Mr. Aspinall:
That is a further reason for establishing my proposition that the helm was hard-a-port and that this ship had headway upon her. If the helm was hard-a-port and if she had headway upon her she inevitably altered course. She is a good steerer and therefore she must have altered course. We have thought, and we are agreed, that the ship which altered course was the occasion of this trouble. Mr. Reid, at page 1803 on the ninth day, gave us evidence in regard to the headway upon the Storstad. I asked him about it and I warned him because naturally I apprehended the very great importance of this admission made by this expert speaking on behalf of the Storstad, in order to feel certain that his words conveyed what I thought was the meaning of his words. I said: Are you sure? and your Lordship, naturally desirous of ascertaining the truth of this case, also pointed out in the clearest language the importance of the matter. There is not the slightest doubt that this man's honest opinion is that this vessel had way upon her to drive her into the side of the Empress. In regard to the engineer’s log, my Lord, I submit that it in itself, assuming this engineer’s log to be an accurate record of what was happening, points inevitably to the conclusion that this vessel had steerage way on her when the helm was put hard-a-port. The log says she was travelling at full speed till three o’clock. I think she is a ten-knot boat. She was travelling at ten knots.
Lord Mersey:
At what time?
Mr. Aspinall:
Until three she is travelling at ten knots. She is a laden ship, a collier, carrying a heavy load, and under the circumstances she naturally carries her way for a considerable time, and, although the engines may be at slow speed, as apparently, according to the log, they were, at 3.02, she does not break her slow speed until some minutes have elapsed. Until three she goes full speed. The order then goea down ‘slow speed’ until 3.02 and then, at 3.02 comes the order 'stop.’ My submission is that she had still got, at the end of these two minutes, a very considerable head way upon her. We have her speed stated here at ten knots; in two minutes she would not have got anything like down to slow, and as the Chief Justice reminds me, according to her own story, they then put her slow ahead. There is nothing in this log to suggest that this vessel had not anything but quite good way upon her at the time she came into us. At 3.05 the order is given ‘full speed astern’ and some thirty seconds after that this collision happens. I submit that this log conclusively shows that what we claim necessarily happened. Admission, helm hard-a-port; log establishes that the vessel had good steerage way, good headway upon her at the time she came into us.
In order to escape from that conclusion what is it that these people have said? They have said that the three people who were on the bridge - one and all - looked at their compass, and that the first thing that the captain did when he came up was to look at his compass, and that he found that she was still upon her course. If what I have been saying is right it means that this evidence is not accurate.
Lord Mersey:
What?
Mr. Aspinall:
If what I have been saying is right, that she had headway and that she had her helm hard-a-port, the conclusion is that this evidence that they, one and all did look at her compass and found her on her course, is not right.
Lord Mersey:
Is not right?
Mr. Aspinall:
Is not right. Why should they all look at their compass? The Master is summoned and, be it observed that when the Master is summoned he is not told that there is a ship in his vicinity. When he comes on the bridge he does not know that there is a ship in the neighbourhood, but the first thing he does is to look over the side and see if she is stopped and then to ascertain whether she is on her course. It is odd that the Master should do such a thing. As far as his mental state is concerned everything is safe; no one has said a word to him about any ship in the neighbourhood. I invite your Lordships to say that that did not take place; that that is not right.
You have the evidence of the man, Toftenes, who was in charge of the ship. He of course did say that he looked at his compass. For the reasons I have given I submit that this is not right. Then we have the remarkable evidence of Saxe, the young man who put his helm hard-a-port and the young man who is the culprit in this case.
The ship had steerage-way, and when he is asked if the ship kept on her course his affection for the compass is remarkable. He is sounding his whistle but he is keeping his eye on the compass. He tells us that he pulls the whistle and keeps his eye on the compass. With the loud whistle of the Empress ringing out and when she is coming closer and closer they are still keeping their eye on the compass. My suggestion is that these people on the Storstad, so far from looking at their compass, were, to use the sailor’s phrase, keeping their eyes skinned to pick out the Empress as fast as she came in sight. They were not looking at the compass. Johannsen, the man at the wheel, says that the moment the collision happened he rushed away to summon his mates but that he was very careful before he rushed away to look at the compass. What was in his mind? Here was a collision between them and a great passenger vessel and I have no doubt that this man Johannsen’s first idea was that his ship probably was imperilled. He saw that a grave collision had happened and he rushed off to summon his mates hopeful of saving their lives.
That is the evidence in regard to the compass on board this ship. There was a young man who did not look at it. He, unfortunately, was not young or agile enough to get back and look at the compass. He does not suggest that he did get back. But he did tell us this and it is somewhat significant. At page 990 on the fifth day, when he was giving his evidence, he was being examined by Mr. Haight and he was asked what lights he saw. He said that he saw her masthead lights and then Mr. Haight asked him this:
4558. What was the first coloured light that you saw on the Empress?
- The port lantern.4559. What colour was it ?
- Red.4560. When you first saw the masthead light, which bow was it on?
- The port side.4561. And when you first saw the red light -
Before the question is finished he gives the answer ‘The port side’. He evidently was a bit of a thought reader; he must have known what was in the mind of Mr. Haight. Then Mr. Haight very properly said:
‘Let me finish the question, please.’
Lord Mersey:
We have the answer before the question.
I submit that the evidence really is not very valuable in enabling your Lordships to determine the points which are involved in this case. That is the evidence in regard to the compass. I submit that the evidence is overwhelming to establish that this vessel was at the crucial time under way and with a hard-a-port helm. Once your Lordship comes to the conclusion which vessel was using an effective helm at the time of this collision that enables your Lordship to say who was the culprit in this matter.
Lord Mersey:
You will not forget, Mr. Aspinall, that the difference between you here is whether the helm really was effective.
Mr. Aspinall:
I have been dealing with that matter and showing that she had steerage way and that she was a good steerer and that the necessary consequence is that she did come into us. Then I was pointing out that as against that it will be pressed upon you that these various people were looking at the compass, and that she had not altered course. I presume so but the explanation which is always good is the current; it is always the current. Let us consider. It is the current that they were frightened of. Let us consider whether this is a serious matter. They were apprehensive that the current might deflect the heading of the ship. The evidence is that the ship was keeping on her course but they were apprehensive that she would leave it. In order to prevent that taking place the helm is put a-port - the helm is put a-port and the vessel still keeps upon her course. One would think that that would satisfy the most careful of navigators but apparently it did not because Mr. Saxe, although he knows the helm is being put to port and that the ship is doing nothing wrong, sees fit to put it hard-a-port.
Lord Mersey:
Your point is that if the helm was put to port and nothing happened there was no object in putting it hard-a-port.
Mr. Aspinall:
That is the obvious common sense of it.
Lord Mersey:
If the object was that naught should happen?
Mr. Aspinall:
That is the obvious common sense of such a matter. I have pointed out to your Lordships that it is essential to the reputation of Saxe amongst his Norwegian clientele, that he shall escape if he can for having put it hard-a-port. It is essential for this young man, who is the real culprit - and I am sorry for him - to offer some excuse for putting the helm hard-a-port and I suggest that for no other reason except that he made this mistake in navigation he has to put forward this excuse - the current. As I have already pointed out that theory, that excuse, is really no excuse at all. What Mr. Haight says at page 45, on the first day, is this. Your Lordship asked him after the statement of our case had been read to make a draft of his statement, but he preferred to state his case and he did it with very great facility. He said at the bottom of page 45:
'A little later, the chief officer of the Storstad, in order to make sure of ample room, says that he ordered the wheel ported.’
I submit that that probably is true.
Lord Mersey:
Read me that passage again.
Mr. Aspinall:
'A little later, the chief officer of the Storstad, in order to make sure of ample room, says that lie ordered the wheel ported.
My suggestion is that that really is the truth of this matter and that, owing to the fact, that you can never be certain in fog that the whistles are giving you certain and safe indications of the position of another vessel, and that they often give you misleading indications, sometimes a whistle which is apparently on your starboard bow is really on your port bow and therefore these people may have been mistaken and may have ported their helm in the belief that they were giving the Empress more room.
Lord Mersey:
I suppose you say that that passage you have read from page 45 disposes of the question of the current?
Mr. Aspinall:
No, I do not. Mr. Haight may not have said in express terms anything about the current but he may have had the current in his mind. What I am saying is that, current or no current, the real explanation why they were porting was apparently that they desired to give us more room and that they were effectually porting their helm in order to give us more room.
Lord Mersey:
That seems to me to be inconsistent with the theory of the current.
Mr. Aspinall:
Undoubtedly. I think it is only right that I should read on in order to see what Mr. Haight said as a whole; it is not fair to pick out one passage and not read it all. Further on he says this:
'A little later, the Chief Officer of the Storstad, in order to make sure of ample, room, says that he ordered the wheel ported. His statement is that he had no idea of danger, that he had seen the boat go into the fog bearing red to red to him, but that his engines were stopped and he was slowing down, and didn’t want to take any chances of his boat sheering one way or another, and if he was going to change at all he wanted to change to starboard. The wheel, when put to port, had no influence upon our course. It was then put hard-a-port. The third officer, who was also on watch and on the bridge, himself helped put the wheel over to be sure it should go all the way. Still the Storstad would not swing, and then, because we had found that our vessel had lost steerage-way, the third officer pulled the whistle cord, blowing a signal of two long blasts as required by the regulations, to mean that our vessel was not under steerage way. About the same time he blew the two whistles, in order that his vessel might not become entirely unmanageable, he gave a signal on the telegraph “slow; ahead,” and he whistled down the speaking tube to the Captain. The Captain, when he turned in, had said “if we run into any fog, call me,” and those were his regular instructions anyway.’
Now, my submission is, as I said before, that the using of this helm really was for the purpose of making sure of ample room, and that is what was in the mind of Mr. Saxe when he took upon himself -
Sir Adolphe Routhier:
Has the existence of the current been proved?
Mr. Aspinall:
I do not know that it has. They speak of a current and of the current, but I know nothing more of it than that.
Lord Mersey:
I do not know whether or not it has been proved; nor do I know what direction the current takes. I do not know whether there is anything on any of the charts to which our attention has not been directed which does indicate that there is a current.
Mr. Aspinall:
I think it was admitted on all sides that there was a current of about a mile or a mile and a half. May I make this observation with regard to the current: that if one vessel is in the current, the other vessel is probably in the current too. It is rather like as if children had two little toy boats in a bath, and you carried the bath about; if it affects one it affects the other, that is all.
Lord Mersey:
You mean to say that if the current has any effect at all, it affects both ships?
Mr. Aspinall:
Yes; as you move your bath, so will the two vessels go one way or the other.
Lord Mersey:
Is there anything on any chart that is in evidence which illustrates this current ? I see on one of the charts, some distance from where the collision took place, the words: ‘current 1½ to 2½ knots.’ Is that the only reference to current that we have on the charts ?
Mr. Aspinall:
That is the only reference that I can find.
Lord Mersey:
I want to see, Mr. Aspinall, where this current is first introduced in the evidence.
Mr. Aspinall:
It was introduced by Mr. Toftenes.
Sir Adolphe Routhier:
I think it is in the testimony of Toftenes when he was asked why he ordered the helm to port.
Lord Mersey:
Probably it is. I am not sure, but I think that it is also mentioned in Saxe’s evidence.
Mr. Aspinall:
The reference appears at page 210 of the evidence of Toltenes, my Lord.
Lord Mersey:
Will you read what Toftenes said?
Mr. Aspinall:
Yes, my Lord.
‘864. Why did you order your wheel ported?
- Because the ship being stopped so long, I was afraid of her losing headway so much that she might take a sheer on the current.’
Lord Mersey:
Now then, there is Mr. Saxe, on page 939. Will you read that; it begins:
[Unnumbered question following 4659.]
‘Q. Your engines were stopped were they?—A. Yes, sir.’
Mr. Aspinall:
Yes, my Lord; Question 1580: [Question 4665]
‘4665. What did he port his helm for? Why did he port his helm?
- The chief mate ordered the wheel to be ported.4666. But why did he order it to be ported?
- I didn’t ask him why.4667. I dare say you did not ask for a reason, what do you suppose the reason was?
- I thought it was for the current.’
Lord Mersey:
That is the way he introduced it?
Mr. Aspinall:
Yes.
Lord Mersey:
Does anyone else except Toftenes and Saxe refer to the current?
Mr. Aspinall:
I think not, my Lord; I am subject to correction about that, but I think not.
Lord Mersey:
I do not recall any, but I may be wrong.
Chief Justice McLeod:
I think these are the only two.
Mr. Aspinall:
What I have been pointing out - and I see that your Lordships appreciate my point - is that if they were apprehensive of the current and thought that it would be cured by using a port helm, having used the port helm and finding that the vessel did not sheer, there was no reason for putting the helm hard-a-port. I think that is logical, and that there is no answer to it. I shall, therefore, ask your Lordship to throw aside consideration of the current.
Lord Mersey:
I am not sure that that follows. If you do a little, it may be no good; if you do a little more, it may be of some use.
Mr. Aspinall:
It was rather in my mind that Johannensen, the helmsman, who is a rather important witness in this connection
Lord Mersey:
He is the man who did not give the order to hard-a-port.
Mr. Aspinall:
He was the man who was at the wheel, the helmsman. He was, to use a picturesque phrase, pushed aside by Saxe; the wheel was taken from him and Saxe put it hard-a-port.
Lord Mersey:
Saxe was a young man of 20, was he not?
Mr. Aspinall:
He was a young man. My Lord, at page 1023, Johannensen, who was the steering man at the wheel, was asked this: ‘ Did you ever hear anything about the current,’ and his answer was 'no.’ He heard nothing about the current.
Chief Justice McLeod:
Did you take that to mean that he had never heard that there was a current there, or that he had not heard anything about a current with regard to porting the helm?
Mr. Aspinall:
I should say it did not mean that he never heard anything about the current, because if he is travelling up and down the river St. Lawrence he must know about it. I think what he means is that when the wheel was ported he did not know that it was on account of the current. Perhaps this is not a great point in my favour; it may not carry me very far, but it is somewhat significant that he did not.
Lord Mersey:
Then does it stand in this way: Johannensen was at the wheel?
Mr. Aspinall:
Yes.
Lord Mersey:
Johannensen put the helm not hard a-port but to port. Saxe is asked: Why did he put it to port? and he says: I did not know why he did it; I suppose it was the current.
Mr. Aspinall:
Yes.
Lord Mersey:
And when the man who did it is asked why he did it, he said he never heard of the current.
Mr. Aspinall:
That is with regard to porting, but not with regard to hard a- porting.
Lord Mersey:
I know it is with regard to porting, because the hard a-porting was done not by the man at the wheel, but by Saxe.
Mr. Aspinall:
That is right, my Lord; that is the way it stands, and it is the only explanation that will carry my friends in this case. By that they sink or swim; that it was done in order to cope with the current. Then they are in this difficulty. They say: our course never altered; they are confronted with the fact that the helm was hard a-ported, and if I am right in the contention which I have been making, this ship in fact had speed upon her, for the various reasons which I have already indicated.
Lord Mersey:
And the reason given by them for the ship’s not answering to the helm is that no way was upon her?
Mr. Aspinall:
Yes. The two things, the helm and the speed, are closely connected, because if there is no speed, the helm is inoperative and if there is speed the helm is operative. Therefore in judging of the conduct of both these vessels, I submit that these two-things ought to be borne in mind, because if there was no way upon my ship, even if you should think that my helm was starboarded, it would have to be admitted that that would not affect the heading of my ship. I have already pointed out that all the evidence from persons on my ship who are still alive is that the helm never was starboarded, and the evidence is that the helm of the other ship was ported and hard a-ported under what I may call suspicious circumstances.
Chief Justice McLeod:
You say that the Storstad was on the starboard; what have you to say as to the application of rule 19?
Mr. Aspinall:
I say that rule 19 applies to this state of affairs: if two ships are crossing with the port bow of one to the starboard bow of the other, or the port light of one open to the green light of the other, and there is therefore risk of collision, the duty is imposed upon the ship which has the other on her starboard bow to keep out of the way of the other.
Lord Mersey:
Toftenes admitted that he thought there was no danger of collision.
Mr. Aspinall:
Quite apart from his admission, I submit with confidence that your Lordships would never think that there was risk of collision at this distance in clear weather. If my story be right, these ships were brought green to green at a distance of something like three or four miles.
Lord Mersey:
Although the weather was clear at that time, fogs were about. You know, fog had been encountered twice on your voyage down from Quebec, and the fog that, in a sense, was the cause of all this misfortune was the third fog that had appeared. Therefore, though everything was clear and plain at the time, there was what might be called the risk of a risk. If you know what that is, I do not. The expression was used elsewhere, or something to the same effect.
Mr. Aspinall:
I know who used it; it was the late Lord Esher. It was not always approved in the House of Lords.
Lord Mersey:
I do not know what the risk of a risk is; if you have a difficulty of that kind you may have the risk of a risk of a risk.
Mr. Aspinall:
After the two ships had got green to green, or red to red at a distance of something like three or four miles, I submit that it cannot be contended that there was any risk of collision then, and there certainly was no risk of collision in the earlier position when they were red to green. Of course, if I succeed in discrediting the story of the Storstad, then I think I am entitled to ask your Lordships to say that much worse may have been happening on the Storstad than we have elicited from their naturally unwilling witnesses.
Lord Mersey:
You have not referred to the circumstance that the man who ought to have been on the bridge of the Storstad was not there.
Mr. Aspinall:
Not only was he not there, but when he was called and came up, he was not told that there was a ship in such close proximity and that it was necessary for the Storstad to be at rest. He was told something, and it was this, page 213: -
‘890. What did you say to him?
- I told him we were about 6 miles off Father Point and that it was getting thick.’
My suggestion is this - and I think that it is a well-founded suggestion - that that ship had not stopped and had not taken action for the Empress.
Lord Mersey:
I think the captain said that the ship was stopped.
Mr. Aspinall:
Yes, he looked over the side; he looked at the compass and over the side.
Lord Mersey:
That is a dangerous observation for you to make, because it may be said that Captain Kendall also looked over the side.
Mr. Aspinall:
Yes, Captain Kendall had been on his bridge taking action, and he was the man to give the order to blow the appropriate two blasts when the time came; therefore he would have a reason for informing himself, and the way a sailor does inform himself is by looking over the side. I had not finished quoting from the evidence of Toftenes on page 213. The next question was this: -
'891. Did you say anything about a vessel in the vicinity?
- I did not.’
So the captain of the Storstad is called up and he is merely told that there is fog.
Lord Mersey:
That it was getting foggy.
Mr. Aspinall:
Getting thicker. I have not even yet done myself full justice in quoting from the evidence, because there is another question and answer that I should, read: -
‘892. Did you consider that there was any danger of collision then?
- I did not.’
Of course he did not, because he knew nothing about the other ship. Yet under those conditions he asks your Lordship to believe that he was careful to ascertain when his ship was stopped. The next thing he does is, seeing her lights come into view, order full speed astern, too late to avoid the collision.
There are one or two matters to which I wish to direct your Lordship’s attention in connection with these questions of speed. It was suggested against me that because my head after the collision was found pointing southeast, that showed that I had headway upon me. According to the evidence of Captain Kendall, your Lordship will remember that my head was southeast after the collision. The suggestion made was that the Storstad, having penetrated into my starboard side, was in the position of a rudder, and that because my head came to the southeast, that led to the conclusion that I had headway. Well, how a ship’s head will go after there has been a collision and when she is sinking, personally I know not, and I doubt very much whether the assessors will be able to tell your Lordship that. It may go anyway.
A further suggestion - it was a point made by Mr. Haight in cross-examination of one of my witnesses - was that if my ship was struck amidships what would happen would be that I probably would yield bodily before her and go crab fashion away in front of the Storstad. I should think that it is highly uncertain which way my head would go. But this is to be remembered: that a ship does not pivot on her centre - and again I say this subject to correction by the assessors. A ship pivots as a rule about a third from her bow, and if she is struck aft of the pivoting point, where will her head go? It will go to the starboard side. Now, that would be an explanation, but I say that no explanation is needed, because how the head of a ship may go after there has been a collision and she has listed and sunk is something no man can tell. I am dealing with the point only by way of discussion, because Mr. Haight made the point; I submit there is nothing in that which will show speed upon the Empress.
The only other matter to which it is desirable to call your Lordships’ attention in this connection is this: the evidence of passengers. I am not going to invite your Lordships to attach too much importance to the evidence of passengers, but such passengers as have been called have either spoken to hearing our two blasts or spoken to our ship being stopped.
Lord Mersey:
One man has stated that the Empress was going astern; apparently it was rather suggested by Mr. Haight at one time that he had taken the other view.
Chief Justice McLeod:
Do you think that as a rule passengers are likely to know whether or not the ship is going ahead?
Mr. Aspinall:
I have just stated it to your Lordships; I am not attaching importance to that testimony. There it is upon the record; I give your Lordships the reference, and if your Lordships hereafter see fit to read it your Lordships will do so. What I am pointing out is this: that some of them speak about being stopped; others speak to the two long blasts. Their references to the long blasts are, of course, much better for me than their observations as to whether we were stopped or not, because, unless Captain Kendall was playing with his whistle, that would mean that in the opinion of Captain Kendall the vessel was stopped. The witnesses to whose evidence I trust that some time your Lordships will refer, are Smart, a first-class passenger, at page 442 and 443; Black, a second-class passenger, at page 454, and Pugmire, a second-class passenger, at pages 91S and 919.
May I remind your Lordships of the lady who gave evidence in this Court, who, I think, meant what she said, and said what she meant. That was Miss Townshend; Miss Townshend was the lady, your Lordship may remember, who swam from the Empress almost to the side of the Storstad. I submit that she was an extremely intelligent young lady, who knew what she was talking about, and she was positive as to this: that she heard the Empress blow three short blasts twice, and she heard the Empress blow two long blasts. I submit that that is very valuable testimony in this case.
Lord Mersey:
Where is that evidence?
Mr. Aspinall:
Page 1664, on the ninth day. I asked her if she was certain, and she said yes; she had no doubt about it at all. As I have already pointed out, these unhappy people who in the dead of night were suddenly precipitated into the water, if they had noticed anything which would justify complaints against the method of navigation or management of the Empress, would naturally have been ready to come forward and make those complaints. This lady was not called by me or by those associated with me; she was called at the invitation of Mr. Haight and for some other purpose. With regard to other matters she was somewhat in doubt; with regard to this matter she had no doubt whatever.
Now, with regard to these long blasts, there is a considerable body of evidence that they were not blown and there is some evidence that they were blown. Your Lordships will no doubt weigh which is the better evidence with regard to the matter. What I want to point out in that connection is this: suggested long blasts blown on the Empress before she reversed. There would have been nothing wrong in Captain Kendall’s blowing these long blasts before he got into the fog or as he entered the fog, because it has been laid down that it is your duty to blow a blast before you run into a fog. There would have been nothing wrong in his doing it; he would have lost nothing by admitting that he had blown long blasts under those circumstances. His case would not have suffered one bit. I submit that here again the testimony of the man who is doing the thing is much better than the testimony of stewards who woke up or happened to be awake and who thought they heard blasts. One can very well understand their frame of mind after this collision had happened; many people imagine things that they have never seen at all. In that connection may I remind your Lordships of a statement made by M. Belanger. M. Belanger is a gentleman against whose character or veracity I have, of course, no desire to make any suggestion whatsoever; he is obviously an honest man occupying a good position. But consider for one moment his evidence with regard to whistles. He was seven or eight miles away and he thinks he heard whistles; I submit that it was impossible for him to hear any whistles at all. He was a mile to the westward of Father Point, and the two vessels were some six or seven miles on the other side of him. What happened about those whistles, according to him, he never told Captain Lindsay. Later he makes some statement about the whistles and when he comes into court here he gets them in a quite different order. My point with regard to his evidence, is, as I have said, that the distance between the ships was much too great to enable him to hear anything. Also it is to be noticed that the order in which he got them was wrong. According to his evidence before the Coroner the order was this: one, one, three, two. When he came to give his evidence here in court, the order was: one, two, three. I submit that evidence of that character really is of no value in enabling your Lordships to arrive at any safe conclusion in this case.
My Lord, with regard to this matter of speed, which I say is closely allied with helm action; may I remind your Lordship of this: Galway, who came here to give evidence with regard to our steam steering gear, when asked by me, at a time when he had no affection for me, I am afraid, whether the Empress was stopped at the time of the collision, answered yes.
Chief Justice McLeod:
Did Galway say that?
Mr. Aspinall:
Yes, my Lord, and I was pointing out that it was given at a time when I am afraid he was not fond of me and would not be ready to help me.
Lord Mersey:
I do not think you can say that Mr. Galway was one of your witnesses. Will you read the questions and answers, reading two or three questions before and two or three after. What page is it?
Mr. Aspinall:
Page 635, the third day:
'3260. There is one other matter that perhaps I ought to have asked you about, Mr. Galway. Did you tell Mr. Holden when you saw him at Montreal, when you were asked if “the reversing of your engines took the ship’s way off” that you thought so? Was your answer “I think so”? You have told me this afternoon that you told Mr. Holden that your whistle was twice blown and that it blew three short blasts?
- Yes.3261. That is right, is it? And in connection with the reversing of her engines, Mr. Holden asked you the question whether the reversing of the engines took your way off. Do you remember?
- Yes, that is so.3262. He (Mr. Holden) said ‘Do you think they took her way off ?’ - A. I think so.
- What I understood him to say was how many minutes did it take to take the stern way off the ship and I answered “seven minutes.”3263. Let me repeat this:
‘They stopped the engines and then reversed them and then kept on going astern for a certain length of time?
—A. Yes.3264. Do you think they took her way off?
- I think so.3265. Did she get any stern way?
- I do not think so.3266. Did you tell this gentleman that?
- Yes.3267. Is it right; is it correct?
- I say yes, sir.'
Chief Justice McLeod:
As to the reversing of the engines taking the way off; do you understand that to mean that she came to a standstill?
Mr. Aspinall:
I think so.
Chief Justice McLeod:
Did you reason it out that way?
Mr. Aspinall:
I think that if you take your way off, that does not mean in sailors’ language any reduction of speed.
Chief Justice McLeod:
Of course, the reversing of the engines would first result in a reduction of speed and subsequently bring the ship to a standstill?
Mr. Aspinall:
Yes.
Lord Mersey:
I suppose the expression ‘her way is taken off’ would mean that she has come to a standstill?
Mr. Aspinall:
I think so, my Lord; of course, I defer to your Lordship’s views I appreciate that.
Lord Mersey:
To reduce her way is not to take her way off; to take it off is to stop.
Mr. Aspinall:
I think so, my Lord; of course, I defer to your Lordship’s views in regard to the matter. I do not want to make much of the evidence of Mr. Galway, but it is somewhat significant that he told Mr. Holden in the early stages of this case that her way was off, and then again, after the various incidents connected with his cross-examination had taken place and after I had read to him his evidence on the previous occasion and asked him if that was so, he said ‘yes.’
Lord Mersey:
What was the interval between the two signals of three short blasts?
Mr. Aspinall:
Two or three minutes, my Lord.
Lord Mersey:
And the evidence was, I think, that it was possible if she were going full speed, to get her to a standstill - by a very violent operation it is true - in two and a half minutes or so.
Mr. Aspinall:
Two minutes and fifteen seconds, I think it was. With regard to the very violent action, may I be allowed to say this: although the order goes from the bridge to the engine room, full speed astern, it is to be remembered that engineers are extremely fond of their engines, and they always do it gradually. On board many ships - again I speak subject to correction by the assessors - if the officer on the bridge wants to convey to the mind of the person in charge of the engines down below that going full speed astern is a matter of urgency, as a rule it is done by pulling a lever twice. Your Lordship will remember whether I am right or wrong in making that suggestion; Captain Murray, I am told, said so.
The only other matter in connection with speed to which I wish to call your Lordship’s attention is the evidence with regard to damage.
Lord Mersey:
One matter I should like you to refer to is the evidence of the divers.
Mr. Aspinall:
My Lord, the evidence of the divers, so far as it seems to me to be pertinent to this matter, is that when they found us we were heading northeast. Apparently we had swung at one time, because shortly after the collision we were heading southeast and by the time we reached bottom we were heading northeast. The diver said that that is just the sort of thing that might be expected. He showed how unimportant is the heading.
Lord Mersey:
Will you tell me where the diver says that?
Mr. Aspinall:
Yes, my Lord. I was making an observation as to how unimportant is the heading of the ship after the collision has taken place. She had headway to the southeast; she has travelled back to the northeast.
Chief Justice McLeod:
What did you say was the heading at the time of the collision?
Mr. Aspinall:
My heading on my course was north 72 east; that is, to put it into compass, east by north half north.
Lord Mersey:
The difference between compass and magnetic is not of any consequence. That being the course at the moment of impact according to Captain Kendall’s evidence, what is her position according to the diver?
Mr. Aspinall:
Northeast.
Lord Mersey:
That is an alteration of how much?
Mr. Aspinall:
That is an alteration of two and a half points. Meanwhile, if this evidence is right she swung back during the time she was making the descent to the bottom of the sea. My point is that no reliable argument can be based upon the heading of this vessel. She has ceased to be a vessel; she has been destroyed, really; she is answering neither helm nor engines.
Lord Mersey:
She must have been answering some forces.
Mr. Aspinall:
Oh, yes, some forces.
Lord Mersey:
But what those forces were, it is extremely difficult to say.
Mr. Aspinall:
Just so. My Lord, at page 1295 on the seventh day, the diver told us that her bow was northeast.
Lord Mersey:
We were to have had some further particulars from the diver from the Essex; what they were I cannot just at the moment remember.
Mr. Haight:
The diver, my Lord, agreed to send specific data taken from his memorandum to show the stage of the tide at which his men had gone down and the length of time they stayed under water in each case. I understood Mr. Newcombe to say yesterday that he would take steps to get that data; it has not yet arrived, so far as I know.
Lord Mersey:
I have not heard of it.
Mr. Aspinall:
At page 1298 the diver said that he thought her stern would swing towards the shore. Of course, if after the collision my head (her stern) had gone over to the southeast and she is found on the bottom northeast heading, then undoubtedly her stern has gone towards the shore and her bow would go out from the shore. Whether that is of any value to your Lordships or not, I know not.
Chief Justice McLeod:
Will you read that again, please?
Mr. Aspinall:
He was asked what would happen to the ship, and he says that if she occupied a certain position - he does not say what - at the surface, she would swing her stern in or her bow out.
Lord Mersey:
Who says this?
Mr. Aspinall:
Mr. Wotherspoon, the diver, but whether he knew or not, I know not. Speaking for myself, I do not ask your Lordships to attach much importance to that, one way or the other.
My Lord, at this period of the case 1 was coming to the evidence with regard to the damage.
Chief Justice McLeod:
Damage to the steamer?
Mr. Aspinall:
Damage to the steamer that has survived.
Lord Mersey:
To the Storstad.
Mr. Aspinall:
To the Storstad, and to see if that will throw any light upon how this collision happened. My Lord, I think I am justified in saying that, at any rate in England, it has constantly been judicially laid down - and Mr. Reid agreed with me in this - that where you have only one ship surviving, the conclusions you can draw from the damage found to the one ship are not very useful in enabling you to come to any certain conclusion as to how it was that those ships came into contact, or under what conditions they came into contact. Mr. Reid, when I asked him, said that my suggestion was right, but that the extraordinary conditions of this case enabled him to judge as to what happened, and that was why he was able to tell us what these two ships had done. Now, he has only the one ship, and this is in doubt. Mr. Hillhouse says that his opinion is that the Storstad assumed her present distorted condition before she had penetrated the plating of the Empress. I say that we have no certain data here, because these experts do not agree as to the facts. The other gentleman took the view that the present distorted condition of the Storstad’s bows was caused after the Storstad had penetrated the side of the Empress. Well now, we have another serious conflict between these two gentlemen. Mr. Hillhouse was of the opinion that the angle between these two ships when they struck was in the neighbourhood of 80°; Mr. Reid was of opinion that the angle between the two ships was in the neighbourhood of 40°, so there is a difference of 100 per cent between these two gentlemen with regard to the angle between these two ships.
Lord Mersey:
That is what I would call a difference of 50 per cent.
Mr. Aspinall:
I was a little doubtful whether I was accurately stating it. With regard to this evidence, here again we are on theory. We have got away from the evidence now and we are theorizing, and we are theorizing under the condition that we have only one ship and that the views of these two eminent gentlemen are widely divergent with regard to the data. Now, Mr. Reid has given his view as to speed on the Storstad and he wishes to ascribe speed to the Empress. The first suggestion that I make to him is this: if the Storstad has gone into the side of the Empress, in view of the great momentum of the advancing Empress, wouldn’t you have expected the stem to have been bodily set to starboard, and he gives me the answer, yes. If I may be allowed to express the opinion, I may say that I thoroughly agree with him. But some force was in operation which was greater than the force due to the momentum of the Empress across the bows. The bows are set to port, and that is a difficult matter for him to explain; therefore he has put forward what I submit is a somewhat fantastical explanation. Personally, I did not understand it; I have no doubt that that was due to lack of intelligence on my part.
Lord Mersey:
I do not think so.
Mr. Aspinall:
I have done my best to understand it. He seemed to say that the anchor on the starboard side was acting as a fender and that that, for some reason or another, drove the stem of the Storstad over to port. I confess that I did not understand it at all. What would happen, I should think, would be this.. You have your anchor at the hawse pipe. The Storstad drives into the Empress. The anchor is disturbed, and if it can it will go somewhere. Where will it go? I should think that as the Storstad drove into the Empress, that anchor would have been driven further aft on the starboard side of the Storstad, and I should have thought that if that anchor was to have any effect at all upon the forward plating in the way of the bows of the Storstad, it would have tended to pull the plating attached to the stem round from port to starboard. But in truth and in fact the stem has gone to port. Of course, as I say, that is a difficulty in the way of Mr. Reid’s theory. Mr. Reid told us that owing to the discovery of certain new facts, he had only two days ago to remodel his theory. I do not know whether we have all the facts of this case with regard to the damage; in fact, I am certain that we have not, because, to begin with, we have not the Empress and we have no certainty as to the angle of entry. It might be for all I know, that if one were able to convince Mr. Reid of new facts, he might again have to remodel his theory. I submit that this evidence with regard to theories is absolutely useless in this case. Sometimes damage is conclusive, but very, very rarely. My submission is that if any importance is to be attached to the damage in this case, it must be remembered that we have this remarkable fact: that the first forces brought into active operation upon the stem of the Storstad, if their theory that the Empress had headway be right, was a force driving the stem from port to starboard. Mr. Reid admits it, and that is something that he has to negative and overcome, because we find that the stem is in fact set to port. When I asked him, getting away - I do not want in any way to be disrespectful to Mr. Reid - from the somewhat complicated and somewhat minute calculations that he was putting before us; when I asked what his big point was which established that the Empress had way upon her, he said: it was the swing. Then I said: what is your second point, if you have another one? He said that the second big point was the marking of the port bow in that cavity where the anchor is now found, due to the decks of the Empress coming in contact with it. That is the strong point; that is the key which will unlock the door of the problem as to whether or not the Empress had way upon her. There again we are at once confronted with this: the angle of entry, according to Mr. Hillhouse, is 80 degrees; the angle of entry according to this gentleman, is 40; and he drew a diagram showing the ship entering at 40 or 45 and coming out at 40 or 45. Then Mr. Reid says: that satisfies me that there seems to have been headway upon the Empress. But Mr. Hillhouse’s view and Captain Kendall’s view - I know the Storstad people will take a different view, but Mr. Hillhouse’s view is that the angle of entry was about 80 degrees, the ship running into a stationary wall at an angle somewhat in the neighbourhood of a right angle. She backs out, and with stern way upon her as she goes out the tendency is for her head to go to starboard and to draw somewhat in line with the Empress. As I say, what is the value of theories, unless your Lordships feel certain that you have all the data which will enable you to begin to theorize? Theories at their best are of slight value as compared with positive evidence, but when we feel that there is uncertainty as to the data, I submit that they are really valueless.
There is one other matter that I wish to deal with before I leave this part of the case.
I spoke to Mr. Haight about our respectively marking the same chart, and it was obvious to us at once that there were great difficulties. I believe Mr. Haight has a chart marked and I have marked one also. Might I hand up my chart?
Lord Mersey:
Is this a chart which has been put in?
Mr. Aspinall:
No, my Lord.
Lord Mersey:
You are using it merely as an illustration?
Mr. Aspinall:
Yes, my Lord, I am using it merely to illustrate my argument.
Chief Justice McLeod:
What have you marked on it, Mr. Aspinall?
Mr. Aspinall:
We have Gagnon’s position of the wreck, with the two courses opposite. Now, I say at once that I do not think this will be very helpful to the Court, and for this reason, that the respective courses of the two vessels, as I said in an early part of my speech, are based upon our being certain as to our exact position in the River St. Lawrence at the all-important time. What I have been pointing out, if I may repeat it, is that neither side took four-point bearings. There is somewhat uncertainty about what the speed was during the time before the accident, because when we start, of course we have to get up our speed, and when we reverse, we have to lower it down. The same applies with regard to the speed of the Storstad. She is relying upon her patent log to give her speed. It is a very unreliable instrument at the best, so I do not think it will be of very great assistance to your Lordships. The positions claimed by the Storstad, which we have indicated there, are the positions which are to be found in her log.
Well now, I say at once, that I invite your Lordships to attach very little value to either log of the Storstad. Dealing first of all with the engineers’ log, your Lordships will remember that what happened is this, that for some reason or other the young man in charge of the engines only recorded two entries in his log and no more. The poor young man was extremely distressed in the witness box. That was very obvious. But the fact remained that for some reason or other he did not go on to fill up his log, and he was very anxious to get away from his log. And then we had that somewhat remarkable evidence from the Chief Engineer that the log was brought to him, and that he made an entry in this log. And when asked why he made it, he said at last, when he was driven to it, ‘well I didn’t like the spelling of this young man.’ He said he didn’t think his spelling was right. Well, it seemed to be a very odd excuse to give, and when the spelling was looked at it was found that the spelling was all right, and as far as I know he had no other reason for dealing with the log in the way that he did.
Lord Mersey:
There was nothing wrong with the spelling?
Mr. Aspinall:
No, my Lord, but they didn’t seem to like that log.
Then, when we came to the ship’s log it was an odd document. There again, there was the odd order in which the entries had been made. The entries were not in chronological sequence, as they occurred. And then, when the witness was pressed about the ship’s log, this is to be remembered, that he stated that he wrote it up at nine o’clock, at eight or nine o’clock in the evening. Later on, when he was being asked about the matter, he said he wrote it up while his ship was on the way to Quebec. But he forgot that he had told us in evidence, as appears in the same log, that the ship arrived at Quebec at 1.30.
Lord Mersey:
I thought he meant eight or nine o’clock in the morning.
Mr. Aspinall:
I believe your Lordship did ask him that, but he said no.
Chief Justice McLeod:
I thought it was eight or nine o’clock in the morning he said.
Mr. Aspinall:
Well, my Lord, if that is so, it is a false point that I am making, and I do not want to make it.
Lord Mersey:
Well, Mr. Aspinall, I think he said eight or nine o’clock in the morning.
Mr. Aspinall:
Well if that is so, then there is nothing in my point, and I wish to withdraw it, but I think we are right on that. My Lord, may that be looked into, and if it is an error I will withdraw my argument on that point.
Lord Mersey:
I will look into it.
Mr. Aspinall:
Well now, might I draw your Lordships’ attention to the chart, for what it is worth?
Lord Mersey:
Yes, Mr. Aspinall.
Mr. Aspinall:
My Lord, on that chart we have put the times of our various helm manoeuvres, and we have also put the position of the wreck as given us by Captain Gagnon.
Chief Justice McLeod:
You mean this round mark at the top?
Mr. Aspinall:
That is right, your Lordship. We have endeavoured to put our course as well as we can, and have endeavoured by the light of the bearings and positions given in the log of the Storstad to put on the chart also the different positions of the Storstad. Now, my Lord, the wreck, I have no doubt, is fairly in the proximity of the place where the two ships struck. And it is to be noticed that if our course be right it takes us - this at any rate is in my favour - fairly close to the wreck. Whereas their course, which they are claiming, takes them a very very long way from the wreck.
Chief Justice McLeod:
Would you or would you not, assuming the Storstad had not ported her helm—of course you claim the Storstad answered her helm?
Mr. Aspinall:
Yes, my Lord.
Chief Justice McLeod:
Well we will assume that she did not answer her helm or else that the order to port had not been given.
Mr. Aspinall:
Yes, my Lord.
Chief Justice McLeod:
Taking the course you have, would you not then have come to the place where the Storstad was, the Storstad maintaining the course she was on, and you also maintaining the course you were on - would the ships not then have come together, but further distant? Do you understand me, Mr. Aspinall?
Mr. Aspinall:
No, my Lord.
Chief Justice McLeod:
Well supposing the Storstad had not changed her course but had continued on it and so had you.
Mr. Aspinall:
There would have been no collision, and no danger.
Chief Justice McLeod:
You think not.
Mr. Aspinall:
No, my Lord.
Chief Justice McLeod:
I was just looking at the plan and it struck me they would be closer together.
Lord Mersey:
I don’t know what you are talking about. I have been trying to understand the chart and I was not listening. What did you say?
Mr. Aspinall:
My Lord, what I was saying was this: the Chief Justice was saying to me, doesn’t that look as if the two ships were approaching one another at rather close quarters?
Lord Mersey:
Well, yes, I think it does.
Mr. Aspinall:
Well, my Lord, my submission is not. I have not unfortunately a copy of that chart before me, but I think if the dividers are applied it will be seen that they are approaching at a good safe distance. What I have been always pointing out is that very little reliance must be placed upon my estimates as to bearings and distances, and also upon theirs. But for what it is worth, we have done what your Lordship asked us to do. But if you take the course they claim they were on, it puts them port to port with us, and it takes them nowhere near where the wreck was found.
Chief Justice McLeod:
And there could not be a collision?
Mr. Aspinall:
No, not anywhere near where the wreck was found.
Lord Mersey:
It is suggested to me that the chart will be found of very little assistance to us.
Mr. Aspinall:
I think very little, my Lord.
Lord Mersey:
If that is true I am not sorry to hear it.
Mr. Aspinall:
The only benefit I can claim for it, and I do not feel like claiming that, is that my claimed course takes me much nearer the wreck than does Mr. Haight’s. That is all I can claim. But beyond that I do not think one will get any benefit from diagrams in this case. That is my submission, because we have not got accurate data.
Now, my Lords, I have finished on that part of the case, and I was proposing now - and I can deal with it quite shortly, I think - to deal with the last matter, namely, the cause of the ship’s foundering so quickly. I will deal with it very shortly.
Lord Mersey:
Can’t you state it in a few words.
Mr. Aspinall:
My Lord, what I should have preferred to have done was to have referred your Lordships to the evidence of Mr. Hillhouse. He can do it much better than I can.
Lord Mersey:
The evidence of Mr. Hillhouse.
Mr. Aspinall:
Yes, my Lord.
Lord Mersey:
I asked Mr. Hillhouse what the reason was - however, I understand you refer me to the evidence of Mr. Hillhouse.
Mr. Aspinall:
What I would like to say a word about is not exactly what caused the ship to founder so quickly, but what caused her to founder so quickly in the way she did, namely, to turn over on her side, because that is the matter we must consider.
Lord Mersey:
Are you speaking of the list now.
Mr. Aspinall:
Yes, my Lord, of the big initial list, and Mr. Hillhouse, at pages 602 to 627 (typewritten copy) exhaustively deals with that matter.
Chief Justice McLeod:
I have no difficulty at all in coming to the conclusion about what made the ship sink so quickly, because the water came into the port-holes along the side.
Mr. Aspinall:
Well, that is the evidence of Mr. Hillhouse. Mr. Hillhouse naturally, and quite properly, was wishful to claim that his ship would float with two compartments flooded, and I have no doubt that if you got the water evenly distributed over the deck, that is so. But as he himself stated, the circumstances of this case were extremely peculiar, as there was this enormous inrush of water listing her over. Added to that was the weight of the Storstad, which, instead of being water-borne, was resting on her side, and helping, and so is a factor to be considered; and then there was the possibility of the boiler on its cradle being disturbed.
Lord Mersey:
I want to ask you this - you are not concerned with it but Mr. Newcombe is somewhat - but are you going to assist us? I do not want to throw an onus on you, beyond what you are bound to bear, but are you going to assist us by making any suggestions as to how this sudden foundering of the ship might have been avoided?
Mr. Aspinall:
No, my Lord, I was not.
Lord Mersey:
Then don’t let me tempt you to do things that you are not obliged to do. It may be a very tempting suggestion to you, but do not let me tempt you to do it.
Mr. Aspinall:
What I am going to do is this, my Lord, that your Lordships, having heard the evidence, and having considered the matter, are in a position to make, when you come to give your report, any suggestions which would, or which might, obviate such a disaster, I am instructed by the Canadian Pacific Railway Company to say that prompt effect shall be given to such recommendation.
Lord Mersey:
Oh that is another matter altogether; and that observation I do not think is worth much, because our suggestions will be made, if we can make any, not for the Canadian Pacific Railway Company at all, but for the public at large. They will be made for the whole ship-owning world, if we make them.
Mr. Aspinall:
Yes, my Lord, if your Lordships are in a position to make such. Of course the difficulty again is here that we do not know all the facts. So many people have been lost who might have thrown some light on this matter.
My Lords, I have finished. If I might be allowed to strike a personal note, and to thank on behalf of myself and the English Bar my American opponent Mr. Haight for the courtesy and the consideration which has been extended by him to me, and also to express my appreciation of the very great assistance I have derived from being associated with my distinguished Canadian colleagues.
Lord Mersey:
Of course, Mr. Aspinall, we shall need you to reply to the comments that have been made by Mr. Haight.
Mr. Aspinall:
I shall be at your disposal, my Lord.
Lord Mersey:
Now, Mr. Haight, we are going to hear you, we hope, in the morning.
The Commission thereupon adjourned until ten o’clock on Saturday morning, June 27th.