Ports had all been ordered closed.
A considerable amount of testimony was taken upon the contention of claimants that many of the ship's ports were open, thus reducing her buoyancy and substantially hastening her sinking. There is no doubt that on May 6 adequate orders were given to close all ports. The testimony is conclusive that the ports on Deck F (the majority of which were dummy ports) were closed. Very few, if any, ports on E deck were open, and, if so, they were starboard ports in a small section of the first class in the vicinity where one of the torpedoes did its damage. A very limited number of passengers testified that the portholes intheir staterooms were open, and if their impressions are correct, these portholes, concerning which they testified, were all, or nearly all, so far above the water that they could not have influenced the situation.
Sinking not affected by open ports.
There was conflicting testimony as to the ports in the dining room on D deck. The weight of the testimony justifies the conclusion that some of these ports were open—how many it is impossible to determine. These ports, however, were from twenty-three to thirty feet above water, and when the gap made by the explosion and the consequent severe and sudden list are considered, it is plain that these open ports were not a contributing cause of the sinking, and had a very trifling influence, if any, in accelerating the time within which the ship sank.
From the foregoing the situation can be visualized. Two sudden and extraordinary explosions, the ship badly listed so that the port side was well up in the air, the passengers scattered about on the decks and in the staterooms, saloons and companion ways, the ship under headway and, as it turned out, only eighteen minutes afloat—such was the situation which confronted the officers, crew, and passengers in the endeavor to save the lives of those on board.
Calm heroism of the passengers.
The conduct of the passengers constitutes an enduring record of calm heroism with many individual instances of sacrifice and, in general, a marked consideration for women and children. There was no panic, but naturally, there was a considerable amount of excitement and rush and much confusion, and, as the increasing list rendered ineffective the lowering of the boats on the port side, the passengers, as is readily understandable, crowded over on the starboard side.
The problem presented to the officers of the ship was one of exceeding difficulty, occasionedlargely because of the serious list and the impossibility of stopping the ship or reducing her headway.
Lookouts sighted the torpedo.
Boats ordered lowered.
The precaution of extra lookouts resulted in a prompt report to the Captain, via the bridge, of the sighting of the torpedo. Second Officer Heppert, who was on the bridge, immediately closed all watertight doors worked from the bridge, and the testimony satisfactorily shows that all watertight doors worked by hand were promptly closed. Immediately after Captain Turner saw the wake of the torpedo there was an explosion and then Turner went to the navigation bridge and took the obvious course, i. e., had the ship's head turned to the land. He signaled the engine room for full speed astern, hoping thereby to take the way off the ship, and then ordered the boats lowered down to the rail and directed that women and children should be first provided for in the boats. As the engine room failed to respond to the order to go full speed astern, and as the ship was continuing under way, Turner ordered that the boats should not be lowered until the vessel should lose her headway, and he told Anderson, the Staff Captain, who was in charge of the port boats, to lower the boats when he thought the way was sufficiently off to allow that operation. Anderson's fidelity to duty is sufficiently exemplified by the fact that he went down with the ship.
The officers display courage and skill.
Jones, First Officer, and Lewis, Acting Third Officer, were in charge of the boats on the starboard side and personally superintended their handling and launching. Too much cannot be said both for their courage and skill, but, difficult as was their task, they were not confronted with some of the problems which the port side presented. There, in addition to Anderson, were Bestic, Junior Third Officer, and another officer, presumably the Second Officer. Thesemen were apparently doing the best they could and standing valiantly to their duty. Anderson's fate has already been mentioned, and Bestic, although surviving, stuck to his post until the ship went down under him. The situation can readily be pictured even by a novice.
With the ship listed to starboard, the port boats, of course, swung inboard. If enough man power were applied, the boats could be put over the rail, but then a real danger would follow. Robertson, the ship's carpenter, aptly described that danger in answer to a question as to whether it was possible to lower the open boats on the port side. He said:
Port boats could not be lowered.
"No. To lower the port boats would just be like drawing a crate of unpacked china along a dock road. What I mean is that if you started to lower the boats you would be dragging them down the rough side of the ship on rivets which are what we call "snap-headed rivets"—they stand up about an inch from the side of the ship, so you would be dragging the whole side of the boat away if you tried to lower the boats with a 15-degree list."
That some boats were and others would have been seriously damaged is evidenced by the fact that two port boats were lowered to the water and got away, (though one afterward filled,) and not one boat reached Queenstown.
Each boat has its own history, (except possibly Boats 2 and 4,) although it is naturally difficult, in each case, to allocate all the testimony to a particular boat.
Accidents in lowering.
There is some testimony, given in undoubted good faith, that painted or rusted davits stuck out, but the weight of the testimony is to the contrary. There were some lamentable occurrences on the port side, which resulted in spilling passengers, some of whom thus thrown out or injured went to their death. These unfortunateaccidents, however, were due either to lack of strength of the seaman who was lowering, or possibly, at worst, to an occasional instance of incompetency due to the personal equation so often illustrated, where one man of many may not be equal to the emergency. But the problem was of the most vexatious character. In addition to the crowding of passengers in some instances was this extremely hazardous feat of lowering boats swung inboard from a tilted height, heavily weighted by human beings, with the ship still under way. It cannot be said that it was negligent to attempt this, because, obviously, all the passengers could not be accommodated in the starboard boats.
Six boats get away from starboard.
On the starboard side, the problem, in some respects, was not so difficult, while, in others, troublesome conditions existed quite different from those occurring on the port side. Here the boats swung so far out as to add to the difficulty of passengers getting in them, a difficulty intensified by the fact that many more passengers went to the starboard side than to the port side and, also that the ship maintained her way. Six boats successfully got away. In the case of the remaining boats, some were successfully lowered but later met with some unavoidable accident, and some were not successfully launched (such as Nos. 1, 5, and 17) for entirely explainable reasons which should not be charged to inefficiency on the part of the officers or crew.
Collapsible boats cut loose.
The collapsible boats were on the deck under the open lifeboats, and were intended to be lifted and lowered by the same davits which lowered the open boats after the open boats had gotten clear of the ship. It was the duty of the officers to get the open boats away before giving attention to the collapsible boats, and that was a question of time. These boats aredesigned and arranged to float free if the ship should sink before they can be hoisted over. They were cut loose and some people were saved on these boats.
It is to be expected that those passengers who lost members of their family or friends, and who saw some of the unfortunate accidents, should feel strongly and entertain the impression that inefficiency or individual negligence was widespread among the crew. Such an impression, however, does an inadvertent injustice to the great majority of the crew, who acted with that matter-in-fact courage and fidelity to duty which are traditional with men of the sea. Such of these men, presumably fairly typical of all, as testified in this court, were impressive not only because of inherent bravery, but because of intelligence and clear-headedness, and they possessed that remarkable gift of simplicity so characteristic of truly fearless men who cannot quite understand why an ado is made of acts which seem to them merely the day's work.
Mr. Grab, one of the claimants and an experienced transatlantic traveler, concisely summed up the situation when he said:
"They were doing the best they could—they were very brave and working as hard as they could without any fear. They didn't care about themselves. It was very admirably done. While there was great confusion, they did the best they could."
Captain Turner's comment on the crew.
It will unduly prolong a necessarily extended opinion to sift the voluminous testimony relating to this subject of the boats and the conduct of the crew and something is sought to be made of comments of Captain Turner, construed by some to be unfavorable but afterward satisfactorily supplemented and explained, but if there were some instances of incompetency they were very few and thecharge of negligence in this regard cannot be successfully maintained.
In arriving at this conclusion, I have not overlooked the argument earnestly pressed that the men were not sufficiently instructed and drilled; for I think the testimony establishes the contrary in the light of conditions in May, 1915.
I now come to what seems to be the only debatable question of fact in the case, i. e., whether Captain Turner was negligent in not literally following the Admiralty advices and, also, in not taking a course different from that which he adopted.
The Captain's judgment free.
The fundamental principle in navigating a merchantman, whether in times of peace or of war, is that the commanding officer must be left free to exercise his own judgment. Safe navigation denies the proposition that the judgment and sound discretion of the Captain of a vessel must be confined in a mental straitjacket. Of course, when movements are under military control, orders must be strictly obeyed, come what may. No such situation, however, was presented either to the Cunard Steamship Co. or Captain Turner. The vessel was not engaged in military service nor under naval convoy. True, she was, as between the German and British Governments, an enemy ship as to Germany, but she was unarmed and a carrier of not merely noncombatants, but, among others, of many citizens of the United States, then a neutral country, at peace with all the world.
Admiralty advices considered.
In such circumstances the Captain could not shield himself automatically against error behind a literal compliance with the general advices or instructions of the Admiralty, nor can it be supposed that the Admiralty, any more than the Cunard Steamship Co., expected him so to do. What was required of him was thathe should seriously consider and, as far as practicable, follow the Admiralty advices and use his best judgment as events and exigencies occurred; and if a situation arose where he believed that a course should be pursued to meet emergencies which required departure from some of the Admiralty advices as to general rules of action, then it was his duty to take such course, if in accordance with his carefully formed deliberate judgment. After a disaster has occurred, it is not difficult for the expert to show how it might have been avoided, and there is always opportunity for academic discussion as to what ought or ought not to have been done; but the true approach is to endeavor, for the moment, to possess the mind of him upon whom rested the responsibility.
Enemy obligations in care of merchant ships.
Let us now see what that responsibility was and how it was dealt with. The rules of naval warfare allowed the capture and, in some circumstances, the destruction of an enemy merchant ship, but, at the same time, it was the accepted doctrine of all civilized nations (as will be more fully considered infra) that, as Lord Mersey put it, "there is always an obligation first to secure the safety of the lives of those on board."
The responsibility, therefore, of Captain Turner, in his task of bringing the ship safely to port, was to give heed not only to general advices advanced as the outcome of experience in the then developing knowledge as to submarine warfare, but particularly to any special information which might come to him in the course of the voyage.
Advices of the Admiralty.
Realizing that if there was a due warning, in accordance with international law, and an opportunity, within a limited time, for the passengers to leave the ship, nevertheless that the operation must be quickly done, Captain Turner, on May 6, had taken the full precautions,such as swinging out the boats, properly provisioned, which have been heretofore described. The principal features of the Admiralty advices were (1) to give the headlands a wide berth; (2) to steer a midchannel course; (3) to maintain as high a speed as practicable; (4) to zigzag, and (5) to make ports, if possible, at dawn, thus running the last part of the voyage at night.
Fastnet given a wide berth.
The reason for the advice as to keeping off headlands was that the submarines lurked near those prominent headlands and landfalls to and from which ships were likely to go. This instruction Captain Turner entirely followed in respect of Fastnet, which was the first point on the Irish coast which a vessel bound from New York to Liverpool would ordinarily approach closely, and, in normal times, the passing would be very near, or even inside of Fastnet. TheLusitaniapassed Fastnet so far out that Captain Turner could not see it. Whether the distance was about twenty-five miles, as the Cunard Steamship Co. contends, or about eighteen and one-half miles, as the claimants calculate, the result is that either distance must be regarded as a wide berth, in comparison with the customary navigation at that point, and, besides, nothing happened there. At 8:30 P. M. on May 6 the message had been received from the British Admiralty that submarines were off Fastnet, so that Captain Turner, in this regard, not only followed the general advices, but the specific information from the Admiralty.
At 11:25 A. M. on May 7 Captain Turner received the wireless from the Admiralty plainly intended for theLusitania, informing him that submarines (plural) were active in the southern part of the Irish Channel and when last heard of were twenty miles south of Coningbeg Light Vessel. This wireless message presentedacutely to the Captain the problem as to the best course to pursue, always bearing in mind his determination and the desirability of getting to the Liverpool Bar when it could be crossed while the tide served and without a pilot. Further, as was stated by Sir Alfred Booth, "The one definite instruction we did give him with regard to that was to authorize him to come up without a pilot." The reasons for this instruction were cogent and were concisely summed up by Sir Alfred Booth during his examination as a witness as follows:
The Mersey sandbar.
"It was one of the points that we felt it necessary to make the Captain of theLusitaniaunderstand the importance of. TheLusitaniacan only cross the Liverpool Bar at certain states of the tide, and we therefore warned the Captain, or whoever might be Captain, that we did not think it would be safe for him to arrive off the bar at such a time that he would have to wait there, because that area had been infested with submarines, and we thought therefore it would be wiser for him to arrange his arrival in such a way, leaving him an absolutely free hand as to how he would do it, that he could come straight up without stopping at all. The one definite instruction we did give him with regard to that was to authorize him to come up without a pilot."
The tide would be high at Liverpool Bar at 6:53 on Saturday morning, May 8. Captain Turner planned to cross the bar as much earlier than that as he could get over without stopping, while at the same time figuring on passing during the darkness the dangerous waters from the entrance of St. George's Channel to the Liverpool Bar.
The Captain decides to work inshore.
Having thus in mind his objective, and the time approximately when he intended to reach it, the message received at 11:25 A. M. required that he should determine whether to keep offland approximately the same distance as he was when he passed Fastnet, or to work inshore and go close to Coningbeg Lightship. He determined that the latter was the better plan to avoid the submarines reported in midchannel ahead of him.
Taking a bearing.
When Galley Head was sighted the course was changed so as to haul closer to the land, and this course was pursued until 1:40 P. M., at which time Captain Turner concluded that it was necessary for him to get his bearings accurately. This he decided should be done by taking a four-point bearing, during which procedure the ship was torpedoed. It is urged that he should have taken a two-point bearing or a cross bearing, which would have occupied less time, but if, under all the conditions which appealed to his judgment as a mariner, he had taken a different method of ascertaining his exact distance and the result would have been inaccurate, or while engaged in taking a two-point bearing the ship had been torpedoed, then somebody would have said he should have taken a four-point bearing. The point of the matter is that an experienced Captain took the bearing he thought proper for his purposes, and to predicate negligence upon such a course is to assert that a Captain is bound to guess the exact location of a hidden and puzzling danger.
Testimony about the ship's speed.
Much emphasis has been placed upon the fact that the speed of the ship was eighteen knots at the time of the attack instead of twenty-four, or, in any event, twenty-one knots, and upon the further fact (for such it is) that the ship was not zigzagging as frequently as the Admiralty advised or in the sense of that advice.
Upon this branch of the case much testimony was taken, (some in camera, as in the Wreck Commissioners' Court,) and, for reasons of public interest, the methods of successfullyevading submarines will not be discussed. If it be assumed that the Admiralty advices as of May, 1915, were sound and should have been followed, then the answer to the charge of negligence is twofold: (1) that Captain Turner, in taking a four-point bearing off the Old Head of Kinsale, was conscientiously exercising his judgment for the welfare of the ship, and (2) that it is impossible to determine whether, by zigzagging off the Old Head of Kinsale or elsewhere, theLusitaniawould have escaped the German submarine or submarines.
As to the first answer I cannot better express my conclusionthanin the language of Lord Mersey:
Lord Mersey's opinion.
"Captain Turner was fully advised as to the means which in the view of the Admiralty were best calculated to avert the perils he was likely to encounter, and in considering the question whether he is to blame for the catastrophe in which his voyage ended I have to bear this circumstance in mind. It is certain that in some respects Captain Turner did not follow the advice given to him. It may be (though I seriously doubt it) that had he done so his ship would have reached Liverpool in safety. But the question remains: Was his conduct the conduct of a negligent or of an incompetent man? On this question I have sought the guidance of my assessors, who have rendered me invaluable assistance, and the conclusion at which I have arrived is that blame ought not to be imputed to the Captain. The advice given to him, although meant for his most serious and careful consideration, was not intended to deprive him of the right to exercise his skilled judgment in the difficult questions that might arise from time to time in the navigation of his ship. His omission to follow the advice in all respects cannot fairly be attributed either to negligence or incompetence.
Skilled and experienced judgment.
"He exercised his judgment for the best. It was the judgment of a skilled and experienced man, and although others might have acted differently, and, perhaps, more successfully, he ought not, in my opinion, to be blamed."
More than one submarine in wait.
As to the second answer, it is only necessary to outline the situation in order to realize how speculative is the assertion of fault. It is plain from the radio messages of the Admiralty, (May 6, 7:50 P. M., "Submarines active off south coast of Ireland"; May 6, 8:30 P. M., "Submarines off Fastnet"; the 11:25 message of May 7, supra; May 7, 11:40 A. M., "Submarines five miles south of Cape Clear, proceeding west when sighted at 10 A. M.,") that more than one submarine was lying in wait for theLusitania.
Submarines bold with unarmed vessels.
A scientific education is not necessary to appreciate that it is much more difficult for a submarine successfully to hit a naval vessel than an unarmed merchant ship. The destination of a naval vessel is usually not known, that of theLusitaniawas. A submarine commander, when attacking an armed vessel, knows that he, as the attacker, may and likely will also be attacked by his armed opponent. TheLusitaniawas as helpless in that regard as a peaceful citizen suddenly set upon by murderous assailants. There are other advantages of the naval vessel over the merchant ship which need not be referred to.
Probably two submarines.
It must be assumed that the German submarine commanders realized the obvious disadvantages which necessarily attached to theLusitania, and, if she had evaded one submarine, who can say what might have happened five minutes later? If there was, in fact, a third torpedo fired at theLusitania'sport side, then that incident would strongly suggest that, in the immediate vicinity of the ship, there were at least two submarines.
It must be remembered also that theLusitaniawas still in the open sea, considerably distant from the places of theretofore submarine activity and comfortably well off the Old Head of Kinsale, from which point it was about 140 miles to the Scilly Islands, and that she was nearly 100 miles from the entrance to St. George's Channel, the first channel she would enter on her way to Liverpool.
Attack intended to destroy life.
No transatlantic passenger liner, and certainly none carrying American citizens, had been torpedoed up to that time. The submarines, therefore, could lay their plans with facility to destroy the vessel somewhere on the way from Fastnet to Liverpool, knowing full well the easy prey which would be afforded by an unarmed, unconvoyed, well-known merchantman, which from every standpoint of international law had the right to expect a warning before its peaceful passengers were sent to their death. That the attack was deliberate and long contemplated and intended ruthlessly to destroy human life, as well as property, can no longer be open to doubt. And when a foe employs such tactics it is idle and purely speculative to say that the action of the Captain of a merchant ship, in doing or not doing something or in taking one course and not another, was a contributing cause of disaster or that had the Captain not done what he did or had he done something else, then that the ship and her passengers would have evaded their assassins.
The Captain and company not negligent.
I find, therefore, as a fact, that the Captain and, hence, the Cunard Company were not negligent.
The importance of the cause, however, justifies the statement of another ground which effectually disposes of any question of liability.
It is an elementary principle of law that even if a person is negligent recovery cannotbe had unless the negligence is the proximate cause of the loss or damage.
There is another rule, settled by ample authority, viz.: that, even if negligence is shown, it cannot be the proximate cause of the loss or damage if an independent illegal act or a third party intervenes to cause the loss.
The question, then, is whether the act of the German submarine commander was an illegal act.
International law.
The United States courts recognize the binding force of international law.
At least since as early as June 5, 1793, in the letter of Mr. Jefferson, Secretary of State, to the French Minister, our Government has recognized the law of nations as an "integral part" of the laws of the land.
To ascertain international law, "resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of commentators and jurists. * * * Such works are resorted to by judicial tribunals * * * for trustworthy evidence of what the law really is."
Let us first see the position of our Government, and then ascertain whether that position has authoritative support. Mr. Lansing, in his official communication to the German Government dated June 9, 1915, stated:
Mr. Lansing's communication.
Responsibility of the German Government.
A principle of humanity.
"But the sinking of passenger ships involves principles of humanity which throw into the background any special circumstances of detail that may be thought to affect the cases, principles which lift it, as the Imperial German Government will no doubt be quick to recognize and acknowledge, out of the class of ordinary subjects of diplomatic discussion or of international controversy. Whatever be the other facts regarding theLusitania, the principal fact is that a great steamer, primarily and chiefly a conveyance for passengers, andcarrying more than a thousand souls who had no part or lot in the conduct of the war, was torpedoed and sunk without so much as a challenge or a warning, and that men, women, and children were sent to their death in circumstances unparalleled in modern warfare. The fact that more than one hundred American citizens were among those who perished made it the duty of the Government of the United States to speak of these things and once more with solemn emphasis to call the attention of the Imperial German Government to the grave responsibility which the Government of the United States conceives that it has incurred in this tragic occurrence, and to the indisputable principle upon which that responsibility rests. The Government of the United States is contending for something much greater than mere rights of property or privileges of commerce. It is contending for nothing less high and sacred than the rights of humanity, which every Government honors itself in respecting and which no Government is justified in resigning on behalf of those under its care and authority. Only her actual resistance to capture or refusal to stop when ordered to do so for the purpose of visit could have afforded the commander of the submarine any justification for so much as putting the lives of those on board the ship in jeopardy. This principle the Government of the United States understands the explicit instructions issued on August 3, 1914, by the Imperial German Admiralty to its commanders at sea to have recognized and embodied as do the naval codes of all other nations, and upon it every traveler and seaman had a right to depend. It is upon this principle of humanity, as well as upon the law founded upon this principle, that the United States must stand. * * *
Americans must be safeguarded.
"The Government of the United States cannotadmit that the proclamation of a war zone from which neutral ships have been warned to keep away may be made to operate as in any degree an abbreviation of the rights either of American shipmasters or of American citizens bound on lawful errands as passengers on merchant ships of belligerent nationality. It does not understand the Imperial German Government to question those rights. It understands it, also, to accept as established beyond question the principle that the lives of non-combatants cannot lawfully or rightfully be put in jeopardy by the capture or destruction of an unresisting merchantman, and to recognize the obligation to take sufficient precaution to ascertain whether a suspected merchantman is in fact of belligerent nationality or is in fact carrying contraband of war under a neutral flag. The Government of the United States therefore deems it reasonable to expect that the Imperial German Government will adopt the measures necessary to put these principles into practice in respect of the safeguarding of American lives and American ships, and asks for assurances that this will be done. (See White Book of Department of State entitled 'Diplomatic Correspondence with Belligerent Governments Relating to Neutral Rights and Duties, European War, No. 2,' at p. 172. Printed and distributed October 21, 1915.)"
The German Government found itself compelled ultimately to recognize the principles insisted upon by the Government of the United States, for, after considerable correspondence, and on May 4, 1916, (after theSussexhad been sunk,) the German Government stated:
TheSussexagreement.
"The German submarine forces have had in fact, orders to conductsubmarinewarfare in accordance with the general principles of visit and search and destruction of merchant vesselsas recognized by international law, the sole exception being the conduct of warfare against the enemy trade carried on enemy freight ships that are encountered in the war zone surrounding Great Britain. * * *
Merchant ships not to be sunk without warning.
"The German Government, guided by this idea, notifies the Government of the United States that the German naval forces have received the following orders: In accordance with the general principles of visit and search and destruction of merchant vessels recognized by international law, such vessels, both within and without the area declared as naval war zone, shall not be sunk without warning and without saving human lives, unless these ships attempt to escape or offer resistance. See Official Communication by German Foreign Office to Ambassador Gerard, May 4, 1916. (White Book No. 3 of Department of State, pp. 302, 305.)"
Right to make a prize.
There is, of course, no doubt as to the right to make prize of an enemy ship on the high seas, and, under certain conditions, to destroy her, and equally no doubt of the obligation to safeguard the lives of all persons aboard, whether passengers or crew.
Two quotations from a long list of authorities may be given for convenience, one stating the rule and the other the attitude which obtains among civilized Governments. Oppenheim sets forth as among violations of the rules of war:
"(12) Attack on enemy merchantmen without previous request to submit to visit."
The observation in Vattel's "Law of Nations" is peculiarly applicable to the case of theLusitania:
"Let us never forget that our enemies are men. Though reduced to the disagreeable necessity of prosecuting our right by force of arms, let us not divest ourselves of that charity which connects us with all mankind. Thus shall wecourageously defend our country's rights without violating those of human nature. Let our valor preserve itself from every stain of cruelty and the lustre of victory will not be tarnished by inhuman and brutal actions."
Codes and rules of nations.
In addition to these authorities are the regulations and practices of various Governments. In 1512 Henry VIII. issued instructions to the Admiral of the Fleet which accord with our understanding of modern international law. Such has been England's course since.
Substantially the same rules were followed in the Russian and Japanese regulations, and probably in the codes or rules of many other nations.
The rules recognized and practiced by the United States, among other things, provide:
"(10) In the case of an enemy merchantman it may be sunk, but only if it is impossible to take it into port, and provided always that the persons on board are put in a place of safety. (U. S. White Book, European War, No. 3, p. 192.)"
Humane principles in American wars.
These humane principles were practiced both in the war of 1812 and during our own war of 1861-65. Even with all the bitterness (now happily ended and forgotten) and all the difficulties of having no port to which to send a prize, Captain Semmes of theAlabamastrictly observed the rule as to human life, even going so far as to release ships because he could not care for the passengers. But we are not confined to American and English precedents and practices.
While acting contrary to its official statements, yet the Imperial German Government recognized the same rule as the United States, and prior to the sinking of theLusitaniahad not announced any other rule. The war zone proclamation of February 4, 1915, contained no warning that the accepted rule of civilized navalwarfare would be discarded by the German Government.
Indeed, after theLusitaniawas sunk, the German Government did not make any such claim, but in answer to the first American note in reference to theLusitaniathe German Foreign Office, per von Jagow, addressed to Ambassador Gerard a note dated May 18, 1915, in which, inter alia, it is stated in connection with the sinking of the British steamerFalaba:
TheFalabacase.
"In the case of the sinking of the English steamerFalaba, the commander of the German submarine had the intention of allowing passengers and crew ample opportunity to save themselves. It was not until the Captain disregarded the order to lay to and took to flight, sending up rocket signals for help, that the German commander ordered the crew and passengers by signals and megaphone to leave the ship within ten minutes. As a matter of fact, he allowed them twenty-three minutes, and did not fire the torpedo until suspicious steamers were hurrying to the aid of theFalaba. (White BookNo.2, U. S. Department of State, p. 169.)"
Indeed, as late as May 4, 1916, Germany did not dispute the applicability of the rule, as is evidenced by the note written to our Government by von Jagow of the German Foreign Office, an extract of which has been quoted supra.
Further, Section 116 of the German Prize Code, (Huberich and Kind translation, p. 68,) in force at the date of theLusitania'sdestruction, conformed with the American rule. It provided:
Safety of passengers necessary.
"Before proceeding to a destruction of the vessel the safety of all persons on board, and, so far as possible, their effects, is to be provided for, and all ship's papers and other evidentiary material which, according to the views of the persons at interest, is of value for theformulation of the judgment of the prize court, are to be taken over by the commander."
Thus, when theLusitaniasailed from New York, her owner and master were justified in believing that, whatever else and theretofore happened, this simple, humane and universally accepted principle would not be violated. Few, at that time, would be likely to construe the warning advertisement as calling attention to more than the perils to be expected from quick disembarkation and the possible rigors of the sea after the proper safeguarding of the lives of passengers by at least full opportunity to take to the boats.
It is, of course, easy now in the light of many later events, added to preceding acts, to look back and say that the Cunard Line and its Captain should have known that the German Government would authorize or permit so shocking a breach of international law and so foul an offense, not only against an enemy, but as well against peaceful citizens of a then friendly nation.
But the unexpected character of the act was best evidenced by the horror which it excited in the minds and hearts of the American people.
Fault with the Imperial German Government.
Those who plotted the crime.
The fault, therefore, must be laid upon those who are responsible for the sinking of the vessel, in the legal as well as moral sense. It is, therefore, not the Cunard Line, petitioner, which must be held liable for the loss of life and property. The cause of the sinking of theLusitaniawas the illegal act of the Imperial German Government, acting through its instrument, the submarine commander, and violating a cherished and humane rule observed, until this war, by even the bitterest antagonists. As Lord Mersey said, "The whole blame for the cruel destruction of life in this catastrophe must rest solely with those who plotted and with those who committed the crime."
Italy, bound at the outbreak of the war to Germany and Austria by a treaty which formed the so-called Triple Alliance, was in a most difficult position. Her people, however, were strongly convinced of the aggressive intentions of Germany, and, after careful consideration, the Government and the people alike decided to cast their lot with the Allies. Active operations were at once begun along the border between Italy and Austria, and in this difficult terrain the events which are described in the following chapter occurred.
New style of warfare.
At the outbreak of the great war huge and well-equipped bodies of men, led by highly trained officers, rich in the strategic lore of centuries, set out to demonstrate the value of the theories that they had learned in time of peace. In a few months an entirely new style of warfare developed, and most of the military learning of the past was interesting chiefly because of its antiquity.
Italy and Austria fight in the Alps.
After the tremendous conflict at the Marne and the German rush for Calais, which was halted on the line of the Yser, there were on the western front no more battles in the old sense of the word. From the North Sea to the Swiss frontier, the fighting was just a novel and gigantic form of siege warfare. Cavalry became an obsolete arm. Battle tactics, in the old sense, ceased to have any meaning. Of strategy nothing much remained save the dictionary definition.
And now, since Italy and Austria have locked horns above the clouds, among the glaciers and snow-faced slopes of the Alps, even the old text-books on mountain warfare have lost their significance. In the Trentino and along the Isonzo we see the consummation of a new style of mountain fighting, which grew out of the old methods in the struggle for the Carpathian passes during the first winter and spring of the war.
In the old days, during a campaign in a mountain region, most of the battles werefought on the level—in the literal, not the colloquial sense of the word. There was a deal of marching and scouting among crags and precipices, but all with the object of obtaining the best position in an open valley or upland plain where the real fighting must take place. Now the smooth floors of the valleys are comparatively deserted, while whole armies are spread out over great peaks and dizzy snow-fields thousands of feet above sea-level, chopping trenches in the ice and sparring for some vantage-point onacrag that in peace times might tax the strength and skill of the amateur mountain-climber.
Bourcet's "Principles of Mountain Warfare."
Some time between 1764 and 1770, Pierre de Bourcet wrote a treatise entitled "The Principles of Mountain Warfare." This may seem to be going a long way back, but Bourcet's volume and that of the young Comte de Guilbert on general tactics have historical interest and importance because, according to Spenser Wilkinson, they show where some of Napoleon's strategic "miracles" were born. Bourcet's observations are as vital as if they had been written in 1910, but, as will be seen, many of them are somewhat musty in 1916.
Passes and defiles once the strong positions.
Bourcet, without the slightest idea of a battle-line extending from frontier to sea, lays down as the first principle of mountain warfare that when the enemy holds a strong position, the assailant should force him to leave it by turning it. These strong positions in the mountains were, until this war, the passes and defiles.
"These contracted places," he explains, "as they generally constitute the principal objects of the defense, must compel the general who is taking the offensive to seek every possible means of turning them, or of misleading the enemy by diversions which will weaken him and facilitate access to them.
"Suppose, for example, that the general on the defensive should be entrenched at all points surrounding his position in such a way as to be able to resist any direct attack that might be attempted against him, it would be necessary to attempt to turn him by some more distant point, choosing positions that would facilitate the scheme, and which, by suggesting some different object, could not raise the suspicion that the troops there collected were destined for the purpose really in view.