armed merchantman, prior to a summons to surrender, and yet aware of the approach of an enemy warship, uses its armament to keep the enemy at a distance.

The attempt of an unarmed merchantman of any type to escape, either by flight on the surface or by submerging, prior to a signal to surrender or to come to, and with the obvious purpose of keeping beyond the range of a recognized pursuer, does not authorize the latter to attack the vessel without warning. The situation is otherwise, however, when the vessel, although unarmed, is a public ship, or one engaged primarily in a public service connected with the prosecution of the war.

Any belligerent vessel of any kind or type exposes itself to instant attack, if after a reasonable summons to surrender, it persists by any process, in an attempt to escape. After the receipt of such a signal or following the abandonment of flight, in consequence thereof, the attempt to summon aid by wireless telegraph or other process, is analogous to resistance and justifies the enemy in taking summary steps to cause its discontinuance. These might produce a difficult situation, in case the call for aid brought to the scene an armed ship endangering the safety of the enemy or frustrating its attempt to effect a capture. In such a situation, however, the Department of State appears to hold that the mere effort to secure assistance should not alter the obligation of the warship seeking to make the capture to respect the safety of the lives of those on board the merchantman.

As between opposing belligerents, the employment of ruses untainted by perfidy, such as the use by an unarmed ship of a neutral flag in order to prevent the detection of its nationality, does not wholly deprive the user of the right to enjoy an immunity from attack at sight which it would otherwise possess. Thus, the mere flying of such a flag by a vessel still recognized by the enemy as a belligerent unarmed merchantman would not suffice to justify an attempt to destroy it without warning. Even if an opposing warship were in fact deceived by the device, and in consequence failed to avail itself of its power to make an effective summons to surrender, it would not be justified if again sighting the vessel in endeavoring to prevent its escape at all hazards, and to that end, if no other means. were possible, in attacking it without warning. Inasmuch as the use of a false flag by an unarmed belligerent ship is commonly for the purpose of aiding escape by flight rather than of offering resistance, the attempt to deceive, whether successful or unsuccessful, is neither perfidious nor harmful to the pursuer. Detection should not, therefore, excuse attack without warning upon the ship resorting to such a ruse.

The situation is otherwise, however, where the use of the flag by an unarmed ship is for the purpose of alluring a hostile cruiser into waters where it will be subjected to attack by other vessels, or its safety endangered by unknown mines. In such a case it is believed that the vessel resorting to the ruse may be fairly attacked without warning upon the discovery of its design.

The present war has given rise to inquiry whether the existing rules of maritime war with respect to attacks upon unarmed enemy merchantmen are applicable to the operations of submarine naval vessels.

It will be recalled that on February 4, 1915, the German Admiralty announced that the waters surrounding Great Britain and Ireland, including the whole British Channel, were to be deemed a war zone, and that on and after the 18th day of February, 1915, "every enemy merchant ship" found in the zone would be destroyed "without its being always possible to avert the dangers threatening the crews and passengers on that account." Lack of time prevents discussion of our diplomatic correspondence with Germany which immediately ensued.

On May 7, 1915, the S.S. Lusitania was torpedoed without warning by a German submarine off the Old Head of Kinsale, Ireland. The vessel sank within twenty minutes. Eleven hundred and ninety-eight men, women, and children were drowned, of whom one hundred and twenty-four were American passengers. The cargo was a general one of the ordinary kind, consisting in part, however, of about five thousand cases of cartridges. The ship was unarmed; it carried no masked guns or trained gunners, or special ammunition. It was not transporting troops, and it had violated no laws of the United States. On August 19, 1915, the British liner Arabic was torpedoed by a German submarine off the coast of Ireland, and on March 24, 1916, the French channel S.S. Sussex, while crossing from Folkstone to Dieppe. Both were unarmed passenger ships, attacked without warning, and on board of which American passengers were among the victims suffering injury or death.

These deplorable acts, arousing deep indignation throughout the United States, presented the following problems: whether undersea war vessels. could and should be subjected to the existing rules respecting attacks on unarmed enemy merchantmen; whether, even if the foregoing question were to be answered affirmatively, Germany had a valid excuse for not observing them by reason of alleged excesses of its enemies; and whether knowledge of the presence of neutral passengers on board belligerent merchantmen altered the normal obligations of the opposing submarine.

In its first note to Germany after the destruction of the Lusitania, the

Department of State declared it to be a "practical impossibility" to employ submarines against enemy commerce "without disregarding those rules of fairness, reason, justice, and humanity, which all modern opinion regards as imperative." Thus it was said to be practically impossible for the officers of a submarine to visit a merchantman at sea and examine her papers and cargo and "to make a prize of her"; that if they could not put a prize crew on board of her, they could not sink her without leaving the several occupants to the mercy of the sea in small boats; and hence that manifestly submarines could not be used against merchantmen "without an inevitable violation of many sacred principles of justice and humanity.” On July 21, following, the Department declared, however, that the previous two months had indicated that it was possible and practicable to conduct submarine operations in substantial accord with the accepted practices of regulated warfare, and that the whole world had looked with interest and satisfaction at the demonstration of that possibility by German naval commanders. Finally, after the series of lamentable events, culminating in the torpedoing of the S.S. Sussex, the Department renewed the stand which it had taken at the outset, to the effect that the use of submarines for the destruction of enemy commerce was of necessity "utterly incompatible with the principles of humanity, and the sacred immunities of noncombatants." Nevertheless, the United States appears to have demanded and expected an abandonment of the existing "methods of submarine warfare" rather than the use of undersea vessels as commerce destroyers.

If the limited means possessed by a submarine of ascertaining, by any process, the identity or nature or national character or movements of any ship encountered, necessarily involves danger of indiscriminate attack at sight upon public or private vessels, armed or unarmed, warships or passenger liners, it would be difficult to justify under plea of military necessity the use of such an instrument of naval warfare, unless it be acknowledged that a belligerent may employ any means of reducing its foe. Maritime states have not as yet agreed thus to subordinate the claims of humanity, or so to sanction wanton disregard of unoffending human life. It is not to be anticipated that they will tolerate the removal from any form of war vessel of the duty to apprise itself as to the nature and character of enemy ships encountered as a condition precedent to lawful attack upon them.

If a submarine encounters an unarmed enemy merchantman, normally immune from attack at sight, and not guilty of conduct forfeiting that privilege, no right to attack without warning is apparent. Nor is any to

be derived from the difficulty which the former may anticipate in providing for the safety of the occupants of the latter. After giving adequate warning, no destruction of the vessel should be attempted until its occupants are assured of at least a temporary place of refuge. The life-boats offer at best, as the Department of State has indicated, "a poor measure of safety." On numerous occasions great loss of life has ensued when the occupants of a merchantman have, pursuant to orders, endeavored to take to the boats. The cases of the British ship Falaba, destroyed by a German submarine March 28, 1915, the Italian ship Ancona, attacked by an Austrian submarine November 7, 1915, and that of the American ship Healdton, torpedoed March 21, 1917, may be cited as instances. Recourse to the boats in a heavy sea must always be attended with great danger. Moreover, a life-boat, even if it keeps afloat, affords slight protection from exposure to those long obliged to depend upon it as their sole place of refuge in inclement weather or on an unfrequented sea. Hence the reasonableness of causing passengers and crew of an unoffending merchantman to put to sea in open boats seems to depend upon the presence of special circumstances indicative of the absence of those dangers usually attending such procedure.

Mere incapacity of a naval submarine to offer a place of refuge on its own decks does not justify a disregard of the safety of the persons aboard. the enemy merchantman that has surrendered or obeyed a signal to stop. It rather indicates a limitation of the right to destroy the ship until by some process the safety of its occupants has been assured. Should a small surface craft such as a torpedo-boat destroyer, or a naval vessel even more diminutive, fall in with an enemy passenger liner having two thousand persons aboard, the inability of the former to offer a place of refuge to a majority of those persons, or to spare an adequate prize crew, would not in itself be deemed to justify the demand that the occupants of the liner take to the boats, or otherwise jeopardize their safety, in order to permit the destruction of the vessel on which they were carried. The submarine is subject to the same duty.

In a word, the United States is believed to have taken an impregnable stand in its demand that the normal obligation of a warship not to attack at sight an unarmed enemy merchantman is applicable to undersea vessels, and that hence the right, if any, to employ them as commerce destroyers depends upon the power and disposition of those controlling them to respect that obligation.

In its official correspondence Germany did not assert that the rules of international law respecting the treatment due to unarmed merchantmen

were inaccurately enunciated by the United States, or that submarine vessels were incapable of observing them. It was sought to excuse the practices of such vessels on the ground that the conduct of Great Britain was in such sharp defiance of international law that Germany was obliged to have recourse to a ruthless procedure by way of so-called retaliation. It is believed that the sufficiency of this plea depended upon proof that the enemies of Germany were in fact subjecting German merchantmen to treatment similar in kind to that which British and French vessels were being accorded. If British submarines had been attacking without warning German unarmed merchantmen in any zone of hostilities, a situation would have arisen which the United States might have had great difficulty in meeting. The British acts, of which Germany made complaint, were, however, of a widely different character. They did not contemplate the destruction of noncombatant human life on unoffending and unarmed vessels, and hence offered no adequate excuse for the commission of such acts by the enemy. Germany, therefore, owed a duty to every British subject aboard the Lusitania and on other British ships of similarly irreproachable conduct, which no acts on the part of the state to which those vessels belonged had served to lessen. It may be observed, parenthetically, that the presence of neutral passengers on board the Lusitania did not alter the duty which Germany owed to that vessel. The obligation not to sink it at sight was one which was due an unarmed merchantman, irrespective of the nationality of its occupants. If the Cunard Company was at fault in encouraging neutral passengers to embark on the ill-fated ship, that fault lay in the failure to warn them that German submarines might not be deterred from wanton disregard of the duty not to sink an enemy merchantman at sight, by even the lawful presence on board of neutral passengers.

In a recent note from Austria-Hungary it is suggested that the necessary warning to a merchantman might be made before the departure of the vessel from port. This would imply that a belligerent has a right to free itself from every duty which the law of nations has imposed upon it with respect to noncombatant and unoffending human life, by giving notice that it will resort to every means in its power to capture or destroy even the unarmed merchant marine of the enemy. In response it may be said generally that the mere giving of notice can never justify lawlessness. To be more specific, however, a belligerent lacks the right to attack and destroy unarmed enemy merchantmen save under conditions which the law of nations, inspired by the dictates of humanity, has definitely established. It cannot modify those conditions at will.