British Wreck Commissioner's Inquiry
Day 31
Final Arguments, cont.
The Attorney-General:
Supposing he was right in assuming that the Captain was justified in thinking that having gone this seven to ten miles, as he did, to the South, before he turned the corner, and then pursuing his course, and getting back to the track - that, having done that, he had got out of the way of the particular ice that was reported - my submission will be that he ought to have been still extremely careful, because of the fact that this seems to have been such an abnormal circumstance that there should be ice in this track where it was reported, in the month of April, contrary to the knowledge and experience of men, with the exception of one or two experiences of Sir Ernest Shackleton, during the last 25 years. My submission will be that the moment he knows of that - that he is not dealing with a detached iceberg or with detached icebergs, or with a detached ice-field, but what he has to reckon upon is that there is an abnormal state of things for this particular year, and that he must expect to see the icebergs and ice-fields along this track, he must keep a special look-out. That is the point.
The Commissioner:
I quite appreciate that, and then I think - you have thought about it, no doubt - you will have to remember that he has to make up his mind as to what is best to be done with reference to these abnormal circumstances.
The Attorney-General:
Certainly.
The Commissioner:
And that, to come back to what I said a long time ago, it may have been an error in his judgment rather than negligence, because a man may make, as we all know, a mistake which is due sometimes even to too great care.
The Attorney-General:
Certainly.
The Commissioner:
I do not say anything of that kind happened in this case - but a mistake and negligence are very, very different things.
The Attorney-General:
Of course, you have to bear in mind, and those who are assisting you have had it constantly present in their minds, that the importance of this Enquiry is really as to the view which your Lordship will form for guidance as to the future.
The Commissioner:
May I say something about that. Much has been said about it, and something has been said about it by the Witnesses. This accident has added enormous knowledge to the experience that men will have to be guided by in the future; but whether, in view of the knowledge that people had at the time of the disaster, it was negligence is another matter. If the same thing were to happen tomorrow, with this knowledge in the minds of men, I can scarcely conceive that it would not be negligence of a very gross kind, because they now know what apparently, if this evidence is right, they did not know then, and that knowledge adds to the experience.
The Attorney-General:
No doubt. In the argument which I shall address to the Court, I shall draw the distinction, and have done throughout, at any rate in my own mind, between what would be negligence up to this date of the 14th April. Whether with all the knowledge and experience that navigators had at that time they had to take special precautions such as reduction of speed, towards which there has been so much attention drawn in this case, is, of course, a point which will require, and to which I have no doubt your Lordship will give, very careful consideration. And, apart altogether from that, assuming for the moment that your Lordship comes to the conclusion that, taking into account all the circumstances - the atmospheric conditions, the very flat calm sea, no swell, and so forth - assuming that you, with this combination of circumstances, come to the conclusion that there was no negligence on the part of those navigating, but that there was, nevertheless, in view of what happened, an error of judgment - your Lordship's view about that really depending upon what actually happened as proving that there was an error of judgment as distinguished from negligence, that I can quite appreciate. Of course, those are matters which, as I have indicated, are considerations for the Court. I am very glad it is no part of my duty to urge the Court to find negligence against those who were responsible for the navigation, to strain the evidence in that way. Mine, fortunately in this respect, is not an advocate's duty in that sense. All I have to do - and I think it my duty to do it in view of the evidence that has been brought forward here - is to put the considerations before you for your judgment; and that is all.
The Commissioner:
You are in the position of a prosecuting counsel in a criminal case, in fact; that is to say, your duty is to take care that the facts are fairly placed before the Court.
The Attorney-General:
Quite.
Sir Robert Finlay:
I think my friend is not really in that position. I think he is on one of these Enquiries in a semi-judicial position.
The Attorney-General:
I agree. I think my Lord would say, and I should agree with him, that as a prosecuting counsel, you are also in a semi-judicial position.
Sir Robert Finlay:
The prosecuting counsel is bound to show the utmost generosity to a man on his trial, but I put the duty of the Attorney-General on an Enquiry of this kind rather higher than that.
The Attorney-General:
I do not think there is any difference between us about it, or between my Lord and me. Now, my Lord, when we have dealt with that part of the case, then comes that portion of the Enquiry which I say, with all respect, is the more important part, because it is designed to protect the public in the future. However lamentable it may have been, we cannot help what is past, but we can do something, or your Lordship can, with the assistance that you have, towards making some recommendations for the protection of the public in the future. My Lord, it is in that connection that I think all this evidence to which my learned friend, Sir Robert Finlay, has just been calling attention, is of such importance; because as I appreciate the evidence which has been given, and certainly the evidence of Mr. Sanderson and of Mr. Ismay, their view is - I am not complaining of it at all, of course, and I quite appreciate why they say it - but their view is that notwithstanding what has happened, that notwithstanding the disaster to the "Titanic," the practice which hitherto had existed was a perfectly right practice, and apart altogether from recommendations which may be made by the Court, would be continued. I mean by that that their view is that it would be right to continue it. Of course I have not the slightest doubt that any indication from the Court would be accepted by the White Star and other lines as sufficient to make them change the practice, but if there had been no such Enquiry, the view seems to be held by many of those gentlemen who have been called before you that they have no reason to modify the opinion which they have expressed as to what is prudent navigation in the circumstances, and I am very anxious about that, and very anxious that we should have from your Lordship -
The Commissioner:
That is quite right, and I am very anxious about it too. I have not heard Sir Robert Finlay yet suggest that the course that was taken on this night would now be a wise and proper course if the same circumstances were to arise again.
The Attorney-General:
I think I heard my friend say it yesterday afternoon, and I thought he said it based upon the evidence of Mr. Ismay and Mr. Sanderson.
Sir Robert Finlay:
I do not think Mr. Ismay and Mr. Sanderson profess to be experts on this matter. Their evidence was merely with reference to what they knew the practice always had been.
The Commissioner:
Am I to understand that even with the knowledge that has been gained by this unfortunate accident, the practice of continuing at full speed ought still to be continued?
Sir Robert Finlay:
Not necessarily at all, my Lord. We have had a flood of additional knowledge. The incursion of the ice further South must have profoundly modified the conditions, and I may say on behalf of the White Star Line, as I have said already, I think, that any intimation that the Court may see its way to make as to the practice in the future will, of course, receive complete attention.
The Attorney-General:
It is not a question for discussion between us. I quite appreciate that they would be very glad to follow, and would follow out most completely, no doubt, any recommendation your Lordship makes. But I wanted to direct attention to the evidence; and I shall show your Lordship when I come to deal with the evidence that whatever my friend Sir Robert may say, which would naturally be quite what you would expect of him in the circumstances, that is not the view which has been taken by those who have been called before you.
The Commissioner:
If they take the view that notwithstanding the experience they have gained, these ships ought to be navigated at full speed in circumstances such as there were on this occasion, I at present should venture to differ from them.
The Attorney-General:
Yes, my Lord. What I am saying is only directed to the future.
Sir Robert Finlay:
The evidence of these Witnesses was directed to the past, and what the practice always had been. Your Lordship made reference to what should take place with the knowledge of this disaster. I think that if your Lordship would look at Question 25531 onwards, it is by no means clear that all these answers of Mr. Rostron's are not given with reference to what he would do now. Your Lordship sees there is no contradiction throughout; there is never a suggestion of a contradiction as to the practice in the past. As far as Mr. Rostron goes, he does not differ from it at all, and these questions quite admit of the construction that he understood my friend's questions to be "What would you do now?"
The Commissioner:
That may be. I will have to examine the questions and answers to see whether that is so or not. But I quite agree with the Attorney-General that the importance of this Enquiry is to ascertain whether the practice is one which must be altered. The importance of this Enquiry has to do with the future. No Enquiry can repair the past.
Sir Robert Finlay:
If your Lordship pleases, that observation of mine, if it is well founded, very much strengthens the effect in my favour of the whole of Mr. Rostron's evidence. At question 25541 he says: "If it is a perfectly clear night, and I was sure of my position and everything else, unless I knew there was a lot of ice about, I should feel perfectly justified in going full speed." Then, my Lord, there is one other observation I may be permitted to make. I put it to the Court that there is nothing in what I have read of Mr. Rostron's evidence - and I have read everything in the least material on this point - that it all qualifies the body of evidence to which I have already called attention. And further than this, the question is negligence on the part of Captain Smith. One consideration that can never be dismissed from the mind is this: I do not ask that Captain Smith should not be found to have acted negligently if the evidence shows it; but one can never dismiss from one's mind the fact that he is not here to give the reasons. I am sure the Attorney-General will agree that that is a most cogent observation, and must turn the scale in this case.
The Attorney-General:
Quite.
The Commissioner:
You may be quite sure that I shall be most careful. I shall require the negligence to be proved so that I cannot escape from it.
(After a short adjournment.)
The Commissioner:
There is one question and answer in Captain Rostron's evidence I want to draw your attention to, Sir Robert, Question 25465, at page 743.
Sir Robert Finlay:
"So that, if I follow what you have said, you would always have to be prepared for an iceberg which presented a dark appearance to those who were looking out for it? - (A.) Yes." If that means that black bergs are common, I think it is wrong, but I do not think Captain Rostron can have meant that. I may say that Captain Rostron, as appears from the American evidence, had not been much on the Atlantic. My friend, Mr. Maurice Hill, has been good enough to supply me with references to the American evidence. He was appointed to the "Carpathia" on the 18th January of this year, 1912. The "Carpathia" was in the New York and Mediterranean trade, which, of course, involved crossing the Atlantic. Then in the American evidence the same gentleman appears as commanding the "Carpathia" and the "Pannonia" during 1911; that is Mediterranean and New York in the same way. Then previous to that he says, "I was Captain of several other smaller cargo boats running between Liverpool and the Mediterranean."
The Commissioner:
Well, you do not come across icebergs there.
Sir Robert Finlay:
No, your Lordship will see that that was in answer to a series of questions put to the Witness by the Attorney-General. He had previously given two answers to your Lordship which were perfectly specific and distinct. One is at the bottom of page 742, Question 25450. Your Lordship said to him: "You cannot account to me for your seeing some of these bergs a couple of miles away, but not seeing this particular one till it was about a quarter of a mile away? - (A.) No. (Q.) You cannot account for it? - (A.) No. (Q.) It happened to yourself? - (A.) I cannot account for it at all." Then at the top of the next page, Question 25455 "Is that a common experience, that when you are amongst icebergs you will detect one two or three miles away and another not till it is within a quarter of a mile? Is that within your experience? - (A.) No, I do not think it is common experience. I think it is rather common, as a matter of fact."
I think the answer must really refer to this: Your Lordship will recollect it is in evidence already that where an iceberg has been torn off from the parent iceberg, if I may use the expression - the side where it has been torn off if the rupture was at all recent is much darker; where it has been exposed for a long time to the sun and air it is white, so that one side is darker than the other. But even then, as the Witness who testified to this said you have a white glimmer over the top of the black side, coming from the white side, which is the other side. I think that what Captain Rostron says must refer to that. But in any case his experience, dating from the beginning of the year 1911 in the American trade does not compare with that of the many Commanders who have been called before the Court, and who are all unanimous about this that a black berg is a very rare thing.
The Commissioner:
Very well. You have dealt now, I think, with all the evidence upon that part of the case.
Sir Robert Finlay:
Except Sir Ernest Shackleton.
The Commissioner:
Oh, yes, except Sir Ernest Shackleton.
Sir Robert Finlay:
Sir Ernest Shackleton's evidence is at page 719. I will read his evidence, which will include that which bears directly upon this point. "(Q.) You have had a large experience of ice? - (A.) Yes. (Q.) I want you to help the Court with your views, as a result of your experience, first of all with regard to the visibility of ice in clear weather. Take icebergs first? - (A.) That entirely depends on the height of the iceberg. Take an iceberg of about 80 feet high, and the ordinary type of iceberg that has not turned over, you could see that in clear weather about ten to twelve miles. (Q.) At night? - (A.) Not at night, no. I would say, providing it was an ordinary berg, about five miles on a clear night. (The Commissioner.) At night? - (A.) Yes, at night. (The Attorney-General.) You said provided it was an ordinary berg? - (A.) Yes. (Q.) Are there bergs which present a different appearance in colour? - (A.) There are many bergs I have seen that appear to be black, due to the construction of the berg itself, and also due to the earthy matter and rocks that are in all bergs. In fact, in the South many of these so-called islands, and charted as islands, must have been big bergs with earthy matter on them. Again, after a berg has capsized, if it is not of close construction, it is no more porous, and taking up the water does not reflect light in any way. (Q.) Have you had large experience of this particular track? - (A.) Not much, only four or five times." It turned out afterwards that he had crossed four or five times as a passenger. He had been only once across except as a passenger, and that was when he was 17 years old in an early voyage. The other experiences, four or five times, were as a passenger. And may I say at once with reference to Sir Ernest Shackleton's evidence that Sir Ernest Shackleton is a recognised expert with regard to South Polar ice; he did most admirable work there, and work of the most interesting kind. The book that he wrote about it is a most fascinating book; but the conditions under which he worked with regard to ice were absolutely different from those which prevail in the North Atlantic, where his only experiences were as a passenger on four or five occasions. Going to the South Pole - he got very near it - he had got into great masses of ice. He had to thread his way through them, turning and twisting, to use his own expression, to get through; sometimes he got a run of a few miles; at other times he had to go with constant evolutions. That is a very different thing indeed from the conditions which prevail in the North Atlantic, although if the icebergs continue to encroach further South in the manner in which they have recently been showing a tendency to do the conditions may be more assimilated to those of the South Pole. But at all events at present trade with the South Pole has not developed. So that what Sir Ernest had to do was to thread his way through these great masses of ice where there were no other vessels about at all, with a vessel, the "Nimrod," of 300 tons with her bows only 14 feet from the water, while the crow's-nest was 90 feet from the water; so that it is obvious that the position of the man on the stem so near the water, having regard to Sir Ernest's evidence, would be of much greater value for the purpose of seeing a berg as they approached it.
"Have you had large experience of this particular track? - (A.) Not much, only four or five times. I have seen ice in the North Atlantic. (Q.) Have you ever seen ice of this particular dark character to which you have referred in the North Atlantic? - (A.) Yes, twice. (The Commissioner.) In the North Atlantic? - (A.) Yes. (The Attorney-General.) Was that on the outward route to the States? - (A.) On the outward route, yes - once outward and once homeward. (Q.) Do you remember about what time it was of the year? - (A.) In about April, I think, 1897, and again in May, 1903, and again in June, 1910, but that was further north. (Q.) Is this right that you have seen altogether on the North Atlantic tract ice on four or five occasion? - (A.) Yes. (Q.) That is four or five voyages? - (A.) Yes. (Q.) Extending over a very considerable period of time? - (A.) That is so. (Q.) Beginning in 1897? - (A.) Yes. (Q.) Out of those four or five times is it right that you twice saw those dark-coloured icebergs? - (A.) I would not like to say on the last two occasions. My memory will not serve me more than that, I have noticed on one occasion at least more than one berg that did not reflect light."
As regards darkness - it is not necessarily the same thing as blackness and all he says is he has noticed bergs on these occasions that did not reflect light. Then it goes on "(Q.) What I meant was - I want to follow your evidence - that of the four or five occasions of which you have spoken, two of them were occasions on which, as I understood you, you have seen ice of this dark colour? - (A.) Yes, but I would like to add that I have seen at the same time other ice - ice of a different colour. (Q.) Yes, I see what you mean - there would be other ice of a different colour, but amongst it you saw twice icebergs of this dark colour." The Witness does not accept "this dark colour," he says, "of darker colour, yes." Then there is a question as to about how often it was. Then he says in answer to Question 25032, "I was certain of the 'other occasion,' but I qualified it only inasmuch as that on the same occasion I saw different coloured ice. (The Commissioner.) Am I to understand that you saw several bergs on these five voyages that you have spoken of? - (A.) Yes, my Lord. (Q.) Or only one berg on each occasion? - (A.) No, on one occasion there were several bergs. On the first occasion, I remember it was a low-lying berg which was evidently a capsized berg. (Q.) You only saw one berg? - (A.) That is all I remember. (Q.) Then on the second occasion you saw several bergs? - (A.) Yes. (Q.) Did you see several on the other three occasions? - (A.) No, my Lord; some of them were just small pieces. I would not call them big bergs, not like the southern bergs. (Q.) Are they called growlers? - (A.) I have never heard that term applied to them, but I believe it is a well-known term. I have read of such, but we never call them growlers; we call them floe bergs when they were not the height of an actual big berg carved off from the land, but a berg that had capsized, having worn out underneath. (The Attorney-General.) You have spoken of the distance at which you would see bergs. You told us, I think I am right in saying, ten or twelve miles in the daytime on a clear day, and five miles on a clear night? - (A.) Yes. (Q.) How far would you see one of these dark bergs on a clear night, assuming it to be 60 to 80 feet high? - (A.) It might be only three miles, depending on the night and depending almost entirely on the condition of the sea at the time. With a dead calm sea there is no sign at all to give you any indication that there is anything there. If you first see the breaking sea at all, then you look for the rest and generally see it. That is on the waterline. I do not say very high, because from a height it is not so easily seen; it blends with the ocean if you are looking down at an angle like that." I suppose he indicated an angle similar to that which you would look down if you were in the crow's-nest, 90 feet high. "If you are on the sea level it may loom up. (Q.) That would rather suggest that your view would be that you could detect bergs of that kind better at the stem than you could at the crow's-nest? - (A.) Better, the nearer you are to the waterline. When we navigated in thick or hazy weather there was always one man on the look-out and one man as near the deck line as possible. (Q.) That is thick or hazy weather? - (A.) Yes, that is thick or hazy weather, or even clear just the same. (Q.) What I want you to tell my Lord is; do you think it is of advantage in clear weather to have a man stationed right ahead at the stem as well as in the crow's-nest? - (A.) Undoubtedly, if you are in the danger zone; in the ice zone.
He afterwards explains what he meant when you had ice reported to you, would you take precautions as to the look-out? Supposing you only had men in the crow's-nest, would you take any other precautions? - (A.) I would take the ordinary precaution of slowing down, whether I was in a ship equipped for ice or any other, compatible with keeping steerage way for the size of the ship. (Q.) You would slow down? - (A.) I would slow down, yes. (Q.) And supposing you were going 21 3/4 to 22 knots, I suppose that would be the better reason for slowing down? - (A.) You have no right to go at that speed in an ice zone."
He afterwards explains what he meant when you get into what he calls an absolute ice region. He is a little indefinite as to what constitutes an ice region. But it is quite clear that Sir Ernest Shackleton's mind is running upon his own experience when he got into an absolute ice region, threading his way through those masses of ice on his way to the South Pole.
The Commissioner:
I have no doubt Sir Ernest Shackleton had a definite meaning, but I do not know it. What is the definite meaning of an ice zone?
Sir Robert Finlay:
I put it to him afterwards when I examined him, and he was not definite about it. I will read what he said. It is left very indefinite, but I think what he had in his mind was where you have a large collection of ice comparatively close together or in patches, as in regions through which he threaded his way when he was going Southward to the South Pole, or Northward on his return. I think that is what he means. But it is left very vague. I tried to get it more specifically from him afterwards. "You have no right to go at that speed in an ice zone. (The Commissioner.) And you think that all these liners are wrong in going at this speed in regions where ice has been reported? - (A.) Where it has been reported I think the possibility of accident is greatly enhanced by the speed the ship goes. (Q.) We have been told that none of these liners slow down, even though they know that they are going through an ice region - that is to say, a region where there are icebergs? - (A.) I have been in a ship which was specially built for ice" - that was the "Nimrod" - "but I took the precaution to slow down because you can only tell the condition of any ice you see; there may be projecting spurs, and you may suddenly come across them. (Q.) What was the speed of the boat you were in? - (A.) She was only six knots at full speed. She was 40 years old. (Q.) Do you mean to say that you slowed down a vessel of six knots? - (A.) Yes, I always did. (Q.) Then what did you get to? - (A.) We got very near the South Pole, my Lord. (Q.) What speed did you get down to? - (A.) We slowed down to about four knots. At her best she did six knots. (Q.) At her best she did six knots; that was not the ship that you got near to the South Pole in? - (A.) Yes, that is the ship; she was very old she was very small." She was a wooden ship of 300 tons. I suppose she would have been employed as a whaler in her hot youth, Greenland, and then in her old age she went near to the South Pole.
The Commissioner:
Retired, so to say.
Sir Robert Finlay:
"She was very old; she was very small. (The Attorney-General.) I still want you to give me your attention with regard to the look-out. You have told me your views with regard to speed. Suppose you had two men in the crow's-nest, and it was a clear night, and you were going through a region in which ice had been reported, would you put any person in the bow for a look-out? - (A.) I would put a look-out man in the bow or as near to the waterline as possible, even on a clear night, but I would only have one man in the crow's-nest. (Q.) Your idea would be that of the two men when coming into an ice region, one should go to the bow and one be in the crow's-nest? - (A.) My main reason for saying one man in the crow's-nest is that I think one man gives more attention to the work in hand than two men. (The Attorney-General.) There is a good deal to be said for that. (The Commissioner.) Yes, I think so. (The Attorney-General.) If I follow you correctly your view is, it is better on a clear night passing through an ice region to have a man as near the waterline as possible? - (A.) Yes. (Q.) Which would be preferable, the bow or the crow's-nest? - (A.) I would have a man in both, one in the crow's-nest and one in the bow; and if I may say this I would prefer in a liner to go where there is known danger than to go in a Southerly route, where you may occasionally get a berg, because some of these bergs drift from the North, very big bergs drift down into navigable waters, where no one would expect to find them; and then a ship comes to damage; whereas if you are looking for danger you guard against it more, or ought to. (Q.) I think we have been told they drift from North to South? - (A.) Yes, by the Labrador Current. (Q.) One other matter I wanted you to tell us about, and that is with regard to the use of glasses" - I need not trouble about that. Then Question 25060 "I ought to ask you this: Is there any indication of the proximity of ice by the fall of temperature? - (A.) Unless the wind is blowing from a large field of ice to windward there is no indication at all by the methods that are used now, and it is a very poor thing to go upon, is the change of temperature. The film of fresh water that covers the sea is so thin that by dipping in a bucket you do not pick up that thin cold water, and if the temperature of the air is approximately the temperature of the sea there is practically no haze; it is only when the water is warmer or the air is warmer that the haze occurs. There are no methods that I have heard of before this that can really give you an indication of approaching ice by ordinary temperature methods. (Q.) Supposing you were approaching an ice region, that is, a region in which you had ice reported to you, and you found the temperature getting colder, would that be any indication to you that you were getting close? - (A.) No, it depends upon whether there was a wind or not. (The Commissioner.) On this occasion we were told that, at all events, from 3 o'clock in the afternoon, there was no wind. (The Attorney-General.) No wind, and the temperature fell very much. (The Witness.) Then if there was no wind, and the temperature fell abnormally for the time of the year, I would consider I was approaching an area that might have ice in it. (The Attorney-General.) According to the evidence - I am only dealing with one part of it - perhaps the most striking part - during the afternoon on this particular occasion on 14th April of this year, the temperature was reported to be falling, so much so that the Captain ordered the carpenter to see that the water in his tanks did not freeze. Would that be any indication to you? - (A.) If I knew what the mean temperature of that locality was for that month of the year and there was a great variation, then I would certainly think there was some abnormal disturbance in the ice to the North. Of course, that particular night was an abnormal night at sea in being a flat calm; it was a thing that might never occur again. (Q.) That is what Mr. Lightoller says."
The Commissioner:
Let us stop there for a moment. There was undoubtedly a very rapid fall in the temperature. I assume there was a fall in the temperature of the air. There was no wind. How can that fall in the temperature of the air be connected with the presence of icebergs some miles away?
Sir Robert Finlay:
I submit that according to all the evidence it is a very uncertain indication indeed.
The Commissioner:
I have not grasped it before, but I understand what Sir Ernest Shackleton says about the temperature of the water. The only way in which an iceberg affects the temperature of the water is by the ice of the iceberg dissolving and forming a skin or thin coating of melted ice, that is to say, water which has just been ice on the surface of the water.
Sir Robert Finlay:
Yes.
The Commissioner:
And that will not go to any depth.
Sir Robert Finlay:
No.
The Commissioner:
Nor do I know how far it would spread.
Continued >
