British Wreck Commissioner's Inquiry
Day 34
Final Arguments
The Attorney-General:
Before we proceed I understand that your Lordship proposes to sit on Monday in another place?
The Commissioner:
Well, I believe so; I am told this hall is not available on Monday. If it is, so much the better. I would rather go on and finish here.
The Attorney-General:
Then, my Lord, today, I think, subject to your Lordship's view, it would be sufficient if we sat till half-past one, and then if I resume on Monday I have very little doubt I should conclude.
The Commissioner:
If I do that, what I shall do on Monday is to sit until we have finished. You cannot come on Tuesday?
The Attorney-General:
No, I think there is no doubt we can finish on Monday. The utmost that might happen might be that I should have to conclude on Wednesday; I could not come on Tuesday.
The Commissioner:
Are you sure you could come on Wednesday?
The Attorney-General:
I understand so from the House of Lords.
The Commissioner:
Because I do not want the thing to stand over?
The Attorney-General:
Neither do I; I want to get rid of it. It is quite safe for Wednesday, but I do not anticipate really going into Wednesday.
The Commissioner:
Rather than risk it I would rather sit later today unless you have some engagement, which I daresay you have?
The Attorney-General:
It was because I thought we should finish on Monday that I suggested we should rise early today.
The Commissioner:
I only want to do what is convenient to all.
The Attorney-General:
I thought by taking this course we should finish quite well on Monday. It will not be necessary for me to refer so much in detail to the evidence.
There is one further point I wish to direct attention to so that your Lordship may have the figures before you. If you come to answer the question with regard to the number of passengers and classes of passengers saved by reference to the Table which was put in at page 479a there would be a difficulty, because the figures have been a little altered. What I wish to direct attention to is that we have now an agreed statement which I am going to hand in, which is not printed, which will give your Lordship all the information that you would require to answer to the question as to the number of persons saved and the classification of those persons. It might be quite convenient to print the two Tables I am going to hand in at the end of today's Note, so that your Lordship will have them before you.
The Commissioner:
Yes.
The Attorney-General:
We may treat this Table which was put in at page 479a as cancelled - 703 was the number taken as saved originally; it has now turned out that it is 711, and of course that necessitates some alteration.
(The Table was handed in. See Appendix.)
Now before I proceed to address your Lordship in detail upon this case I desire to express my thanks to the White Star Line, and in particular to Mr. Wilding, for the assistance which they have given us during the Enquiry. I think it is only right to say that, although to some extent their conduct is under review and criticism by the Court, every possible assistance has been given by them, and also by my friend Mr. Laing's clients, Messrs. Harland and Wolff, so that all available material has been placed before your Lordship and the Court.
In discussing the evidence and putting before your Lordship certain conclusions which I will ask you to consider, I do not propose to travel in great detail through the evidence upon which comment has already been made at considerable length by my friends who have already addressed you. As your Lordship has appreciated, more particularly with reference to the task which Sir Robert Finlay undertook, he has, so far as it affected the case which he was presenting to you, gathered together all the available evidence on those points, whether for or against the view for which he was contending, and, therefore, the references which I shall make will be only by way of comment, and, except on very important matters, when I shall refer to the specific answers, I shall pass over the particular answers that are given and summarise what my submission is as the result of the evidence. I cannot think that any useful purpose would be served by my doing again in a different form what has already been done and is before the Court.
Now, my Lord, speaking generally, the Questions which your Lordship has to answer relate to what has happened in the past and what is to happen in the future. And no doubt different considerations must apply when you are forming a judgment as to past events, or making any recommendations as to what shall happen in the future for the guidance of those who have to navigate the North Atlantic. The main questions resolve themselves into two, I think. The first is whether there was any failure to take proper precautions which, if taken, would have avoided or would have materially minimised the loss both of life and property. That, of course, is the question that affects the past. Then the other, and I cannot help saying it appears to me to be the more important question in relation to this Enquiry, is: What precautions shall be taken in the future to guard against any similar calamity.
Your Lordship certainly has not begrudged the time which has been spent upon this Enquiry, although I am fain to admit that I think we have travelled over much ground which it is unnecessary for me now to consider in addressing your Lordship and which it will be unnecessary for you to consider. The very fact that we have gone into these questions at such length, and, I think, with such minuteness, has brought out this, that save as regards a few questions there is really no controversy at all.
The question to which I propose to address myself first and which, together with perhaps the question relating to boat accommodation, is, in my view, the most important, is that relating to the speed of the vessel at the time of the casualty.
The Commissioner:
I did not quite hear what you said; you said something about boat accommodation.
The Attorney-General:
I said except for the question relating to boat accommodation, to my mind speed is the most important one. There are two main questions: one is the speed and the other is boat accommodation. That is what I mean speaking quite generally, and I propose to address myself at first to the speed question; that is Question 14, which carries with it a good many other Questions which your Lordship will have to answer.
I preface the observations which I am going to make with this proposition, which I submit is really beyond controversy, that had the speed been materially reduced on this night of the 14th April, the "Titanic" would not have been lost, or if she had been lost, no lives would have been lost. I submit in formulating that proposition I am really only putting before the Court what is established beyond all doubt by the evidence in this case. I will deal with it a little more in detail when I come to analyse the evidence, but substantially what I mean is, that supposing this vessel, instead of going at 22 knots per hour had proceeded at a moderate speed, say, of eight to ten knots per hour, although it might have been that she would not have avoided collision with the iceberg, yet she would not have sunk, or if she did sink, she would have been kept afloat for a sufficient time for the "Carpathia" to have reached her and saved all her passengers. That is a view which I submit is plain from the evidence which has been given.
In the observations which I am about to make to you in reference to speed, I want to make it quite clear that although I am going to put before the Court considerations based upon the evidence which, if accepted by the Court, will mean that there was negligent navigation of this vessel on the part of those who were responsible for the navigation. I have no desire, nor is it any part of my duty, to press that except in so far as it is necessary to bring clearly before the Court various statements of Witnesses which to my mind ought to have a serious bearing on the judgment which the Court should form with regard to the navigation.
The Commissioner:
Which is the question which invites me to express an opinion upon negligence?
The Attorney-General:
There is no question which asks you whether there was negligence or not, but there is Question 14, which asks you whether the speed was excessive.
The Commissioner:
Yes, that appears to me to be quite a different thing.
The Attorney-General:
It may be, of course. That question can be answered without saying anything further with regard to negligence; I can only say that is a matter for your Lordship to determine. When you come to answer that question, I can conceive that the Court might come to the conclusion that it preferred not to deal with any argument which may have been addressed based upon this proposition that there was negligent navigation, and that the Court might be satisfied in saying that the speed was excessive. Of course, that is a matter which your Lordship must determine.
The Commissioner:
I do not consider that I am bound by the form of the questions.
The Attorney-General:
No.
The Commissioner:
But at the same time I do not want to enter into an Enquiry which is not necessary, and perhaps is one which I ought not to enter upon.
The Attorney-General:
Of course you have to bear in mind also Question 24: "What was the cause of the loss of the 'Titanic,' and of the loss of life which thereby ensued or occurred?"
The Commissioner:
Assuming you are right, there is no difficulty, in my opinion, in answering that question. Assuming you are right that the speed was excessive - the cause was the excessive speed - that was the effective cause.
The Attorney-General:
I quite understand.
The Commissioner:
Whether the people who permitted that cause to operate were negligent or not appears to me to be quite a different question from the cause of the accident. It may be refining, but it occurs to me that if the speed was excessive, so excessive that an alteration would have avoided the accident, then the cause of the accident was the excessive speed.
The Attorney-General:
Yes, but that still leaves open the question whether the excessive speed was, in your Lordship's view, negligent navigation.
The Commissioner:
What, does it matter? If it was excessive it was wrong navigation, but whether it was negligent is another matter. I draw a distinction between a thing which is wrong and a thing which is negligent. Negligence may cover both, but a thing which is wrong does not necessarily mean a thing that is negligent.
The Attorney-General:
Of course, there may be two courses open, and the one selected may turn out to be the worse; the wrong course of those two may be selected. Nevertheless, I quite appreciate that that may have been an error of judgment which is not negligence, because either of the two courses might have been a course which any prudent commander might have taken, and the fact that it turned out badly naturally would not make your Lordship come to the conclusion that there was negligence. I quite appreciate that. But there is the further point, which certainly is involved, covered by the questions, although I quite appreciate that you might not think fit to answer it or may not think it is necessary to answer it, and that is whether the speed should have been reduced; whether the person responsible -
The Commissioner:
We are quarrelling about words, I think. If I think the speed was excessive it follows that I think it should have been reduced.
The Attorney-General:
Yes.
The Commissioner:
But it does not follow that because it was not reduced the man who failed to reduce it was negligent.
The Attorney-General:
No.
The Commissioner:
Do you follow what I mean? It sounds a little casuistical, but to my mind it is true.
The Attorney-General:
I agree.
The Commissioner:
I am very much disposed at present - I will not commit myself to anything about it, and I do not desire to do that - but I am very much disposed at present to think that the whole of this disaster was due to the excessive speed.
The Attorney-General:
That is the view I am going to present.
The Commissioner:
That is the view I am disposed to take at present; I do not commit myself to it, of course.
The Attorney-General:
I quite understand what is in your Lordship's mind with regard to it, but I want to put certain considerations before you, and then your Lordship will determine whether it is necessary to say anything about it.
The Commissioner:
Certainly. I only wish to point out what my mind is at present about it.
The Attorney-General:
What I am particularly anxious is, in dealing with this matter, after the very full and exhaustive Enquiry which we have had into the circumstances, if your Lordship has a very definite view upon the aspect of the question, that is whether there was negligent navigation, that if you think fit, it should be expressed in answering the questions. I mean, whichever judgment you may form, if your Lordship comes to the conclusion that on the whole you think, having reviewed all the circumstances, you will not express any opinion upon it, of course I am equally satisfied, if I may say so, provided that the considerations have been put before you which will enable you to come to the conclusion. That is the course I desire to take.
At the outset of these observations I want to put one further proposition before your Lordship which I think must govern, to a large extent, the view which your Lordship will take of the evidence, which is that the reduction of speed which would certainly have avoided the very grave character of this disaster was a very small precaution to be taken. I respectfully submit to your Lordship this: What strikes me here upon the whole of this evidence is that for a great number of days we have been discussing the cause and the effect of the disaster of this vessel coming into collision with an iceberg at night at a speed of 22 knots per hour when we know in point of fact, beyond all controversy, that ice reports (which I must analyse very closely later) had been received by the Captain - that he and his Officers knew that he was approaching the vicinity of ice, that he was quite aware that at any moment he might expect to meet an iceberg, and notwithstanding that they continued at this speed of 22 knots when, so far as I am able to judge, there was not the faintest reason why they should have continued at that speed on that night. The striking thing about it is that they did not desire to make a record passage; I think the White Star Line have proved that conclusively, and if they had arrived at the time which was intended it would not have been a record passage. What they did intend was to arrive on the Wednesday morning at five o'clock. That is what was planned, and certainly it was not necessary to push this vessel at its extreme speed in order to do that. Your Lordship will remember how the evidence stands. I think I may put it quite shortly when I say this, that 22 knots an hour was the speed at which she was going on this night, that what was necessary to bring her to New York at five o'clock on Wednesday morning was 20 knots an hour from that time and no more. That was given in evidence by one of the Witnesses and was accepted. Therefore, if only we had had this reduction of speed for a few hours till daybreak, so far as I can gather from the evidence before us, there would have been still plenty of time for the vessel to arrive at the time intended and all possibility of this disaster would have been avoided.
My object in making these observations to your Lordship is this: Of course I know you would take into account in deciding a question of that character whether it was reasonable in all the circumstances to expect this particular precaution to be taken. That is, no doubt, a very guiding factor in arriving at a conclusion, at any rate as to whether there was any lack of reasonable precautions, which is only another way of expressing whether there was any negligence.
If you were being asked to say that the disaster occurred by reason of their having omitted to take some precaution which would have made it impossible for this vessel to travel between the United States and this country because the precaution to be taken would have necessitated such expenditure as would have prevented this "Titanic" being a commercial venture, of course I can quite understand that you would say: "Oh, no; what I am dealing with is a matter of commerce, and there may be some risks which have to be taken, which everybody has to take, and it certainly is not for me to insist upon such a precaution as would destroy the mercantile marine of this country." Of course, I quite appreciate that. What I am pointing out is that it is no precaution of that character which I say was not taken in this case, but it was the simplest precaution which was omitted, and that was the reduction of speed for a few hours. That impresses itself upon my mind very strikingly upon a review of the whole evidence, and more especially when I come to call your Lordship's attention to the indications that there were, that they were dealing on that night with abnormal and not with normal conditions.
The Commissioner:
Is it your view that the existence of abnormal conditions is established? I rather gather that it is.
The Attorney-General:
It depends what you mean by abnormal.
The Commissioner:
You know it is important, if I have to consider the question of negligence, to consider whether there were abnormal conditions.
The Attorney-General:
I agree. I have given attention to it and I am going to call your Lordship's attention to particular passages in the evidence which bear upon it. I attribute myself so much importance to this question regarding speed that I have no doubt most of what I have to say will be directed to that point. It has not been gone into exhaustively by the other side, by any of my learned friends who, of course, have dealt with other questions which more particularly affected them, leaving this particular question to me. Observations and arguments have been addressed to your Lordship, and I think of a very pertinent character, but both my friends, Mr. Scanlan and Mr. Clement Edwards, who touched upon this question, indicated that they were not going into it at length because they knew that I was proposing to do it.
The question which I think you would put to yourself at the outset of an Enquiry into the evidence is, What is the standard of care to be taken in navigating a vessel of this kind on this track. I desire to make only one observation with reference to that, and one which I am quite sure will not be controverted and will be acceptable to your Lordship, and then to pass from it. The answer I would make is that it is the highest standard of care which is required in a case of this kind. I do not shrink, of course, from this observation, that I think greater care is required when you are dealing with a passenger and emigrant vessel of this character than when you are dealing with a cargo vessel. I quite understand that the observation might be made: "Well, but it is just as important in a cargo vessel that there should be no risk of loss of life of the crew or of the loss of the vessel as in the case of a passenger and emigrant steamer." I do not think that is quite a correct view to take of it, with submission, and I do not expect it is the view which your Lordship would take. When a vessel is trading with passengers and emigrants there is a greater responsibility upon the Captain who is in charge of and responsible for some 2,201 persons, than if he is merely trading in a tramp steamer dealing with persons and in charge of persons who are used to the sea and who are more able to take care of themselves in times of difficulty than passengers, and particularly emigrants, who, perhaps, have never been to sea before. I do think that I am entitled to say that the highest standard of care has to be applied to passenger and emigrant ships.
The Commissioner:
I think it has to be applied on both cases; in both cases the highest standard, whatever it is, ought to be applied. I do not see why you should risk the lives of the men on a tramp steamer any more than you should risk the lives of emigrants.
The Attorney-General:
No.
The Commissioner:
You risk more lives on the one, of course.
The Attorney-General:
Yes, and you risk the lives of those who are not used to the sea in the one case; I mean there is more difficulty for the passengers, as indeed is shown, to realise the peril in which they are placed than there would be with the crew. But it is not necessary, so long as your Lordship accepts the view that it is the highest standard of care that is to be applied, for me to argue it at any length.
The Commissioner:
I accept it, though I do not understand it. What "the highest standard" means I do not know. It means reasonable care based on experience and skill. That is what it means, I think.
The Attorney-General:
I think it means that you exact more care and skill in the particular case, and that you are entitled to exact it in this particular case or in similar cases.
The Commissioner:
You cannot drive it to extremes, otherwise a vessel would never put to sea at all.
The Attorney-General:
That is what I pointed out. You may say that so many or such precautions would have to be taken that the commercial venture would be destroyed; of course, I quite agree to that, and I am not suggesting that you must take that line.
The Commissioner:
Some risk must be taken.
The Attorney-General:
Oh, certainly. Now, my Lord, in this particular case all that it is necessary to say - and I think I am entitled to say this - is that every precaution should have been taken to guard against collision with ice. There can be no doubt about that, and that is the only standard which I am asking the Court to apply in this case. When we come to the concrete proposition that is what it resolves itself into.
The Commissioner:
It does.
The Attorney-General:
And that is, no doubt, one upon which there will be no question between your Lordship and myself or between myself and my friends. Now collision with an iceberg is a well known danger of navigation. Your Lordship asked a question which, at the time, we were unable to answer, as to whether there were any reported cases which dealt with collisions with icebergs and you were referred to the "Arizona." My Lord, there is another - I only mention it in answer to what was put by your Lordship - there was the "Cretic" in 1891, which was the subject of another Enquiry, with regard to a vessel which had come into collision with an iceberg. There was no look-out; that was what was found as the cause.
The Commissioner:
There is no difficulty about that.
The Attorney-General:
No, but what your Lordship had in mind was whether there were questions of this kind which had been discussed. Also it is quite clear from the book to which reference has been made, and it is a fact so well known, so well accepted by everybody that I need not labour the point, that on this track, on this North Atlantic track, icebergs at least, without saying ice-fields, are dangerous for which every prudent Commander must also be on the look-out.
Further, in this particular case there were warnings that in this year, 1912, the ice would travel south at an earlier period than usual. That is the true meaning of the ice reports which were sent to the Commander, Captain Smith. They were clear indications to him which any Captain who is used to navigating this track would know meant not only that there were one, or two, or three isolated icebergs which he might meet, but that in fact he must expect ice to be travelling across his track because icebergs and ice-fields had been reported during this month, which was an unusual month. Although in May and June sometimes on this track, since the track was established, which, I think, was in 1898, they have met icebergs still in April they did not expect it. That is the way in which the evidence stands, and I will give your Lordship the exact references.
The Commissioner:
April is too early?
The Attorney-General:
Yes. Substantially it comes to this, as your Lordship says, April is a little too early. In May and June it does happen. I do not mean it happens every year, but since 1898 it had happened, and it was the kind of thing they expected might happen, and which at least had happened three times since 1898. That is how it stands. But in April it was thought very unusual. Now the Commander was aware of these ice reports which he had got, which were four on this particular date (I am leaving out the "Mesaba"), the "Caronia," the "Baltic," the "Californian," and the "Norddam," which give quite clear indications to him.
Now, my Lord, Sir Robert Finlay has dealt with this by the argument that at any rate as regards the ice reports of the "Caronia" and the "Baltic," the Captain might reasonably have expected that he had passed to the North of the ice reported by them in consequence of the time that had elapsed and the position in which the "Titanic" was when they got the news and the reports of the latitude and longitude in which the ice had been found. Of course, I shall have to deal with that a little more in detail, but the view which I take of the whole of the evidence is this (and this is the answer to the question which your Lordship put to me just now as to whether I formed the opinion and put forward the view to your Lordship that the conditions were abnormal), that I am prepared to accept and think it right to accept on the evidence the description given that it was an exceptional night.
What is exactly meant by saying that the conditions were abnormal, I am not quite sure. If it means they were infrequent, I agree; if it means - that is the position I am taking. I do agree that is the position I am taking. I do not agree with this, that it was a specially calm night on this night of the 14th April undoubtedly. But that there had been such specially calm nights before I think is established by evidence to which I am going to call your Lordship's attention. It was not the first time in the experience of navigators that they had had such a night as this with a flat calm which is the distinctive feature of it so far as it has any bearing upon this case. Other navigators have said, of course, that they have seen this kind of thing before. It is very unusual at this time of year, but it does happen. The submission I make to the Court is that those conditions were unusual in the sense that they were infrequent; but unusual conditions necessitate unusual precautions. And whereas it may be perfectly right to go full speed ahead on an ordinary night when everything can be seen and there is no difficulty whatever in clearing an iceberg when it has been reported, it is a totally different state of things when you are dealing with unusual conditions, such conditions as existed on this night.
It is very much open to question whether it is a right thing in any circumstance to go at full speed, even though you can see perfectly clearly, but no doubt it is right to say this as your Lordship indicated at an early stage, and I ventured to assent then, as I do now, that if you can see an iceberg at sufficient distance to navigate your vessel clear of it within a sufficient time, well, of course, there is no necessity to reduce speed. If you can depend upon seeing an iceberg five miles distant and that gives you ample time to clear it, I agree there would be no necessity to reduce your speed. But when you have conditions, particularly at night, which cannot make it certain that you will be able to see an iceberg at a great distance, then it becomes a very different question. The evidence establishes this, that according to the experience of those who have been in the habit of navigating on this track, and among ice, you could see an iceberg at night, on a fine clear night, at a distance of from five miles to one and a half miles. That is the closest I think it has been put. Of course I am summarising the whole of the evidence. As your Lordship is aware, there has been a great deal of difference of opinion about this distance. Perhaps the majority put it at something like three miles in fine weather, conditions such as were assumed in the question put to them; but some go so far as to say that you might not see it unless it was a distance of something like one and a half miles.
Then again, one has to bear in mind that when they say that, the view of some of the Commanders is that you would expect among icebergs to find some of a dark blue colour. It does not much matter what the particular colour is; it presents a dark appearance, and that those which present that dark appearance, that is the dark side to you, would naturally be less easy of detection, and would be seen at any rate according to their view, at a less distance than those that present the lighter and whiter appearance. I think this is an important point in view of one argument which has been addressed to you by Sir Robert - that you must expect, when you get among icebergs, to find some of this dark blue colour, or some which present a dark appearance to you, and, therefore, you must expect that there will be some icebergs which will be very difficult to detect at night. I notice one Witness went so far as to say that he did not think you would detect an iceberg of that kind at night at a greater distance than a mile; that was Captain Cannons. If you once get to them and you have to bear in mind that amongst the ice through which you are going to travel you may meet a dark-faced iceberg, which you will only see when it is very close to you. I submit that that makes it abundantly clear that it can never be safe to go at full speed at night in a region in which you expect to meet icebergs.
The Commissioner:
Is it your view of this case that there was a good look-out or a bad look-out?
The Attorney-General:
I am going to deal with that. The view that I take of it is that the men on the look-out were qualified men, specially engaged as look-out men, and I see no reason for doubting their capabilities as look-out men. Then there were the Officers on the bridge.
The Commissioner:
Only one, Murdoch.
The Attorney-General:
I say there were Officers on the bridge, one of whom was actually on the look-out; one of them might be on the look-out or might not, but it was the duty of one. I think that is the position. That they failed to detect this iceberg, of course, is beyond all controversy. The difficulty one has, and which has confronted the Court from the first, is how is it they failed to detect it until it was so close upon them?
The Commissioner:
That is my difficulty.
The Attorney-General:
Of course, and it is a real difficulty in the case and it is one I want to deal with because I quite appreciate it is the difficulty here.
The Commissioner:
One of your Witnesses said a mile. This was, I suppose, a third of a mile or a fourth of a mile.
The Attorney-General:
A fourth of a mile. The best estimate one can form of it is this. Of course to some extent in the observations I am going to make, we are dealing with seconds, and it is important to bear in mind that it is in consequence of the speed of this vessel that we are dealing with seconds. We never ought to have to consider a question of three or four or ten seconds in determining whether or not there is going to be a collision with an iceberg. The only reason why we have to do it here is because this vessel was travelling at the rate of at least 700 yards a minute. That is the position quite clearly. It was at least that, and in the observations I am going to make I will assume that 700 yards per minute is the pace at which she was proceeding. That is a little less than 22 knots really but it is sufficient for the purpose. According to the evidence, I think the utmost that you can give this vessel in point of time, judging from the events that happened, and also the pace that she was going, is 40 seconds. I do not think that you can from any point of view say that she had more than 40 seconds between the time of the iceberg being seen and the time of the impact.
The Commissioner:
The difficulty is the one pointed out just now, to reconcile that with a good look-out.
Continued >
