Mayer Opinion pages 11-17

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

PROCLAMATION

1. The waters surrounding Great Britain and Ireland, including the whole English Channel are hereby declared to be [a] 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 30 miles width along the Netherlands coast is in no danger.

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

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 comprised within the seat of war, and will prevent by all 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 continue to entrust their crews, passengers or merchandise to such vessels.

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:

It was understood that the German Government had announced their intention of sinking British merchant vessels at sight by torpedoes without given any opportunity of making any provisions for saving the lives of non-combatant 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, Hon. Cecil Spring-Rice, on March 1, 1915, in a communication of the American Secretary of State, regarding an economic blockade of Germany, stated in reference to the German proclamation of February 4th:

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 of 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.

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 20 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, supra, 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 voyage 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.

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:

INSTRUCTIONS WITH REFERENCE TO SUBMARINES
10th February, 1915
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.

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 Risk Scheme.

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

Confidential memo. issued [sic] 16th April, 1915:

War experience has shown that fast steamers can considerably reduce the chance of successful surprise submarine attack by zig-zagging – that is to say, altering the course at short and irregular intervals, say in 10 minutes to half an hour. This course is almost invariably adopted by war ships when cruising in an area known to be infested by submarines. The underwater speed of a submarine is very low 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 shipowners, 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, who distributed them to the individual steamers.

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 that 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.
April 22, 1915

IMPERIAL GERMAN EMBASSY
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.

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 mariners, but by the ocean-going public generally.

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 deck rail 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 crows-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.

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 this message. The ship was then going at a rate of 21 knots per hour [sic, the term “knots” is not followed by “per hour,” although the term’s equivalent, “nautical miles per hour” is correct].

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 mid-channel course. Submarines off Fastnet.

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.

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