The German Government found itself compelled ultimately to recognize the principle insisted upon by the Government of the United States for, after considerable correspondence and, on May 4, 1916 (after the Sussex had been sunk), the German Government stated:
The German submarine forces have had, in fact, orders to conduct submarine warfare in accordance with the general principles of visit and search and destruction of merchant vessels as 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; * * *
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, 205).
There is, of course, no doubt as to the right to make prize 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.
Phillemore on International Law, 3d Ed. Vol. 3, p. 584.
Sir Sherston Baker on “First Steps in International Law,” p. 236.
G. B. Davis on “Elements of International Law,” pp. 358, 359.
A. Pearce Higgins on “War and the Private Citizen,” pp. 33, 78, referring to proceedings of “Institute of International Law at Turin” in 1882.
Creasy on “First Steps in International Law,” p. 562, quoting Chief Justice Cockburn in his judgment in the Geneva Arbitration.
L. A. Atherby-Jones on “Commerce in War,” p. 529.
Professor Holland’s Article, Naval War College, 1907, p. 82.
Oppenheim on International Law, 2 Ed. Vol. 2, pp. 244, 311.
Taylor on International Law, p. 572.
Westlake on International Law, 2nd Ed., p. 309, Part II.
Halleck on International Law, Vol. II, pp. 15, 16.
Vattel’s Law of Nations, Chittey’s Ed., p. 362.
Two quotations from this long list 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 the “Lusitania”:
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 we courageously defend our country’s rights without violating those of human nature. Let our valor preserve itself from every stain on cruelty and the luster of victory will not be tarnished by inhuman and brutal actions.
In addition to the authorities supra, are the regulations and practices of various governments. In 1512, Henry VIII issued instructions to the Admiral of the Fleet which accord with out understanding of modern International Law. (Hosack’s Law of Nations, p. 168). Such has been England’s course since.
22 Go. 2nd C. 33, 2 Sec. 9 (1749);
British Admiralty Manual of Prize Law 188,
Secs. 303, 304.
Substantially the same rules were followed in the Russian and Japanese regulations and probably in the codes or rules of many other nations.
Russian Prize Regulations, March 27, 1895 (cited in Moore’s Digest, Vol. VII, p. 518);
Japanese Prize Law of 1894 Art. 22 (cited in Moore, supra, Vol. VII, p. 525);
Japanese Regulations, March 7, 1904 (see Takahashi’s Cases on International Law during Chino-Japanese War).
The rules recognized and practised 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 to 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.)
These humane principles were practised both in the war of 1812 and during our own war of 1861-1865. 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 the “Alabama” strictly 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 the “Lusitania”, had not announced any other rule. The war zone proclamation of February 4, 1915, contained no warning that the accepted rule of civilized naval warfare would be discarded by the German Government.
Indeed, after the “Lusitania” was sunk, the German Government did not make any such claim but, in answer to the first American note in reference to the “Lusitania”, the 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 Steamer “Falaba”:
In the case of the sinking of the English steamer “Falaba”, 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 megaphones to leave the ship within 10 minutes. As a matter of fact he allowed them 23 minutes and did not fire the torpedo until suspicious steamers were hurrying to the aid of the “Falaba”. (White Book No. 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 in evidenced by the note written to our Government by von Jagow of the German Foreign Office, an extract from which has been quoted supra.
Further, section 116 of the German Prize Code (Huberich & Kind translation, p. 68) in force at the date of the “Lusitania’s” destruction, conformed to the American rule. It provided:
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 of interest, is of value for the formulation of the judgment of the prize court, are to be taken over by the commander.
Thus, when the “Lusitania” sailed from New York, her owner and master were justified in believing that, whatever else had 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.
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 the “Lusitania” was 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.”
But, while in this lawsuit, there may be no recovery, it is not to be doubted that the United States of America and her Allies, will well remember the rights of those affected by the sinking of the “Lusitania” and, when the time shall come, will see to it that reparation shall be made for one of the most indefensible acts of modern times.
The petition is granted and the claims dismissed without costs.
JULIUS M. MAYER,
District Judge
August 23, 1918
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