"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.

[Sidenote: 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."

[Sidenote: 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 the _Lusitania_.

[Sidenote: 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 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.

[Sidenote: Probably two submarines.]

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.

[Sidenote: 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.

[Sidenote: 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 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.

[Sidenote: 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:

[Sidenote: Mr. Lansing's communication.]

[Sidenote: Responsibility of the German Government.]

[Sidenote: 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 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. * * *

[Sidenote: Americans must be safeguarded.]

"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:

[Sidenote: The _Sussex_ agreement.]

"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. * * *

[Sidenote: 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.)"

[Sidenote: 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 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 of cruelty and the lustre of victory will not be tarnished

by inhuman and brutal actions."

[Sidenote: 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.)"

[Sidenote: 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 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_:

[Sidenote: The _Falaba_ case.]

"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 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 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 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 the _Lusitania's_

destruction, conformed with the American rule. It provided:

[Sidenote: 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 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 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.

[Sidenote: Fault with the Imperial German Government.]

[Sidenote: 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 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."

* * * * *

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.

MOUNTAIN WARFARE

HOWARD C. FELTON

Copyright, Munsey's Magazine, May, 1916.

[Sidenote: 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.

[Sidenote: 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 were fought 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 on a crag that in peace times might tax

the strength and skill of the amateur mountain-climber.

[Sidenote: 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.

[Sidenote: 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.

[Sidenote: Unlike modern warfare.]

"It often happens in the mountains that the only passages favorable to

our plans are interrupted by narrow defiles. In such cases we must avoid

letting the enemy know our real purpose, and must undertake diversions,

dividing our forces into small bodies. This method, which would be

dangerous in any other sort of country, is indispensable in the

mountains, and is the whole science of this kind of warfare, provided

that the general who uses it always has the means to reconcentrate his

forces when necessary."

Bourcet's conclusion is that in such a campaign the offensive has great

advantages over the defensive. It will always possess the initiative;

and if it prepares its blow with sufficient secrecy and strikes swiftly,

the enemy, whose troops are necessarily scattered along the whole line

menaced, can never be ready to meet the attack.

[Sidenote: Generals understand each other's strategy.]

To-day, the only trouble about this beautifully tricky system of

strategy is that the defending general would pay no attention to it. The

Austrian general staff, for instance, knew that the Italians would try

to smash through the frontier defenses of the Dual Empire, and that the

natural avenues of attack were up the valley of the Adige, along the

railway through Pontebba and Malborghetto, or between Malborghetto and

the sea. The Austrians have enough men and guns to defend all these

routes and all the tortuous pathways in between. So all they had to do

was plant themselves on their chosen ground along the whole carefully

fortified mountain line, and wait for the Italians to attack wherever

they pleased.

"It is only by marching and countermarching," Bourcet said, "that we can

hope to deceive the enemy and induce him to weaken himself in certain

positions in order to strengthen himself in others."

[Sidenote: The enemy cannot be outflanked.]

But this cannot be done in the mountain fighting in the Alps to-day. The

Italians might march and countermarch as much as they pleased, but there

is no possible way of turning the enemy out of his position by

outflanking him. It is a case of frontal attack, with every valley

blocked and every peak a fortress.

[Sidenote: Italy's great objectives.]

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