QUEBEC, Friday, June 26, 1914.
The Commissioners appointed by the Honourable John Douglas Hazen, the Minister of Marine and Fisheries of Canada, under Part X of the Canada Shipping Act as amended, to enquire into a casualty to the British Steamship Empress of Ireland, in which the said steamship, belonging to the Canadian Pacific Railway Company, was sunk in collision with the Norwegian Steamship Storstad, in the River St. Lawrence, on the morning of Friday, the 29th day of May, 1914, met at Qiuebec this morning the Twenty-sixth day of June, 1914.
Lord Mersey:
Now, Mr. Duclos, Mr. Haight is not here at the moment, and I am told that Mr. Griffin is not here. Do you think it matters? Do you wish us to wait until they arrive?
Mr. Duclos:
No, my Lord, I think they will have no objection to your beginning. I think they will be here in the next few minutes.
Lord Mersey:
Well, at any rate, there will be a report of what is said, and Mr. Haight will see it, so I think I may go on.
Mr. Duclos:
Yes, my Lord.
Lord Mersey:
Now, Mr. Aspinall.
SPEECH OF Mr. ASPINALL, K.C.
Mr. Aspinall:
If your Lordships please, it now becomes my duty to address your Lordships on behalf of the Canadian Pacific Railway Company, and I propose to divide my address into the six following topics or heads, namely:
1. To consider whether on leaving Quebec on May 28th, the Empress of Ireland was in an efficient seaworthy condition and properly provided with lifesaving appliances;
2. To consider whether she was sufficiently and efficiently officered and manned;
3. To consider whether the Canadian Pacific Railway Company had taken adequate measures to ensure proper and sufficient boat and water-tight door drills being held;
4. To discuss the question as to who was to blame for the collision;
5. To consider whether after the collision the master and crew, including the Marconi operators of the Empress, took all measures within their power to save life;
6. To discuss the question, what was the cause of the Empress sinking so quickly.
My Lords, the fourth question, then, as to who was to blame for the collision, is one that will take some time. The other questions or heads, into which I propose to divide my address, will be comparatively short.
Chief Justice McLeod:
What was the sixth?
Mr. Aspinall:
To consider and discuss what was the cause of the Empress sinking so quickly.
Now, my Lords, with regard to the first question, as to what was the condition of the Empress on leaving Quebec, whether she was in an efficient and seaworthy condition and properly provided with life-saving appliances, I desire at the outset to remind your Lordships that in an early stage of these proceedings, Mr. Newcombe said, on behalf of the Canadian Government, that he had no complaints to make with regard to these two matters. The way that arose was this: it is on page 18 of the first day’s evidence - and I would like to remark, my Lord, that wherever it is necessary for me to refer to the evidence, I propose to refer to the page and to the day, in order that if hereafter your Lordships might derive any benefit from my remarks, your Lordships will be able to turn up the reference in consequence of my saying the day on which the evidence is given and the page where it is to be found. The incident which I am discussing arose thus: Lord Mersey said to Mr. Newcombe: “Are you instructed to make any complaint at all as to the construction, condition or equipment of the Empress of Ireland?” and then the discussion went on in this way:
'Mr. Newcombe:
No, my Lord, I have no such instructions.Lord Mersey:
Then if you are not going to make any complaint I do not think it is necessary that you should deal with these matters in detail.Mr. Newcombe:
Very well, my Lord. Then that brings me to the question of witnesses.’
Now it is essential, in the interests of the Canadian Pacific Railway Company, that I should deal at a little more length with regard to these matters.
Now this ship, as your Lordships have heard, was built for the Canadian Pacific Railway Company by the Fairfield Shipbuilding Company, a firm of the greatest eminence; and it was built under the supervision of Lloyds’ surveyors, and under the supervision of the Board of Trade surveyors. And as I understand it, the practice that obtained was this: during the course of construction the Board of Trade surveyors are on the spot, watching, as they should, the ship as it grows, and if they, as the ship is being built, are of opinion that there is any failure or defect which requires alteration or addition, they bring it to the notice of the shipbuilder, the matter is discussed, and effect is given to the recommendations of the Board of Trade. That was the practice that obtained in the present case, and after the ship was completed, as we know, the Board of Trade gave the ship their certificate as a passenger ship.
That passenger certificate continued in existence year by year, and at the time when this vessel was unfortunately lost there was in existence such a certificate; and according to the terms of that certificate the Board of Trade surveyors declare that having completed their inspection shortly before, some few months before the date of this disaster, they state that the hull and machinery were sufficient for the service intended, and in good condition, that the boats, life-saving appliances, lights, signals, safety appliances, fire-hose, are such and in such condition, as are required by the Merchants’ Shipping Act. It is unnecessary that I should weary your Lordships further with regard to that matter.
In addition to that, there was also the emigration survey, which, according to the evidence, was a survey shortly before the vessel left Liverpool on her outward voyage before she arrived in Quebec. According to that emigration survey, the emigration officer was perfectly satisfied with everything he found on board the vessel. My Lords, the next point - dealing with the same topic, but dealing with the evidence that has been given, - it is to be remembered that in addition to the character given to this vessel by these surveyors, we also have the evidence of Mr. Staunton, which is put in on the fourth day at page 754.
At page 754, Mr. Staunton tells us this. He was examined by myself, and I asked him:
"3735. What position do you hold?
- I am superintendent of life-saving appliances, also marine superintendent in the employ of the Canadian Pacific Railway.3736. What is your duty in regard to the life-saving appliances?
- To examine all the boats, test the men in rowing, examine the doors, fire-hose, life-buoys, life-belts, and all life-saving appliances.3737. When did you last perform these duties?
- On the 23rd of May, the day after the Empress of Ireland came in.3738. She was then where?
- She was then in Quebec.3739. And did you inspect her thoroughly?
- I did.3740. For the purpose of seeing that all those matters were in good order and condition?
- I did.3741. Were they all in good order and condition?
- Everything was in good condition."
That is Mr. Staunton’s evidence with regard to this matter. Mr. Newcombe very properly saw fit to some extent to sift that evidence; he did so, but the result of it was merely that the evidence was given in a little more detail and it was entirely a corroboration of what Mr. Staunton had already said.
Now, my Lord, I submit that that evidence is quite sufficient to justify me in asking your Lordships to come to the conclusion that on leaving Quebec on the day in question the Empress of Ireland was then in an efficient and seaworthy condition, and properly provided with life-saving appliances. My Lords, in making that remark, I do not leave out of consideration the fact that an attack has been made, by Mr. Haight, upon the steam-steering gear of this vessel, but I think it would be more proper if I should deal with that matter when I come to deal with the collision, as it will save me dealing with it twice. My Lords, I now pass away from topic No. 1, and I come to topic No. 2, namely, was this vessel sufficiently and efficiently officered and manned?
My Lords, with regard to that, I find on page 5 of the survey this: that the certificates of the master, mates, and engineers, are such as are required by the Merchant Shipping Acts. So that, so far as the certificates are concerned, we have got the necessary certificates for the officers, to whom this ship had been entrusted.
Captain Kendall told us that he himself held an extra master’s certificate, that there were six other officers with him, and four of these gentlemen held master’s certificates, and four mate’s, and throughout the course of this inquiry no suggestion has been made in any way affecting their efficiency.
Lord Mersey:
Have you the reference to Captain Kendall’s evidence, Mr. Aspinall?
Mr. Aspinall:
Yes, my Lord, pages 49 and 50 of the first day.
Now, my Lord, Mr. Gibsone, for whom I have the greatest respect, is evidently not a good mathematician, because he made a complaint that there were only nineteen A.B.’s on board this vessel. My Lord, we have done the addition, and I think he will be satisfied that if he adds it up again he will find there were twenty-four A.B.’s on board this vessel.
Lord Mersey:
Is that so, Mr. Gibsone? Is it a fact that instead of 19 there are 24?
Mr. Gibsone:
I think it is 19, my Lord. I counted them myself on the document that was produced, and my clients who are here have counted them also, but leaving aside my own count, the count of my clients shows that the number was 18, and the 19th I think is the boatswain’s cook, or something like that.
Mr. Aspinall:
Well, of course the document will speak for itself, and your Lordships will no doubt look at the document in view of the fact that Mr. Gibsone and I, on this topic, and I am glad to say on this topic only, are not in agreement.
Chief Justice McLeod:
Which document is that, Mr. Aspinall?
Mr. Aspinall:
The crew-list, my Lord.
Now, my Lords, in addition to the number of A.B.’s, be they eighteen or nineteen or twenty-four, the evidence is that there were four quartermasters on board this vessel. So much for the deck department.
Now, with regard to the engineering department, in the evidence of the third day, at page 537, we have the evidence of Mr. Sampson, who was chief engineer, and what he tells us with regard to the engineering department is this: near the bottom of page 537: -
2673. Now, will you tell us what the full engineering staff on the Empress of Ireland is so that we will have it before the court?
- Eighteen officers all told, that is, fifteen engineers, two electricians and myself as chief.2674. And what additional help have you in the engine room, besides the officers?
- Well, we have altogether 135 all told, that is divided into donkey-men, storekeepers, greasers - I think there are eighteen greasers, six leading firemen, and the remainder are divided between firemen and trimmers. The total is 135.2675. Now, of all the engineers you have on that ship, what proportion of them hold first-class certificates?
- Eleven.2676. Can you state to the court the nature of the equipment in the engine-room?
- I should say first-class order throughout.2677. Now as to the steering gear in what condition did you find that?
- Perfect order.’
So that is the state of the evidence with regard to the number and character of the officers and men in that department. My Lord, that disposes of question No. 2.
Question No. 3, whether the Canadian Pacific Railway Company had taken adequate measures to ensure proper and sufficient boat and watertight door drills being held - the way that stands is this - Mr. Staunton, on the fourth day, told us at pages 755 and 756:-
‘3751. Do you know of any boat drills before the vessel left the dock?
- I had boat drill and had three boats in the water. I left two boats in the water; their seamen were practising pulling while the ship was alongside at Quebec.’
Your Lordships will notice that the question is with regard to boat drills before the vessel left the dock. I am emphasizing the word ‘before’ because I want to deal with what was done before she went to sea and after. Then we turn over to page 756, and find the following:-
'3753. Had you anything to do with the bulkheads?
- I saw all the watertight doors shut.3754. Was there any experiment of sounding a call unexpectedly to have these doors closed?
- Whether the captain told them they were going to be closed or not, I don’t know. I came down to the ship about half-past eleven.3755. What happened?
- Swung out all the boats; lowered three in the water. I couldn’t put out any more, because there were cargo lighters, and they were coaling. After that I closed the doors; I do not think the men knew that they were going to close them.3756. Do you know how long it took to close the doors?
- It took about thirty seconds in the engine-room and from three and a half to four minutes on deck.’
I wish to pause there, a moment, to remind your Lordships that Mr. Hillhouse said it took in his opinion about five minutes. Then the evidence of Mr. Staunton goes on thus:
3757. Were these operations carried out simultaneously, the closing of all the doors?
- I went around myself.3758. Did you take the time on each door?
- No, that was the whole lot, when everyone was closed.3759. That is, in three or four minutes they were all closed?
- They were all closed.
And I think there, so far as his evidence is concerned, that incident ends.
Then, my Lord, Captain Kendall, the first day, at page 164, tell us: that in the book to which reference has been made, there was a provision that the Captain, accompanied by the doctor, purser, and chief steward, (and in the engine-room by the chief engineer) will, unless weather conditions render it impracticable, or unless the ships is in narrow waters, when the Chief Officer will act as Deputy, hold a complete inspection of all parts of the ship each day, at ten thirty a.m. During the inspection, all members of the crew detailed for water-tight doors will be at stations, and all doors will be opened and closed. Notices must be posted in the passengers’ quarters to this effect, with a request that complaints be made to the commander. The chief steward will daily visit every state-room, whether occupied or not. And then Captain Kendall says that it is the practice which obtained on board his ship. Then Mr. Gaade, the chief steward, on the seventh day, at page 1367 was asked the following questions by the learned Chief Justice:
6133. You are the chief steward?
- Yes.6134. Did you hear any orders given to close the water-tight doors?
- I heard the siren blow a long blast.6135. What is the significance of that to the crew?
- There is a notice which has been printed and posted up in each pantry, stating that at a long blast of the siren the men shall attend the bulkhead doors and close them; immediately they go to their boats. The rest of the men go right straight to their boats.6136. Are there any men specifically delegated to close the bulkhead doors?
- There are, sir; there is a list made out and posted up on a notice-board in the pantry, so that every man can see it.
May I interpose there the remark, your Lordships, that it is not merely that a notice is posted so that the men can see it, but each day this drill is held. So quite apart from the notice, the men in fact must get a knowledge of what their particular water-tight door is.
Then the learned Chief Justice goes on thus:-
“6137. I suppose the men do not always read these notices. Are any instructions given to the men that it shall be the business of certain men to close certain doors?
- The men are told off for every door, and every morning at a quarter to eleven the doors are inspected by the captain, the purser, the doctor, the chief officer, and myself, and the steward who is in charge of the second-class goes with us, until we finish with his doors, and the steward from the third-class goes with us until his doors are closed.6138. Was this inspection made on the morning of the 28th?
- On the morning of the 28th the inspection was made, sir.6139. And you say that when this siren blows, each man knows what door to go to?
- Yes, sir, and they have certain signals. Of course, the doors are not closed on an ordinary inspection; they are not all closed at once, they are closed as we go around. For instance, there is a man works from the top and the man below gives the signal; he gives two signals to close the door and he gives three signals to open the door, and he gives four signals to denote that the door is finished with. That is only to see that the doors are in working order. In case of a door being stiff or anyways hard at all the captain immediately tells the officers to get the carpenter and see that the door is made to run all right.6140. You say the doors are closed from where?
- From the deck above.6141. In all cases?
- In all cases.6142. And is there a man there? There must be some machinery to be operated?
- It is turned by handles.6143. Who is there to handle them?
- The man on top; the man gives the signals below to the man who is standing by to turn the door and shut or open it, whichever the case may be.”
I do not think that there is more of this gentleman’s evidence which adds anything to what I have already read, although there is more of it dealing with this subject.
Now, my Lord, that again was dealing with the practice. Now I will refer your Lordships to the evidence of Harrison, taken on the eighth day at page 1396. He was a second-class bedroom steward, and he tells us what he did, and he tells us why he did it. In his evidence, page 1396, he is asked: -
‘6251. Do you know anything about any doors having been closed at that time?
- When I heard the crash I heard the siren blow, and I knew it meant to close the bulkhead doors, and I went right around to my door. I was unable to close it because there was too much water there.6252. On what deck is that?
- On the upper deck.
And then at page 1400, he was asked certain questions by me. with regard to this matter . . . . no it commences at page 1399, where I asked him:
'6282. Mr. Harrison, as soon as you felt the crash, what did you do? Did you rush up at once?
- I first put on a little clothing and rushed right down to my door.6283. You wasted no time?
- Not a minute.6284. Your first thought was of your door?
- Yes.6285. That was your duty?
- Yes, sir.6286. How did you know that this was your first duty?
- I heard the siren blow.6287. The siren gave you the order, so to speak, and away you went at once to your door? That is what all the other stewards ought to have done if they did their duty as you did?
- Those are the orders, sir.6288 And having gone up and having done your best you couldn’t work it?
- No.’
My Lord, I submit that that evidence entitles me to ask your Lordship to come to the conclusion that, so far as they could, the Canadian Pacific Railway Company had insisted upon the staff doing their best under all circumstances to close those doors. They got a good system and they did their best to see that their system was carried out.
My Lord, the next topic I shall take up is whether after the collision the master and crew, including the Marconi operators of the Empress, took all measures within their power to save life.
Lord Mersey:
Is this your topic No. 4?
Mr. Aspinall:
No, my Lord, it is No. 5. I am omitting No. 4 at the moment, because I thought it was a matter which would take some time, and might extend to a considerable length, so I thought I would dispose of No. 5 before taking it up. The scheme I had in my head, in suggesting these topics, was this: I was considering what duty the shipowner owes to the public, and I considered it was his duty to provide as far as knowledge of shipbuilding went at the time the ship was built, a good and efficient ship; that it was his duty to see that she was properly manned; that it was his duty, so far as the shore department is concerned, to see that proper arrangements were made for shutting the water-tight doors, and also it was the duty of the crew, after the ship is in their possession and control, to carefully and properly navigate her; that in the event of disaster, it is their duty to do all they reasonably can to save life. That is what I had in my head as being the duties of the shipowner to the public. However, as I said, I am leaving the collision until after I have dealt with what I may call the more formal matters, which I shall deal with shortly.
Now, with regard to this question, whether after the collision all measures were taken to save life - my Lord, in that connection it is noticeable that no passengers have come forward suggesting that there was any dereliction of duty on the part of the officers or men. Among the passengers who have been called, some for one purpose, and some for another, all those to whom any such questions have been put have praised what the officers and men did. There is no suggestion here on either side, either with regard to the men and officers of the Storstad or the men and officers of the Empress of Ireland, that there was any failure of duty in regard to the saving of life. I am not here to suggest that there was no confusion. Of course, there was some confusion. One would not believe it if anyone had said that there was no confusion, but my point is that there was no panic on the part of the master, officers, or men, of the Empress of Ireland. Your Lordships may remember the man Carroll, and I am going to take his conduct as an exemplification of how some of these people stuck to their work to the end. He was the gentleman who was in the crow’s nest. He keeps the lookout and his only duty is apparently to look out on the ocean and occasionally strike a bell. Not a very high standard of work, but that man apparently remained up in the crow’s nest until this ship had listed over, and then by means of some gymnastic feat he was able to get away and luckily to save his life.
Lord Mersey:
Will you kindly give us the reference to Carroll’s evidence?
Mr. Aspinall:
I am sorry miy Lord that I cannot give the reference at the moment, but my learned friend, Mr. Holden, will look it up and give it to your Lordship.
Again, my Lord, as an illustration of the point I am making, let us look at the engine room department. The evidence of the men from the engine room department extends over many pages, and perhaps your Lordships will remember that those men, down in the bowels of the ship, only conscious of the crash, and some of them conscious of there being this great inrush of water, which probably at any moment might send that ship to the bottom of the sea, remained apparently to the very last down there, knowing nothing more than that, until it was evident that nothing more could be done with the engines, and they received the order from the chief engineer to save their lives.
My Lords, in this connection I wish to pay a special tribute to these two young men, the Marconi operators. They are not seamen, but they, without any thought of self, stuck to their job, working to the very last, and it was only when they could do no more that they thought of saving their own lives.
One other matter in this connection. Mr. Jones tells us what was done with regard to the boats. Mr. Jones was the first officer offi the bridge with the master, and at pages 335 to 339 he tells us that he did his best, With the aid of those under him, to get away the boats on the starboard side; and apparently the result of their efforts was this, that four steel lifeboats reached the water and floated, also some of the Engleharts; that another steel lifeboat reached the water and that it was full of people, but most unhappily, as the Empress of Ireland listed over, to the starboard, and as her funnels struck the water, this boat was in the way of the funnels or some other wreckage, and apparently was lost, and for all we know every soul in her went to the bottom.
I submit that without wearying your Lordships with further details about this, it is clearly established by the testimony given in this case that the master, the officers and the men of the Empress, after this disaster had happened, did all they could to assist those unhappy people in saving their lives.
My Lords, I am told by Mr. Holden that the reference to Carroll’s evidence is to be found at page 400 of the evidence taken on the second day.
Now, my Lords, so much for these topics, and I hope I have done no injustice to my clients’ cause by dealing with them somewhat shortly. It seemed to me unnecessary to deal with them at great length.
Now the next topic which I shall take up, and it will take me naturally a little more time to discuss that, is who was to blame for this collision?
Lord Mersey:
That is your topic No. 4?
Mr. Aspinall:
Yes, my Lord. I wish to say at the outset that it is a very remarkable fact that the story which we disclosed by our pleading, or call it what you will, the document I had drawn up, and which was spoken to by Captain Kendall in the early stages of this case - that has in its main features been established by the evidence and by the admissions that have been made by the crew of the Storstad from day to day during the progress of this inquiry. The meaning of that observation, my Lords, is this: we were claiming, without knowing what the other side were going to say, that this collision was caused, as I now contend, by the alteration of course on the part of one or other of these ships; and we were saying that what caused this collision was a porting and a hard a-porting of the helm on the part of the other vessel. And it is remarkable that, we having from the outset pinned ourselves to that case, that as this case has been developed, and as the evidence of the Storstad’s people has been sifted, that it is now established beyond all doubt that the helm of the Storstad was ported, and was hard a-ported, and, singularly enough, was hard a-ported without any orders to that effect being given by the navigating officer of the Storstad. My Lords, that is the particular feature of this case which I submit is of immense value to the tribunal in determining where the truth of this story lies.
Another point, which is a singular corroboration of the story that we told from the first, is this: we were claiming, and still claim, that the Storstad, with steerage way on her, ported into us. That was one point that I have dealt with, and later on I must deal with it in greater detail. The second point that we were claiming was that we had lost our way, that we were, so to speak, a log upon the water, without steerage-way, and that we never did starboard our helm. And we were saying that we twice blew three short blasts. Again, it is most remarkable that the Storstad admits that she heard us twice blow three short blasts, and the first of these three short blasts rang out several minutes before this collision happened.
Now, if these two sets of three signals were being given, three short blasts on two occasions, it means only one thing, that Captain Kendall was operating with his engines in the way in which these signals were proper signals. He was not doing that for fun, he was doing it for a reason. He was telling the other ship, in the language of whistles, I am reversing my engines, and they admit that they heard it. Now, my Lords, that I submit is a fact which is almost conclusive in entitling me to ask your Lordships to come to the conclusion that when this collision happened the Empress was practically a log upon the water, without steerage way upon her. And what I am pointing out and seeking to emphasize is this, that that is the story to which we pinned ourselves from the first, and we have this remarkable corroboration in the testimony given by the other side.
My Lords, one other particular feature of the case is this: in order that the Storstad should succeed against us, she will have to ask your Lordships to come to the conclusion that the cause of this collision was not the porting on the part of the Storstad but the starboarding on the part of the Empress. Now, as I pointed out, she admits that she ported, she admitted that she hard a-ported, and she admits that the hard a-porting was done without the orders of the navigating officer. She says, and I will deal with that later on, that she did not alter her course. I think I shall be in a position to demonstrate quite clearly that that is not the fact.
As against us, if she is to succeed, your Lordships will have to come to the conclusion that the testimony of Captain Kendall, with regard to this matter, whether he starboarded or not, is a deliberate lie, and a bad lie; it is perjury, because it is a matter about which there can be no mistake. Whether he used his helm at all or whether he put it to starboard is the simplest question of fact that one can conceive. I do not ask your Lordships - it is not essential to my case - to come to that conclusion with regard to the Storstad. She admits doing that which would fit with an alteration of the course. One can well understand the frame of mind on the part of the Norwegians in saying this: we ported, but it didn’t have any effect. That is quite a different thing, my Lords, from a man saying: I never ported. It is quite a different thing from saying I never starboarded. And if Captain Kendall in fact starboarded, then his testimony must be false, and we are speaking of the testimony of a man who very shortly before this testimony is given has looked death in the face under very distressing circumstances, a man who has lost his ship, his shipmates, and a very large number of his passengers. And I submit, your Lordships will be slow to come to the conclusion that the affirmative testimony that man has given was a deliberate lie with regard to this matter.
Well now, these are the particular features of this case. I now proceed to deal more specifically with the evidence, bearing in mind, as I ask your Lordships to do, that the two points here are alteration of helm and speed; and bearing this also in mind that the two things are very closely connected, because if a ship has no way upon her, the power of the helm becomes inoperative. The two matters are closely connected, but these are the two questions of fact, and it seems to me the only two material questions of fact that are essential to be considered in this case.
My Lord, a question has been raised as to whether or not Article 19 of the Regulations applies, and it is well that I should deal with that, my submission being that it undoubtedly has nothing to do with this case. Articles 19 and 22 of the Regulations are the two pertinent articles of the Regulations for preventing collisions at sea. Article 19 is as follows: -
“ When two steam vessels are crossing so as to involve risk of collision, the vessel which has the other on her starboard side shall keep out of the way of the other.”
And Article 22 is as follows:
“ Every vessel which is directed by these rules to keep out of the way of another vessel shall, if the circumstances of the case admit, avoid crossing ahead of the other.”
Now the condition precedent is that they must be crossing so as to involve risk of collision. Now, in an early stage of the case, I asked Mr. Toftenes, the officer in charge of the Storstad, his views with regard to the applicability of these articles. I pointed out to him the distance there was between these two vessels, and I pointed out the fact that either in his view, namely, that after our course was altered, we being red to red, or, according to our view, we being green to green, and asked him did he suggest that there was risk of collision, and he agreed with me that there was none. That is to be found at page 233 of the second day. I said to him:
“ Therefore it seems absolutely immaterial to further trouble with that article, and I may pass away from it.”
Lord Mersey:
I am afraid your paging is not the same as mine?
Mr. Aspinall:
Well, your Lordship, I have noticed a few, but a very few, inaccuracies in this print. What I am referring to is found in the early pages of the second day, and in my volume on page 233.
At any rate, my Lords, that seems to have been Mr. Toftenes’ view, and I submit rightly so, because, according to the evidence, these ships, be they red to red or green to green, got in that position when they were quite far apart, when the intervening distance was a distance of some miles, and there was no risk of collision between them at all, and after that they proceeded on, and but for an alteration of heading on the part of one or the other, there would have been a safe passing, either green to green or red to red, between the two. Therefore, my submission is that article 19 of the regulations for preventing collisions at sea has nothing to do with the collision in the present case. My submission is that that may be left out of the case.
Then again, getting rid of the smaller points, the points which it is necessary to discuss, I wish to remind your Lordships of what was happening on board my steamer from the time I started away from Quebec, and that quite generally. We were proceeding down the river, and according to our evidence, on three occasions we met with fog, the last occasion being the fatal one. On the two previous occasions, our evidence is that we were on each occasion slowed down, and on each occasion blew our whistle. I merely remind your Lordships of these facts in order to show that care was being taken in the navigation of this vessel as she proceeded down the river, and that she was not rushing through fog. As fog arose, she obeyed the Board of Trade regulations, she reduced her speed, and she blew her whistle.
Now having got through these first two fogs, she gets in the neighbourhood of Father Point. There she drops her pilot, and having dropped her pilot she then starts away, her point of departure being about a mile - these distances given on both sides, and the bearings given on both sides are all estimates, in each case there being no cross-bearings to enable either side to fix their position with accuracy, and that of course is the only way of fixing your position with accuracy upon the water. There have been no four-point bearings taken, in order to be certain at what distance you are passing the points on the left, so that at the best it is a criticism to which my courses are exposed, just as much as the courses and bearings and positions spoken to by the Storstad are exposed. It is a criticism to which we are both exposed, but according to the best of our judgment our case is that when we started away from Father Point we were then about a mile from the point; that we then proceeded out, starting at 1.20 on a course of North 47 East magnetic.
Lord Mersey:
It would be useful to me if you in this part of the case refer to the page on which the evidence appears, Mr. Aspinall.
Mr. Aspinall:
My Lord, at page 57 of the first day, Captain Kendall proves that fact. At page 60 of the first day Captain Kendall proves the alteration under starboard helm to the North 73 magnetic course.
My Lord, the position of affairs on board our ship at that time was this: we have the Captain, the first officer, the third officer, who was conning the wheel. I believe the expression is, that is, keeping his eye on the helmsman, the quartermaster at the wheel, a stand-by quartermaster, and a small boy to run messages if messages were to be sent. Those are the men who were on the bridge or in its immediate vicinity. Unfortunately, we have saved only three of these six people, namely our Captain, Mr. Jones, the first officer, and the quartermaster, who was not at the wheel. The others unhappily were lost, but that was the complement at the bridge, and under these circumstances they were on this course heading out from land.
After they proceeded a certain distance - it is impossible to be certain what distance - they saw the lights of the Storstad coming up. The lights were reported by the man Carroll, the lookout, but about the same time as we would expect, the eyes of those on the bridge saw the lights of the Storstad, and she was then kept under observation, and Captain Kendall knows full well that he has to deal with that vessel, and that he has to deal with that vessel, in such a way that he shall safely pass her, and knowing that the ship is there he then proceeds to alter the course, and he alters the course to North 73 East magnetic, and according to his evidence he then gets that ship at a distance of some miles one point on his starboard bow.
Now, may I pause there to elaborate that a little. If neither ship had then altered course, these two vessels would have passed one another safely, starboard to starboard, certainly at least half a mile apart, which is a perfectly safe and proper distance either in foggy weather or clear weather. But be it observed that when he alters his course, and gets on the new course, - it is clear that if it is foggy a safe distance could become an unsafe distance - but even in foggy weather I submit it would be a perfectly proper distance at which to pass this vessel.
My Lord, the position which I am claiming, that is the lateral distance which I am claiming these two vessels would pass, upon the story of Captain Kendall, can be easily established thus: that if you have an object, and for the purpose of my illustration I will assume for a moment that it is a fixed object, if you have a fixed object one point on your bow at a mile away, and you proceed on your course, you will pass that object at a distance of 1,187 feet mathematically, but for all rough purposes it would be 1,200 feet, or 400 yards. In other words, if I had that clock one point on my starboard bow, one mile away, as I proceeded on, I would leave it on my starboard hand about 400 yards.
Now that also applies if the clock was advanced on what is substantially an opposite and parallel course to my own, and that is the case in this case. Tne Storstad was steering about west of south; we were steering as near as could be, east by north. If the matter was worked out, that position, it would result in its being found that we were a few degrees to the north of east by north, but it is quite immaterial.
Now, the evidence regarding the position where we altered course can be summarized thus: neither Captain Kendall nor Mr. Jones told us - unfortunately they were not asked - but what they did tell us was this, that when the fog shut in, which is a later period, the other vessel was then about a point or a point and a half off on the starboard bow, a distance somewhere in the neighbourhood of three or four miles. That may be an exaggeration in distance, and with respect to sailors, I might say that when they get into the witness box it is my experience they sometimes exaggerate both distances and bearings. To give them every latitude the result is that at this distance that separated the two vessels, when my ship had altered the course, the lateral distance between the two would have been very considerable. Now, that is upon the assumption that the position we claim of green to green is right.
Now, let us consider the position which they claim, namely, red to red. My Lord, at page 925, Mr. Saxe, who was the second officer on the bridge of the Storstad, told us that the fog shut us out when we were between two and three miles distant - his distance is somewhat smaller than mine - and at that time we were about a point on his port bow. Well, then again, if the Storstad's case be right, that we were approaching red to red, I frankly admit at once it would bring about a perfectly safe lateral distance between the two ships as they passed. So the outcome of this evidence leads to this conclusion, that whether we be green to green or red to red, as your Lordships will decide later, that these two ships were so navigating, and so directing their courses, that there was no running of risk in passing at the lateral distance at which they were passing.
My Lords, in this connection, might I also revert to this, that according to our case when we did put ourselves on that course to bring that other vessel one or one and a half points on our starboard bow, or according to their case, to put ourselves on their port bow, whichever it be, that then it was perfectly clear weather, and of course, as I said before, under such conditions one is entitled to pass very much closer than if one is navigating in a fog.
What happened in this case was this - a matter with which I shall have to deal later - that according to the evidence of Captain Kendall, when the fog was shutting out the lights of the Storstad, then he gave the order to go full speed astern, and blew his three short blasts. May I deal with that incident at once?
Certain criticism has been directed as to the probability of that action on the part of Captain Kendall.
My Lords, my answer to that is this: that whether it is probable or not, the Storstad admits she heard our first three short blasts, and Captain Kendall said, as one would well expect, ‘that is the time I blew my first three short blasts.’ If the Storstad had been coming here and saying: ‘you didn’t reverse,’ and ‘we never heard your three short blasts’ - if they had gone on and said that it was highly improbable that we executed any such manoeuvre, there would have been something there in their contention. But in view of the fact that they admit they heard the three short blasts, I submit that it is conclusively proved that we were taking the action which Captain Kendall says, and taking the action for which three short blasts is the appropriate signal.
Well now, my Lords, that takes my statement up to this point in this case. I have now got the two ships on the courses, being about opposite and parallel.
The next point in this case which it is important to ascertain is: Were they approaching red to red or were they approaching green to green? I have already pointed out that if your Lordships come to a conclusion as to which of these two vessels altered course that determines that point. Again, that point is closely associated with helm action and for this reason: I am struck on the starboard bow. I am not careful to put the exact angle as it is immaterial but I simply say: I am struck on the starboard bow. If I did not alter course then that ship must have come into me from having me on an opposite parallel course under port helm and must have been approaching me starboard to starboard. That necessarily follows. If, on the other hand I did alter course and I am hit I can only receive a blow, if the other man does not alter course, by throwing myself across his bows.
Lord Mersey:
That is, I understand your contention?
Mr. Aspinall:
That is my contention. But in order to ascertain whether they were red to red or green to green we must seek to find first which of the two ships alters course because that conclusively establishes whether they are approaching green to green or red to red. I do not know whether I make my meaning clear to your lordships?
Lord Mersey:
Yes.
Mr. Aspinall:
Now, I know that it is said that they were approaching red to red by the witnesses from the Storstad.
Lord Mersey:
That is immediately before the fog.
Mr. Aspinall:
That is immediately before the fog. As I have pointed out, in order to arrive at a certain conclusion upon that matter one has to answer this question: Which of these two ships altered course because that supplies the answer to the problem. There is evidence from them to show that they were red to red; there is evidence from us that they were green to green. There is a great deal of evidence from them that they were red to red; in fact, as I shall take occasion to point out later, it is remarkable the number of men on the Storstad who apparently were up on deck at the opportune moment to see what they were doing. Some were throwing ashes over the side. They all seemed to have come up for some strange reason - one wonders why - between 12 and 4 in the morning. Capt. Kendall has given us his testimony in regard to this point and it is a specific matter about which he ought not to be mistaken, about which he cannot be mistaken. He tells us, at page 61 on the first day, that he went up to the bridge, just a few steps above the navigation bridge, that he looked at his compass, which is a standard compass, and that he found this vessel bearing away upon his starboard bow. If he did that it is conclusive and if he did not do it he is telling a lie about the matter. It is a matter about which he cannot be mistaken and the outcome of it is that if he did not do it he is telling a lie. If he is right, if he did take the bearing of this other ship it is conclusive of the matter. Your Lordships will be advised whether or not on all these large passenger ships care is taken to use the standard compass from time to time to take the exact bearings of land marks and approaching ships. It is not for me to make any observations in regard to that. Your Lordships have the advantage of the assistance of two distinguished nautical assessors and they will no doubt advise your Lordships of the significance of the matter if what he says he did. If that be true it means that thesf two ships were approaching green to green.
It will be said as against that - and I am not forgetful of it - that neither Carroll nor Mr. Jones, who was the first officer, saw the green light nor any coloured light of the Storstad. If they were putting forward a dishonest story here it is hardly to be conceived that Mr. Jones and Mr. Carroll would have made such a statement. I submit that when you find witnesses coming and saying that which in a sense may be adverse to their ship - admitting it - there is a ring of honesty about the matter.
Carroll was the gentleman who stuck to his post to the end, having rung his bell I do not suppose that he ever troubled his mind about this ship again and he told your Lordship that he did not see any coloured light, he rang his bell, gave the information to the bridge behind him - there is a ship - and I suppose that he was probably on the lookout for any other light that might come into view. Mr. Jones again says: I did not see a coloured light; bu; [sic] what he does say is: I did notice that the lights of the advancing Storstad were open in such a way as to lead me to the certain conclusion that she had got her starboard side open to me and was approaching me green to green. I submit that this testimony ought to commend itself to your Lordships as being accurate and honest testimony to what was happening in this case. That is the position, I submit, in which these two ships were approaching one another.
In regard to the helm action what happened on board these respective ships? Dealing first with the Empress, the Empress, as we have been told from a variety of sources, never had her helm star-boarded. Captain Kendall says that the helm never was starboarded and he also says that he visited the upper bridge, that he took a look at the standard compass and that she was then heading N 72 E magnetic. There was one degree, but it is immaterial. What Mr. Haight must say is that is a lie because that is what Captain Kendall knows, and Captain Kendall says that he did look at his standard compass and see what his heading was. He has sworn in the affirmative that he did so. Unfortunately, in regard to this part of the case, owing to the death of the officer who was conning the ship, owing to the death of the helmsman of the Empress, we are without the testimony of these two witnesses, but I submit that we can establish our case in regard to this point without their assistance. Mr. Haight, whom we all know is an experienced Admiralty advocate, a gentleman of very great experience in these matters, was asked by your Lordship what good reason he could suggest why this vessel starboarded her helm and Mr. Haight frankly admitted that he could give no I did not see a coloured light; but; what he does say is: I did notice that the lights of explanation. Your Lordship asked me what was my explanation and my explanation was this. I give it now with greater confidence than I gave it in the earlier stages of the case, whether it was probable or not, that those in charge of the Storstad did undoubtedly port their helm. Now, of course, we have much more valuable testimony to the effect that the Storstad not only ported her helm but hard-a-ported it and that she had good steerage way upon her at the time that the helm was put a-port and hard-a-port. What was the best that Mr. Haight could make out by way of explanation?
At page 143 on the first day your Lordship said to Mr. Haight:
‘ Now I want your explanation of the reason why the Empress did what Captain Kendall says she never did.
‘ Mr. Haight. I can only answer that question, my Lord, by surmising somewhat. I know that on our boat, if all my witnesses are not falsifying in their statements to me, we saw first her green light and then her red light.'
With great respect to Mr. Haight that is not an answer at all, but your Lordship says:
‘ But you are not answering my question.
Mr. Haight:
I am going to my Lord. My only hypothesis is that the wheel of the Empress was ordered ported, as Captain Kendall states, from a course of N. 47 E. he changed to N. 72. That would, on our course and in our position, show us his red light.' I think at this stage of the testimony there is no foundation for it, but it is my idea that one man, perhaps the second mate, ordered his wheel ported, and that another man subsequently ordered the wheel starboarded.'
It would look very much as if Mr. Haight had in his mind that that was the class of testimony that we were likely going to get on that point from the officers of the Storstad, because I am bound to say it came as a great surprise to me that the order given by the navigating officer of the Storstad was to port and that another officer, without any order put the helm hard-a-port. That seems to be the sort of explanation that Mr. Haight gives as to why the Empress starboarded - that one man orders the wheel to port and another man orders it to starboard. It is far-fetched and I will not say any more about it. That is the best that Mr. Haight can do in regard to this matter. Captain Andersen, the Master of the Storstad was also asked for his explanation at pages 310 and 311 on the second day. I asked him:
“1633. What the Empress apparently did was this: having ported and got you red to red, then for no reason that you can suggest, she starboarded - except possibly she may have starboarded to get farther from the land - but if the man on the bridge of the Empress had remembered what he had seen shortly before that, you were on his port bow, that would be a very risky thing to do, wouldn’t it?
- I think so.1634. I agree with you. Now having done that, what the Empress further does is this, if her story be true, she blows two long blasts to tell you she is stopped - your officer didn’t hear them - whereas, in fact, she was going ahead. That was a remarkable blunder for her to make wasn’t it?
- I think it was.1635. I agree. The last blunder, if your story be right, is this: that having some five or six minutes before blown you a three-blast signal, which is later repeated, which would signify she was going astern, yet in fact when she comes in sight she is going 8 to 10 knots. That is an extraordinary blunder to make, isn’t it?
- To my mind it is.”
Lord Mersey:
What page is that?
Mr. Aspinall:
Pages 310 and 311 on the second day. I was wondering for some time how it came that Mr. Haight was devoting so much of his time to this attack upon the steering qualities of the Empress. In view of the fact that Mr. Haight was unable to give us any explanation of why it was the Empress should starboard and in view of the fact that Mr. Haight fully realized that if the Empress had starboarded it convicted Capt. Kendall of telling a deliberate lie, it occurred to me that Mr. Haight really thought that his only chance was to attack the steering qualities of the Empress and hence this lengthy - and possibly essentially lengthy - attack upon the steering qualities of the Empress.
How does that stand? The main gentleman to support that was our friend Mr. Galway. I propose to say very little about Mr. Galway, but it is necessary, in view of the determined attack on the steering qualities of the Empress and the attack on the telemotor which has been kept up and which was supported by Mr. Reid, that I should deal with the matter. The way it stands then is this: Mr. Galway, supported by certain officers and men from the other Norwegian ship, the Alden, and supported to some extent by the French pilot in charge of the Alden, made certain statements with reference to the steering qualities of the Empress. Galway had steered the ship some hundreds of times and it is to be remembered that his complaints resolve themselves into three. He told us at pages 601-606, third day, that going up the river she sheered; he told us at pages 614 and 615. that on some previous occasion in the Liverpool river she sheered, and he told us, and this is the material matter, that when she was going down the river the night of this calamity somewhere between ten and twelve o’clock the wheel jammed.
Lord Mersey:
What page is that?
Mr. Aspinall:
Page 610.
Lord Mersey:
You are going back.
Mr. Aspinall:
I do that for this reason: I am keeping the two sheerings distinct from the jamming. When a vessel sheers what she does is she sheers that way or she sheers the other way as the case may be. When the wheel jams it means that when you put your wheel over you cannot get her back. She is running on and if your wheel has been to port or starboard, as the case may be, you cannot get it amidships.
What is the incident to which the Alden people spoke? They spoke to the continued sheering away of the ship, beginning, they said, some seven or eight miles away. They said that they could see the Empress opening red to red, I think it was, then bringing into view green shutting out the red, and then opening out red again. That phenomenon took place some four, five or six times. What has been said about sheering is one thing but what Galway has spoken of is not sheering but jamming. If it had been jamming instead of these serpentine manoeuvres on the part of the vessel, you wrould have had her running over to the left or the right because you could not have got her wheel back. That is comment number one we have upon the value that is to be attached to the evidence of Galway in regard to jamming, and the value that is to be attached to the evidence of the Alden people in regard to the incident of which they spoke. Comment number two in regard to the Alden: The Alden people were asked about this incident very late in the day and my submission to your Lordships is that it is almost inconceivable that the these various witnesses who were called from the Alden could actually have any accurate recollection of what was happening on this particular night. As they say, when the ships got a distance of three-quarters of a mile, or a mile, from one another they safely passed port to port without any trouble. My submission is that if one were to ask them whether they could remember any incidents that had happened going up and down the river St. Lawrence, they would say that they were not able to do so. I therefore ask your Lordships to come to the conclusion that this incident is of no value at all.
Galway also said that he had complained afterwards to Murphy and Bernier. Murphy was the man who relieved him at twelve o’clock and Bernier was the pilot in charge of the ship. It is a matter about which Bernier certainly ought to have been informed; he is a pilot and it is certainly a thing to which he naturally would attach very great importance. He is very closely connected with the C.P.R. Company, his own reputation is at stake and if he thought that this wheel was in any way deficient, and information came to him from Galway to that effect, he could not have forgotten it What does Murphy say? Murphy at page 661 on the third day is asked this:
‘3286. Now, Murphy, you heard the last witness - you were in the Court?
- Yes.3287. You heard him . . . . . '
That was Galway.
' . . . . say that he told you something to this effect, to be careful of the ship that she was not steering well - is that true?
- Never sir.’
Then your Lordship, as President of the Tribunal, asked Mr. Haight whether there was any mention in a letter, which turned out not to be a letter but a communication apparently that Mr. Galway had given to some newspaper press men, in regard to the steering qualities of the Empress.
Lord Mersey:
I said what?
Mr. Aspinall:
Your Lordship asked Mr. Haight where in the letter, as it was called - it was a statement in a newspaper -
Lord Mersey:
It was the report of an alleged interview.
Mr. Aspinall:
Yes. The answer was - in fact it is quite correct - that there is nothing in the interview with regard to the wheel jamming or there being anything wrong with the rudder of the Empress.
Lord Mersey:
Or the steering of the Empress.
Mr. Aspinall:
Or the steering of the Empress - that is what it was; I was inaccurate in saying the rudder. Mr. Haight said:
- ‘I think not, my Lord.’
And then your Lordship, using a phrase which Galway had used, said:
‘Then the principal asset is left out.’
So it was. Before I leave the Empress I should call your Lordships’ attention to page 662 because there Murphy speaks to the incident to which Mr. Haight apparently seemed to attach a good deal of importance. Mr. Haight, cross-examining at page 602, says:
‘3290. I understand, Murphy, you have never had any trouble with the steering gear?
- Never since I have been on the ship.3291. You found that it worked with absolute promptness whenever you put the wheel one way or another?’
Now comes the answer to which Mr. Haight seems to attach importance:
‘A. No sir, it might be that it does not catch, and what you have' to do is put your wheel back admidships and give it the helm, and it will catch on right away.’
You will also get advice from your assessors in regard to that but I rather think that what the man meant to say was this, that it is not an unusual thing with the best steering gear that sometimes when the wheel is worked a little rapidly the cogs instead of fitting naturally into their places get one in advance and you throw the wheel back and they drop into place.
Lord Mersey:
We have heard nothing of that.
Mr. Aspinall:
It is merely an observation of my own and perhaps I should not have made it but the assessors will give your Lordships advice in regard to it. Then Mr. Haight goes on:
‘3292. Sometimes when you first put the wheel over she does not catch on, and then you have to bring her back amidships?
- That might occur every two years.3293. It has occurred?
- Only once since I have been on the ship.3294. Your sometimes is rather infrequently then?
- Sir?3295. Has she ever jammed with you?
- No sir, never.3296. Well when was the one occasion, Murphy?
- Two or three years ago, sir, I am not quite sure, but it is a long time ago.
That is the evidence of Murphy in regard to the Galway incident and that is his evidence in regard to all the trouble that he has ever known in connection with this ship and he has steered her times out of mind. Your Lordships will no doubt, like all cases tried in courts of law, decide this case upon the evidence and not upon theories. Of course, to some extent, the value of evidence can be weighed in the light of theories and probabilities but after all what it comes back to is the evidence and there is the positive evidence of these men.
What does Bernier say about it? — Bernier, page 666. third day, was asked about it and he did not quite understand the question. Your Lordship then put it to him quite directly thus:
3326. The question is, did Galway complain to you about the steering gear?
- No, my Lord, he did not, and if the thing did happen I would have known it right away, because I always watched the tell-tale to see how the wheel is working.’
Lord Mersey:
What is the tell-tale?
Mr. Aspinall:
I think that in a modern ship it is an indicator put somewhere which enables the person in charge to at once inform himself -
Lord Mersey:
Is it a dial on which a finger moves?
Mr. Aspinall:
There is something in the shape of a dial; I think it has a finger which moves but I am not quite sure.
Lord Mersey:
Is that it?
Mr. Newcombe:
Yes, I understand so. It is in an upright position in front of the compass.
Mr. Aspinall:
One is rarely allowed on the bridges of these large ships. I do not know absolutely, but I understand that it is an instrument which enables the person in charge to inform himself whether or not the wheel is working properly and efficiently, and it was this instrument which enabled Bernier to so inform himself. The pilot in charge of the Alden said that he could make no imputation against the character of Mr. Bernier that he had known Mr. Bernier for many years and that he knew that he was an efficient pilot and an upright and honest man.
Lord Mersey:
In reference to the pilot of the Alden, will you tell me is there any significance in the fact that the alleged irregularities of the Empress of Ireland in coming down the river did not induce him at any time to slacken speed?
Mr. Aspinall:
I ventilated that fact and I should, of course, have been glad to have availed myself of it but I do not think that it is of importance for the reasons that, according to the evidence of the pilot, it was at a long distance away and as she got close and she really became an object which one had to consider for the purpose of safely passing, namely, a mile away, she behaved perfectly well. Therefore, I do not think that I can invite your Lordships to attach any real importance to that point.
One further observation in regard to this incident and I pass away from it. The man, Galway, is the foundation of this. When he was examined by Mr. Holden, and examined at considerable length, at the end he told us, Mr. Holden said: Is that all? This was the gentleman who considered that the steam steering gear was the principal asset of the ship. He was so reticent about this matter, to which he attached this very great importance, that he withheld it from Mr. Holden. Is it not obvious that no reliance is to be placed upon this gentleman’s testimony?
Lord Mersey:
His case was, as I understand it, that Mr. Holden had failed to ask him the proper question.
Mr. Aspinall:
Yes. Yet, he had odd views about questions. He did not like my questions and I suggested that he might put them in his own way but he did not see fit to agree to my suggestion. I ask your Lordships to discard the whole of this Galway evidence. The matter does not come true.
Mr. Haight, feeling that he is in difficulties in asking your Lordships to come to the conclusion that the helm of the Empress was ordered to be put to starboard then makes an elaborate and detailed attack upon the telemotor system and also upon the area of the rudder. His cross-examination is good enough but it is obvious that this cross-examination was preparing the way for the testimony that the expert was to give when he came into the box. First of all, the suggestions that Mr. Haight made to the various witnesses were all met with a denial from the various witnesses who were called. Mr. Hillhouse told us that it was a system that he approved of and that it was a system which was in use on all the great vessels that cross the Atlantic. Mr. Liddell, who had had charge of the machine for eighteen months said that it had always been in good order, and Mr. O’Donovan, who said that he had been in charge of it for eight months spoke also to the same effect. Mr. Sampson, who was chief engineer, gave similar evidence. There again, your Lordships have positive evidence in regard to this matter. It may be that Mr. Hillhouse is not truthful - nobody can suggest that - but is all his experience, all his testimony as to the value of this steam steering gear to be disregarded? It is impossible to think that Mr. Haight can ask your Lordships to come to such a conclusion.
Then, an attack was made by Mr. Reid upon the area of the rudder. My learned friends are in difficulties, and in order to establish their case upon what is the vital point, that is whether the helm was put to starboard or not, they are driven to put forward these various theories. They put them forward and, one after another, they are entirely demolished by the evidence of people who have knowledge of the events and can speak with accuracy in regard to these suggestions that are being made against the telemotor system and against the area of the rudder.
There is one other observation to make in regard to this matter. In 1908 it would appear that the owners of the ship - if my learned friend Mr. Haight likes it I will give him this - thought that some improvements might be made in the rudder; but they were made and since that time there has been no complaint at all. Does that not mean that the C.P.R., who knew their business, were content and satisfied with this rudder after it had been repaired? I submit to the Tribunal that my helm was never starboarded and I have established that the steering system never failed on this occasion. If that be right my submission is that it carries me the whole way in this case. I might quote the observations of a great many witnesses who have spoken in regard to these matters but it does occur to me that by dealing shortly with this case I can be of much more assistance to your Lordships than if I were to weary you with the details of the testimony given by a large number of witnesses.
So much for the steering. What about the Storstad? In the course of my speech I have made a great many remarks about the matter, and therefore it will not be necessary for me to deal at any very great length with it. My point in that connection is this: There is an admission that the helm was ported, there is an admission that the helm was hard-a-ported, and there is an admission that the helm was hard-a-ported under these odd circumstances, namely, that the second officer saw fit to take it upon himself to put the helm hard-a-port. What exactly did happen upon the bridge of the ship we probably shall never know, but it is significant that the Master is never called up until the last moment and it is significant that when the helm is put hard-a-port it is done without orders and it is done under these odd circumstances that this ship which is a good steerer, as I have no doubt she is, readily answers to her helm. This was admitted by Mr. Toftenes and the man at the wheel. It is odd that these things should be happening upon the bridge of this vessel.
Lord Mersey:
Their position is that although the helm was ported and hard-a-ported the ship’s course did not alter?
Mr. Aspinall:
That is a point I am going to deal with. That is a point which they, of course, must seek to establish if they can. What I am pointing out now is that the helm was acted on in the proper way and under these odd circumstances. The second point I am coming to is this that, according to the evidence of the man who was at the wheel, there was steerage way upon the ship.
Lord Mersey:
Refer me to that in the evidence.
Mr. Aspinall:
The fifth day, the evidence of Johannsen.
Lord Mersey:
Page?
Mr. Aspinall:
Page 1030. Cross-examined by me, Mr. Johannsen said:
‘4716. Mr. Johannsen, at the time of the collision was the Storstad travelling fast or slow?
- I do not know.'
One would have thought that he would have at once said she was stopped but that is the answer.
4717. A man at the wheel ought to know, if he is using his wheel, whether the ship is travelling fast or slow ought he not?
- I do not know.4718. He would know whether the ship had steerage way or not?
- She had steering.'
Lord Mersey:
That was the answer?
Mr. Aspinall:
I had difficulty in getting it but that is the answer ‘she had steering.’ Mr. Newcombe kindly invites my attention to the next question. Your Lordship, appreciating the importance of the matter, said to this man:
‘4719. Be quite clear about it. Had the Storstad steering way at the time he was at the wheel?
- Yes.'
There is no doubt about what the man intended to convey. Then I asked him this: -
‘4720. Is the Storstad a good steering vessel?
- Yes.'
Lord Mersey:
Where was Johannsen?
Mr. Aspinall:
At the wheel. Now we had the evidence of Mr. Reid yesterday. Mr. Reid was called to support the case put forward by the Storstad and he in the course of his examination-in-chief used language that was only consistent with the Storstad having way upon her - she drove herself into the side of the Empress and that class of phrase. The result of that was that I asked him had she speed upon her. There was some little objection on his part to the word ‘speed’ but the outcome of his evidence was that she had way upon her. This is a remarkable admission. But he had to make it because there was this great wound in the side of the Empress, and when one of the ships went ahead, the bow of the Storstad, in its present distorted condition -
Lord Mersey:
In the earlier part of the case some of the witnesses from the Storstad said that the Empress came down in a crab-like way against the bow of the quiescent Storstad.
Mr. Aspinall:
I can refer your Lordship to that. That was the outcome of a diagram.
Lord Mersey:
That appears in Toftenes’ evidence, I think.
Mr. Aspinall:
It is in his evidence. I invited him to draw a diagram of the vessel in the shape that it emerged from the fog, and it is one of the exhibits. When I looked at the exhibit I pointed out to him that if he was right in the claim that the Storstad was the vessel that had blown two long blasts and was stopped, in order to have the collision at all, the Empress must have come down in crab-like fashion upon him. I thought that he had difficulty in making his case unless the Storstad had speed upon her, and I submit that is the fair outcome of the diagram he drew. I assume that Mr. Reid was hopeful that the question might not be asked him.
Chief Justice McLeod:
My impression of the evidence is that the Storstad gave three blasts to signal ‘I am stopped in the water,’ and that then he ordered bis engines full speed ahead.
Mr. Aspinall:
Slow ahead.
Chief Justice McLeod:
And at the time of the collision he had way on.