“Previous instructions, permitting attacks on French war and merchant ships only as a defensive measure, purely French or Anglo-French convoys only north of the latitude of Brest and forbidding attacks on all passenger ships, give rise to great difficulties to U-boats, especially at night. In practice, there is no opportunity for attacking at night, as the U-boat cannot identify the target, which is a shadow, in a way that entirely obviates mistakes being made. If the political situation is such that even possible mistakes must be ruled out, U-boats must be forbidden to make any night attacks in waters where French and English naval forces or merchant ships may be moving. On the other hand, in sea areas where only English units are to be expected, the measure desired by the Flag Officer, U-boats, can be carried out. Permission to take this step is not to be given in writing, but need merely be based on the unspoken approval of the Naval Operations Staff. U-boat commanders would be informed by word of mouth”—and note the last line—“and the sinking of a merchant ship must be justified in the War Diary as due to possible confusion with a warship or an auxiliary cruiser.”
Now, just tell me—take your choice—do you consider that sailing without lights is either persistent refusal to stop on being duly summoned or active resistance to visit and search, within the Treaty? Which of either of these things do you consider it to be?
DÖNITZ: If a merchant ship acts like a warship...
SIR DAVID MAXWELL-FYFE: First of all, you must answer my question, if the Tribunal does not rule otherwise; and then you can give your explanation. My question is this: Do you consider that sailing without lights is either persistent refusal to stop or active resistance to visit and search? Do you consider it to be either one or the other, or both of these things? Do you?
DÖNITZ: The question is not correctly expressed, because we are dealing with a certain operational area in which British and French...
THE PRESIDENT: Defendant, you will answer the question, please.
DÖNITZ: I beg your pardon?
SIR DAVID MAXWELL-FYFE: Do you consider that sailing without lights is either persistent refusal to stop on being duly summoned, which is one of the matters in the Treaty, or active resistance to visit and search, which is the other matter set out in the Treaty? Now, do you consider that sailing without lights is either or both of these matters mentioned in the Treaty?
DÖNITZ: If a merchant ship sails without lights, it must run the risk of being taken for a warship, because at night it is not possible to distinguish between a merchant ship and a warship. At the time the order was issued, it concerned an operational area in which blacked-out troop transports were traveling from England to France.
SIR DAVID MAXWELL-FYFE: Your answer is that it is not covered by the Treaty, but by one of the matters in the Treaty; but your explanation was that you thought you were entitled to torpedo without warning any ship that might be mistaken for a warship. That is your answer, is it?