Part 34

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. The Lusitania passed 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 the Lusitania, 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 presented acutely 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:

"It was one of the points that we felt it necessary to make the Captain of the Lusitania understand the importance of. The Lusitania can 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.

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 off land 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.

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.

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 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 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, 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 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.

"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 five 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 at the Lusitania's port 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 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 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.

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 cannot be 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.

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:

"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 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. * * *

"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. (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 the Sussex had been sunk,) the German Government stated: