CASE OF THE LUSITANIA

359

As to the Lusitania, it was impossible to give the ship sufficient warning to enable the passengers and crews to take to the lifeboats without exposing the attacking submarine to the danger of destruction. In any event, the time allowed would probably have been sufficient to enable the passengers to leave the vessel had the sinking not been hastened by the presence of a large quantity of highly explosive materials which it carried in violation of the laws of the United States. As a matter of fact, official warning had been given by publication in American newspapers to all persons intending to take passage on the Lusitania that an attempt would be made to destroy the vessel; consequently the responsibility rested in part at least upon those who deliberately disregarded the warning thus given. Finally, the German government was unwilling to admit that the presence of neutral persons on board the Lusitania conferred any immunity whatever upon her. There was no compelling necessity for neutrals to travel on ships flying a belligerent flag, and the suggestion was made in the German note of June 9 that Americans should refrain from travelling on British ships. It was even intimated that the British government encouraged Americans to take passage on British liners with a view to conferring an immunity on such vessels against the exercise of the belligerent right of destruction.2

The sinking of the Lusitania was defended by a group of twenty-two distinguished German professors, including Bindung,

1 Dr. Noldecke, a judge of the German superior court at Hamburg, in an article published in the Hamburger Fremdenblatt of May 10, 1915, argued that the warning issued by the embassy at Washington was a sufficient compliance with the requirements of international law. He said, "And if, in general, previous information must be given, this too is not lacking. Nobody will, in international law, demand a formal registered transmission of such information. It suffices that there should be called previously to the clear cognizance of the ship destined for destruction the fact that this destruction threatens it. This, in the present case, happened in more than sufficient measure."

Cf. also the following from an interview given out by Dr. Dernburg: "We gave ample warning that every English ship plying to or from a British port after March 18 was going to be torpedoed, with only such warning as the necessities of the case permitted. To venture into the English war zone is like going into a house that is burning. Americans who wish to keep out of harm's way might patronize the American flag."

2 The Frankfurter Zeitung of May 9, 1915, made this charge. Dr. Dernburg in a statement published in the United States on May 10 asserted that Americans were being used as a "shield to get war material into England." Cf. also Burgess, op. cit., p. 42.

Fleishmann, Hatchek, Kohler, Laband, Rehm, Strupp, Triepel, and Wach in a symposium published in 1915. In general their argument was that the rules of cruiser warfare do not apply to submarine warfare, and therefore the submarine which sank the Lusitania was not bound to give warning in order to allow the passengers time to take to the life-boats, nor was it bound to provide for their safety.2

The fact that neutrals were affected, said Professor Rehm, did not alter the situation. Moreover, her destruction was a "perfectly justifiable" measure of reprisal, even if she had been an ordinary merchant vessel without any contraband at all on board. Neutral governments, said Professor Triepel, had no just ground to complain because their citizens were lost. The measure was "severe," but it was

"necessary and imperative in order to injure the enemy and to attain the object of our war. We direct our submarines against England and her allies. We do not intend to injure neutral persons and goods. If it happens, contrary to our wishes, it is due to circumstances which every neutral can avoid. The shot which was fired against the Lusitania was an act of war against Great Britain only; it was a legal act, and no neutral can hold us responsible for it—not even that neutral whose citizens, to our honorable regret, were injured thereby." 3

"Whether the warning issued by the German ambassador at Washington through the press to Americans contemplating taking passage on the ship was improper diplomacy or not, it was evidence of our good will and humane thought."

It was the duty of the American government to prevent "inhuman and insidious English ship-owners from taking on board a death-ordained ship a number of innocent passengers." 5 1 Entitled Der Lusitania-Fall; ein Urteil von deutschen Gelehrten in the Zeitschrift für Völkerrecht, Bd. IX, pp. 159 ff.

Cf. also a monograph by Dr. Christian Meurer entitled Der Lusitania-Fall (Tübingen, 1915).

2 Cf. especially Professor Fleishmann's argument, ibid., p. 159.

Ibid., pp. 232-233.

Ibid., p. 234.

Ibid., p. 235. Dr. Strupp likewise argued that the commander of the submarine was under no obligation to warn the Lusitania or to provide for the safety of those on board. He was justified on the ground of military necessity in disregarding the existing rules of international law even if they applied to submarine warfare. Professor von Liszt of the University of Berlin in an article published in the Deutsche Juristen-Zeitung for March 1, 1917 (pp. 258 ff.), argued that German submarine warfare was fully authorized by the Hague conventions, and that it was child's play compared with the inhumanity of English methods. Quoted in 44 Clunet, p. 999.

DESTRUCTION OF MERCHANT VESSELS 361

8231. The German Defence Analyzed. Leaving aside for the present the consideration of the general question of the legality of the submarine as an instrument of war, as it was employed by the governments of Germany and Austria-Hungary, let us examine the particular contentions put forward by the German government and its supporters in defence of the sinking of the Lusitania.

Regarding the contention that the Lusitania was not an ordinary merchant vessel but an auxiliary cruiser and therefore must be assimilated to the status of a war ship which may be torpedoed without warning, it appears to have been true that it was a subsidized vessel and was enrolled in the royal naval reserve, like the merchant vessels of many nations. But it was not a war vessel; it was not commanded by a naval officer who carried a "commission of war"; it was not "embodied in the armed forces" of the British government.1

Legally and in fact the Lusitania was nothing but a peaceful trading and passenger vessel, and the arguments by which it was sought to convert it into a war ship were subtle and specious and can have no weight with those who attach more importance to substance than to technicality.

The assertion that the Lusitania was armed was pronounced by the British government to be "wholly false," and this was the testimony of her captain. Moreover, the collector of the port of New York, from which the vessel sailed, officially reported that "the Lusitania was inspected before sailing, as is customary, and no guns were found mounted or unmounted, and the vessel sailed without any armament." 2

§ 232. Liability of Enemy Merchant Vessels to Destruction; Exempt Vessels. Are such methods of warfare permissible under the law of nations? May the submarine be lawfully employed for the destruction of enemy merchant vessels? 3

3

1 In July, 1916, the German military authorities shot as a sea franc-tireur Captain Fryatt, the master of a British merchant vessel which attempted to thwart the attack of a submarine, on the ground that his ship was not " embodied in the naval forces " but was a merchant vessel. Legally its status was the same as that of the Lusitania. Therefore, if the Lusitania was in effect a war ship, as the Germans contended, were they justified in refusing to treat Captain Fryatt's vessel as a war ship and in shooting him as a pirate?

2 Professor Burgess, op. cit., p. 48, questions the good faith of the examination made by the collector of the port, but there is no ground for his contention. The destruction of neutral merchant vessels is considered in ch. 31.

In general, the right of a belligerent to sink the merchant ships of the enemy is recognized by international law and practice, although there are certain classes of such vessels that are exempt from capture and, of course, from destruction. The Hague convention of 1907 respecting the right of capture in maritime warfare laid down the rule that vessels charged with religious, scientific, or philanthropic missions are exempt from capture (article 4), and so are vessels employed exclusively in coast fisheries and small boats employed in local trade, provided they take no part in hostilities (article 3). Not being liable to capture, they cannot of course be destroyed.2 Finally, the Hague convention of 1907 for the adaptation of the principles of the Geneva convention to maritime war (article 2) declares that hospital ships, equipped wholly or in part at the expense of private individuals or officially recognized relief societies, shall be exempt from capture.

$233. Opinions of the Authorities as to the Right of Destruction. With these exceptions, the right of destruction under certain conditions is generally admitted, although it is a universally recognized principle of international law that all prizes ought, if possible, be taken into a prize court in order to have the lawfulness of their capture judicially determined. That a captor has a right, says Bentwich, to sink an enemy vessel cannot be doubted, though it is always preferable to bring it in for adjudication. Almost all publicists, says Bonfils, admit the right of a captor to destroy a prize in case of force majeure or absolute necessity, and he cites in support of

This immunity, however, does not apply to vessels engaged in deep-sea fishing. In the early part of the war the British prize court condemned the Berlin, a German vessel engaged in deep-sea fishing. Trehern, British and Colonial Prize Cases, Vol. I, p. 29.

2 In fact, vessels of this class were frequently sunk by German submarines. The Dutch newspaper Handelsblat of May 18, 1915, stated that "recently the Germans sunk more than twenty defenceless fishing boats." The London Gazette of October 15, 1915, stated that during the first year of the war British practice had been mainly to search German trawlers and allow them to proceed unless there were reasons for taking them in. Later the policy of capturing them was adopted in consequence of the German practice of sinking such vessels. The Germans appear to have defended their practice on the alleged ground that British trawlers were being used as mine sweepers and were armed for the destruction of submarines.

3 Law of Private Property in War on Land and Sea, p. 93; cf. also Lawrence, Principles of International Law (4th ed.), p. 483.

PRACTICE IN FORMER WARS

1

363

this view Valin, Pistoye et Duverdy, Calvo, Bluntschli, Bulmerincq, Gessner, Perels, Bernard, De Boeck, Martens, TraversTwiss, Wildman, Hall, and Kent. To this list may be added Wheaton, Phillimore, Risley, Oppenheim, Lawrence, Holland, Westlake, Pradier-Fodéré, and many others, though most of them limit the right to cases of absolute necessity. There are, however, some authorities who do not approve the right of destruction under any circumstances. The whole practice, says Woolsey, is "a barbarous one and ought to disappear from the history of nations." Bluntschli 2 and Heffter allow it 3 only in case of absolute necessity, and Bluntschli adds that every infringement upon this principle is a violation of the law of nations. Perels holds that a captor may never destroy until his right of ownership has been determined in a prize court,* and Kleen takes the same view.5 All the reasons, says Dupuis, in favor of the destruction of prizes are bad, and the practice should be prohibited. The right has often been sustained by the British and American admiralty courts. Lord Stowell affirmed that captors cannot properly permit "enemy property to sail away unmolested. If impossible to bring it in, their next duty is to destroy it." " Dr. Lushington likewise held that it may be justifiable or even praiseworthy of the captors to destroy an enemy vessel.8

$234. Past Practice as to Sinking of Prizes. The prize regulations of most States expressly authorize destruction under certain conditions, and in practice it has frequently been resorted to in the wars of the past. During the American Revolution many British and some American merchantmen were destroyed by enemy cruisers. During the war of 1812 the captain of the Constitution was instructed that "the commerce of the enemy is the most vulnerable point we can attack, and its destruction the main object; and to this end all your efforts should be 1 International Law, § 148. 2 Le Droit International Codifié (Lardy), § 672. 3 Droit International, § 138.

4 Internationale öffentliche Seerecht der Gegenwart, p. 299.

Les Lois de la Neutralité, Vol. II, p. 531.

Le Droit de la Guerre Maritime, p. 369.

7 The Felicity (1814), 2 Dodson's Admiralty Reports, 381.

8 The Leucade (1855), Spink's Admiralty Reports, 221; cf. also the American case of Jecker v. Montgomery (1851), 13 How. 498.

9 Cf. the texts in International Law Situations for 1905, pp. 64-67, and fcr 1907, pp. 77-79.