Japan, returning to base in Japan upon completion of the mission. The officers and crew were instructed prior to departure that under no circumstances was the aircraft to fly closer to the Soviet-held land mass than twelve nautical miles.
Upon its departure the B-50 type aircraft had oh board a crew of seventeen persons, all members of the United States Air Force and all nationals of the United States. They were, as the Soviet Government was informed in the United States Government's note of August 4, 1953, the following:
Stanley Keith O'Kelley-Captain-Serial No. AO 776002
John Ernst Roche-Captain-Serial No. AO 2029268
Edmund Joseph Czyz-1st Lieutenant-Serial No. AO 2072656
Lloyd Clayton Wiggins-1st Lieutenant-Serial No. AO 695999
James Gordon Keith-1st Lieutenant-Serial No. AO 2092926
Warren John Sanderson-1st Lieutenant-Serial No. AO 2066184
Robert Elbon Stalnaker-1st Lieutenant-Serial No. AO 761337
John Cyrus Ward-Captain-Serial No. AO 865270
Francisco Joseph Tejeda-Major-Serial No. AO 726704
Frank Ernest Beyer-1st Lieutenant-Serial No. AO 2093286
Francis Luther Brown-Master Sergeant-Serial No. AF 19 053497
Donald Wayne Gabree-S. Sergeant-Serial No. AF 19 333787
Roland Edgar Goulet-A/1C-Serial No. AF 12 323933
James Edwin Woods-A/2C-Serial No. AF 24413122
Charles Joseph Russall-A/2C-Serial No. AF 13 351658
Donald George Hill-S. Sergeant-Serial No. AF 19 353976
Earl Wilbur Radelin, Jr.-A/2C-Serial No. AF 14 370732
The B-50 aircraft proceeded on a course of approximately 315 degrees from the Japanese Island of Honshu. When it arrived in the air space over the international waters of the Sea of Japan at a point approximately 50 miles from the coastline, the aircraft turned to the right and proceeded on an easterly heading, flying at an altitude of approximately 20,000 feet, the crew carrying out the instructions given them as above stated.
The aircraft had reached a point in the air space over the international waters of the Sea of Japan approximately 40 miles south of Cape Povorotny, flying on a heading of approximately 95 degrees at an altitude of 20,000 feet when suddenly, at approximately 6:15 in the morning local time and without any prior warning whatever Soviet MIG-15 type aircraft intercepted and fired upon the United States aircraft. One MIG-15 type aircraft commenced the interception and firing by coming up from below and to the left of the B-50 and shooting the No. 1 engine, rendering it inoperative. One or more additional MIG-15 type aircraft thereupon appeared behind the B-50, directed fire on the No. 4 engine and upon the right wing and other portions of the aircraft, and set the No. 4 engine on fire. When the Soviet MIG-15 aircraft appeared from behind, shooting at the B-50, one or more of the personnel on board the B-50 aircraft opened fire in self-defense against the oncoming attacking MIG-15 aircraft, but to no avail.
Immediately upon being hit, the B-50 aircraft dived sharply, losing altitude rapidly. The shots from the rear attack tore off the right wing and the tail section and caused the aircraft to disintegrate. The component parts of the B-50 then hit the water, at approximately the same position at which the interception and attack took place. The total time which elapsed between the commencement of the attack until the component parts of the aircraft hit the water was approximately two minutes.
Upon the B-50's first becoming disabled, in consequence of the actions of the MIG-15 aircraft against it, the members of the crew of the B-50 were directed by the aircraft commander, Captain Stanley K. O'Kelley, to abandon the aircraft and to seek safety by bailing out of the aircraft. The United States Government is informed and believes that, apart from First Lieutenant James Gordon Keith, all members of the crew above named bailed out of the aircraft, or parachuted, into the Sea of Japan, all coming down at points within the area of the Sea of Japan approximately 40 miles south of Cape Povorotny.
The United States Government finds, and charges, that all the actions of the MIG-15 type aircraft above described were taken upon the deliberate and willful orders of competent Soviet authorities.
When the B-50 failed to return to its base at the time required for its return, and could not be otherwise accounted for, the competent United States authorities commenced and conducted a meticulous and thorough search of the area by aircraft and by surface vessels of the United States Government and with the assistance of a naval vessel of the Australian Government in the area. The search of the Sea of Japan off Cape Povorotny succeeded in the sighting in the international waters of several survivors and disclosed the active presence in the same area of Soviet PT-type boats, trawlers and aircraft. One of the search aircraft dropped a lifeboat to a group of survivors but only Captain John E. Roche, the co-pilot, was able to reach the lifeboat and get into it. Intermittent fog hampered the rescue efforts and no other personnel could be rescued by the United States and Australian surface vessels. When the weather in the area cleared up, by dawn of July 30, 1953, no evidence of survivors, other than Captain Roche, could be seen in the international waters of the Sea of Japan by the air or surface rescue craft.
2. The United States Government finds, and charges, that in direct consequence of the Soviet Government's actions above described, the following took place:
a. The B-50 aircraft was totally destroyed.
b. First Lieutenant James Gordon Keith, navigator situated in the nose of the aircraft, was thrown from his position and mortally wounded, so that he was unable to bail out from the aircraft, and died.
c. Captain Stanley K. O'Kelley, the aircraft commander, although he succeeded in bailing out from the aircraft to the waters of the Sea of Japan, was badly injured and shocked as a direct result of the shooting by the MIG-15 aircraft, and died as a result of these physical injuries and shock and of his exposure for approximately twenty hours in the Sea of Japan.
d. Master Sergeant Francis Luther Brown, flight engineer, although he succeeded in bailing out from the aircraft to the waters of the Sea of Japan, was badly injured and shocked as a direct result of the shooting by the MIG-15 aircraft, and died as a result of these physical injuries and of shock and of long exposure in the Sea of Japan.
e. Captain John Ernst Roche, the co-pilot, was thrown headlong into the body of the aircraft, suffering numerous bodily injuries and shock as a direct result of the shooting by the MIG-15 aircraft but he succeeded in bailing out from the aircraft. He suffered further shock and exposure in the Sea of Japan from approximately 6:17 in the morning local time, July 29, 1953, to approximately 4:20 in the morning local time July 30, 1953. He was rescued from the waters of the Sea of Japan by a search vessel of the United States Navy.
f. The remaining thirteen members of the crew have not so far been accounted for. The United States Government finds, however, that all of them suffered bodily injury and shock as a direct result of the shooting by the MIG-15 aircraft. It finds further that a number, if not all, of them successfully parachuted to the surface of the Sea of Japan in the area above described in which the attack and destruction of the B-50 took place. It must conclude that these persons were either picked up alive by surface vessels of the Soviet Government in the area in which they hit the water, or that in due course, dead or alive, they were carried by the prevailing currents to Soviet-held territory and into the Soviet Government's custody. Those dead, the United States Government finds and charges, were brought to their death by the injuries caused in the course of the attack on the B-50 aircraft, by shock and by exposure in the waters of the Sea of Japan. Those that were alive when they came into the custody of the Soviet Government, the United States Government finds and charges, suffered in addition injuries and anguish caused by their long detention by the Soviet Government, by the failure of the Soviet Government to inform the United States Government with respect to their whereabouts and their condition or to permit them to communicate with United States Government authorities.
These conclusions are based on the following considerations:
(i) As the United States Government has previously indicated personnel on board search craft of the United States Government observed at least twelve Soviet PT-type boats, at least one armed trawler-type Soviet naval vessel, and Soviet aircraft, proceeding at high speed to and from the area of the scene of the incident. Other surface vessels of Soviet nationality were in the vicinity. These observations were made as late as 3 o'clock in the afternoon local time July 29, 1953. In view of the failure of the Soviet Government to make responsive reply to questions of the United States Government in its note of January 26, 1954 on this subject, the United States Government is confirmed in its conclusion, and it charges, that these Soviet craft picked up survivors and portions of the disabled B-50 aircraft.
(ii) The prevailing currents of the Sea of Japan at the positions above mentioned and at the date of the incident, which are well known to the Soviet Government, move toward the coast, in a northerly and northwesterly direction at a rate of approximately 0.7 to 1.1 knots. Even if the Soviet Government did not have these crew members in custody, dead or alive, earlier, it must have become aware of their arrival in Soviet territorial waters or on Soviet soil by August 1, 1953.
3. The B-50 aircraft at the time of the attack upon it and its destruction, and the navigational and flying equipment thereon, were in efficient and good working order. Each member of the crew was efficient and experienced in the performance of his task. In particular, Captain O'Kelley, the aircraft commander, was an efficient and experienced pilot; Captain Roche was an efficient and experienced co-pilot; First Lieutenant Czyz, First Lieutenant Wiggins and First Lieutenant Keith were efficient and experienced navigators.
The United States Government finds as a result of its investigation that in its notes above mentioned the Soviet Government willfully and knowingly made material misstatements of fact for the purpose of creating an untrue record and of misleading the United States Government. These misstatements of fact are most explicitly made in the Soviet Government's note of August 26, 1953 on this subject, which substantially reiterates the misstatements contained in the Soviet Government's earlier notes on the same subject:
1. The Soviet Government states that the B-50 aircraft at about 6 a. m. local time "violated the state boundary of the USSR, at first in the region of Cape Gamov, and continued the flight over the territory of the USSR at Askold Island not far from Vladivostok".
ut the Soviet Government has refused, although duly requested, to state where the boundary, which it claims, runs in this region. The United States Government must therefore conclude, as it has found' that the B-50 aircraft at no time crossed into territory of the Soviet Union in this area but, on the contrary, flew entirely in the air space over the international waters of the Sea of Japan.
2. The Soviet Government states that two Soviet fighter aircraft approached the B-50 with the intention of showing the B-50 that it was within the boundaries of the Union of Soviet Socialist Republics and with the intention of suggesting that the B-50 leave the air space of the Soviet Union. This statement must be characterized as false, as well as misleading, since the first intimation which the crew of the B-50 had of the approach of any aircraft was the destruction of the No. 1 engine on the B-50 by fire directed from one of the Soviet MIG-15 type aircraft, which had appeared without any warning whatever to the left and from below the B~50 aircraft. This fact and the shooting which immediately followed directed by MIG-15 type aircraft coming up without warning from behind the B-50 aircraft conclusively demonstrates that it was the intention of the MIG-15 interceptors, and of the competent Soviet authorities who dispatched them and controlled their actions, to give the crew of the B-50 aircraft no warning whatever but, on the contrary, to effect the B-50's destruction without any warning or opportunity to the crew to disengage or to defend themselves.
3. The Soviet Government's statement permits the implication that the interception of the B-50 by Soviet aircraft took place within the air space over Soviet territory. This statement is false also. As has been stated above, the interception as well as the attack took place approximately forty miles south of Cape Povorotny and in the air space over the international waters of the Sea of Japan.
4. The Soviet Government states that fire was first opened by the B-50, being directed against the intercepting Soviet aircraft. This statement is false. As the United States Government has stated above, the B-50 aircraft did not open fire until after two firing passes had been made by the Soviet intercepting aircraft. The first MIG-15 type aircraft, which as stated above without warning destroyed the No. 1 engine, flew away unscathed. When immediately thereafter one or more MIG-15 type aircraft appeared from behind, the MIG aircraft were firing and the gunners on board the B-50 were compelled in self-defense to open fire against the MIG aircraft so firing upon the B-50.
5. The Soviet Government states that the attack took place at 6:12 in the morning local time. The United States Government charges that this statement is untrue and is known by the Soviet Government to be untrue. The United States Government has found that the interception and attack took place not earlier than 6:15 in the morning local time, if not later. By this time the B-50 aircraft, as the Soviet authorities well knew, had reached a point approximately forty miles off the Soviet land mass at its closest proximity.
6. The Soviet Government states that one of the Soviet aircraft was seriously damaged by fire from the B-50 in consequence of which the Soviet aircraft was compelled to fire upon the B-50. This statement is misleading as well as false. Even if, contrary to fact, the B-50 gunners had opened fire on the MIG aircraft appearing from the rear, the destruction of the No. 1 engine by the MIG aircraft which appeared first and the hostile attitude of the MIG aircraft appearing in the rear would have justified the B-50 gunners in opening fire on the MIG aircraft.
7. The Soviet Government states that after the Soviet aircraft fired on the B-50 the B-50 "departed in the direction of the sea" and that the Soviet authorities have no further information regarding the American military aircraft. This statement must be characterized as false as well as misleading. As stated above, within seconds after the Soviet aircraft hit the right wing and fuselage the B-50 disintegrated and fell into the sea. The pilots of the Soviet aircraft could not but have seen the consequence of their actions and reported it to the competent Soviet authorities. The United States Government notes that the Soviet Government admits that the pilots upon returning to base, if not earlier, reported what they had done and what had happened.
8. The Soviet Government indicates that it has "verified data", presumably including reports of ground observers as well as the testimony of the pilots of the Soviet aircraft involved, and that these data "refute the statement that the American airplane B-50 did not violate the boundary of the USSR and was attacked by Soviet fighters over the Sea of Japan". The Soviet Government, although duly requested in the United States Government's note of January 26, 1954, has failed and refused to produce these supporting data. The United States Government is compelled to conclude that such data as exist do not support the Soviet Government's conclusion and that these statements are therefore false.
9. The Soviet Government states that, contrary to the allegations contained in the United States Government's notes, there were no Soviet surface ships on July 29, 1953 in the area of the Sea of Japan in which the shooting incident took place, and it further implies that the weather conditions of fog and darkness were such that the observations of the crews of search craft reported in the United States Government's notes were not in fact made. These statements, as above indicated, are false and misleading. The weather, during the hours of daylight, was in fact foggy but at the low altitudes at which the search aircraft flew, and on the surface of the sea at which the naval craft proceeded, there was as the Soviet Government well knows intermittent visibility permitting the observations which were made and which were reported by the United States Government.
10. The Soviet Government states that "as a result of investigation, it has been confirmed that the Soviet authorities have no information concerning the crew of the American bomber B-50". For the reasons above stated this statement must be characterized as false and misleading.
The United States Government finds and it charges that the foregoing actions of the pilots of the Soviet aircraft and of the competent Soviet authorities made the Soviet Government guilty of deliberate and willful violations of international law, on account of which it has become liable to the United States Government for damages and other amends:
1. Since the Soviet Government has evaded the questions in the United States Government's note of January 26, 1954 on this subject, the United States Government declares that the limit of the territory of the Soviet Government in the area of the incident extends no further than three nautical miles from the mean low water mark of the shore line of the Soviet-held land mass in this area, following the sinuosities of the coast and the sinuosities of each of the Soviet-held islands. While the United States Government in instructions to its personnel has prohibited any overflying aircraft or seagoing craft from coming closer than twelve miles to Soviet-held territory in traversing the international waters of the Sea of Japan or the air space above, the United States Government takes this opportunity again to inform the Soviet Government that it does not recognize the claim of the Soviet Government to territorial waters in excess of three miles from its coast. In the opinion of the United States Government there is no obligation under international law to recognize claims to territorial waters in excess of three miles from the coast.
2. In the circumstances of the case it was the duty of the Soviet Government to make every effort, following the wrongful destruction of the B-50 aircraft, to search for and pick up members of the crew, dead or alive, to cooperate with all other searching aircraft and surface craft in such search and rescue operations and promptly to turn over to authorities of the United States Government rescued personnel, the bodies of any dead personnel picked up and any portions of the aircraft salvaged, or to make arrangements for their prompt delivery to the United States Government. The failure of the Soviet Government to do so constitutes violation of international obligations.
3. It was the duty of the Soviet Government to make truthful statements to the United States Government in the notes above mentioned which the Soviet Government delivered to the United States Government in connection with this incident. The willful making of false or misleading statements in these circumstances constitutes a violation of international obligation
4. The continued detention of survivors by the Soviet Government and the failure of the Soviet Government immediately upon receipt of information at any time from its own sources of the observation of bodies of any of the crew members, constitute violations on the part of the Soviet Government of international obligation.
5. Any shooting by the crew of the B-50 at the MIG aircraft, in the circumstances of the case, was lawful as an exercise of the right of self-defense. The B-50 having been fired upon and hit without prior warning, the crew of the B-50 were justified in the exercise of self-defense in shooting at the approaching MIG aircraft.
The United States has suffered the following items of damage in direct consequence of the foregoing illegal acts and violations of duty and international legal obligations, for which the Soviet Government is liable, and the United States Government demands that the Soviet Government pay the following sums on account thereof:
1. United States Air Force airplane B-50 type No. 47-145A and equipment thereon, amounting in total to $1,468,908.56.
2. Damages to the United States by the willful and unlawful conduct of the Soviet Government $491,584.38.
3. Damages to Captain John Ernst Roche, a national of the United States, for injuries to him, $25,000.00.
4. Damages to the next-of-kin, nationals of the United States, for the deaths of Captain Stanley Keith O'Kelley, Master Sergeant Francis Luther Brown, First Lieutenant James Gordon Keith, $150,000.00.
5. Damages to the next-of-kin, nationals of the United States, of the remaining thirteen crew members for all injuries resulting from the willful and unlawful conduct of the Soviet Government, including the wrongful deaths of such crew members or the wrongful and unlawful detention by the Soviet Government of such members of the crew as survived, $650,000.00.
The United States Government declares that its demand for compensation on account of the members of the crew who survived does not imply the acquiescence of the United States Government in the withholding of those crew members from return to the United States, or the suppression by the Soviet Government of information regarding their whereabouts or welfare, or the making of false statements by the Soviet Government with respect thereto. The United States takes this opportunity again to demand that the Soviet Government forthwith provide the information in this regard which the United States Government has already requested, and make provision for the prompt return of any crew members whom it may still be holding or of whose whereabouts it is informed, and in the interim to provide such crew members with the maximum degree of care and comfort and facilitate access to them by appropriate representatives of the United States Government. The United States Government further declares that such demand for compensation with respect to members of the crew whose bodies came into the custody of Soviet authorities: but who were no longer alive does not imply the acquiescence of the United States Government in the failure of the Soviet Government to inform the United States Government of such facts or to turn over such bodies to the United States Government. The United States Government further reserves the right to make additional demand upon the Soviet Government for amends or other actions on account of its conduct on or since July 29, 1953, with respect to such survivors or such dead crew members.
Furthermore, the United States Government has not included in its demand for damages, specified above, any sum on account of items of intangible injury deliberately and intentionally caused to the United States Government and to the American people by the wrongful actions of the Soviet Government. In this regard the United States Government had determined to defer to a future date the formulation of the kind and measure of redress or other action which the Soviet Government should take which would be appropriate in international law and practice to confirm the illegality of the actions directed by the Soviet Government against the United States Government and against the American people.
The Government of the United States calls upon the Union of Soviet Socialist Republics promptly to make its detailed answer to the allegations and demands made in this communication.
Should the Soviet Government in its answer acknowledge its indebtedness to the United States on account of the foregoing and agree to pay the damages suffered and to comply with the demands as above set forth, the United States Government is prepared, if requested, to present detailed evidence in support of its calculations of damages suffered and alleged. If, however, the Soviet Government contests liability, it is requested so to state in its answer. In the latter event, the Soviet Government is hereby notified that the United States Government deems an international dispute to exist falling within the competence of the International Court of Justice and that the United States Government proposes that that dispute be presented for hearing and decision in the International Court of Justice. Since it appears that the Soviet Government has thus far not filed with that Court any declaration of acceptance of the compulsory jurisdiction of the Court, the United States Government invites the Soviet Government to file an appropriate declaration with the Court, or to enter into a Special Agreement, by which the Court may be empowered in accordance with its Statute and Rules to determine the issues of fact and law which have been set forth herein.
The Soviet Government is requested to inform the United States Government in its reply to the present note of its intentions with respect to such a declaration or Special Agreement.
American Foreign Policy 1950-1955
Basic Documents Volumes I and II
Department of State Publication 6446
General Foreign Policy Series 117
Washington, DC : U.S. Government Printing Office, 1957