life-boats which were drifting about that the sunken steamer was the Dover Castle.

According to the statement of the English Government, the Dover Castle had been serving for several years as a hospital ship and as such had regularly travelled from England to Malta and Salonica and from there back home. When torpedoed she had sick and wounded on board and was on her way to take them from Malta to Gibralta. When the vessel was sunk not one of these perished. The first torpedo that was fired, however, caused the death of six members of the crew.

The accused frankly admits sinking the Dover Castle. He pleads that in so doing he merely carried out an order of the German Admiralty, his superior authority. With respect to this order the circumstances are as follows:

During the first years of the war the German Admiralty respected the military hospital ships of their opponents in accordance with the regulations of the 10th Hague Convention referred to above. Later, however, they came to believe that enemy governments were utilizing their hospital ships not only to aid wounded, sick and shipwrecked people, but also for military purposes and that they were thereby violating this convention. In two memoranda, dated 29th January and 29th March, 1917, respectively, the German Government explained its attitude more clearly and gave proof in support of its assertions. It stated that it would not entirely repudiate the convention, but was compelled to restrict the navigation of enemy hospital ships. Accordingly it was announced in the second memorandum that henceforth, as regards the Mediterranean, only such hospital ships would be protected, which fulfilled certain conditions. The hospital ships had to be reported at least six weeks previously and were to keep to a given course on leaving Greece. After a reasonable period of grace, it was announced, all other enemy hospital ships in the Mediterranean would be regarded as vessels of war and forthwith attacked.

The second memorandum reached the enemy governments in the early part of April, 1917.

It corresponds with the order of the Admiralty issued on 29th March, 1917, to the German Flotilla in the Mediterranean.

As from 8 April hospital ships generally are no longer to be permitted in the blockaded area of the Mediterranean, including the route to Greece. Only a few special hospital ships, which have been notified by name at least six weeks previously, may use the channel up to the Port of Kalamata. Advise submarines that as from 8 April every hospital ship on the routes named is to be attacked forthwith, excepting such only as have been expressly notified from here, in which cases speed, times of arrival and departure will be exactly stated.

This order was communicated to the accused before his departure from Cattaro. Previously the two memoranda had been also brought to his

knowledge. Exceptions in the case of hospital ships had not been arranged, as the enemy governments made no use of the opportunities to notify their hospital ships given in the memorandum of 29th March, 1917.

In the circumstances the acquittal of the accused has been requested. It is a military principle that the subordinate is bound to obey the orders of his superiors. This duty of obedience is of considerable importance from the point of view of the criminal law. Its consequence is that, when the execution of a service order involves an offence against the criminal law, the superior giving the order is alone responsible.

This is in accordance with the terms of the German law, §47, para. 1 of the Military Penal Code. It also accords with the legal principles of all other civilized states (see, for example, as regards England, the Manual of Military Law (1914), chapter XIV, Art. 443 quoted in Verdross' Die völkerrechtswidrige Kriegshandlung und der Strafauspruch der Staaten. "Breaches of International Law in the Conduct of War and National claims for punishment," page 95.)

The Admiralty Staff was the highest service authority over the accused. He was in duty bound to obey their orders in service matters. So far as he did that, he was free from criminal responsibility. Therefore he cannot be held responsible for sinking the hospital ship Dover Castle according to orders.

Under §47 of the Military Penal Code quoted above, there are two exceptional cases in which the question of the punishment of a subordinate who has acted in conformity with his orders can arise. He can in the first place be held responsible, if he has gone beyond the orders given him. In the present case the accused has not gone beyond his orders. It was impossible to give a warning to the Dover Castle before the torpedo was fired, because she was escorted by two warships. The accused is not charged with any peculiar brutality in sinking the ship. On the contrary he made it possible to save all the sick and wounded on board the Dover Castle by allowing about 1 hours to elapse between the firing of the first and second torpedoes. According to §47 of the Military Penal Code No. 2, a subordinate who acts in conformity with orders is also liable to punishment as an accomplice, when he knows that his superiors have ordered him to do acts which involve a civil or military crime or misdemeanor. There has been no case of this here. The memoranda of the German Government about the misuse of enemy hospital ships were known to the accused. The facts set out in them he held to be conclusive, especially as he had received, as he has explained, similar reports from his comrades. He was therefore of the opinion that the measures taken by the German Admiralty against enemy hospital ships were not contrary to international law, but were legitimate reprisals. His conduct clearly shows that this was his conviction. He never made any secret of the sinking of the Dover Castle. Not only did he report it to his superiors, but he has also frankly admitted it in the present proceedings. He

has never disputed that he knew that the Dover Castle was a hospital ship. It is specially noteworthy that he allowed an English captain, whom he had on board his submarine as prisoner, to observe his approach to the Dover Castle. Although this enemy subject thus knew about the sinking of the hospital ship, the accused on going ashore gave him a certificate when he asked for one and signed it with his full name, giving his rank in the service. He would not have done this if he had considered that his orders or his execution of them were illegal.

The accused accordingly sank the Dover Castle in obedience to a service order of his highest superiors, an order which he considered to be binding. He cannot, therefore, be punished for his conduct.

The decision as to costs is based on §499 St. P.O.

The Clerk of the Court of the 2nd Criminal Senate
of the Imperial Court of Justice.

(Seal of the Court.)

JUDGMENT IN CASE OF LIEUTENANTS DITHMAR AND BOLDT

HOSPITAL SHIP "LLANDOVERY CASTLE"

Rendered July 16, 1921

IN THE NAME OF THE EMPIRE

In the criminal case against:

(1) Ludwig Dithmar of Cuxhaven, First Lieutenant and Adjutant of the Cuxhaven Command, at present detained during trial, born in Aix-laChapelle on the 13th May, 1892, and

(2) John Boldt of Altona, retired First Lieutenant, merchant, at present detained during trial, born in Dantzig on the 26th January, 1895.

The Second Criminal Senate of the Imperial Court of Justice, at its public sitting of the 16th July, 1921, at which there took part as Judges:

Dr. Schmidt, President of the Division,

Judges Dr. Sabarth, Dr. Paul, Backs, Dr. Schultz, Hagemann, Dr.

as Officials of the Public Prosecutor's Department:

Dr. Ebermayer, the Oberreichsanwalt,

Dr. Feisenberger, State Attorney,

as Clerk of the Court:

Risch, Official,

has pronounced judgment as follows, after hearing the evidence, namely: I. Each of the accused is sentenced to four years' imprisonment for having taken part in homicide;

II. Further,

(i) The accused Dithmar is ordered to be dismissed from the service, (ii) The accused Boldt is deprived of the right to wear officer's uniform; III. The accused have to bear the costs of the proceedings. The expenses, however, are to be paid by the Imperial Treasury.

By Right

REASONS FOR THE DECISION

Up to the year 1916 the steamer Llandovery Castle, had, according to the statements of the witnesses Chapman and Heather, been used for the transport of troops. In that year she was commissioned by the British Government to carry wounded and sick Canadian soldiers home to Canada from the European theatre of war. The vessel was suitably fitted out for the purpose and was provided with the distinguishing marks, which the Tenth Hague Convention of the 18th October, 1907 (relating to the application to naval warfare of the principles of the Geneva Convention) requires in the case of naval hospital ships. The name of the vessel was communicated to the enemy powers. From that time onwards she was exclusively employed in the transport of sick and wounded. She never again carried troops, and never had taken munitions on board. There can be no doubt about this in the light of the statements of the witness Thring, as well as of those witnesses who have been on board the steamer.

The witness Meyer, who saw the Llandovery Castle at the Port of Toulon, did not notice anything about her that could have led to the conclusion that she was being improperly used for war purposes. The court is convinced that the 120 men in khaki, whom the witness Crompton saw go on board the Llandovery Castle in Tilbury Docks at the beginning of December, 1916, belonged to the Medical Corps.

At the end of the month of June, 1918, the Llandovery Castle was on her way back to England from Halifax, after having carried sick and wounded there. She had on board the crew consisting of 164 men, 80 officers and men of the Canadian Medical Corps, and 14 nurses, a total of 258 persons. There were no combatants on board, and, in particular, no American airThe vessel had not taken on board any munitions or other war material. This has been clearly established by the statement of the second

men.

officer, the witness Chapman. If a few witnesses draw the inference from the violence of the explosion, which they heard when the vessel went down, that not only the vessel's boilers but also munitions exploded, this is not conclusive in the light of the statement of the expert, Corvette Captain Saalwächter. From the sound it is not possible to distinguish with certainty between an explosion of a boiler and one of munitions.

In the evening of 27th June, 1918, at about 9.30 (local time) the Llandovery Castle was sunk in the Atlantic Ocean, about 116 miles south-west of Fastnet (Ireland), by a torpedo from the German U-boat 86. Of those on board only 24 persons were saved, 234 having been drowned. The commander of U-boat 86 was First-Lieutenant Patzig, who was subsequently promoted captain. His present whereabouts are unknown. The accused Dithmar was the first officer of the watch, and the accused Boldt the second. Patzig recognized the character of the ship, which he had been pursuing for a long time, at the latest when she exhibited at dusk the lights prescribed for hospital ships by the Tenth Hague Convention. In accordance with international law, the German U-boats were forbidden to torpedo hospital ships. According both to the German and the British Governments' interpretation of the said Hague Convention, ships, which were used for the transport of military persons wounded and fallen ill in war on land, belonged to this category. The German Naval Command had given orders that hospital ships were only to be sunk within the limits of a certain barred area. However, this area was a long way from the point we have now under consideration. Patzig knew this and was aware that by torpedoing the Llandovery Castle he was acting against orders. But he was of the opinion, founded on various information (including some from official sources, the accuracy of which cannot be verified, and does not require to be verified in these proceedings), that on the enemy side, hospital ships were being used for transporting troops and combatants, as well as munitions. He, therefore, presumed that, contrary to international law, a similar use was being made of the Llandovery Castle. In particular, he seems to have expected (what grounds he had for this has not been made clear) that she had American airmen on board. Acting on this suspicion, he decided to torpedo the ship, in spite of his having been advised not to do so by the accused Dithmar and the witness Popitz. Both were with him in the conning tower, the accused Boldt being at the depth rudder.

The torpedo struck the Llandovery Castle amidship on the port side and damaged the ship to such an extent that she sank in about 10 minutes. There were 19 lifeboats on board. Each could take a maximum of 52 persons. Only two of them (described as cutters) were smaller, and these could not take more than 23 persons. Some of the stroyed by the explosion of the torpedo. boats were, however, successfully lowered. life-saving operations. There was a light breeze and a slight swell.

boats on the port side were deA good number of undamaged The favorable weather assisted