Upon this branch of the case much testimony was taken (some in camera, as in the Wreck Commissioner’s Court) and, for reasons of public interest, the methods of successfully evading 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 two-fold; (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 zig-zagging off the Old Head of Kinsale or elsewhere, the “Lusitania” would have escaped the German submarine or submarines.
As to the first answer, I cannot better express my conclusion than in the language of Lord Mersey:
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 hear 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 not ought 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 the ship. His omission to follow the advice in all respects cannot fairly be attributed either to negligence or incompetence.
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.
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 5 miles south of Cape Clear, proceeding west when sighted at 10 a.m.”), that more than one submarine was lying in wait for the “Lusitania”.
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 the “Lusitania” was. 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. The “Lusitania” was 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.
It must be assumed that the German submarine commanders realized the obvious disadvantages which necessarily attached to the “Lusitania” 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 from the “Lusitania’s” port side, then that incident would strongly suggest that, in the immediately vicinity of the ship, there was at least two submarines.
It must be remembered also that the “Lusitania” was 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.
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 of that had the captain not done what he did or had he done something else, then that ship and her passengers would have evaded their assassins.
I find, therefore, as a fact, that the captain and, hence, the petitioner, 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 cannot be had unless the negligent 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 of a third party intervenes to cause the loss.
Jarnagin v. Travelers’ Protective Assn., 133 F. R. 892;
Cole v. German Savings & Loan Soc., 124 F. R. 113;
See also, Insurance Co. v. Tweed, 7 Wall. 44;
Railroad Co. v. Reeves, 10 Wall. 176;
Insurance Co. v. Boon, 95 U. S. 117;
The Young America, 31 F. R. 749;
Goodlander Mill Co. v. Standard Oil co., 63 F. R. 400;
Claimants contend strongly that the case at bar comes within Holladay v. Kennard, 12 Wall. 254, where Mr. Justice Miller, who wrote the opinion, carefully stated that that case was not to be construed as laying down a rule different from that of Railroad Co. v. Reeves, supra. An elaborate analysis of the Holladay and other cases will not be profitable; suffice it to say, neither that nor any other case has changed the rule of law above stated, as to the legal import of an intervening illegal act of a third party.
The question then, is whether the act of the German submarine commander was an illegal act.
The United States courts recognize the binding force of International Law. As was said by Mr. Justice Gray in The Paquete Habana, 175 U. S. 677, 700:
International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as question of right depending upon it are duly presented for their determination.
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.
Moore’s Internaitional Law Digest, I, p. 10;
The Scotia, 14 Wall. 170, 187;
The New York, 175 U. S. 187, 197;
Kansas v. Colorado, 185 U. S. 125, 146;
Kansas v. Colorado, 206 U. S. 46.
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.”
The Paquete Habana, 175 U. S. 677 (and authorities cited).
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:
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 the “Lusitania”, the principal fact is that a great steamer, primarily and chiefly a conveyance for passengers, and carrying 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 aboard the ship in jeopardy. This principle the Government of the United States understand 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. * * *
The Government of the United States cannot admit 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.
White Book of Department of State entitled ”Diplomatic Correspondence with Belligerent Governments Relating to Neutral Rights and Duties European War No. 2,” at page 172. Printed and distributed October 21, 1915.
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