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.
The fundamental principle in navigating a merchantman, whether in times of peace or 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 strait-jacket. Of course, when movements are under military control, orders much be strictly obeyed, come what may. No such situation, however, was presented either to petitioner 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 non-combatants but, among others, of many citizens of the United States, then a neutral country, at peace with all the world.
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 petitioner, 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.
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.
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 principle features of the Admiralty advices were (1) to give the headlands a wide berth; (2) to steer a mid-channel course; (3) to maintain as high a speed as practicable; (4) to zig-zag and (5) to make ports, if possible, at dawn, thus running the last part of the voyage at night.
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 25 miles, as petitioner contends, or about 18 ½ miles, as claimant calculates, 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 20 miles south of Coningbeg Light Vessel. This wireless message presented acutely to the Captain the problem as to the best course to pursue, always bearing in mind his determination and the desirability of getting to the Liverpool Bar when it could be crossed while the tide served and without a pilot. Further, as was stated by Sir Alfred Booth, “The one definite instruction we did give him with regard to that was to authorize him to come up without a pilot.” The reasons for this instruction were cogent and were concisely summed up by Sir Alfred Booth during his examination as a witness as follows:
It was one of the points that we felt it was 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 wise 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 t 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 to St. George’s Channel to the Liverpool Bar.
Having thus in mind his objective, and the time approximately when he intended to reach it, the message received at 11:25 a.m. required that he should determine whether to keep off land approximately the same distance as he was when he passed Fastnet, or to work in shore and go close to Coningbeg Lightship. He determined that the latter was the better plan to avoid the submarines reported in mid-channel ahead of him.
When Galley Head was sighted, the course was changed so as to haul closer to the land and this course was pursued until 1:40 p.m., at which time Captain Turner concluded that it was necessary for him to get his bearings accurately. This he decided should be done by taking a four-point bearing during which procedure the ship was torpedoed. It is urged that he should have taken a two-point bearing or a cross-bearing which would have occupied less time, but, if, under all the conditions which appealed to his judgment as a mariner, he had taken a different method of ascertaining his exact distance and the result would have been inaccurate or, while engaged in taking a two-point bearing the ship had been torpedoed, then somebody would have said he should have taken a four-point bearing. The point of the matter is that an experienced captain took the bearing he thought proper for his purposes and to predicate negligence upon such a course is to assert that a captain is bound to guess the exact location of a hidden and puzzling danger.
Much emphasis has been placed upon the fact that the speed of the ship was 18 knots at the time of the attack instead of 24 or, in any event, 21 knots, and upon the further fact (for such it is), that the ship was not zig-zagging as frequently as the Admiralty advised or in the sense of that advice.
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