To continue the narrative from the night of Sunday, April 25. At 12:30 A. M., in face of repeated attacks, our infantry fell back from a part of the Grafenstafel Ridge, northwest of Zonnebeke, and the line then ran for some distance along the south bank of the little Haanebeek stream. The situation along the Yperlee Canal remained practically unchanged.

[Sidenote: Line pierced at Broodseinde.]

When the morning of the 26th dawned the Germans, who had been seen massing in St. Julien, and to the east of the village on the previous evening, made several assaults, which grew more and more fierce as the hours passed, but reinforcements were sent up and the position was secured. Further east, however, our line was pierced near Broodseinde, and a small body of the enemy established themselves in a portion of our trenches. In the afternoon a strong, combined counter-attack was delivered by the French and British along the whole front from Steenstraate to the east of St. Julien, accompanied by a violent bombardment. This moment, so far as can be judged at present, marked the turning point of the battle, for, although it effected no great change in the situation, it caused a definite check to the enemy's offensive, relieved the pressure, and gained a certain amount of ground.

[Sidenote: Attack near St. Julien.]

During this counter-attack the guns concentrated by both sides on this comparatively narrow front poured in a great volume of fire. From the right came the roar of the British batteries, from the left the rolling thunder of the soixante-quinze, and every now and then above the turmoil rose a dull boom as a huge howitzer shell burst in the vicinity of Ypres. On the right our infantry stormed the German trenches close to St. Julien, and in the evening gained the southern outskirts of the village. In the centre they captured the trenches a little to the south of the Bois des Cuisinirs, west of St. Julien, and still further west more trenches were taken. This represented an advance of some 600 or 700 yards, but the gain in ground could not at all points be maintained. Opposite St. Julien we fell back from the village to a position just south of the place, and in front of the Bois des Cuisinirs and on the left of the line a similar retirement took place, the enemy making extensive use of his gas cylinders and of machine guns placed in farms or at other points of vantage. None the less, the situation at nightfall was more satisfactory than it had been. We were holding our own well all along the line and had made progress at some points. On the right the enemy's attacks on the front of the Grafenstafel Ridge had all been repulsed.

[Sidenote: Enemy lines.]

In the meantime the French had achieved some success, having retaken Lizerne and also the trenches round Het Sast, captured some 250 prisoners, and made progress all along the west bank of the canal. Heavy as our losses were during the day, there is little doubt that the enemy suffered terribly. Both sides were attacking at different points, the fighting was conducted very largely in the open, and the close formations of the Germans on several occasions presented excellent targets to our artillery, which did not fail to seize its opportunities.

Nothing in particular occurred during the night.

[Sidenote: The new battle lines.]

The morning of the 27th found our troops occupying the following positions; North of Zonnebeke the right of the line still held the eastern end of the Grafenstafel Ridge, but from here it bent southwestward behind the Haanebeek stream, which it followed to a point about half a mile east of St. Julien. Thence it curved back again to the Vamheule Farm, on the Ypres-Poelcappelle road, running from here in a slight southerly curve to a point a little west of the Ypres-Langemarck road, where it joined the French. In the last mentioned quarter of the field it followed generally the line of a low ridge running from west to east. On the French front the Germans had been cleared from the west bank of the canal, except at one point, Steenstraate, where they continued to hold the bridgehead.

About 1 P. M. a counter-attack was made by us all along the line between the canal and the Ypres-Poelcappelle road, and for about an hour we continued to make progress. Then the right and centre were checked. A little later the left was also held up, and the situation remained very much as it had been on the previous day. The Germans were doubtless much encouraged by their initial success, and their previous boldness in attack was now matched by the stubborn manner in which they clung on to their positions. In the evening the French stormed some trenches east of the canal, but were again checked by the enemy's gas cylinders.

[Sidenote: German exhaustion.]

The night passed quietly, and was spent by us in reorganizing and consolidating our positions. The enemy did not interfere. This is not surprising, in view of the fact that by Tuesday evening they had been fighting for over five days. Their state of exhaustion is confirmed by the statements of the prisoners captured by the French, who also reported that the German losses had been very heavy.

On Wednesday, the 28th, there was a complete lull on this sector of our line, and the shelling was less severe. Some fighting, however, occurred along the canal, the French taking over 100 prisoners.

[Sidenote: Air battles.]

Nothing of any importance has occurred on other parts of the front. On the 27th at the Railway Triangle opposite Guinchy, the south side of the embankment held by the Germans was blown up by our miners. On the 28th a hostile aeroplane was forced to descend by our anti-aircraft guns. On coming down in rear of the German lines, it was at once fired upon and destroyed by our field artillery. Another hostile machine was brought down by rifle fire near Zonnebeke.

Splendid work has been done during the past few days by our airmen, who have kept all the area behind the hostile lines under close observation. On the 26th they bombed the stations of Staden, Thielt, Courtrai, Roubaix, and other places, and located an armored train near Langemarck, which was subsequently shelled and forced to retire. There have been several successful conflicts in the air, on one occasion a pilot in a single seater chasing a German machine to Roulers, and forcing it to land.

[Sidenote: Raid on Courtrai].

The raid on Courtrai unfortunately cost the nation a very gallant life, but it will live as one of the most heroic episodes of the war. The airman started on the enterprise alone in a biplane. On arrival at Courtrai he glided down to a height of 300 feet and dropped a large bomb on the railway junction. While he did this he was the target of hundreds of rifles, of machine guns, and of anti-aircraft armament, and was severely wounded in the thigh. Though he might have saved his life by at once coming down in the enemy's lines, he decided to save his machine at all costs, and made for the British lines. Descending to a height of only 100 feet in order to increase his speed, he continued to fly and was again wounded, this time mortally. He still flew on, however, and without coming down at the nearest of our aerodromes went all the way back to his own base, where he executed a perfect landing and made his report. He died in hospital not long afterward.

[Sidenote: Steadiness of the Canadians.]

The outstanding feature of the action of the past week has been the steadiness of our troops on the extreme left; but of the deeds of individual gallantry and devotion which have been performed it would be impossible to narrate one-hundredth part. At one place in this quarter a machine gun was stationed in the angle of a trench when the German rush took place. One man after another of the detachment was shot, but the gun still continued in action, through five bodies lay around it. When the sixth man took the place of his fallen comrades, of whom one was his brother, the Germans were still pressing on. He waited until they were only a few yards away, and then poured a stream of bullets on to the advancing ranks, which broke and fell back, leaving rows of dead. He was then wounded himself.

[Sidenote: Telephone wires cut.]

Under the hot fire to which our batteries were subjected in the early part of the engagement telephone wires were repeatedly cut. The wire connecting one battery with its observing officer was severed on nine separate occasions, and on each occasion repaired by a Sergeant, who did the work out in the open under a perfect hail of shells.

About 5 P. M. a dense cloud of suffocating vapors was launched from their trenches along the whole front held by the French right and by our left from the Ypres-Langemarck road to a considerable distance east of St. Julien. The fumes did not carry much beyond our front trenches. But these were to a great extent rendered untenable, and a retirement from them was ordered.

[Sidenote: Strange appearance of gas battle.]

No sooner had this started than the enemy opened a violent bombardment with asphyxiating shells and shrapnel on our trenches and on our infantry as they were withdrawing. Meanwhile our guns had not been idle. From a distance, perhaps owing to some peculiarity of the light, the gas on this occasion looked like a great reddish cloud, and the moment it was seen our batteries poured a concentrated fire on the German trenches.

Curious situations then arose between us and the enemy. The poison belt, the upper part shredding into thick wreaths of vapor as it was shaken by the wind, and the lower and denser part sinking into all inequalities of the ground, rolled slowly down the trenches. Shells would rend it for a moment, but it only settled down again as thickly as before.

Nevertheless, the German infantry faced it, and they faced a hail of shrapnel as well. In some cases where the gas had not reached our lines our troops held firm and shot through the cloud at the advancing Germans. In other cases the men holding the front line managed to move to the flank, where they were more or less beyond the affected area. Here they waited until the enemy came on and then bayoneted them when they reached our trenches.

[Sidenote: A charge through the gas.]

On the extreme left our supports waited until the vapor reached our trenches, when they charged through it and met the advancing Germans with the bayonet as they swarmed over the parapets.

South of St. Julien the denseness of the vapor compelled us to evacuate trenches, but reinforcements arrived who charged the enemy before they could establish themselves in position. In every case the assaults failed completely. Large numbers were mown down by our artillery. Men were seen falling and others scattering and running back to their own lines. Many who reached the gas cloud could not make their way through it, and in all probability a great number of the wounded perished from the fumes.

It is to that extent, from a military standpoint, a sign of weakness. Another sign of weakness is the adoption of illegal methods of fighting, such as spreading poisonous gas. It is a confession by the Germans that they have lost their former great superiority in artillery and are, at any cost, seeking another technical advantage over their enemy as a substitute.

[Sidenote: The enemy sticks at nothing.]

Nevertheless, this spirit, this determination on the part of our enemies to stick at nothing must not be underestimated. Though it may not pay the Germans in the long run, it renders it all the more obvious that they are a foe that can be overcome only by the force of overwhelming numbers of men and guns.

Further to the east a similar attack was made about 7 P. M. which seems to have been attended with even less success, and the assaulting infantry was at once beaten back by our artillery fire.

It was not long before all our trenches were reoccupied and the whole line reestablished in its original position. The attack on the French met with the same result.

Prisoners captured in the recent fighting, the narrative continues, stated that one German corps lost 80 per cent. of its men in the first week; that the losses from our artillery fire, even during days when no attacks were taking place, had been very heavy and that many of their own men had suffered from the effects of the gas.

[Sidenote: German gains due to poison gas.]

In regard to the recent fighting on our left, the German offensive, effected in the first instance by surprise, resulted in a considerable gain of ground for the enemy. Between all the earlier German efforts, the only difference was that on this latest occasion the attempt was carried out with the aid of poisonous gases.

There is no reason why we should not expect similar tactics in the future. They do not mean that the Allies have lost the initiative in the Western theatre, nor that they are likely to lose it. They do mean, however, and the fact has been repeatedly pointed out, that the enemy's defensive is an active one, that his confidence is still unshaken and that he still is able to strike in some strength where he sees the chance or where mere local advantage can be secured.

The true idea of the meaning of the operations of the Allies can be gained only by bearing in mind that it is their primary object to bring about the exhaustion of the enemy's resources in men.

In the form now assumed by this struggle—a war of attrition—the Germans are bound ultimately to lose, and it is the consciousness of this fact that inspires their present policy. This is to achieve as early as possible some success of sufficient magnitude to influence the neutrals, to discourage the Allies, to make them weary of the struggle and to induce the belief among the people ignorant of war that nothing has been gained by the past efforts of the Allies because the Germans have not yet been driven back. It is being undertaken with a political rather than a strategical object.

[Sidenote: Violent artillery fire.]

The calm that prevailed Thursday and Friday proved to be only the lull before the storm. Early Saturday morning it became apparent that the Germans were preparing an attack in strength against our line running east and northeast from Ypres, for they were concentrating under cover of a violent artillery fire, and at about 10 o'clock the battle began in earnest.

At that hour the Germans attacked our line from the Ypres-Poelcappelle road to within a short distance of the Menin highroad, it being evidently their intention while engaging us closely on the whole of this sector to break our front in the vicinity of the Ypres-Roulers Railway, to the north and to the south of which their strongest and most determined assaults were delivered.

Under this pressure our front was penetrated at some points around Frezenberg, and at 4:30 o'clock in the afternoon we made a counter-attack between the Zonnebeke road and the railway in order to recover the lost ground. Our offensive was conducted most gallantly, but was checked before long by the fire of machine guns.

[Sidenote: Enemy attacks near Menin road.]

Meanwhile, the enemy launched another attack through the woods south of the Menin road, and at the same time threatened our left to the north of Ypres with fresh masses. Most desperate fighting ensued, the German infantry coming on again and again and gradually forcing our troops back, though only for a short distance, in spite of repeated counter-attacks.

[Sidenote: On the Poelcappelle road.]

During the night the fighting continued to rage with ever-increasing fury. It is impossible to say at exactly what hour our line was broken at different points, but it is certain that at one time the enemy's infantry poured through along the Poelcappelle road, and even got as far as Wieltje at 9 P. M.

There was also a considerable gap in our front about Frezenberg, where hostile detachments had penetrated. At both points counter-attacks were organized without delay. To the east of the salient the Germans first were driven back to Frezenberg, but there they made a firm stand, and under pressure of fresh reinforcements we fell back again toward Verlorenhoek.

[Sidenote: Canadian counter-attack.]

Northeast of the salient a counter-attack carried out by us about 1 A. M. was more successful. Our troops swept the enemy out of Wieltje at the bayonet's point, leaving the village strewn with German dead and, pushing on, regained most of the ground to the north of that point. And so the fight surged to and fro throughout the night. All around the scene of the conflict the sky was lit up by the flashes of the guns and the light of blazing villages and farms, while against this background of smoke and flame, looking out in the murky light over the crumbling ruins of the old town, rose the battered wreck of the cathedral town and the spires of Cloth Hall.

[Sidenote: German assaults on the east.]

When Sunday dawned there came a short respite, and the firing for a time died down. The comparative lull enabled us to reorganize and consolidate our position on the new line we had taken up and to obtain some rest after the fatigue and strain of the night. It did not last long, however, and in the afternoon the climax of the battle was reached, for, under the cover of intense artillery fire, the Germans launched no less than five separate assaults against the east of the salient.

To the north and northeast their attacks were not at first pressed so hard as on the south of the Menin road, where the fighting was especially fierce. In the latter direction masses of infantry were hurled on with absolute desperation and were beaten off with corresponding slaughter.

At one point, north of the town, 500 of the enemy advanced from the wood, and it is affirmed by those present that not a single man of them escaped.

[Sidenote: German losses at Chateau Hooge.]

On the eastern face, at 6:30 P. M., an endeavor was made to storm the grounds of the Chateau Hooge, a little north of the Menin road, but the force attempting it broke and fell back under the hail of shrapnel poured upon them by our guns. It was on this side, where they had to face the concentrated fire of guns, Maxims and rifles again and again in their efforts to break their way through, that the Germans incurred their heaviest losses, and the ground was literally heaped with dead.

They evidently, for the time being at least, were unable to renew their efforts, and as night came on the fury of their offensive gradually slackened, the hours of darkness passing in quietness.

During the day our troops saw some of the enemy busily employed in stripping the British dead in our abandoned trenches, east of the Hooge Chateau, and several Germans afterward were noticed dressed in khaki.

[Sidenote: A successful day.]

So far as the Ypres region is concerned, this for us was a most successful day. Our line, which on the northeast of the salient had, after the previous day's fighting, been reconstituted a short distance behind the original front, remained intact. Our losses were comparatively slight, and, owing to the targets presented by the enemy, the action resolved itself on our part into pure killing.

The reason for this very determined effort to crush our left on the part of the Germans is not far to seek. It is probable that for some days previously they had been in possession of information which led them to suppose that we intended to apply pressure on the right of our line, and that their great attack upon Ypres on the 7th, 8th, and 9th was undertaken with a view to diverting us from our purpose.

In this the Germans were true to their principles, for they rightly hold that the best manner of meeting an expected hostile offensive is to forestall it by attacking in some other quarter. In this instance their leaders acted with the utmost determination and energy and their soldiers fought with the greatest courage.

[Sidenote: The enemy held in check.]

The failure of their effort was due to the splendid endurance of our troops, who held the line around the salient under a fire which again and again blotted out whole lengths of the defenses and killed the defenders by scores. Time after time along those parts of the front selected for assault were parapets destroyed, and time after time did the thinning band of survivors build them up again and await the next onset as steadily as before.

Here, in May, in defense of the same historic town, have our incomparable infantry repeated the great deeds their comrades performed half a year ago and beaten back most desperate onslaughts of hostile hordes backed by terrific artillery support.

The services rendered by our troops in this quarter cannot at present be estimated, for their full significance will only be realized in the light of future events. But so far their devotion has indirectly contributed in no small measure to the striking success already achieved by our allies.

Further south, in the meantime, on Sunday another struggle had been in progress on that portion of the front covered by the right of our line and the left of the French, for when the firing around Ypres was temporarily subsiding during the early hours of the morning another and even more tremendous cannonade was suddenly started by the artillery of the Allies some twenty miles to the south.

The morning was calm, bright, and clear, and opposite our right, as the sun rose, the scene in front of our line was the most peaceful imaginable. Away to the right were Guinchy, with its brickfields and the ruins of Givenchy. To the north of them lay low ground, where, hidden by trees and hedgerows, ran the opposing lines that were about to become the scene of the conflict, and beyond, in the distance, rose the long ridge of Aubers, the villages crowning it standing out clear cut against the sky.

[Sidenote: Bombardment of Guinchy.]

At 5 o'clock the bombardment began, slowly at first and then growing in volume until the whole air quivered with the rush of the larger shells and the earth shook with the concussion of guns. In a few minutes the whole distant landscape disappeared in smoke and dust, which hung for a while in the still air and then drifted slowly across the line of battle.

[Sidenote: The battle near Festubert.]

Shortly before 6 o'clock our infantry advanced along our front between the Bois Grenier and Festubert. On the left, north of Fromelles, we stormed the German first line trenches. Hand-to-hand fighting went on for some time with bayonet, rifle, and hand grenade, but we continued to hold on to this position throughout the day and caused the enemy very heavy loss, for not only were many Germans killed in the bombardment, but their repeated efforts to drive us from the captured positions proved most costly.

On the right, to the north of Festubert, our advance met with considerable opposition and was not pressed.

[Sidenote: A French victory.]

Meanwhile, the French, after a prolonged bombardment, had taken the German positions north of Arras on a front of nearly five miles, and had pushed forward from two to three miles, capturing 2,000 prisoners and six guns. This remarkable success was gained by our allies in the course of a few hours.

As may be supposed from the nature of the fighting which has been in progress, our losses have been heavy. On other parts of the front our action was confined to that of the artillery, but this proved most effective later, all the communications of the enemy being subjected to so heavy and accurate a fire that in some quarters all movement by daylight within range of our lines was rendered impracticable. At one place opposite our centre a convoy of ammunition was hit by a shell, which knocked out six motor lorries and caused two to blow up. Opposite our centre we fired two mines, which did considerable damage to the enemy's defenses.

[Sidenote: Air fighting.]

During the day also our aeroplanes attacked several points of importance. One of our airmen, who was sent to bomb the canal bridge near Don, was wounded on his way there, but continued and fulfilled his mission. Near Wytschaete, one of our aviators pursued a German aeroplane and fired a whole belt from his machine gun at it. The Taube suddenly swerved, righted itself for a second, and then descended from a height of several thousand feet straight to the ground.

On the other hand, a British machine unfortunately was brought down over Lille by the enemy's anti-aircraft guns, but it is hoped that the aviator escaped.

In regard to the German allegation, that the British used gas in their attacks on Hill 60, the Eyewitness says:

[Sidenote: British had not used gas.]

No asphyxiating gases have been employed by us at any time, nor have they yet been brought into play by us.

* * * * *

Germany, desperate at her failure to win the rapid victories she had anticipated on the land, resorted, in 1915, to a ruthless policy of sinking the ships of the belligerent powers, whether or not they were engaged on legitimate errands. This policy culminated on May 7, 1915, in the sinking of the great transatlantic steamship the Lusitania, with the loss of over a thousand men, women, and children.



SINKING OF THE LUSITANIA

THE JUDICIAL DECISION BY JUDGE J. M. MAYER

[Sidenote: The Lusitania sails.]

On May 1, 1915, the British passenger-carrying merchantman Lusitania sailed from New York bound for Liverpool, with 1,257 passengers and a crew of 702, making a total of 1,959 souls on board, men, women, and children. At approximately 2:10 on the afternoon of May 7, 1915, weather clear and sea smooth, without warning, the vessel was torpedoed and went down by the head in about eighteen minutes, with an ultimate tragic loss of 1,195.

[Sidenote: Passengers and equipment.]

So far as equipment went, the vessel was seaworthy in the highest sense. Her carrying capacity was 2,198 passengers and a crew of about 850, or about 3,000 persons in all. She had 22 open lifeboats capable of accommodating 1,322 persons, 26 collapsible boats with a capacity for 1,283, making a total of 48 boats with a capacity for 2,605 in all, or substantially in excess of the requirements of her last voyage. Her total of life belts was 3,187, or 1,959 more than the total number of passengers, and, in addition, she carried 20 life buoys. She was classed 100 A1 at Lloyd's being 787 feet long over all, with a tonnage of 30,395 gross and 12,611 net. She had 4 turbine engines, 25 boilers, 4 boiler rooms, 12 transverse bulkheads, dividing her into 13 compartments, with a longitudinal bulkhead on either side of the ship for 425 feet, covering all vital parts.

[Sidenote: The Lusitania unarmed.]

The proof is absolute that she was not and never had been armed nor did she carry any explosives. She did carry some 18 fuse cases and 125 shrapnel cases, consisting merely of empty shells without any powder charge, 4,200 cases of safety cartridges, and 189 cases of infantry equipment, such as leather fittings, pouches, and the like. All these were for delivery abroad, but none of these munitions could be exploded by setting them on fire in mass or in bulk, nor by subjecting them to impact. She had been duly inspected on March 17, April 15, 16, and 17, all in 1915, and before she left New York the boat gear and boats were examined, overhauled, checked up, and defective articles properly replaced.

[Sidenote: The drills sufficient.]

There is no reason to doubt that this part of her equipment was in excellent order when she left New York. The vessel was under the command of a long service and experienced Captain and officered by competent and experienced men. The difficulties of the war prevented the company from gathering together a crew fully reaching a standard as high as in normal times, (many of the younger British sailors having been called to the colors,) but, all told, the crew was good and, in many instances, highly intelligent and capable. Due precaution was taken in respect of boat drills while in port, and the testimony shows that those drills were both sufficient and efficient. Some passengers did not see any boat drills on the voyage, while others characterized the drills, in effect, as formally superficial. Any one familiar with ocean traveling knows that it is not strange that boat drills may take place unobserved by some of the passengers who, though on deck, may be otherwise occupied or who may be in another part of the ship, and such negative testimony must give way to the positive testimony that there were daily boat drills, the object of which mainly was to enable the men competently and quickly to lower the boats.

[Sidenote: Emergency precautions.]

Each man had a badge showing the number of the boat to which he was assigned, and a boat list was posted in three different places in the ship. Each day of the voyage a drill was held with the emergency boat, which was a fixed boat, either No. 13 on the starboard side or No. 14 on the port side, according to the weather, the idea, doubtless, being to accustom the men quickly to reach the station on either side of the ship. The siren was blown and a picked crew from the watch assembled at the boat, put on life belts, jumped into the boat, took their places, and jumped out again.

Throughout this case it must always be remembered that the disaster occurred in May, 1915, and the whole subject must be approached with the knowledge and mental attitude of that time. It may be that more elaborate and effective methods and precaution have been adopted since then, but there is no testimony which shows that these boat drills, as practiced on the voyage, were not fully up to the then existing standards and practices. There can be no criticism of the bulkhead door drills, for there was one each day.

[Sidenote: Speed reduced.]

In November, 1914, the Directors of the Cunard Company, in view of the falling off of the passenger traffic, decided to withdraw the Lusitania's sister ship, Mauretania, and to run the Lusitania at three-fourths boiler power, which involved a reduction of speed from an average of about twenty-four knots to an average of about twenty-one knots. The ship was operated under this reduced boiler power and reduced rate of speed for six round trips until and including the fatal voyage, although at the reduced rate she was considerably faster than any passenger ship crossing the Atlantic at that time. This reduction was in part for financial reasons and in part "a question of economy of coal and labor in time of war." No profit was expected and none was made, but the company continued to operate the ship as a public service. The reduction from twenty-four to twenty-one knots is, however, quite immaterial to the controversy, as will later appear.

Having thus outlined the personnel, equipment, and cargo of the vessel, reference will now be made to a series of events preceding her sailing on May 1, 1915.

On February 4, 1915, the Imperial German Government issued a proclamation as follows:

[Sidenote: The German proclamation.]

"1. The waters surrounding Great Britain and Ireland, including the whole English Channel, are hereby declared to be war zone. On and after the 18th of February, 1915, every enemy merchant ship found in the said war zone will be destroyed without its being always possible to avert the dangers threatening the crews and passengers on that account.

"2. Even neutral ships are exposed to danger in the war zone, as in view of the misuse of neutral flags ordered on January 31 by the British Government and of the accidents of naval war, it cannot always be avoided to strike even neutral ships in attacks that are directed at enemy ships.

"3. Northward navigation around the Shetland Islands, in the eastern waters of the North Sea and in a strip of not less than thirty miles width along the Netherlands coast is in no danger.

"VON POHL, "Chief of the Admiral Staff of the Navy. "Berlin, February 4, 1915."

[Sidenote: Submarine blockade declared.]

This was accompanied by a so-called memorial, setting forth the reasons advanced by the German Government in support of the issuance of this proclamation, an extract from which is as follows:

"Just as England declared the whole North Sea between Scotland and Norway to be comprised within the seat of war, so does Germany now declare the waters surrounding Great Britain and Ireland, including the whole English Channel, to be comprised within the seat of war, and will prevent by all the military means at its disposal all navigation by the enemy in those waters. To this end it will endeavor to destroy, after February 18 next, any merchant vessels of the enemy which present themselves at the seat of war above indicated, although it may not always be possible to avert the dangers which may menace persons and merchandise. Neutral powers are accordingly forewarned not to intrust their crews, passengers, or merchandise to such vessels."

[Sidenote: Protests sent by the United States.]

To this proclamation and memorial the Government of the United States made due protest under date of February 10, 1915. On the same day protest was made to England by this Government regarding the use of the American flag by the Lusitania on its voyage through the war zone on its trip from New York to Liverpool of January 30, 1915, in response to which, on February 19, Sir Edward Grey, Secretary of State for Foreign Affairs, handed a memorandum to Mr. Page, the American Ambassador to England, containing the following statement:

[Sidenote: British reply to American protest.]

"It is understood that the German Government had announced their intention of sinking British merchant vessels at sight by torpedoes without giving any opportunity of making any provisions for saving the lives of noncombatant crews and passengers. It was in consequence of this threat that the Lusitania raised the United States flag on her inward voyage and on her subsequent outward voyage. A request was made by the United States passengers who were embarking on board her that the United States flag should be hoisted, presumably to insure their safety."

The British Ambassador, the Hon. Cecil Spring-Rice, on March 1, 1915, in a communication to the American Secretary of State regarding an economic blockade of Germany, stated in reference to the German proclamation of February 4:

[Sidenote: British statement on the submarine blockade.]

"Germany has declared that the English Channel, the north and west coasts of France, and the waters around the British Isles are a war area and has officially notified that all enemy ships found in that area will be destroyed, and that neutral vessels may be exposed to danger. This is in effect a claim to torpedo at sight, without regard to the safety of the crew or passengers, any merchant vessel under any flag. As it is not in the power of the German Admiralty to maintain any surface craft in these waters, this attack can only be delivered by submarine agency."

[Sidenote: Submarines sink merchant ships.]

Beginning with the 30th of January, 1915, and prior to the sinking of the Lusitania on May 7, 1915, German submarines attacked and seemed to have sunk twenty merchant and passenger ships within about 100 miles of the usual course of the Lusitania, chased two other vessels which escaped, and damaged still another.

It will be noted that nothing is stated in the German memorandum as to sinking enemy merchant vessels without warning, but, on the contrary, the implication is that settled international law as to visit and search and an opportunity for the lives of passengers to be safeguarded will be obeyed, "although it may not always be possible to avert the dangers which may menace persons and merchandise."

As a result of this submarine activity, the Lusitania on its voyages from New York to Liverpool, beginning with that of January 30, 1915, steered a course further off from the south coast of Ireland than formerly.

[Sidenote: Precautions in danger zone.]

In addition, after the German proclamation of February 4, 1915, the Lusitania had its boats swung out and provisioned while passing through the danger zone, did not use its wireless for sending messages, and did not stop at the Mersey Bar for a pilot, but came directly up to its berth.

The petitioner and the master of the Lusitania received certain advices from the British Admiralty on February 10, 1915, as follows:

"Vessels navigating in submarine areas should have their boats turned out and fully provisioned. The danger is greatest in the vicinity of ports and off prominent headlands on the coast. Important landfalls in this area should be made after dark whenever possible. So far as is consistent with particular trades and state of tides, vessels should make their ports at dawn."

[Sidenote: Advices from the British Admiralty.]

On April 15 and 16, 1915, and after the last voyage from New York, preceding the one on which the Lusitania was torpedoed, the Cunard Company and the master of the Lusitania received at Liverpool the following advices from the British Admiralty:

"Confidential Daily Voyage Notice 15th April, 1915, issued under Government War Risks Scheme.

"German submarines appear to be operating chiefly off prominent headlands and landfalls. Ships should give prominent headlands a wide berth.

"Confidential memorandum issued 16th April, 1915:

[Sidenote: Fast steamers follow a zigzag course.]

"War experience has shown that fast steamers can considerably reduce the chance of successful surprise submarine attacks by zigzagging—that is to say, altering the course at short and irregular intervals, say in ten minutes to half an hour. This course is almost invariably adopted by warships when cruising in an area known to be infested by submarines. The underwater speed of a submarine is very slow and it is exceedingly difficult for her to get into position to deliver an attack unless she can observe and predict the course of the ship attacked."

Sir Alfred Booth, Chairman of the Cunard Line, was a member of the War Risks Committee at Liverpool, consisting of ship owners, representatives of the Board of Trade and the Admiralty, which received these instructions and passed them on to the owners of vessels, including the Cunard Company, which distributed them to the individual masters.

[Sidenote: Advertisement in the New York papers.]

On Saturday, May 1, 1915, the advertised sailing date of the Lusitania from New York to Liverpool on the voyage on which she was subsequently sunk, there appeared the following advertisement in the New York "Times," New York "Tribune," New York "Sun," New York "Herald," and the New York "World," this advertisement being in all instances except one placed directly over, under, or adjacent to the advertisement of the Cunard Line, regarding the sailing of the Lusitania:

"Travelers intending to embark on the Atlantic voyage are reminded that a state of war exists between Germany and her allies and Great Britain and her allies. That the zone of war includes the waters adjacent to the British Isles. That in accordance with formal notice given by the Imperial German Government, vessels flying the flag of Great Britain or of any of her allies are liable to destruction in those waters, and that travelers sailing in the war zone on ships of Great Britain or her allies do so at their own risk."

"IMPERIAL GERMAN EMBASSY, "April 22, 1915. Washington, D. C."

This was the first insertion of this advertisement, although it was dated more than a week prior to its publication. Captain Turner, the master of the vessel, saw the advertisement or "something of the kind" before sailing, and realized that the Lusitania was included in the warning. The Liverpool office of the Cunard Company was advised of the sailing and the number of passengers by cable from the New York office, but no mention was made of the above quoted advertisement. Sir Alfred Booth was informed through the press of this advertisement on either Saturday evening, May 1, or Sunday morning, May 2.

[Sidenote: Lusitania justified in sailing.]

The significance and construction to be given to this advertisement will be discussed infra, but it is perfectly plain that the master was fully justified in sailing on the appointed day from a neutral port with many neutral and non-combatant passengers, unless he and his company were willing to yield to the attempt of the German Government to terrify British shipping. No one familiar with the British character would expect that such a threat would accomplish more than to emphasize the necessity of taking every precaution to protect life and property which the exercise of judgment would invite.

And so, as scheduled, the Lusitania sailed, undisguised, with her four funnels and a figure so familiar as to be readily discernible not only by naval officers and marines, but by the ocean-going public generally.

[Sidenote: In the submarine war zone.]

The voyage was uneventful until May 6. On approaching the Irish coast on May 6 the Captain ordered all the boats hanging on the davits to be swung out and lowered to the promenade deckrail, and this order was carried out under the supervision of Staff Captain Anderson, who later went down with the ship. All bulkhead doors which were not necessary for the working of the ship were closed, and it was reported to Captain Turner that this had been done. Lookouts were doubled, and two extra were put forward and one on either side of the bridge; that is, there were two lookouts in the crow's-nest, two in the eyes of the ship, two officers on the bridge, and a quartermaster on either side of the bridge.

Directions were given to the engine room to keep the highest steam they could possibly get on the boilers, and in case the bridge rang for full speed, to give as much as they possibly could. Orders were also given that ports should be kept closed.

[Sidenote: Wireless messages from the Admiralty.]

At 7:50 P. M., on May 6, the Lusitania received the following wireless message from the Admiral at Queenstown: "Submarines active off south coast of Ireland," and at 7:56 the vessel asked for and received a repetition of his message. The ship was then going at a rate of 21 knots per hour.

At 8:30 P. M. of the same day the following message was received from the British Admiralty:

"To All British Ships 0005:

"Take Liverpool pilot at bar and avoid headlands. Pass harbors at full speed; steer midchannel course. Submarines off Fastnet."

[Sidenote: The Lusitania's speed reduced.]

At 8:32 the Admiralty received a communication to show that this message had been received by the Lusitania, and the same message was offered to the vessel seven times between midnight of May 6 and 10 A. M. of May 7.

At about 8 A. M. on the morning of May 7, on approaching the Irish coast, the vessel encountered an intermittent fog, or Scotch mist, called "banks" in seafaring language, and the speed was reduced to 15 knots. Previously the speed, according to Captain Turner's recollection, had been reduced to 18 knots. This adjustment of speed was due to the fact that Captain Turner wished to run the last 150 miles of the voyage in the dark, so as to make Liverpool early on the morning of May 8, at the earliest time when he could cross the bar without a pilot.

[Sidenote: Approaching the most dangerous waters.]

Judging from the location of previous submarine attacks, the most dangerous waters in the Lusitania's course were from the entrance to St. George's Channel to Liverpool Bar. There is no dispute as to the proposition that a vessel darkened is much safer from submarine attack at night than in the daytime, and Captain Turner exercised proper and good judgment in planning accordingly as he approached dangerous waters. It is futile to conjecture as to what would or would not have happened had the speed been higher prior to the approach to the Irish coast, because, obviously, until then the Captain could not figure out his situation, not knowing how he might be impeded by fog or other unfavorable weather conditions.

On the morning of May 7, 1915, the ship passed about twenty-five or twenty-six, and, in any event, at least eighteen and a half miles south of Fastnet, which was not in sight. The course was then held up slightly to bring the ship closer to land, and a little before noon land was sighted, and what was thought to be Brow Head was made out.

Meanwhile, between 11 A. M. and noon, the fog disappeared, the weather became clear, and the speed was increased to 18 knots. The course of the vessel was S. 87 E. Mag. At 11:25 A. M. Captain Turner received the following message:

"Submarines active in southern part of Irish Channel, last heard of twenty miles south of Coningbeg. Light vessel make certain 'Lusitania' gets this."

[Sidenote: Submarines reported by wireless.]

At 12:40 P. M. the following additional wireless message from the Admiralty was received:

"Submarines five miles south of Cape Clear, proceeding west when sighted at 10 A. M."

After picking up Brow Head and at about 12:40 P. M., the course was altered in shore by about 30 degrees, to about N. 63 or 67 E. Mag., Captain Turner did not recall which. Land was sighted which the Captain thought was Galley Head, but he was not sure, and therefore held in shore. This last course was continued for an hour at a speed of 18 knots until 1:40 P. M., when the Old Head of Kinsale was sighted and the course was then changed back to the original course of S. 87 E. Mag.

[Sidenote: The Lusitania torpedoed.]

At 1:50 P. M. the Captain started to take a four-point bearing on the Old Head of Kinsale, and while thus engaged and at about 2:30 P. M., as heretofore stated, the ship was torpedoed on the starboard side. Whether one, two, or three torpedoes were fired at the vessel cannot be determined with certainty. Two of the ship's crew were confident that a third torpedo was fired and missed the ship. While not doubting the good faith of these witnesses, the evidence is not sufficiently satisfactory to be convincing.

[Sidenote: Conflicting testimony.]

[Sidenote: Probably two torpedoes.]

[Sidenote: No explosives on board.]

There was, however, an interesting and remarkable conflict of testimony as to whether the ship was struck by one or two torpedoes, and witnesses, both passengers and crew, differed on this point, conscientiously and emphatically. The witnesses were all highly intelligent, and there is no doubt that all testified to the best of their recollection, knowledge, or impression, and in accordance with their honest conviction. The weight of the testimony (too voluminous to analyze) is in favor of the "two torpedo" contention, not only because of some convincing direct testimony, (as, for instance, Adams, Lehman, Morton,) but also because of the unquestioned surrounding circumstances. The deliberate character of the attack upon a vessel whose identity could not be mistaken, made easy on a bright day, and the fact that the vessel had no means of defending herself, would lead to the inference that the submarine commander would make sure of her destruction. Further, the evidence is overwhelming that there was a second explosion. The witnesses differ as to the impression which the sound of this explosion made upon them—a natural difference due to the fact, known by common experience, that persons who hear the same explosion even at the same time will not only describe the sound differently, but will not agree as to the number of detonations. As there were no explosives on board, it is difficult to account for the second explosion, except on the theory that it was caused by a second torpedo. Whether the number of torpedoes was one or two is relevant, in this case, only upon the question of what effect, if any, open ports had in accelerating the sinking of the ship.

While there was much testimony and some variance as to the places where the torpedoes struck, judged by the sound or shock of the explosions, certain physical effects, especially as to smoke and blown-up debris, tend to locate the areas of impact with some approach of accuracy.

From all the testimony it may be reasonably concluded that one torpedo struck on the starboard side somewhere abreast of No. 2 boiler room and the other, on the same side, either abreast of No. 3 boiler room or between No. 3 and No. 4. From knowledge of the torpedoes then used by the German submarines, it is thought that they would effect a rupture of the outer hull thirty to forty feet long and ten to fifteen feet vertically.

[Sidenote: Flooding of boiler rooms and coal bunkers.]

Cockburn, senior Second Engineer, was of opinion that the explosion had done a great deal of internal damage. Although the lights were out, Cockburn could hear the water coming into the engine room. Water at once entered No. 1 and No. 2 boiler rooms, a result necessarily attributable to the fact that one or both of the coal bunkers were also blown open. Thus, one torpedo flooded some or all of the coal bunkers on the starboard side of Nos. 1 and 2 boiler rooms, and apparently flooded both boiler rooms.

The effect of the other torpedo is not entirely clear. If it struck midway between two bulkheads, it is quite likely to have done serious bulkhead injury. The Lusitania was built so as to float with two compartments open to the sea, and with more compartments open she could not stay afloat. As the side coal bunkers are regarded as compartments, the ship could not float with two boiler rooms flooded and also an adjacent bunker, and, therefore, the damage done by one torpedo was enough to sink the ship.

To add to the difficulties, all the steam had gone as the result of the explosions, and the ship could not be controlled by her engines.

Little, senior Third Engineer, testified that in a few seconds after the explosion the steam pressure fell from 190 to 50 pounds, his explanation being that the main steam pipes or boilers had been carried away.

[Sidenote: Engines disabled.]

The loss of control of and by the engines resulted in disability to stop the engines, with the result that the ship kept her headway until she sank. That the ship commenced to list to starboard immediately is abundantly established by many witnesses.

[Sidenote: The ship's behavior in going down.]

Some of the witnesses, (Lauriat and Adams, passengers; Duncan, Bestic, and Johnson, officers,) testified that the ship stopped listing to starboard and started to recover and then listed again to starboard until she went over.

This action, which is quite likely, must have resulted from the inrush of water on the port side. There can be no other adequate explanation consistent with elementary scientific knowledge; for, if the ship temporarily righted herself, it must have been because the weight of water on the two sides was equal or nearly so. The entry of water into the port side must, of course, have been due to some rupture on that side. Such a result was entirely possible, and, indeed, probable.

The explosive force was sufficiently powerful to blow debris far above the radio wires—i. e., more than 160 feet above the water. The boiler rooms were not over sixty feet wide, and so strong a force could readily have weakened the longitudinal bulkheads on the port side in addition to such injury as flying metal may have done. It is easy to understand, therefore, how the whole pressure of the water rushing in from the starboard side against the weakened longitudinal bulkheads on the port side would cause them to give way and thus open up some apertures on the port side for the entry of water. Later, when the water continued to rush in on the starboard side, the list to starboard naturally again occurred, increased and continued to the end. As might be expected, the degree of list to starboard is variously described, but there is no doubt that it was steep and substantial.

[Sidenote: Ports had all been ordered closed.]

A considerable amount of testimony was taken upon the contention of claimants that many of the ship's ports were open, thus reducing her buoyancy and substantially hastening her sinking. There is no doubt that on May 6 adequate orders were given to close all ports. The testimony is conclusive that the ports on Deck F (the majority of which were dummy ports) were closed. Very few, if any, ports on E deck were open, and, if so, they were starboard ports in a small section of the first class in the vicinity where one of the torpedoes did its damage. A very limited number of passengers testified that the portholes in their staterooms were open, and if their impressions are correct, these portholes, concerning which they testified, were all, or nearly all, so far above the water that they could not have influenced the situation.

[Sidenote: Sinking not affected by open ports.]

There was conflicting testimony as to the ports in the dining room on D deck. The weight of the testimony justifies the conclusion that some of these ports were open—how many it is impossible to determine. These ports, however, were from twenty-three to thirty feet above water, and when the gap made by the explosion and the consequent severe and sudden list are considered, it is plain that these open ports were not a contributing cause of the sinking, and had a very trifling influence, if any, in accelerating the time within which the ship sank.

From the foregoing the situation can be visualized. Two sudden and extraordinary explosions, the ship badly listed so that the port side was well up in the air, the passengers scattered about on the decks and in the staterooms, saloons and companion ways, the ship under headway and, as it turned out, only eighteen minutes afloat—such was the situation which confronted the officers, crew, and passengers in the endeavor to save the lives of those on board.

[Sidenote: Calm heroism of the passengers.]

The conduct of the passengers constitutes an enduring record of calm heroism with many individual instances of sacrifice and, in general, a marked consideration for women and children. There was no panic, but naturally, there was a considerable amount of excitement and rush and much confusion, and, as the increasing list rendered ineffective the lowering of the boats on the port side, the passengers, as is readily understandable, crowded over on the starboard side.

The problem presented to the officers of the ship was one of exceeding difficulty, occasioned largely because of the serious list and the impossibility of stopping the ship or reducing her headway.

[Sidenote: Lookouts sighted the torpedo.]

[Sidenote: Boats ordered lowered.]

The precaution of extra lookouts resulted in a prompt report to the Captain, via the bridge, of the sighting of the torpedo. Second Officer Heppert, who was on the bridge, immediately closed all watertight doors worked from the bridge, and the testimony satisfactorily shows that all watertight doors worked by hand were promptly closed. Immediately after Captain Turner saw the wake of the torpedo there was an explosion and then Turner went to the navigation bridge and took the obvious course, i. e., had the ship's head turned to the land. He signaled the engine room for full speed astern, hoping thereby to take the way off the ship, and then ordered the boats lowered down to the rail and directed that women and children should be first provided for in the boats. As the engine room failed to respond to the order to go full speed astern, and as the ship was continuing under way, Turner ordered that the boats should not be lowered until the vessel should lose her headway, and he told Anderson, the Staff Captain, who was in charge of the port boats, to lower the boats when he thought the way was sufficiently off to allow that operation. Anderson's fidelity to duty is sufficiently exemplified by the fact that he went down with the ship.

[Sidenote: The officers display courage and skill.]

Jones, First Officer, and Lewis, Acting Third Officer, were in charge of the boats on the starboard side and personally superintended their handling and launching. Too much cannot be said both for their courage and skill, but, difficult as was their task, they were not confronted with some of the problems which the port side presented. There, in addition to Anderson, were Bestic, Junior Third Officer, and another officer, presumably the Second Officer. These men were apparently doing the best they could and standing valiantly to their duty. Anderson's fate has already been mentioned, and Bestic, although surviving, stuck to his post until the ship went down under him. The situation can readily be pictured even by a novice.

With the ship listed to starboard, the port boats, of course, swung inboard. If enough man power were applied, the boats could be put over the rail, but then a real danger would follow. Robertson, the ship's carpenter, aptly described that danger in answer to a question as to whether it was possible to lower the open boats on the port side. He said:

[Sidenote: Port boats could not be lowered.]

"No. To lower the port boats would just be like drawing a crate of unpacked china along a dock road. What I mean is that if you started to lower the boats you would be dragging them down the rough side of the ship on rivets which are what we call "snap-headed rivets"—they stand up about an inch from the side of the ship, so you would be dragging the whole side of the boat away if you tried to lower the boats with a 15-degree list."

That some boats were and others would have been seriously damaged is evidenced by the fact that two port boats were lowered to the water and got away, (though one afterward filled,) and not one boat reached Queenstown.

Each boat has its own history, (except possibly Boats 2 and 4,) although it is naturally difficult, in each case, to allocate all the testimony to a particular boat.

[Sidenote: Accidents in lowering.]

There is some testimony, given in undoubted good faith, that painted or rusted davits stuck out, but the weight of the testimony is to the contrary. There were some lamentable occurrences on the port side, which resulted in spilling passengers, some of whom thus thrown out or injured went to their death. These unfortunate accidents, however, were due either to lack of strength of the seaman who was lowering, or possibly, at worst, to an occasional instance of incompetency due to the personal equation so often illustrated, where one man of many may not be equal to the emergency. But the problem was of the most vexatious character. In addition to the crowding of passengers in some instances was this extremely hazardous feat of lowering boats swung inboard from a tilted height, heavily weighted by human beings, with the ship still under way. It cannot be said that it was negligent to attempt this, because, obviously, all the passengers could not be accommodated in the starboard boats.

[Sidenote: Six boats get away from starboard.]

On the starboard side, the problem, in some respects, was not so difficult, while, in others, troublesome conditions existed quite different from those occurring on the port side. Here the boats swung so far out as to add to the difficulty of passengers getting in them, a difficulty intensified by the fact that many more passengers went to the starboard side than to the port side and, also that the ship maintained her way. Six boats successfully got away. In the case of the remaining boats, some were successfully lowered but later met with some unavoidable accident, and some were not successfully launched (such as Nos. 1, 5, and 17) for entirely explainable reasons which should not be charged to inefficiency on the part of the officers or crew.

[Sidenote: Collapsible boats cut loose.]

The collapsible boats were on the deck under the open lifeboats, and were intended to be lifted and lowered by the same davits which lowered the open boats after the open boats had gotten clear of the ship. It was the duty of the officers to get the open boats away before giving attention to the collapsible boats, and that was a question of time. These boats are designed and arranged to float free if the ship should sink before they can be hoisted over. They were cut loose and some people were saved on these boats.

It is to be expected that those passengers who lost members of their family or friends, and who saw some of the unfortunate accidents, should feel strongly and entertain the impression that inefficiency or individual negligence was widespread among the crew. Such an impression, however, does an inadvertent injustice to the great majority of the crew, who acted with that matter-in-fact courage and fidelity to duty which are traditional with men of the sea. Such of these men, presumably fairly typical of all, as testified in this court, were impressive not only because of inherent bravery, but because of intelligence and clear-headedness, and they possessed that remarkable gift of simplicity so characteristic of truly fearless men who cannot quite understand why an ado is made of acts which seem to them merely the day's work.

Mr. Grab, one of the claimants and an experienced transatlantic traveler, concisely summed up the situation when he said:

"They were doing the best they could—they were very brave and working as hard as they could without any fear. They didn't care about themselves. It was very admirably done. While there was great confusion, they did the best they could."

[Sidenote: Captain Turner's comment on the crew.]

It will unduly prolong a necessarily extended opinion to sift the voluminous testimony relating to this subject of the boats and the conduct of the crew and something is sought to be made of comments of Captain Turner, construed by some to be unfavorable but afterward satisfactorily supplemented and explained, but if there were some instances of incompetency they were very few and the charge of negligence in this regard cannot be successfully maintained.

In arriving at this conclusion, I have not overlooked the argument earnestly pressed that the men were not sufficiently instructed and drilled; for I think the testimony establishes the contrary in the light of conditions in May, 1915.

I now come to what seems to be the only debatable question of fact in the case, i. e., whether Captain Turner was negligent in not literally following the Admiralty advices and, also, in not taking a course different from that which he adopted.

[Sidenote: The Captain's judgment free.]

The fundamental principle in navigating a merchantman, whether in times of peace or of war, is that the commanding officer must be left free to exercise his own judgment. Safe navigation denies the proposition that the judgment and sound discretion of the Captain of a vessel must be confined in a mental straitjacket. Of course, when movements are under military control, orders must be strictly obeyed, come what may. No such situation, however, was presented either to the Cunard Steamship Co. or Captain Turner. The vessel was not engaged in military service nor under naval convoy. True, she was, as between the German and British Governments, an enemy ship as to Germany, but she was unarmed and a carrier of not merely noncombatants, but, among others, of many citizens of the United States, then a neutral country, at peace with all the world.

[Sidenote: Admiralty advices considered.]

In such circumstances the Captain could not shield himself automatically against error behind a literal compliance with the general advices or instructions of the Admiralty, nor can it be supposed that the Admiralty, any more than the Cunard Steamship Co., expected him so to do. What was required of him was that he should seriously consider and, as far as practicable, follow the Admiralty advices and use his best judgment as events and exigencies occurred; and if a situation arose where he believed that a course should be pursued to meet emergencies which required departure from some of the Admiralty advices as to general rules of action, then it was his duty to take such course, if in accordance with his carefully formed deliberate judgment. After a disaster has occurred, it is not difficult for the expert to show how it might have been avoided, and there is always opportunity for academic discussion as to what ought or ought not to have been done; but the true approach is to endeavor, for the moment, to possess the mind of him upon whom rested the responsibility.

[Sidenote: Enemy obligations in care of merchant ships.]

Let us now see what that responsibility was and how it was dealt with. The rules of naval warfare allowed the capture and, in some circumstances, the destruction of an enemy merchant ship, but, at the same time, it was the accepted doctrine of all civilized nations (as will be more fully considered infra) that, as Lord Mersey put it, "there is always an obligation first to secure the safety of the lives of those on board."

The responsibility, therefore, of Captain Turner, in his task of bringing the ship safely to port, was to give heed not only to general advices advanced as the outcome of experience in the then developing knowledge as to submarine warfare, but particularly to any special information which might come to him in the course of the voyage.

[Sidenote: Advices of the Admiralty.]

Realizing that if there was a due warning, in accordance with international law, and an opportunity, within a limited time, for the passengers to leave the ship, nevertheless that the operation must be quickly done, Captain Turner, on May 6, had taken the full precautions, such as swinging out the boats, properly provisioned, which have been heretofore described. The principal features of the Admiralty advices were (1) to give the headlands a wide berth; (2) to steer a midchannel course; (3) to maintain as high a speed as practicable; (4) to zigzag, and (5) to make ports, if possible, at dawn, thus running the last part of the voyage at night.

[Sidenote: Fastnet given a wide berth.]

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:

[Sidenote: The Mersey sandbar.]

"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.

[Sidenote: The Captain decides to work inshore.]

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.

[Sidenote: Taking a bearing.]

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.

[Sidenote: Testimony about the ship's speed.]

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:

[Sidenote: Lord Mersey's opinion.]

"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."