British Wreck Commissioner's Inquiry
Day 30
Final Arguments, cont.
The Attorney-General:
I think it is right, my Lord, that my friend should know the argument I am going to address to your Lordship. As I said a little earlier in the Enquiry, I shall submit to your Lordship certain considerations, upon which I should ask you to come to the conclusion that there was negligent navigation of the vessel in going at this pace under the circumstances. I think it is right my friend should know. Of course, it is no part of my case to do more than to put these considerations before the Court, and the Court will judge whether that is so or not. It is not a question whether I succeed in establishing it or not, but I think it is right that the Court should have certain considerations before it in order to come to a conclusion upon them.
The Commissioner:
Are you going to invite us to exclude from the calculation the question of whether there was an error of judgment?
The Attorney-General:
Oh, no, certainly not. There are the two considerations. Your Lordship has put them. You may say it was an error of judgment which did not involve negligence.
The Commissioner:
Yes.
The Attorney-General:
There is something to be said upon that.
The Commissioner:
But whether it be negligence or error of judgment does not affect the question of what was the cause of the disaster. The cause of the disaster was not negligence; the cause of the disaster was not error of judgment; the cause of the disaster was the collision with the iceberg.
The Attorney-General:
That is what was occurring to me, my Lord, and therefore if you are going to find whether or not there was an error of judgment or negligent navigation, if you are going to find anything of that kind - and I submit that one must give consideration to it, because you have to determine what is to happen in the future, which is a very important matter, much more important even than the very disastrous calamity into which we are enquiring -
The Commissioner:
What will happen in the future is a very different thing from what has happened in the past.
The Attorney-General:
I know.
The Commissioner:
Because in the future this calamity will always be known, and people must alter their conduct with reference to what they know.
The Attorney-General:
I should be sorry to press it unduly; but your Lordship has had evidence in this case of the White Star Line that they think it is perfectly legitimate to do it, and, indeed, according to Mr. Ismay's evidence, assuming you have a clear night and the other conditions which of course, he assumed, it would be right to go as fast as you possibly can in order to get out of the region in case you might be overtaken by fog.
The Commissioner:
I know, but we must judge about that.
The Attorney-General:
I know, but that is one of the things I want to deal with when I come to address your Lordship, and I shall submit that it is quite a wrong view to take. I shall also submit to your Lordship that it does not decide it to say that a number of competing lines have done the same thing for a number of years. It does not decide it; I do not say it is not an element.
The Commissioner:
I daresay Sir Robert Finlay is going to say what Mr. Bruce Ismay said, that it is the right thing still to do it.
The Attorney-General:
Yes.
The Commissioner:
That, in my opinion, is a very different thing from the question whether it was the right thing at the time.
The Attorney-General:
I know there are different considerations which would apply; I quite agree.
Sir Robert Finlay:
My Lord, with regard to what is to be done in the future, if any recommendation can be made which will render the passage across the Atlantic even safer and more completely immune from loss of life than it was previous to this great catastrophe, that will be a most beneficial result of the Enquiry. But I am concerned at present with the question whether the Captain was at fault. That is the question I am addressing myself to. I did not desire to enter, certainly not at the present time, into the question of the future, if your Lordship should make any recommendation on the subject; nor did I desire at the present time to deal with the question of whether any recommendation as to the future should be made. But what I am pressing most respectfully upon the Court with all the emphasis in my power is this, that it is perfectly impossible to find that Captain Smith was to blame when he did what everyone in the trade had done for years with such admirable results in the way of avoiding accident.
The statistics do not rest there because you have a third set from Sir Norman Hill. They are framed on a different principle. His statistics are at page 663, and they show that there had been 32,000 voyages across the Atlantic in 20 years; that in that time there had been 25 accidents, defining as an accident anything that involved either the loss of life or the loss of the ship, and that in those 25 accidents 68 passengers and 80 crew were lost. That was the total loss on 32,000 voyages. Surely by the light of experience, by the light of these figures, the three sets of statistics from different quarters, one sees that it is under all normal circumstances possible to see an iceberg in time to avoid it, and that this accident must have been the result, as I hope to satisfy the Court beyond all reasonable doubt, of an extraordinary combination of circumstances, and that there was not any fault of any kind on the part of Captain Smith. I submit there was not even an error of judgment. Negligence, I submit, is out of the question, and cannot be found in face of the evidence which I am going to call attention to with regard to the uniform practice. Error of judgment, I submit, there was none, because a man does not commit an error of judgment because he does something which in the result is followed by unfortunate consequences. A man may do the rashest possible thing, and the consequences may be most beneficial, but he is rash all the same; a man may do the wisest possible thing and the results may be disastrous, but he was wise all the same. One cannot judge by the result which happened in the particular case as to the wisdom or unwisdom of the course taken. My very respectful submission is that negligence there certainly was none, and that there was not even an error of judgment, but that Captain Smith acted rightly in following the usual course.
Now, my Lord, there is a very good reason indeed why they should not slow down when in the neighbourhood of icebergs, and it is this, that you are apt to have fog coming on when you are among icebergs, and if fog comes on when you are among icebergs it is a very dangerous thing indeed.
The Commissioner:
But is it? If you are in a fog and you are conscious that there are icebergs about why cannot you stop?
Sir Robert Finlay:
Of course you would have to stop.
The Commissioner:
I have been told that they do go ahead as quickly as they can sometimes through a fog; that is, I suppose, for the purpose of getting through the fog and out of it?
Sir Robert Finlay:
Your Lordship will recollect what Mr. Sanderson said with regard to that.
The Commissioner:
I know; I remember it. He said some vicious person had stated it.
Sir Robert Finlay:
There was an alternative, my Lord.
The Commissioner:
Or foolish, was it?
Sir Robert Finlay:
Or ignorant. But I am not quoting that for the sake of the epigrammatic form in which Mr. Sanderson put it; I am putting it merely as the statement of a person who knows if any one does what the practice of liners is under those circumstances. And Mr. Sanderson was only putting in very emphatic form a statement that, as a matter of fact, the ocean liners do not go full speed ahead through fog. Suppose you do become involved in a fog among icebergs, then you would have to stop altogether. I do not know then that would deliver you from all danger of accident; if you have these icebergs drifting about and coming grinding up against your vessel I do not know that you would be immune from damage even in that case.
The Commissioner:
But they do not drive about.
Sir Robert Finlay:
I did not say they drive; they drift about. I respectfully put it to your Lordship that what was said by Mr. Owen Jones, of the "Canada," on page 666, on this point is sound. It is Question 23708, where, after he had been dealing with the practice, he is asked: "(Q.) Where you have ice about, in your experience are you liable to have fogs? - (A.) Very liable. (Q.) Does that, in your judgment, afford any reason for the practice you have always pursued as to speed? - (A.) Yes, we always make what speed we can. (Q.) Just tell us, in your own way, what effect that fact has on your practice as to speed? - (A.) Well, we always try to get through the ice track as quickly as possible in clear weather. (Q.) If fog came on while you were there? - (A.) It would increase the danger very much. We have to slow down or stop." Under those circumstances, experience having shown that you can see an iceberg in time unless under such extraordinary circumstances as happened here, I put it to your Lordship that it is impossible to say there is any error of judgment in following the usual practice.
Now I propose to direct your Lordship's attention to the evidence with regard to the practice on this point. The first is the evidence of Mr. Lightoller at page 309, Question 13726: "(Q.) You have had great experience of the North Atlantic at all times of the year. Just tell me, when a liner is known to be approaching ice, is it or is it not in your experience usual to reduce speed? - (A.) I have never known speed to be reduced in any ship I have ever been in in the North Atlantic in clear weather, not on account of ice. (Q.) Assuming that the weather is clear? - (A.) Clear." Then on page 328 he is asked again about this at Question 14368: "(Q.) Do you know any reason for those boilers being off? - (A.) Merely that there was no wish for the ship to travel at any great speed. (Q.) There was no reason, I take it, why you should not go fast; but in view of the abnormal conditions, and of the fact that you were nearing ice at ten o'clock, was there not a very obvious reason for going slower? - (A.) Well, I can only quote you my experience throughout the last 24 years, that I have been crossing the Atlantic most of the time, that I have never seen the speed reduced. (Q.) You were asked by my Lord this forenoon how an unfortunate accident like this could have been prevented in what you describe as abnormal circumstances? - (A.) Yes. (Q.) Is it not quite clear that the most obvious way to avoid it is by slackening speed? - (A.) Not necessarily the most obvious. (Q.) Well, is it one way? - (A.) It is one way. Naturally if you stop the ship you will not collide with anything. (Q.) There is no reason why you might not slacken speed on this voyage; you were not running to any scheduled time? - (A.) No. (Q.) If you happened to be on the bridge in command yourself could you take it on your own responsibility to slacken speed, or would you require to communicate with the Captain? - (A.) Communicate with the Captain. (Q.) And the speed, therefore, could only be diminished by the Captain's orders? - (A.) No, I would not go so far as to say that the speed could only be diminished by that. Let me give you an instance. Suppose I had seen the smallest scrap of ice, supposing we had passed a little bit of the field ice that was knocking about on the other side of this pack ice, had I seen any indication of the vicinity, proof positive of the vicinity of ice, I should very probably have telegraphed myself at the same time that I sent word to the Commander."
The Commissioner:
"Telegraphed" means he would have slackened speed?
Sir Robert Finlay:
Yes.
The Commissioner:
Let us consider. "Had I seen any indication of the vicinity of ice," and then he qualifies it by "proof positive of the vicinity of ice." "Had I seen any indication of the vicinity of ice I should very probably have telegraphed."
Sir Robert Finlay:
I think one must take the earlier part of the sentence, my Lord: "Supposing I had seen the smallest scrap of ice, supposing we had passed a little bit of the field ice that was knocking about on the other side of this pack ice, had I seen any indication of the vicinity" - that is a little bit of the field ice that was knocking about - "I should very probably have telegraphed myself at the same time that I sent word to the Commander."
The Commissioner:
Did not he have the most distinct information that ice was in the vicinity?
Sir Robert Finlay:
But what Mr. Lightoller is referring to is ice of a totally different kind. He is talking about large bits of field ice knocking about. They would not be seen like an iceberg. He is talking of bits of field ice knocking about so that the vessel would come bumping up against them.
The Commissioner:
Yes, but he is being asked about ice generally.
Sir Robert Finlay:
His only qualification is, "Supposing we had passed a little bit of the field ice that was knocking about on the other side of this pack ice, had I seen any indication of the vicinity, proof positive of the vicinity of ice" -
The Commissioner:
If he gets a telegram telling him he is going through an ice region in which he will be in the vicinity of ice he will not slacken speed, but if he sees a bit of ice in the water he will?
Sir Robert Finlay:
No, my Lord, the two things are perfectly different. Where you have bits of ice in the water is one thing; icebergs is another. The bits of ice in the water cannot be seen as easily as an iceberg, and they are an indication that you are close to field ice. That is really dealing with a different thing, my Lord.
The Commissioner:
Well, I do not know. Take the earliest of the three telegrams that referred to field ice.
Sir Robert Finlay:
As well as to bergs.
The Commissioner:
Yes, the "Caronia" and the "Baltic" both.
Sir Robert Finlay:
Yes.
The Commissioner:
Now, the "Caronia" telegram or the "Baltic" telegram came at 1.50.
Sir Robert Finlay:
The "Baltic."
The Commissioner:
Yes; that was the telegram which, upon calculation, indicated that they would get into the region of ice at 9.30.
Sir Robert Finlay:
Get into the longitude where that was reported.
The Commissioner:
Well, the "Caronia" would indicate that they would get into field ice at 9.30.
Sir Robert Finlay:
No, my Lord, that they would get to the longitude where it had been reported, reported two days before.
The Commissioner:
Yes, I know that; but what I mean is this: If he knew that it had been there, two days before if you like, is it not an indication that he might expect to find it there then?
Sir Robert Finlay:
My Lord, that ice would most certainly, as I shall submit to your Lordship, have gone to the Southward of his track. I hope to satisfy your Lordship (I turn aside to deal with the question of speed) that it was not the "Caronia" ice, that it was not the "Baltic" ice and that it was not the ice dealt with in the first message of the "Californian" that this ship collided with. Because as regards the "Californian" ice and the "Baltic" ice, that was far to the Eastward of where the collision happened; it could not be that. As regards the "Caronia" ice, even allowing for a drift of only half a knot that ice must have got to the Southward of the track which the vessel was pursuing. It must have been another berg of which no intimation had been given. All that he could do was to take the track which he thought best adapted to give a wide berth to the field ice, and a track which was not so far South as to get into contact with the "Baltic" and the "Caronia" ice which by that time would have gone, drifting away under the influence of the Labrador Current, to the Southward. If it did not reach the Labrador Current it would be going to the Eastward, so that he would be just as safe as regards icebergs as he would be as regards field ice. But that I shall return to, my Lord. I turned aside to deal with the question of speed.
The Commissioner:
It is pointed out to me that the "Baltic" telegram indicated to the Captain that there was field ice South of the limit of field ice indicated by the route chart?
Sir Robert Finlay:
Yes, my Lord.
The Commissioner:
Have you the route chart? Let me explain to you the suggestion that is made. The "Baltic" telegram would convey to the Captain's mind that the field ice was to the Southward of the limit indicated on the chart for field ice.
Sir Robert Finlay:
Yes, certainly.
The Commissioner:
Very well. Now that would show apparently that the Gulf Stream was not bringing that ice to the East, but that the Labrador Current was bringing it down to the South.
Sir Robert Finlay:
Your Lordship is referring to the field ice?
The Commissioner:
Yes, I am referring to field ice. First of all, it was a singular thing and a thing which Captain Smith would have noticed, that the "Baltic" telegram indicated field ice at a point considerably South, some miles to the South of the limit of field ice as depicted upon the route chart; and if it was somewhat to the South it must have been brought, one would suppose, by what you call the Labrador Current.
Sir Robert Finlay:
Not the field ice at that point, my Lord; it would be brought by the Labrador Current further North, but where the field ice which came down with the Labrador Current struck the Gulf Stream we do not know; and the Labrador Current may have brought down this field ice further to the West, and then being caught by the Gulf Stream it would move slowly in an Easterly direction until it got to the spot where the "Baltic" reported. Your Lordship sees the Labrador Current is on the surface further North.
The Commissioner:
In answer to that observation it is said that we have the fact that the temperature fell something like 10 degrees, I think it was in two hours, and that would show that the force in operation was the Labrador Current and no other.
Sir Robert Finlay:
Not necessarily, my Lord. Your Lordship is aware of the extreme difficulty of saying what the fall in temperature is due to. It is certain that it is no clear indication of the presence of ice. As was said by, I think, Sir Ernest Shackleton, if the temperature dropped suddenly when there is no wind at all he would consider that as putting him on guard against ice; but if it drops when there is wind, nothing of the kind.
The Commissioner:
But there was no wind.
Sir Robert Finlay:
There was till 3 o'clock.
The Commissioner:
Yes.
Sir Robert Finlay:
And the temperature began to drop on the Sunday, as your Lordship pointed out.
The Commissioner:
Yes, but the great fall was on the Sunday afternoon and evening.
Sir Robert Finlay:
But it had been falling.
The Commissioner:
Yes, there had been a very marked change. I agree it had been falling, but there was a very serious change in the afternoon of Sunday.
Sir Robert Finlay:
Let me point out how the observation which your Lordship made with regard to the "Baltic" field ice is met. The Labrador Current running in a Southerly direction is on the surface until it crosses the Gulf Stream. Then being much colder it goes under the Gulf Stream. Till it has impinged on the Gulf Stream it is running on the surface, and it would bring that field ice to any point in the Gulf Stream. Then when the field ice got into the Gulf Stream it would be carried in an Easterly direction. That would account for its being found at the spot where the "Baltic" reported it. It does not follow that the field ice and the bergs have kept company all the way. The bergs, of course, going down, a great many of them, into the cold Labrador Current below the Gulf Stream, take a different direction, but the field ice is only susceptible to the Gulf Stream as soon as it has impinged upon it; but then it is first brought down by the Labrador Current.
The Commissioner:
I have here the changes in the temperature of the water. At 7 o'clock it was 43°, at 7.35 it was 39°; at 9 o'clock it was 33°; and at 9.50 it was 32°.
Sir Robert Finlay:
On the morning of Sunday?
The Commissioner:
No, in the evening.
Sir Robert Finlay:
Yes.
The Commissioner:
And it is suggested to me that that is an indication that the vessel was in the Labrador Current. I may say also that it is also suggested to me that you are, perhaps right in saying that the Labrador Current when crossing the Gulf Stream descends and goes under the Gulf Stream.
Sir Robert Finlay:
Yes, my Lord.
The Commissioner:
Because it is colder water.
Sir Robert Finlay:
There is no doubt about that, my Lord. If I may again refer to the passage on page 34 of Part I. of the "United States Pilot," the Admiralty directions. I think it is conclusive: "These icebergs are sometimes over 200 feet in height and of considerable extent; they have been seen as far south as latitude 39º N., to obtain which position they must have crossed the Gulf Stream impelled by the cold Arctic current underrunning the warm waters of the Gulf Stream. That this should happen is not to be wondered at when it is considered that the specific gravity of fresh water ice, of which these bergs are composed, is about seven-eighths that of sea water; so that however vast the berg may appear to the eye of the observer, he can in reality only see one-eighth of its bulk, the remaining seven-eighths being submerged and subject to the deep water currents of the ocean. The track of an iceberg is indeed directed mainly by current, so small a portion of its surface being exposed to the action of the winds that its course is but slightly retarded or deflected by moderate breezes."
The Commissioner:
I must correct something that I said, Sir Robert; I made a mistake, I think, I gave you the temperatures from 7 to 9.50, but it is not clear that those were water temperatures; and if they were air temperatures their significance is not nearly so great as it would be if they were water temperatures.
Sir Robert Finlay:
I am much obliged to your Lordship. May I recur to the answer given by Mr. Lightoller about his slackening speed if he saw bits of ice knocking about. That would indicate two things: first you could not see a comparatively small bit of ice as you could a great object like an iceberg so as to avoid it; and secondly, it would mean this, that he was very near field ice. He is not speaking at all of the propriety of slackening speed when an iceberg has been notified; on the contrary, he had said in the distinctest possible way in the passage which I first read that he would not do anything of the kind. May I go on, and I think his further evidence will show clearly what he meant. Perhaps I had better read some further passages at page 329 in this connection. He is asked about his instructions from the White Star Line at Question 14378: "Is there anything mentioned in those instructions about what you should do when you are in a region in which ice has been reported? - (A.) There is nothing that refers particularly to ice." That is as distinguished from the Canadian trade, where your Lordship recollects the direction about field ice. Then Question 14385: "Now in your evidence in America you narrate a conversation which took place between yourself and the Captain when he was on the bridge with you. Senator Smith asks you, 'Was anything else said?' and you say 'Yes; we spoke about the weather, the calmness of the sea, the clearness, about the time we should be getting up towards the vicinity of the ice, and how we should recognise it if we should see it, freshening up our minds as to the indications that ice gives of its proximity. We just conferred together generally for 22 minutes? - (A.) That is right. (Q.) The principal thing you had been talking about was ice? - (A.) Naturally. (Q.) Did you decide then when you first saw the ice you would stop or slacken speed? - (A.) No. (Q.) Do you mean to say that the policy of the Captain and you was to go right ahead at 21 1/2 knots? - (A.) No; I do not mean to infer that. (Q.) Unless there was a haze? - (A.) No, not necessarily unless there was a haze. Had we come across ice, as I just said, in any degree, whether the Commander had been on the bridge or not, I should have acted on my own initiative. (Q.) You freshened your minds up as to the indications? - (A.) Quite so."
The Commissioner:
Just stop there for a moment: "Had we come across ice, as I just said, in any degree, whether the Commander had been on the bridge or not, I should have acted on my own initiative." What does he mean? What would he have done?
Sir Robert Finlay:
If he saw a berg head he would have ported or starboarded as the case might be, and if he got among loose ice -
The Commissioner:
Do you think he means that?
Sir Robert Finlay:
I do; he means to include that form of initiative. He also includes what I think your Lordship's mind is upon, slackening speed if he saw bits of ice knocking about; and for two reasons, first that you cannot avoid them as you can an iceberg, and secondly because it would indicate that you were in the immediate vicinity of field ice. I think it includes both cases.
The Commissioner:
But at all events it does include the possibility of slackening speed.
Sir Robert Finlay:
Oh yes, in the case to which he had referred in Question 14375. Then Question 14394: "Well, they ultimately discovered the ice you know, and the man on the bridge did not? - (A.) You say the man on the bridge did not. I may say I discussed that immediately on the 'Carpathia.' That is about the conversation on the 'Carpathia.'"
The Commissioner:
But, stopping there for a moment, as to the man on the bridge - there was only one man there, Murdoch; the other one was in the chart house I think - I am not by any means sure that he did not see the ice just as soon as the men in the crow's-nest.
The Attorney-General:
He did not see it before; he may have seen it as soon, I agree.
Sir Robert Finlay:
It is very likely he did, because the command to starboard came very quickly indeed.
The Commissioner:
Yes, indeed, you find in some evidence that it is suggested that the order to starboard was given before the gong.
The Attorney-General:
That is only a suggestion.
The Commissioner:
It is only a suggestion.
Sir Robert Finlay:
Your Lordship may remember the expression is: "The wheel was put over, the head was beginning to go round while I was still at the telephone."
The Commissioner:
Yes, I have not got my mind at the moment on the passage in the evidence.
The Attorney-General:
14394 is the question, I think.
Sir Robert Finlay:
"I may say I discussed that immediately on the 'Carpathia' with the look-out men - not necessarily discussed it, but asked them questions whilst their minds were perfectly fresh, and the look-out man told me" - that is the look-out man of the "Titanic" - "told me that practically at the same moment he struck the bell he noticed that the ship's head commenced to swing, showing that the helm had been altered probably a few moments before he struck the bell, because the ship's head could not have commenced to swing."
The Commissioner:
That is what I mean. The Attorney-General is quite right, and that seems to indicate to me that possibly the man on the bridge had seen the ice even before he heard the bell.
Sir Robert Finlay:
It may be, or simultaneously.
The Commissioner:
We are perhaps a little off the point, but that also seems to indicate to me that there must have been something in the atmospheric conditions which prevented them seeing this berg until it was so close at hand that they could not avoid it.
Sir Robert Finlay:
I am much obliged to your Lordship; and that is a point upon which I shall lay the greatest possible stress. I do not attempt to deal with it at the moment, only for the reason that it would take a little time.
The Commissioner:
Then you will not forget that Captain Rostron told us about the uncertainty that he found during the time that he was making for the place of the disaster, in the detection of icebergs, seeing some at a considerable distance and not seeing others until they were close upon him.
Sir Robert Finlay:
It was one iceberg you will remember that he particularly did not see till he was very close upon it.
The Commissioner:
A quarter of a mile, I think.
Sir Robert Finlay:
He was, of course, further south than the scene of the disaster when that took place. It really provokes a suspicion that the iceberg may have been the same iceberg which had been seen from the "Titanic." She had gone further south by that time. It is, of course, pure speculation, but it was so exceptional a thing that that iceberg was not seen under the special conditions with regard to the absence of surf; it was black; there was neither wind nor swell and therefore that iceberg was not seen as soon as it would have been. There is something very special about that. But that takes me to another head.
(Adjourned to tomorrow, at 10.30 o'clock.)
