British Wreck Commissioner's Inquiry

Day 30

Final Arguments, cont.

The Attorney-General:
No, my Lord, nor have I; I have just asked for them.

Mr. Edwards:
May I say at once, my Lord, that I regard them as of great importance?

The Attorney-General:
I am told your Lordship has the correspondence.

The Commissioner:
One of my colleagues apparently has some correspondence - Professor Biles has it - headed, "The Collision Bulkhead of the s.s. 'Olympic.'"

The Attorney-General:
Yes; the other is "The Assignment of Freeboard."

Mr. Edwards:
The other is "The Assignment of Freeboard." Part of the letters in each bundle refer partly to the bulkhead and partly to the freeboard, and they are not in strict order. There are four important letters missing from the print of which I have been supplied with typewritten copies.

The Commissioner:
Well, I have not got them.

Mr. Edwards:
May I say at once that I regard these letters as of the very highest importance in this Enquiry, and it is upon these letters that I base my statement with regard to the Marine Department of the Board of Trade, that if they had insisted upon their requirements there might have been quite a different story told in regard to the fate of the "Titanic."

The Commissioner:
But before you deal with their omission to insist upon their requirements, you must show me your authority for saying that they were entitled to make their requirements.

Mr. Edwards:
I am obliged to your Lordship for that; I am coming to it immediately. But before I reach that will your Lordship for a moment kindly look at Question No. 2, which your Lordship is asked to decide?

The Commissioner:
Yes.

Mr. Edwards:
The learned Attorney-General did suggest that if either of the Counsel representing the different interests in this case thought there should be some addition to or modification of a question, it might, perhaps, be carried out. Now, in Question 2 you are asked to decide this: "Before leaving Queenstown on or about 11th April last, did the 'Titanic' comply with the requirements of the Merchant Shipping Acts, 1894-1906, and the rules and regulations made thereunder with regard to the safety and otherwise of 'passenger steamers' and 'emigrant ships'?" I would respectfully suggest that a further question be asked: "Or did they comply with the requirements of the Marine Department of the Board of Trade?"

The Attorney-General:
My friend is in error about this. You cannot alter the Questions after some of the speeches have been made. I called your Lordship's attention originally to how the matter stood. This is done according to Statute and Rules and Regulations prescribing procedure and what happens is that the Questions are formulated by the Board of Trade, and at the end of the case, as I have pointed out quite recently, it is the province of the Board of Trade to add anything to or to amend the Questions. And I did then amend two Questions, and I said that I would consider any suggested amendment which was put forward by my friends, but that was the time to do it. It is quite contrary to the practice, and so far as I know I doubt very much if it could be done when speeches have been made.

The Commissioner:
I should like to know exactly from Mr. Edwards what he wants done.

Mr. Edwards:
May I just explain this? I said yesterday that your answer to this Question must be, "No." If you return the answer "No" to this Question, that is, both a reflection upon the builders and also the owners and also the Marine Department of the Board of Trade. Now, the position is this, that the builders did comply with the requirements of the Marine Department of the Board of Trade ultimately; and if there is, as I submit there is, ground for adverse and seriously adverse criticism it is not upon the builders in this respect; it is not upon the owners in this respect, but it is upon the officials of the Marine Department of the Board of Trade, who did not insist upon the builders and owners complying with their requirements.

The Commissioner:
But can you show me what law there is which entitles the Board of Trade to insist? It is no use insisting if you cannot insist. Now what is the regulation, or law, or section of an Act of Parliament which empowers the Board of Trade to insist on things being done; what are the things that they ought to have insisted upon and could insist upon, and how were they omitted to be done? Now, begin at the first: where is the power given to the Board of Trade to insist?

Mr. Edwards:
If your Lordship will look at Section 724.

The Commissioner:
The Act of 1894, is it?

Mr. Edwards:
Yes, my Lord.

The Commissioner:
Read it to me.

Mr. Edwards:
"(1) The Board of Trade may, at such ports as they think fit, appoint either generally or for special purposes, and on special occasion, any person they think fit to be a surveyor of ships for the purposes of this Act, and a person so appointed (in this Act referred to as a Surveyor of Ships) may be appointed either as a shipwright surveyor or as an engineer surveyor or as both. (2) The Board of Trade may also appoint a Surveyor-General of Ships for the United Kingdom."

The Commissioner:
Do not read things at large unless you know what is in them. There is nothing in this Section which has any relevancy to it at all.

Mr. Edwards:
With respect, my Lord -

The Commissioner:
Tell me which words.

Mr. Edwards:
I have not finished. I have only dealt with the personnel, and now I come to the duties.

The Commissioner:
What has personnel got to do with it?

Mr. Edwards:
Everything, my Lord, in this case.

The Commissioner:
Then you do not require to refer to anything else, if this has got everything to do with it.

Mr. Edwards:
"The Board of Trade may make regulations as to the performance of their duties, and in particular as to the manner in which surveys of passenger steamers are to be made."

The Commissioner:
Well?

Mr. Edwards:
You have pursuant to that, the Regulations issued by the Board of Trade for the survey of the hull, equipment and machinery of steamships; and on page 8, section 16 of those Regulations you have a provision made as to circumstances under which declarations are to be made: "An efficient and watertight engine room and stokehold bulkhead, as well as a collision watertight bulkhead, and an after-watertight compartment, to enclose the stern tube in each screw-shaft, should be fitted in all sea-going steamers, both new and old, and in the absence of any of these the case must be specially referred to the Board of Trade before a declaration is given. As regards other bulkheads, although a thorough subdivision of the ship is desirable, the surveyors should not for the present refuse to grant a declaration because these are not fitted." Below that you have paragraphs (3) and (4), which have been deleted, and there is substituted for those paragraphs the provision in Circular 1401.

The Commissioner:
Where is that to be found?

Mr. Edwards:
It should be inserted in your copy.

The Commissioner:
I have it now.

Mr. Edwards:
Circular 1401 is: "Instructions to Surveyors, dated February, 1907. Amendment to Clause 16 of the Regulations and Suggestions as to the survey of the hull, equipment and machinery of passenger steamers. Delete third and fourth paragraphs," and so on: "In all sea-going steamers coming under survey for passenger certificate for the first time, the following requirements regarding the height of the bulkheads should be complied with. The collision bulkhead is in all cases to extend to the upper deck." This is, I think, sufficient to show what is required of the surveyors of the Board of Trade. May I say at once that if your Lordship's view be that nothing of this kind is actually enforceable -

The Commissioner:
How do you mean "enforceable"?

Mr. Edwards:
I mean enforceable by the Board of Trade. I am addressing myself to the quite specific point which your Lordship was putting to me as to how I show that any of the requirements of the Board of Trade could be insisted upon, and I was seeking to do that by, first of all, referring your Lordship to that section of the Merchant Shipping Act, 1894, which clothes the Board of Trade with certain powers, and I was then seeking to show that, pursuant to those powers with which that section clothes the Board of Trade, the Board of Trade had issued a certain Regulation, and now particularly I was calling attention to that Regulation.

The Commissioner:
But it is not Section 724 which authorises the Board of Trade to issue directions.

Mr. Edwards:
Yes, my Lord, Regulations - sub-section (3).

The Commissioner:
They may appoint surveyors; they may alter their remuneration; they may make regulations as to the performance of their duties, "and in particular as to the manner in which surveys of passenger steamers are to be made." Now, where are the regulations?

Mr. Edwards:
In the document to which I have called your Lordship's attention. If your Lordship will look at that buff-coloured document, it is called "Regulations and suggestions as to the survey of the hull, equipment and machinery of steamships carrying passengers."

The Commissioner:
Can you tell me what the expression "suggestions' means, because I am quite at a loss to understand? "Regulations" I understand; what are "suggestions"?

Mr. Edwards:
That I do not know, my Lord.

The Commissioner:
It occurs to me - I do not know whether I am right - that Regulations are something different from suggestions.

The Attorney-General:
Yes, certainly.

The Commissioner:
The one, perhaps, must be complied with, and the other need not necessarily be complied with.

The Attorney-General:
Quite.

Mr. Edwards:
May I suggest that the meaning is this: the Merchant Shipping Act requires certain Regulations to be made; those Regulations are made, but it is left very much at large as to what particular degree or standard should be insisted upon under a Regulation on a given occasion, and therefore the Board of Trade deem it necessary, so much being left to the discretion of the Surveyor, to offer him suggestions as to how he shall, and the method by which he shall, arrive at a given conclusion to say what the Regulation in the particular case shall be.

The Commissioner:
Leaving him to exercise his judgment, I suppose?

Mr. Edwards:
Yes, my Lord.

The Commissioner:
Otherwise it would be a Regulation, and he would have no option about the matter at all.

Mr. Edwards:
Yes, my Lord, that is so.

The Commissioner:
I think so.

Mr. Edwards:
Now the particular document to which I have referred is not in the category of a suggestion; that is in the category of a Regulation.

The Commissioner:
Why do you say so?

Mr. Edwards:
I was going to tell your Lordship. If you will look at the second page of Circular 1401, the last paragraph of it says that "the above Regulations regarding the height of the bulkheads," and so on.

The Commissioner:
Yes, it is headed, you know, "Amendment to Clause 16 of the Regulations and Suggestions." That is the way it is headed.

Mr. Edwards:
I know, my Lord.

The Commissioner:
And Clause 16 comes among a great many clauses which are also headed "Regulations and Suggestions."

Mr. Edwards:
Yes, my Lord, I quite recognise that, if I may say so with respect. If your Lordship will now look at the second page of that book your Lordship will see that the very first clause says -

The Commissioner:
These Regulations and Suggestions?

Mr. Edwards:
Yes; "are issued by the Board of Trade under the provisions of the Merchant Shipping Act, for the assistance and guidance of their officers in surveying passenger vessels."

The Commissioner:
Yes.

Mr. Edwards:
It seems to me, if I may say so with respect, that the position stands rather in this way. Either you can, from these documents, ascertain what were the Regulations pursuant to the Act with which the builders ought to have complied, and regulations which the officials of the Marine Department ought to have insisted upon, in which case you would be able to measure the extent to which they either did or did not comply with their duty; or your Lordship will have to say that these Regulations and suggestions are so inextricably mixed up that it is impossible to tell that which is a Regulation which must be enforced and that which is a suggestion which is merely put in for the guidance of officials. Now, if these things are only put in for the guidance of the officials, they are no more binding than, as your Lordship suggested yesterday, was the case of the standards laid down by the Bulkheads Committee; and we are face to face with this perfectly amazing position that in the matter of shipbuilding in this country, where the responsibility for a declaration of safety is placed upon the Board of Trade, there are no definite and ascertainable Regulations with which there must be compliance as a sine qua non for a ship getting its declaration of clearance.

The Commissioner:
Do you suggest that in every detail there is to be a Regulation which must be complied with?

Mr. Edwards:
I am not going to say that.

The Commissioner:
That nothing is to be left to the discretion of the Surveyor?

Mr. Edwards:
No, my Lord, the Surveyors who have come into the box have told your Lordship - that was the position to which, if your Lordship will remember, I was originally calling attention - that there were no detailed Regulations in existence in the Board of Trade in the same way as Rules and Regulations were laid down, to take a case in point, by a classification society like Lloyd's. And then it was put by one Witness after another called from the Board of Trade that they had those Regulations, they had Table C, they had in the matter of bulkheads the standard laid down by the Bulkheads Committee by which they were guided. I think it might be quite convenient here at this stage if this point were cleared up.

The Commissioner:
Now, be specific; what point?

Mr. Edwards:
The point as to whether these documents to which I am referring are in your Lordship's view in the nature of Regulations which it was the duty of the officials of the Marine Department to enforce.

The Commissioner:
Very well. Now, that seems to me a point of some substance. Whether I am entitled to enquire into it under the questions as they are formulated, I do not know, but I am going to ask the Attorney-General.

The Attorney-General:
Oh, yes, certainly.

The Commissioner:
Mr. Attorney, do you say - I want you to be careful about it - that these Regulations are Regulations imposed upon the shipbuilder or shipowner, with which he must comply before he is entitled to apply for his certificate; or are they Regulations supposed to be imposed upon the surveyors of the Board of Trade to guide them in the exercise of their discretion as to issuing a certificate?

The Attorney-General:
My view is that they are the second alternative which your Lordship puts.

The Commissioner:
That is my view.

The Attorney-General:
If you look at (1) it is shown so.

The Commissioner:
So I think. The shipowner or shipbuilder who is coming to ask for his certificate has nothing to do with this.

The Attorney-General:
Nothing whatever, but the surveyor who is going down gets these for his assistance and guidance.

The Commissioner:
What I understand Mr. Edwards to say is this - listen to me, Mr. Edwards, and tell me if it is right, that the surveyor, having received those Regulations and Suggestions which were to guide him in determining whether the certificate was to be given or not, has not paid attention to them, has disregarded them. That is the point, I understand.

Mr. Edwards:
That is what I say happened.

The Commissioner:
Now, does that matter come within the purview of those questions submitted to us?

The Attorney-General:
Oh, yes.

The Commissioner:
This question is "Before leaving Queenstown on or about the 11th April last did the 'Titanic' comply with the requirements of the Merchant Shipping Acts; 1894-1906, and the rules and regulations made thereunder with regard to the safety," and so on.

The Attorney-General:
I do not see, myself, any difficulty in that. Of course, I differ entirely from what my friend has said with regard to it, but I see no difficulty. If your Lordship asks me if I think that comes within the questions put in this Enquiry, I should think it comes within No. 26.

The Commissioner:
Yes.

The Attorney-General:
It was intended by that question to open up for your Lordship's consideration and for your report in so far as you thought fit, the administration of the Acts by the Board of Trade, and also of the Rules and Regulations under the Acts; and it is purposely put in the widest possible form. I do not think it requires amendment; I think 26 does what is necessary.

The Commissioner:
These are certainly Rules and Regulations made under the Merchant Shipping Act, 1894; they purport to be so, and I should regard them as such.

The Attorney-General:
Certainly.

The Commissioner:
Now, Mr. Edwards.

Mr. Edwards:
That does not quite get us out of the wood, if I may say so.

The Attorney-General:
He puts us into it.

Mr. Edwards:
You have to decide whether the "Titanic" did comply, not only with the requirements of the Act which is put into a category by itself, but also with the Rules and Regulations of the Board of Trade. If there are no such things as Rules and Regulations which were enforceable it does seem to me that that is quite a redundant question. I think it is necessary, before your Lordship can answer that question, to ask a further question as to what are the Regulations with which she ought to have complied.

The Commissioner:
Who ought to have complied?

Mr. Edwards:
The "Titanic."

The Attorney-General:
The builders or the owners?

Mr. Edwards:
I am taking it in the form of the question.

The Commissioner:
The difficulty at present is this, that the Rules and Regulations which you are referring me to are Rules and Regulations which have to be observed by the surveyors, not by the owners or builders. The owner or builder goes to the surveyor and says: "There is my ship: now survey it in whatever way you please. You may follow the Rules and Regulations and suggestions given to you by the Board of Trade. I am not concerned with that. You survey my ship, and then, if you feel that you ought to give me a certificate, give it to me." That is all that the shipowner or the shipbuilder has to do.

Mr. Edwards:
Very well, my Lord.

The Commissioner:
And then your complaint would seem to resolve itself into this, that the officers of the Board of Trade have not done their duty.

Mr. Edwards:
Quite; but it is a question in the one case: Had they to comply with certain Rules and Regulations before they issued their certificate? If yes, have they done so? If no, guilty of gross negligence and perhaps something more.

The Commissioner:
What do you mean by "gross" negligence? Is it anything different from negligence?

Mr. Edwards:
Only in degree, of course.

Sir Robert Finlay:
I believe that all the Rules for the surveyors were in fact complied with.

The Commissioner:
We will come to that next. At present I want to know what the meaning of these Rules is. Then the next question will be, have they been complied with? Now Mr. Edwards, perhaps you might go on to deal with the next question, which is: Have they been complied with?

Mr. Edwards:
It is just because of this very difficulty, that you can construe these Rules and Regulations either as a standard by which the official or surveyor of the Board of Trade is to be bound in issuing his certificate, or as Rules and Regulations with which the builders must comply, that I do suggest that Question No. 2 is not quite sufficient for the purpose, and that there ought to be a further question. And that is this: "Did the 'Titanic' before leaving Queenstown comply with the Board of Trade Surveyor's requirements?" In the one case, if you say "No, she did not comply with the Rules and Regulations," that is a condemnation of the builder. If on the other hand you say, "Yes, she did comply with the requirements of the Surveyor," then that frees the builder, and your Lordship will have to consider, under Question 26, the conduct of the Board of Trade, with a view to recommendations for the future.

The Commissioner:
Now will you tell me, if you can, what was the requirement of the Board of Trade - requirement, you know, that is to say, something they are entitled to insist upon - which was not complied with.

Mr. Edwards:
Yes, my Lord, the requirement which was not complied with was the watertighting of the fore end of the ship; that is to say, the area of deck at the fore end, and also the requirement of the Board of Trade as to the height of the loadline, and also as to the height to which the bulkhead should come.

The Commissioner:
Now, let me take those down. Give them to me again. What is the first?

Mr. Edwards:
The first is as to the watertighting of the deck at the fore end of the ship.

The Commissioner:
Are you sure that is how you want to express it?

Mr. Edwards:
Yes, my Lord.

The Commissioner:
"Watertighting of the deck at the fore end of the ship." What is the next?

Mr. Edwards:
Then the height to which the bulkheads were carried.

The Attorney-General:
Will you tell us when you say "the bulkheads," do you mean all, or which?

The Commissioner:
Which particular bulkheads, or all?

Mr. Edwards:
If your Lordship uses the term "requirements" as something that they can compel, then it is a case of the collision bulkhead and the first bulkhead abaft the collision bulkhead. If, however, you use the term "requirements" as I was using it, as what was asked for, in the first place, by the surveyor of the Board of Trade, then I say all bulkheads.

The Commissioner:
We will say "height of all bulkheads," and that will cover everything. What is the next?

Mr. Edwards:
The next is the height of the loadline disc, and that, of course, is to be treated, as I will show your Lordship in a moment or two, in relation to the height of the bulkheads.

The Commissioner:
Yes. Now, is there anything else?

Mr. Edwards:
No, my Lord.

The Commissioner:
Very well. Now, will you take the watertighting of the deck at the fore end of the ship, and tell me what the requirement is of the Board of Trade with respect to that?

Mr. Edwards:
Before I proceed with this, may I get quite clearly from your Lordship exactly how I am to understand the position with regard to the Rules and Regulations, because if your Lordship takes one view then I shall address myself quite shortly; if, on the other hand, your Lordship takes another view, then I have to establish my point.

The Commissioner:
At present, the view I take of these Rules and Regulations which you have put in or referred to, and Circular 1401, is that they are Rules and Regulations binding upon the surveyors of the Board of Trade, and upon no one else.

Mr. Edwards:
And that the surveyor of the Board of Trade would have no right to issue a declaration of seaworthiness unless there were a compliance with those Rules and Regulations. Is that so, my Lord?

The Commissioner:
Yes, that is so; but do not be too quick; you must remember this, that a great deal is left to the discretion of the surveyor, and if he honestly exercises his discretion he has done all that the Rules and Regulations require him to do in that respect.

Mr. Edwards:
That seems to me, probably much more largely than your Lordship is aware of, to qualify the first part of your statement.

The Commissioner:
You may make a rule of this kind: "You, the surveyor, are to go and inspect, and having inspected, you are to exercise your discretion." Now, that is a rule and a regulation, but it does not bind him to do any particular thing. It simply binds him to exercise honestly his discretion with respect to the matter that comes before him.

Mr. Edwards:
Then, may I say that really contradicts the first part of what your Lordship said, in the light of the particular facts here. May I say that if these Rules and Regulations were designed merely to guide the ssurveyor, and he might exercise a personal discretion as to the application of those Rules and Regulations, then I feel that that may have been done here, and I should not feel competent to argue, with my lack of technical knowledge, nor do I think the Court would care about it, whether that discretion had been wrongly exercised. If, on the other hand, we are to take these Rules and Regulations as binding upon the surveyor, that is quite a different thing, because every departure from those Rules and Regulations by the surveyor would be in the nature of a dereliction of duty. If your Lordship takes the first view, I will say at once that I should leave the matter entirely with your Lordship as to the personal conduct of the officers of the Board of Trade; I should ask your Lordship to look at the correspondence, and I should address my remarks to the much broader question as to whether, under all the circumstances, it is wise to leave Rules and Regulations rather in the form of non-binding guides and suggestions to the surveyors.

The Attorney-General:
There is one part of Rule 16 to which I think your Lordship's attention should be directed, more especially having regard to the evidence of the surveyors in this case. If you look at Rule 16, to which Circular 1401 is an amendment, you will see that in the absence of any specific regulation the matter is referred to the Board of Trade before a declaration is given.

The Commissioner:
I know that; that is the end of the amended Rule.


Continued >