QUEBEC
Saturday, June 27, 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 Canadan 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 Quebec this morning, the twenty-seventh day of June, 1914.
Lord Mersey:
I think I made a mistake, Mr. Aspinall, when I corrected you yesterday. You said that the official engineer's log was written up at nine o'clock at night. I said that I thought it was made at nine o'clock in the morning.
Mr. Aspinall:
Yes.
Lord Mersey:
I was wrong.
Mr. Aspinall:
I do not think I am justified in making that point, my Lord.
Lord Mersey:
That is quite sufficient.
Mr. Aspinall:
I have looked into it and I do not think it is a good point and I withdraw it as to the time it was written up. The observation was made, not in regard to the engineer's log but in regard to the mate's log, and I was wrong.
Lord Mersey:
Then it is right to say that the mate's log was written up earlier?
Mr. Aspinall:
The mate's log was written up, according to the evidence, before the ship had arrived at Quebec.
Lord Mersey:
I had in my mind the mate's log when I made that observation. Now. Mr. Haight.
Mr. HAIGHT'S SPEECH.
Mr. Haight:
May it please the Court, during the past ten days of this investigation there has occasionally been a ripple over the surface, a ripple of amusement, but I am sure that it has been a surface ripple only and that we have all been conscious of the fact that we are investigating a great tragedy, probably the worst tragedy that has been known in the shipping world. On a clear night, on the wide waters of the St. Lawrence, with the lights all visible, and absolutely no obstruction, only two vessels are in view. The course of each vessel is known, the position of each vessel is known and the courses and positions are ones of absolute safety. Suddenly a curtain is drawn and in fifteen minutes the Empress of Ireland has disappeared below the surface of the waters and over a thousand souls have gone down with her. The entire world wants to know why. They have gasped with horror at the possibility of such an accident occurring within four or five miles from the shore. Norway, I think, more insistently than anyone else, wants to know how this happened and who was at fault. Before the St. Lawrence was even named Norway was proud of her ships and her sailors.
Captain Kendall has, from the outset, told one persistent story and he has told it here before your Lordships on the stand. He not only says that in a fog when, as every sailor knows, he must keep his course, the Storstad changed her course seven points but he says that after she had made that change and after she had with deliberate - almost deliberate - purpose run him down he begged her to keep coming ahead and that in spite of his petititon she not only backed away and left the Empress to sink but she backed a mile away and allowed the passengers to the number of over a thousand to drown. Norway wants to know if one of her ships, flying her flag and with officers carrying her certificates, has done these things.
When this Court was appointed, a Court which, in point of dignity, equalled the fearful dignity of the disaster, Norway rejoiced. We seized upon the opportunity not grudgingly, we were not dragged here under subpoenas in spite of ourselves. Our crew was placed at the disposal of the Government at once and we welcomed a chance of coming before a Court composed of experienced Admiralty judges, and also experienced practical men in order, without the technical rules of evidence and other delays always incident to Court proceedings, the truth might be ascertained. I conceive, my Lords, that it is particularly fortunate that this is not a legal proceeding, that this is an investigation and that it is unhampered in every way. My only regret is that I should have played so active a part in it. I would have wished that my witnesses might all have been examined by an impartial advocate. I have tried to be impartial but in spite of everything an atmosphere of partisanship must surround the evidence when counsel for one vessel or for the other is examining the witnesses and opposing counsel is cross-examining. I would have wished that it might have been practicable for,every witness in this case to have given his evidence without any of the atmosphere of partisanship. That, however, did not seen practicable and I can only hope that the evidence has come before your Lordships in such a way as to cause the impression to be left that at least an effort was made to produce it frankly and honestly.
I conceive, my Lords, that there is but one point in this case. Both sides admit that the accident was absolutely inexcusable. Both sides admit that the vessels were on safe passing courses and that the position of each vessel was known. Both sides contend that it is the elementary duty of every sailor, when he has passed into a fog, to maintain the known course which he held before the fog shut him out. There was not a cabin boy on either vessel who did not know that simple, primary rule of navigation in a fog. That the collision was possible was only due to the fact that after the fog shut in a radical change in course was made by one ship or the other. Had both vessels maintained their courses they would have passed anywhere from half a mile to two miles clear and this court would never have been convened. The question is, therefore, as I see it: Which ship changed her course? All other questions sink into absolute unimportance. I submit also that this is a case in which there can be no question of division of damage, no finding of mutual fault. If the Storstad changed her course -
Lord Mersey:
Will you repeat that?
Mr. Haight:
I submit that the case is one in which the court will never find that both vessels were at fault. If the Storstad changed her course I have absolutely no complaint to make against the Empress. I do not care where her lookout was, I do not care what her speed was, I do not care whether she reversed or stopped; if, on her course, the Storstad ran her down, the Storstad alone is at fault and I have no excuse to make for her navigation. Similarly, I submit to your Lordships, that if the Empress changed her course, if she, a great passenger steamer with 1,500 souls aboard, exposed her starboard side to my vessel while the Storstad was on her course, her case is absolutely indefensible and she can be heard to make no excuse.
The case necessarily involves a question of veracity. I agree absolutely in the opinion expressed by my learned friend (Mr. Aspinall) that this case must be handled with courage and that we must confront the fact that one story or the other is false. It is not pleasant to discuss any case on the question of personal veracity. I would far rather have argued a question of law than speak on the question of fact. I would far rather have argued that either one side or the other was mistaken and not deliberately mis-stating facts, but I can see no way in which the court can escape from the primary conclusion that what was done on one ship or the other, namely the change in her course, was known when it was done. No ship could inadvertently change seven points. There are compasses and in a fog the compasses are watched and a ship that changed her course from N 72 E to N E, or a ship that changed her course from W by S seven points knew that she made the change when she made it and before this Tribunal the witnesses from the vessel so changing its course have deliberately falsified their testimony.
The case involves the necessity of building up a solution which is based upon theory. Your Lordships were invited yesterday by my learned friend to decide this case upon the evidence. But, if you find that one ship or the other changed, as you must, you can find no direct evidence of that change. Neither vessel saw the other change. Each vessel denies that she herself changed and yet the change was made. Direct evidence will never help us - it would help us, but direct evidence cannot possibly be found from any eye-witnesses who saw the change except from witnesses on the boat which made the change, and they refuse to tell. The case from the outset was to me more than perplexing because I found it absolutely impossible to find in my own mind a reason for the change which admittedly had been made. The question which was persistently put by the court during the early days of the investigation to witnesses on both sides shows that your Lordships have laboured under the same difficulty. Why should the Empress change, was asked of Captain Andersen. Why, if she was in a position of absolute safety, red to red when the fog shut out should she throw herself across the bow of the Storstad? To the witnesses from the Empress the same question was put: Why should the Storstad have changed her course seven points when she was on her way to Father Point and run straight for the north shore? That is a difficult question to answer, if we are working upon the theory that the officers of both boats were reasonable human beings and that the change of course was deliberately made. For my part, like Captain Andersen, I pondered the question over and I could reach no conclusion. I now submit that this court will find that if, as I say, the officers of these two vessels were rational beings, were not mad men, the change in course was not made deliberately, but was due to some circumstance which has not been definitely testified to but to which we may nevertheless look for a solution. What was it that caused such men, men of at least ordinary intelligence, to suddenly make a sheer which apparently caused this disaster? I can think of only three possible reasons. I should say in the first place that there is no charge that our boat did not steer. On the contrary, Mr. Aspinall bases his entire case on the proposition that we could steer, that our ship navigated well, that she did steer and indeed that she had such great facility in steering that with her wheel a-port one minute after she had been slowed for two minutes and stopped for three or four she ran a mile and changed her heading seven points. Our steering qualities are not only admitted but are made the basis of the argument by the other side. The Empress might not have steered had she dropped her rudder, but her rudder did not drop. She may not have steered well if she was by design a poor steering vessel. She might have encountered this sheer by her steering apparatus, normally sufficient for her needs, suddenly becoming deranged. I doubt if your Lordships can find any other reason to explain the sheer on the part of the Empress which will appeal to your Lordship's intelligence. A deliberate sheer I discount absolutely. I never shall believe that Capt. Kendall, knowing that a vessel was on his portbow, deliberately turned his splendid ship, with all her passengers aboard, straight across our path and then stopped his engines to lie inert while we were coming through the fog ignorant of his position inevitably to run him down.
We have evidence as to the steering qualities of the Empress and also as to her steering gear. As to her steering qualities, it is admitted by Mr. Hillhouse that her design was a departure. He justified it at first upon the stand that his concern had nothing to do with the design of the ship. It developed immediately on cross-examination that the designer, a gentleman eminent in his profession, had within a very short time been the head of his yard and that Mr. Hillhouse himself had worked on the vessel's designs. He knew the outline of her stern, he knew all about it and he knew that when she was designed it was a departure. Mr. Reid has testified that a vessel full at the stern, as this vessel was built, was not only an innovation at the time, but, as I understood him, it was an innovation that was not followed in detail. Mr. Reid states that the percentage of rudder originally allowed her was below the normal and Mr. Hillhouse admits that the rudder had to be changed. He knew that it was changed because of complaints about the vessel's steering qualities. He did say that the rudder of the Empress of Ireland had been damaged and that when the damage was being repaired they took advantage of the opportunity to increase the area of the rudder in order that her steering qualities, which previously had been good enough, might be made some better. It appeared, however, that the Empress of Britain, which had encountered no accident, had received the same attention and that her rudder also was changed. Mr. Reid says to-day that a vessel built as the Empress of Ireland was needs a percentage of rudder of about 2.4 and Mr. Hillhouse takes thirteen vessels and says that the average percentage is much lower.
Lord Mersey:
Is what?
Mr. Haight:
That the average percentage of rudder is much lower than that. I did not go into an extended cross-examination as to the formation of each one of the thirteen vessels which he took but surely the stern of the Aquitania is not shaped round and full as this vessel was. If you have a full stern you have eddying; you stop the steady current of water against your rudder, and the steering is affected. I realize that it is rather radical to say that the designer of this ship made a mistake and I would not so suggest but for the fact that a mistake was made and that the rudders of both vessels were changed. Some mistake originally was certainly made.
Next, we have direct evidence of how this vessel did steer - not theory - but practice. The Alden, only three or four hours before this tragedy, was bound up the St. Lawrence as the Storstad was coming some miles behind. She encountered the Empress bound down on this memorable voyage. Three men from the Alden were called to appear before this court. They were foreigners, they talked no English, but I believe your Lordship must have been impressed by their story. One man was as pitiable an exhibition of stage fright as I ever saw but he told us his story and, as I recollect, your Lordship (Lord Mersey) said, when he left the stand: Don't let that boy go away with the idea that he has done no good. Their testimony was that the Empress crowded them clear up on the north shore, that they saw her coming down, first showing one light, then both, then red, then both and then green, zig-zagging back and forth and making the complete change four or five times. The pilot of the Alden was called. He was a Frenchman. He knew what he had seen and he had no difficulty in expressing himself. His story was, to my view of the case, one of the most direct and definite that has come before the court. He said: When I meet a vessel, I show her my port light and I expect her to do the same to me, but she came down the river zig-zagging back and forth and I was afraid of a collision; I ported my wheel, I was crowded up on the shore and I was afraid of a collision until the vessels were about three-quarters of a mile or a mile apart when she finally assumed and kept the port-to-port course and went by. The question was asked him: Why did you not slow your ship down if you were so afraid of a collision? The answer is quite obvious. Here was a nine-knot vessel bound up the river against a strong tide. I should say that the current as I recollect it, at that point is a current of four to five knots. The best he could do was only four knots at that point? Surely there was no occasion, when this vessel was a mile away from him, to reduce his speed on so slow a boat. He changed his course, he could get in towards shore and he did, but, according to his statement, the time had not come to stop or slow this vessel of his to clear the Empress.
Why should the Empress turn and zig-zag back and forth on the St. Lawrence when going down only three or four hours before this accident? Surely it was not intentional; surely the officers on the bridge were doing all they could to steer a straight course. They were not executing any fancy steps and the best they could do was a course'so irregular and so swinging from side to side as to shut out entirely one light and then the other. I do not think your Lordships will follow my learned friend when he invites you to believe that these men had no recollection of the incident. It was an incident which would naturally impress itself on the mind of a sailor and surely it was emphasized next morning by the news of the fearful tragedy which had taken place four or five hours later. Naturally the pilot knew the Empress, naturally he told the men who the Empress was and they would not be expected to forget the incident in the light of subsequent events. I submit that, on the evidence from the Alden, your Lordships will believe that whatever her design was, whatever the percentage of her rudder, on the night of this tragedy she was not steering well. Lapierre had no reason to be otherwise than truthful. He had good reason to favour the Empress herself. He is a Frenchman, he is a pilot on the St. Lawrence which conclusively proves that the ambition of his calling leads him towards the C.P.R. boats. The C.P.R. pilots are the best men, they are the best paid men and the Empress of Ireland was one of the boats of which the Canadian people and the St. Lawrence people were pround. [sic] Lapierre, brought here into the stand under subpoena, substantiates, and more than emphasises, the story told by the witnesses from the Alden herself. If we consider that proposition, if it is proved that for some reason unexplained the boat was steering badly four hours before the accident, we will wish to find some direct evidence as to why she steered badly and as I have said the best evidence is the condition of her steering gear. Fortunately, we have in this case direct evidence grudgingly given which, to my mind, is absolutely conclusive. I start with Murphy, the quartermaster of the Empress, the man who, when put upon the stand says that she is one of the best steering vessels in the world, that she always steers well. Yet, what is the real fact that he contributes to the case? He says: Of course, sometimes, when you put the wheel over she won't come but all you have to do then is to put the wheel back amidships then put her over a second time and she will come. At page 662 he testifies:—
It might be that it does not catch, and what you have to do is to put your wheel back amidships and give it the helm and it will catch right away.
I asked what he meant by "sometimes" and he eventually said that sometimes meant once and that that one occasion was two years ago. My learned friend suggested yesterday that perhaps the cogs did not catch. I had supposed that after a discussion of many days on the subject of the telemotor it had become obvious that the steering gear system of the Empress was not one of cogs but that it was one of hydraulic pressure - no wheels but a continuous line of fluid. You cannot explain Murphy's testimony on any theory of cog wheels. If you have a continuous system in your pipes when you turn your wheel it does catch. I think that the assessors will reach the conclusion, and that your Lordships will also reach it even without your assessors, that the only possible explanation as to why at times the Empress wheel had to be put over, then back, then over again, was because the continuity of the fluid in the piping had been broken.
The next definite information we have comes from O'Donovan, the engineer in charge of the steering gear. For eight months he was the man whose duty it was to overhaul and inspect this gear. No one else has come before the Court who even pretends to have had the slightest part in any investigation, or to have had the slightest duty to investigate, the condition of the steering gear. He testifies at page 771 that he did not even know where the pipes of the system were and that during the eight months that he was entrusted with this vital part of the machinery he never inspected it. He testifies also as to the inspection which he made on the day that the Empress left Quebec on her voyage across. What was that inspection? He went into the wheelhouse and tried the wheel. In the wheelhouse there was a gauge which showed whether or not the fluid in the piping filled the entire system. After he had turned his wheel over and had looked at is gauge, what did he do? He went below where the pump is located from which glycerine may he pumped into the system from a reserve tank and he pumped for ten minutes. He then went back on the bridge, looked at his gauge and found that he had pumped in enough. What can such evidence mean when we stop to consider it when the man whose duty it is to inspect, finds upon inspection, that his gauge is empty and, from a turning of the wheel and a view of the gauge, thinks that he must pump ten minutes in order to restore the system to its proper pressure? Surely your Lordships will find that the engineer who does such a thing knows that the fluid in the system has disappeared somewhere as the evidence is perfectly conclusive that the system, if in working order, is watertight. Loss of liquid can only he accounted for by a leak and this condition existed after the vessel had been lying in Quebec for some days and if he had to pump for ten minutes. He does not run down the line of pipe to find where the leak is, he does not test his valves to see if they are leaking, he pumps for ten minutes and he lets it go at that.
There is no testimony in this case which indicates or suggests that on this vessel there was a tank which automatically fed into that system. I quite agree with my learned friend that in a modem system there is such a tank but if there was such a tank on the Empress it must mean that the leaks had not only run the glycerine out of the pipes themselves but that the additional supply in the tank, which is normally situated in the pilot house with the gauge, had disappeared also.
Lord Mersey:
Can you refer me to the part of the evidence in which a tank was mentioned.
Mr. Haight:
I think the only mention of a tank is at page 805 and that is in O'Donovan's testimony.
Lord Mersey:
Will you read it to me?
Mr. Haight:
It is question 541: [3915]
[3915]. Is it fresh water or water and glycerine that you pump into the cylinder?
- Water and glycerine.[3916]. That is you have a tank of the mixture somewhere?
- Yes.
Lord Mersey:
Who is examining?
Mr. Haight:
I am, sir.
[3917]. And your pump connects with that tank?
- Yes.
That is the only tank referred to and is the tank with which his pump was connected and it therefore was located near the pump.
Lord Mersey:
How is the tank filled?
Mr. Haight:
There is no evidence but such information as I have obtained on the subject indicates that there is a supply tank down near the steering engine.
Lord Mersey:
You must not tell us things that are not in the evidence. You referred to a tank; my memory may not be as good as it ought to be and I had entirely forgotten what tank it was that you referred to. That is why I asked you to give me the reference.
Mr. Haight:
He was stating that he had gone down to pump her up. The question was:
[3916] 'That is you have a tank of the mixture somewhere?
- Yes.'
The natural inference to be drawn is that the tank from which he pumped was near the pump.
The other direct evidence in the case is that of Galway.
Chief Justice McLeod:
Will you give me the page of that?
Mr. Haight:
I was not referring to a particular page but rather to the testimony as a whole. His testimony begins at page 600 and runs through a considerable number of pages. Your Lordships will, I am sure, realise that while I have conducted the case as counsel for the Storstad, I have had none of the privileges that counsel usually enjoy in the way of selecting the order in which witnesses shall be put upon the stand. Galway was unquestionably called out of order. Had it been possible, in my judgment to properly present this case without calling him at all, I would gladly have done so and were it possible now to argue this case without any reference to his testimony I would so argue it. I know that the impression which he made at the time was bad. I knew when he was called that his testimony had in advance been discredited. I thoroughly realised that it would be considered the testimony of a man who had come to me with evidence to sell and who could be had at a price. But as your Lordships look back at the incident is it not changed a little in perspective? Does not that testimony assume a little different colour? Boys of lowly birth -
Lord Mersey:
What?
Mr. Haight:
Boys of lowly birth have in times past done brave things and English boys are among the number. He certainly had some courage. If he wanted to sell his testimony at the start, when he went into the box at least he knew that no pieces of silver were to follow it. He submitted himself to a cross-examination which would have tested any man and he stood the ordeal fairly well. My learned friend commented yesterday upon the fact that certainly Galway would have had no friendly feeling for him and would have made no admissions willingly if it would help him. I think that is quite true. His cross-examination was characterized by an unsparing use of the lash - quite justified - I have no criticism to make because my learned friend felt at the time, and your Lordships, I think, felt, that he was examining a deliberate perjurer. But I submit once more that there may be a very serious question on that point. I do not think he would have done what he did, knowing that there was to be no compensation, if he had not, as he himself said, wanted to tell the truth. He had lost his mate and as I see the case, he felt strongly as other people would, a moral obligation to tell the truth. The Court will not overlook the fact that when he stood on the stand it was not the first occasion upon which he had told the story. He had told it in detail to counsel for the C.P.R., he had told it later in detail to Captain Walsh, he had been told by counsel that he must remain in case they wanted his testimony because they felt in honour bound not to let him go; yet, after he was told that he must stay by counsel, he was told to go.
Your Lordships will remember also that another point of hie evidence which was given for the first time has subsequently been corroborated. He said that the Empress blew a signal of one whistle and that he thought the Empress was stopped. A one whistle signal had never been mentioned by any witness from the Empress up to that time but it has been frequently mentioned since. I do not presume to think that my personal opinion will carry weight but for my part I felt, after Mr. Newcombe and Mr. Johnston had cross-examined the boy, and I had cross-examined the boy, that he was telling the truth. If your Lordships, in searching for a reason, shall find that there was a sheer -
Lord Mersey:
You say Mr. Johnston cross-examined him?
Mr. Haight:
The testimony shows that Mr. Newcombe and Mr. Johnston came to my room and saw Galway -
Lord Mersey:
I see what you mean.
Mr. Haight:
Before any decision was reached, questions were put to him. Personally I believed the boy to be telling the truth.
Lord Mersey:
You should not say that. It is contrary to all precedent for counsel to state his personal convictions as to the truth of a witness.
Mr. Haight:
I withdraw the remark.
Lord Mersey:
You must leave that to us.
Mr. Haight:
I quite agree. If his testimony is found to be true it supplies a reason for this accident, it supplies the answer to the question why the Empress changed her course.
My learned friend admitted that if the wheel jams, that if you put your wheel over and it jams, and you cannot get it back, the vessel will sheer. She did sheer, it seems to me, and if so that is the explanation not only of the sheer but of one other feature of the case which has, I think, also perplexed the court. Why did Captain Kendall, with a vessel, according to his story, a point on his starboard bow and two miles away, and according to Jones' story, two or three points on her starboard bow, and three miles away - why, under these circumstances, with the vessels green to green, and the lights of this vessel still showing through the mist, did Captain Kendall resort to the extraordinary manoeuvre of putting his engines full speed astern?
Lord Mersey:
Have you left Galway?
Mr. Haight:
I have.
Lord Mersey:
There is one matter that I should like you to make an observation upon. Galway, you remember, made a statement to somebody connected with the press about the disaster to the Empress. In the witness box he told us that the most important cireumstance - he called it the main asset - was a sufficiency of steering gear. He never mentioned that circumstance apparently to the reporter. How do you account for that?
Mr. Haight:
I had at the time and I still have that interview. I have never read the whole of it, but I do not think it contained a reference to Galway's statement made to counsel and to Captain Walsh. I have no doubt that any man on the Empress would have had, immediately after the accident, some hesitation about stating broadcast through the newspapers that he had himself been at the wheel and that the steering gear had jammed.
Lord Mersey:
At all events, that is your explanation?
Mr. Haight:
I know of no other and I have no means of knowing how accurate the report was nor do I really know exactly all he said but I think it is true that the interview does contain no mention of the steering gear.
Lord Mersey:
Now, I have interrupted you; you were talking about Captain Kendall.
Mr. Haight:
Yes, I was saying that if the steering gear of the Empress broke down we have an explanation of that which is otherwise one of the most surprising manoeuvres ever testified to in open court. I think that the assessors will agree with me and that your Lordships without your assessors will agree with me, that no man who has seen water in larger quantities than are contained in a hand basin would believe that an experienced navigator, with a vessel the lights of which were still showing green to green, two miles, or three miles, or four miles away, and anywhere from one to three points on his starboard bow, would put his engines full speed astern and bring his great steamer to a dead standstill in two lengths. That means, and Captain Kendall means that your Lordships shall believe, that the engines were put from full speed ahead to full speed astern and that only by that extraordinary monoeuvre could his ship be stopped. I think the assessors will find some difficulty in accepting the proposition that it could so be stopped. But does the great passenger boat ordinarily put her engines full speed astern when only one ship is on the face of the waters and that vessel is four miles away, or two miles away when they are showing green to green and on a course which means a clearance of from half a mile to two miles and over?
My learned friend has invited your Lordships to find that parts of my story are not true. I say that I defy my learned friend to find one man who knows anything about navigation who will believe that Captain Kendall put his engines full speed astern when the lights of the Storstad could still be seen and when he knew they were on a course that meant a clearance of from half a mile to two miles. It is perfectly inconceivable that any man would risk the wrecking of his entire engine-room by ordering such a manoeuvre.
Lord Mersey:
Will you refer me to the evidence of the engineer as to how that order was carried out? Can you do that? What I mean, Mr. Haight, is this: I do not remember that it is said that the order was carried out in any other way than a proper manner - that is to say, gradually, not turning the engines suddenly from full speed ahead to full speed astern.
Mr. Haight:
I will give your Lordship the reference in a moment. Your Lordship will remember that the engineer in charge testified that the telegraph was rung in one motion from full speed ahead to full speed astern. There was no stop order in between.
Lord Mersey:
I know, but I had it in my head that while a sudden movement might go a long way towards wrecking the engines it was not done in that way.
Mr. Haight:
Precisely what he said, if my recollection is correct, is that after leaving Father Point where he got his order full speed ahead, he opened his throttle gradually, and that up to the time of his full speed astern order, he had not yet got his engines going full speed ahead, but that on this particular occasion when he was ordered to put her full speed astern within three minutes he had his valve wide open and his engines going full speed backwards.
Lord Mersey:
Will you give me that reference if you can? If you cannot, leave it to me to find it and I will find it afterwards.
Mr. Haight:
I cannot at the moment -
Lord Mersey:
Never mind, I will look for it afterwards.
Mr. Haight:
If your Lordship will be convenienced at all by so doing I shall be very glad to make an abstract of our evidence on these particular points.
Lord Mersey:
No, I shall not trouble you to do that. I shall look over this evidence and I shall be able to find it, I have no doubt.
Mr. Aspinall:
I have it here.
Lord Mersey:
What page is it?
Mr. Aspinall:
It is at page 489.
Mr. Haight:
It commences at page 489 and then runs to 490. What I was referring to appears on page 489 and it begins with question 347. [2502]
Lord Mersey:
If you have the evidence will you read it to us?
Mr. Haight:
Yes, my Lord.
[2502]. When you receive your order to put your engines full speed astern from full speed ahead, do you shut your steam off, throw your reversing gear and then gradually let the steam in, or do you change directly from full speed ahead to full speed astern without shutting the steam off?
- No.
Lord Mersey:
That is the evidence I was thinking about.
Mr. Haight:
Yes.
'[2503]. That would not be advisable?
- No.[2504]. How long would it take from the time you got your full speed astern order before you got her really going full speed astern?
- A matter of seconds.[2505]. As soon as you get your reversing gear over, do you give her full steam?
- Gradually.[2506]. Have you any idea how many revolutions you got your engines going full speed astern before you got her stopped?
- No.[2507]. She would not really be making seventy turns?
- That I could not say.[2508]. In 19 minutes you did not get your throttle full open going ahead; did you get it fully open going astern before you got your order to stop?
- I beg your pardon.[2509]. Did you get your throttle open the full way after the reversing order during the three minutes you were reversing before you got the order to stop?
- The stop valve full open going full speed astern.'
Lord Mersey:
That is what I wanted.
Mr. Haight:
Then, at page 493, the next witness, Liddell, who was the engineer in charge of the engines on the other side of the ship gives this testimony:-
'[2534]. Do you remember at any time getting any telegraph from the bridge as to the movements of your engines?
- Yes.[2535]. What ones do you remember, shortly or briefly, shortly before the collision?
- Yes.[2536]. You might tell these to the court.
- From full speed ahead to stop to full speed astern on the same order.[2537]. Three?
- The telegraph stood full speed ahead and it was turned around to stop and full speed astern.[2538]. Was that order carried out?
- Yes.'
Capt. Kendall evidently believed that his engines were put immediately full speed astern because he testifies that he was stopped in two minutes, that he went to the side, that he looked over, that he saw the water and that she was dead. That, according to the evidence, could only be the result of an almost instantaneous change from full speed ahead to full speed astern.
Lord Mersey:
Get Capt. Kendall's evidence and read it to us if it is convenient. (After a brief interval.) Never mind, Mr. Haight; I do not like to interrupt you. Go on with your story.
Mr. Haight:
I submit, therefore, that there is an explanation to be found for this surprising order if it is true that something had gone wrong with the steering gear. If, as I think the evidence shows, the Empress, when the fog first shut in, blew one whistle and we answered, and she blew one whistle again and we answered and then, suddenly, something happened to the steering gear, there was every reason in the world why these engines should be ordered full speed astern from full speed ahead and every reason why it should be done at once. He was then in a critical position, he had changed his course deliberately so as to bring us one point on the starboard bow. It is, as my learned friend felicitously put it, very important to his case that this reversing order should be given when the vessels were a long way apart. Capt. Kendall denies that he ever blew one blast. If he did in the fog blow single blasts and these blasts were blown for two minutes, during the time the two vessels were approaching each other, and that distance between them was closing up and then, if something goes wrong with the steering gear, he must put his engines full speed astern and he must do it at once. He has no time, as the ordinary navigator would do, to put his telegraph to "stop," to give, the engineers time to shut off their steam and then, after a reasonable interval, to order the vessel full speed astern; he must,whatever it may cost, put his engines from full speed ahead to full speed astern and that is what he says he did. I cannot believe that there is any rational explanation for the order which he admits he gave except an emergency and certainly no emergency confronted him with a vessel from two to four miles away on an apparently safe clearing course and her lights still visible. Your Lordship asked for the evidence as to Capt. Kendall's manoeuvre in connection with the reversing of the engines. That is found at page 151: -
"[569]. How far do you think your vessel ran - "
That is after the reversing signal.
"- About two ship's lengths.
[570]. That is from the first signal of three whistles to the second signal of two whistles?
- Yes."
Your Lordship will remember that he says that he blew three, then three, then two, then two, and he says that from the first signal of three to the second signal of two the time elapsing was sufficient only for his vessel to go two ship's lengths; that is from the first signal of three to the second of two.
"[571]. That is during the five minutes you were blowing the four signals you think you only ran -
- Two lengths.[572]. Only two lengths?
- Yes.[573]. And during that entire time you think you maintained your heading?
- I did."
Now, I submit to your Lordships that there is a good deal of testimony to be derived in the way of the substantiation of my theory that the steering gear broke down. The orders that Captain Kendall gave, the things he did when the Empress first sighted the Storstad coming out of the fog, seemed to indicate not that an emergency was confronting the cool, deliberate, efficient, British Master, but that the Master had for some reason already lost his balance. The whole testimony as to what he did is feverish, it is absolutely different from what you would expect to find with reference to a man who,, in a crisis, must act with a cool head. The fact that he saw the Storstad coming out from the fog was perhaps in itself enough to throw him completely off his balance but if, two or three minutes before, he had found that his steering gear was jammed, that his vessel was sheering to port, and if he knew that that sheer would carry him across the course of another vessel and expose his side to her at the particular instant when the final emergency arose it is not surprising that we find Captain Kendall making frantic efforts to get his gear clear and prepared for the final emergency. Let me repeat to your Lordships what Kendall says he did. With a vessel 600 feet away, going at a speed which throws a bow wave from it that he can see in spite of the dark, in spite of the fog, and in spite of his elevation from the water, his first act when he sees the Storstad is to order her to go astern. Surely, at 100 feet, with a speed of ten knots, that was a very futile thing to do. She could not stop; that was impossible. His next order was to send his first officer to the lifeboats to get them ready. Why send the first officer from the bridge to get the lifeboats ready? At his hand was the pull for the siren whistle which was the signal not for the first officer but for every man on the ship to man the boats and to every man on the ship to close the watertight doors.
Lord Mersey:
How soon after the Storstad was sighted and it was obvious that there must be a collision was the siren pulled?
Mr. Haight:
As I read the evidence it means that the siren was never blown until the stewards had lighted the emergency lamps and called the passengers and had gone to the deck when the vessel was listing so far that the port boats were practically out of commission.
Lord Mersey:
Is it your suggestion that the siren was not pulled till afterwards?
Mr. Haight:
Long after the collision as we measure time in such an awful emergency. The second order was to send the chief officer to order the men to the boats leaving the siren which would have sent every man to the boats and to the water-tight doors unsounded. His third order was to ring the engines full speed ahead and put the wheel hard a-port. Surely that order was worse than futile. He says that he gave that order because he could see both lights of the Storstad. That means that she was on her course heading for his bridge. If, as he says, his vessel was dead in the water and if he had allowed her to remain dead in the water the collision would have taken place at his bridge and not 120 feet aft in the vitals of the ship. Surely it is hard to understand why the order of full speed ahead was given when lying still would have been comparatively safe and putting the engines full speed astern might have brought him aft enough to have caused the collision to occur in a less vulnerable place.
Lord Mersey:
Did you say lying still?
Mr. Haight:
That is the story; lying dead in the water.
Lord Mersey:
What you say is that if he had been lying still he would have been comparatively safe. If his story is true, lying still would not have prevented the collision.
Mr. Haight:
I said comparatively safe, My Lord.
Lord Mersey:
I do not know what that means; I should not think that it would have prevented the collision.
Mr. Haight:
By no means, but if you must have a collision, a collision forward of the bridge is comparatively safe as compared with a collision at the boiler space. If his story be true that he had been dead in the water for five minutes and that he saw us coming out showing him both lights, it means that the vessel was headed straight for him and that she would have hit him at the bridge.
Lord Mersey:
I understand that you are mentioning these matters only to show that Captain Kendall lost his head.
Mr. Haight:
I am, My Lord.
Lord Mersey:
If his evidence be true, this ship, the Storstad, suddenly appeared within 100 feet of him in such a position that a collision was inevitable. Even though that may show that under these circumstances he lost his head, it does not go to the point of the case as to who was responsible for the position in which the two ships found themselves at the moment when it became apparent that a collision was inevitable.
Mr. Haight:
That is quite true, my Lord. Captain Kendall has appeared to me to be a man who, under ordinary circumstances, would be equal to an emergency - cool and efficient. But it seemed to me a reasonable excuse to make for the orders which he gave to say that something had happened before and that when the final emergency occurred he was making a frantic effort to get his steering gear clear; that he therefore was unprepared and that the chaotic condition of his orders was the result. I may be putting too much emphasis on this.
Lord Mersey:
I want to appreciate what you say. Will you tell me what were the frantic efforts in which you suggest that he was engaged in order to get the defective steering gear to go the proper way.
Mr. Haight:
My suggestion would be -
Lord Mersey:
Who would be the men who would be employed in carrying out that effort?
Mr. Haight:
My suggestion would be that there would be one or two men at the wheel trying to do what Murphy said that at times he could do: bring the wheel back to amidships and try it again and see if it would not go.
Lord Mersey:
Who would these one or two men be?
Mr. Haight:
Of course, I am theorizing, purely.
Lord Mersey:
Would they be any of the persons who have been in the witness box?
Mr. Haight:
The officer on the bridge, as I understand it, lost his life. One of them, Mr. Jones, was on the witness stand, as was Captain Kendall.
Lord Mersey:
Was it suggested to Jones that he was making efforts to put the steering gear in order?
Mr. Haight:
No, my Lord. I do not remember when Mr. Jones was called, but I think it was before any of the steering gear testimony had been in.
Lord Mersey:
Before the steering gear testimony had been given; I think you are right there. But it was not before he had become aware of the fact, if it be a fact, that that steering gear had been unsatisfactory.
Mr. Haight:
When Captain Anderson was on the stand and was asked by your Lordship if he could explain why the Empress sheered, and said he could not - he had thought it over and he could reach no solution - he expressed not only his own state of mind but mine as well. I did not then know how even to attempt to explain the Empress' change of course.
Lord Mersey:
I understand your suggestion to be that Captain Kendall may have been distracted and that his attention may have been taken away by efforts to put in order the defective steering gear.
Mr. Haight:
I do not wish to lay too much emphasis on that proceeding, but it did seem to me to be a possible reason for a condition in respect of the orders which otherwise is very difficult for me to explain.
There is, my Lords, another way of approaching this case, and, I will admit, the more usual way. That would be to take the story as actually told by both sides, resort to no theorizing; test each story by the facts which are known, and, having so tested each story, decide which is the more likely to be true, and then discredit the other without any explanation as to why the other vessel changed. That is a method of decision which is often resorted to. But we have here not a legal proceeding but an official investigation, and I have no doubt that your Lordships share the anxiety of the world at large to find some reason for this occurrence and that you will be glad to report, if you can do so, not only that one vessel changed her course, but why she did so, endeavouring to arrive at some explanation other than that it was an act of absolute madness.
Now, let me take up the testimony briefly on the two stories and see how the facts which are testified to by the witnesses on each side fit in with the facts which we know to be true. My learned friend yesterday, in referring to the statement which was read from his side of the case, expressed a certain amount of admiration, and, as I understood him, a certain amount of surprise, that his witnesses had really testified in accordance with that written statement. He felicitated his side of the case because he had substantially everything that had been said in the statement as presented. Your Lordships will remember that my statement was made in open court and quite without preparation. I had no chance carefully to weigh my words. I had seen the other statement for about sixty seconds. I stated then merely the story that my witnesses had been telling me during the two days preceding. I did not have time nor opportunity to weigh my story as against his. I told it fully, and it contained with other information a definite statement that we ported our wheel and that we hard a-ported our wheel, and I explained why both of these manoeuvres took place. We never sought to conceal the fact that our wheel had been put hard a-port; we never thought that there was any reason why we should conceal that fact, nor do I see any reason now. Our deck testimony absolutely holds together: the lookout, the quartermaster, the first officer, the third officer and the Captain. In so far as the) various witnesses that I called saw the facts, those facts as they state them absolutely fit together.
It is suggested that it was very important to Captain Andersen's story that he should have looked at the compass and that he should have looked over the side to eee if the ship were moving; that it was very important to our side of the case that each of the witnesses should have testified as he did testify. It was important to our case, unquestionably. It is always important to your case that your facts should be fully and truthfully stated. But my friends single out some one for a great compliment, if it is suggested that the story told by the witnesses from my deck is a pure piece of fabrication. The man who could conceive the story as they told it would be equal to the genius who plays seven games of chess without looking at any board. The man who could have conceived the story first and so drilled and instructed the men, some of whom cannot talk the English language, that they would be able to stick to that story without lapse or contradiction, would have had a crew composed of men of a mental calibre which is very hard to find; I think they would have been the peers of the chess man. These men told a consistent and perfectly straight story; I shall not repeat it now. Our courses were known; our courses were given. First we are off Metis Point; then there is a change of a quarter of a point; then a course west by south. The man on our bridge and our lookout saw the Empress; saw the lights at Father Point. There was no doubt in the minds of our witnesses as to what lights the Empress showed. They saw first the mast-head lights, then the green light and then the red light, and our testimony is absolutely homogeneous on the proposition that the Empress had changed her course, as in law I submit she was required to do, by porting her wheel and to go under our stern. We saw her red light when the fog shut her out, and we navigated with absolute reference to the course which she then had, in absolute reliance upon the assumption that that course would nof be changed, and in full realization of the fact that our course must not be changed. The merest novice knows that rule.
My friend thinks it is surprising that my quarter-master looked at the compass; that my third officer, who was pulling the whistle and who stood next the compass, looked at it, and that the Captain, when he came on the bridge, looked at it. In my judgment it would be indeed surprising, if, knowing that a vessel was ahead; knowing her course and knowing our own course, those witnesses had shut up their compass, put out the binnacle light and said: What is the use of looking at the compass? We are all right; let us go ahead.
Now, much has been said about our porting order; we are said to have caused this collision solely by that porting order. Unless all our men are deliberately perjuring themselves as to the compass, the porting order has absolutely no significance. I submit to your Lordships that the explanation of that porting order, given frankly at the start - an order which was never sought to be concealed - is the true explanation. The third officer, when he was asked: why did you get the order to port? said: I do not know; I was not in command; I was not told. Your Lordship said: well, why did you think that you got the order? He said: I thought that the current was the reason. Toftenes says that these whistles were coming close and he was anxious that his vessel should keep her course. It was not vital that she should keep her course; had we collided with them steering anything but west by south we would have been at fault; if our engines had been stopped long enough our control might have run off, and there was a current. There was a question yesterday with regard to the testimony as to whether there is a current. It is the testimony of Captain Kendall upon which I rely in this respect, in which he says at page 152: 'it runs about one and a half to two knots per hour.' There are many other references on the subject, if the Court wishes them, but the Government chart shows a current. Captain Kendall admits a current and it seems to me quite futile to call Wotherspoon to show that Captain Kendall is wrong, that the charts are wrong and that our witnesses are all wrong; that, as a matter of fact, there was no current and that the Government surveyors were in error when they were plotting the charts and making their observations.
Much criticism has been made regarding our scrap log. Let me take first our scrap deck log. It was brought out that Toftenes did not, when he first saw the fog along the shore four miles away, go into his chart-room and write down: 1.47, 1 have just seen some fog four miles on the port side. He is criticised for not having entered at the time the fact that the fog shut the Empress out from view, and the doubting finger is pointed at him because after the collision he made those two entries. They do not suggest, my Lords, that the entries are false. Nobody denies that at that time there was fog along the shore; nobody denies that at that time fog shut out the Empress, but the man is discredited, forsooth, because he did not make the entries when the events occurred. My friends apparently would suggest that when the fog shut the Empress out from sight, in order to do his full duty Toftenes should have gone into the chart-room, turned on the light and made an entry in his scrap log: a large passenger steamer one point on my port bow, a mile and a half away, showing me her red light, has just been shut out from view by the fog. I submit that the man who is navigating a ship has other duties to perform under such circumstances. Your Lordships, I think, will receive some help in disposing of this criticism, when you read the log prepared by the officers of the Empress and when you note that although, according to their testimony, some hours before the accident they had encountered a fog twice on the way down the river, and although they had slowed their engines on both occasions, yet the log is absolutely silent on both these facts. Surely the criticism directed at the scrap log of the Storstad comes with poor taste from men who did not even enter in their own log the fact that they had encountered fog severe enough to cause them to slow down their ship.
Criticism is aimed at our engine room log. That testimony was given very frankly. We got a bell at three o'clock to slow; we answered it and we logged it. At 3.02 a bell was rung to stop; we answered it and we logged it. After the vessel had been stopped for some moments other bells were rung; they came in quicker succession and the engineer in charge, instead of leaving his throttle to walk to the desk, stood by and answered his signals. He considered it more important to execute his orders at once than to keep a record of what he got and delay the execution of the orders in order that he might make the record.
Lord Mersey:
Was the chief engineer there at that time?
Mr. Haight:
He was in his bed, my Lord, but as I saw him on the stand he might as well have stayed in his bed all the time.
Lord Mersey:
Does that mean that you do not care about him, or what does it mean?
Mr. Haight:
It was an inadvertent expression of my contempt for the man who went to the lifeboats instead of going below to be on the scene of action with his assistant engineer; perhaps I should not have allowed myself
Lord Mersey:
Do you mean that he came up on the deck instead of going to his engine room?
Mr. Haight:
I do, my Lord. The engineer who was in charge of these engines stood before your Lordships a pitiable exhibition of absolute terror. Your Lordship may remember it; drops of cold perspiration formed on his forehead, ran down his face and dropped from his chin. He stood there for 15 minutes, the most pitiable exhibition of terror that I ever saw.
Lord Mersey:
My eyesight is getting bad.
Mr. Haight:
That man realized at the time that he had been through a tragedy and, surrounded by the dignity of the occasion, he was frightened. He could have told nothing, I submit, but the truth, and I think your Lordships will find that he did tell the truth. His story is perfectly frank: "I did not have time to record the bells after 3.02, but after I went off the watch, hours after the accident, after a thousand lives had been lost, I did what I could to record the bells." I know of no practice that is more exasperating to counsel than this attempt hours after an event to put down definite times as to when events happen, or what they are. I will defy any man to go into an engine room and in an emergency hear 30 or 40 orders given and then go back and write them down in sequence with the time that elapses. This man says, quite truthfully, I think: I do not know what bells came after 3.02, I got them, I answered them; I remember full speed astern; I do not know what it was; I put it down 3.05. That is the best I could do. *The chief engineer some hours later undertakes also some salvage work on the log, and he puts in some more bells. But the court can find only one thing; two bells were logged; the others were not logged. That fact is admitted. There is no basis for the statement that the movement of the Storstad is a surprise to anybody. We never denied that the Storstad was moving. Captain Andersen drew diagrams showing the positions of both steamers when he first saw the Empress and the movement of both vessels as they came together, and he gave as his judgment, as well as he could form it, a movement of about a length and a half for the Empress, while his boat was going forward perhaps a third of a length. He gave them more speed than he gave himself, but he gave himself some headway, and nobody denies that we had headway. We never could have received or done the damage which we did if we had been dead in the water, because having sighted her on our port bow, she would, as my learned friend very accurately observed, have crossed our bow clear.
Lord Mersey:
Did not some of your witnesses suggest that you had come to a dead stop?
Mr. Haight:
I do not think that any of the witnesses said that our boat had no headway through the water.
Lord Mersey:
Some of them certainly said that the ship had headway through the water, but my recollection is - although I may be wrong - that some of them also said that the ship had no headway at all.
Mr. Haight:
I think not, my Lord. I think Toftenes says that she had but little headway; everybody else says that she had some headway, including the captain, and manifestly she did have some headway.
Chief Justice McLeod:
The order was given: slow ahead?
Mr. Haight:
Precisely, she had lost steerage way; that is the point to which every witness testified.
Lord Mersey:
But when was the order given: full speed ahead?
Mr. Haight:
Never, my Lord, until the boats came in contact.
Lord Mersey:
What order was given immediately before that?
Mr. Haight:
Full speed astern, my Lord.
Lord Mersey:
And immediately before that?
Mr. Haight:
Slow ahead.
Lord Mersey:
Is there any reason to suppose that the order of slow ahead had any effect upon the headway of the ship?
Mr. Haight:
I suppose it had some effect. Probably the engines were running 20 or 30 seconds slow ahead, but it would have an almost inappreciable effect. I suppose that every revolution has some effect theoretically.
Now, all these criticisms which are aimed at our side of the case are absolutely unimportant - log entries, wheel, everything - if your Lordships find that at the time the Empress came out of the fog we were heading west by south. That was the course upon which we entered the fog; that was the course not only that we were entitled to take, but that we were required to keep, and we had a right to keep steerage way. It was not our duty to allow the vessel to run down so slow that she would become absolutely unmanageable and might sheer in the current.
Now, our story is checked and substantiated by a great many physical facts, which, I think, cannot be contradicted. First, as to the fact that one whistle was blown by the Empress as she came into the fog; we say she did blow one whistle; she says she did not. Now, what is the condition of the record? I will hand up subsequently or give to your Lordships now - it would take a little time - the references to our witnesses and to the evidence of passengers.
Lord Mersey:
I think you had better give them to us.
Mr. Haight:
From the Storstad, Toftenes says, pages 207 and 208, that the Empress blew the long fog signal; she was blowing fog signals; also at pages 234 and 235. Saxe says: the Empress blew a long single blast, the usual interval of fog whistles ; pages 931, 932, 934 and 968. Fremmerlid, the Storstad's lookout, says that the Empress blew one blast; page 1007 and 1008. Belanger, the Captain of the Eureka, who, your Lordships will remember, was called as a witness before the Coroner, heard the whistles; his testimony is on pages 1314, 1325, 1326, 1362 and 1363. Powell, the assistant steward from the Empress, says that he heard the Empress blow a fog whistle once, page 1406. Hadley, the boatswain's mate, says that the Empress blew one blast; pages 1414 and 1418. Miss Townshend, who was referred to by my learned friend yesterday as a young lady who evidently knew what she saw and what she heard, and who kept her head, testifies that she was awakened by the Empress blowing, and that after she had been awakend by the Empress' fog whistle, she heard two signals of three whistles. Everything that she heard before the first signal of three whistles must have been some different signal, and she could not have confused what she heard with a three whistle signal, because she heard that twice. This evidence is at pages 1661. and 1663. McOnie, the junior engineer, testified at pages 1667,1668 and 1671, that he heard whistles and that he took them for fog whistles. Galway, the first witness to testify on this point, says that he heard a long blast from the Empress; page 618. When your Lordships come to read the evidence, you will find that a number of the witnesses whom I called were unwilling witnesses, and that their testimony was only obtained by reading to them statements which they had previously made to counsel for the Canadian Pacific and forcing them to say whether or not the statements as so made were true. I submit, therefore, that our story is proved; that the Empress did not put her engines full speed astern the minute that the fog began to make our lights look misty, but that she blew a running whistle as she entered the fog, as any reasonable ship would do. The whistle, I think the Court will find, was not only blown, but repeated, and the first signal of three whistles came several minutes after the fog had shut both vessels out from view.
Chief Justice McLeod:
You contend that it was right for her to blow a running whistle when she entered the fog?
Mr. Haight:
Unquestionably, my Lord; she certainly entered that fog, according to Captain Kendall, at a speed of 16 or 17 knots. If he had immediately slowed her engines, as a prudent man would do, and signalled to indicate that he, was moving through the water, the one whistle would be correct. I have no doubt that he blew it; his own men from his own ship heard it; we heard it and we twice answered it.
Lord Mersey:
What is the interval supposed to have been between the one blast and the first three short blasts?
Mr. Haight:
I think there is no exact testimony, my Lord, as to the interval.
Lord Mersey:
I do not think you dealt with the suggestion of Captain Kendall that he blew his three short blasts because he was slowing down.
Mr. Haight:
He says that he blew his three short blasts the minute he ordered his engines full speed astern.
Lord Mersey:
And he was ordering his engines full speed astern because he wanted to slow down?
Mr. Haight:
Apparently because he wanted to stop dead. For some reason he says not that he wanted to take the headway off his ship, but that he wanted to stop his ship - a thing which is certainly not usual. I submit that our story is substantiated that we heard one whistle and heard it twice, and I think also that our story - as to the angle of contact is substantiated.
Chief Justice McLeod:
You consider the angle of contact to be very material?
Mr. Haight:
It is very material, it seems to me, whether it is 40 degrees or 7 points; it makes a difference of over three points in the extent to which one vessel or the other swung.
Lord Mersey:
You mean by that four points or seven points?
Mr. Haight:
Forty degrees would be about three and a half points. They say that the vessels came together at an angle of 7 points; I say that the angle was 40 degrees, which is three and a half points. The witnesses called by the Storstad, the master, the chief officer and the third officer, were all asked to draw diagrams. They then had no more idea than your Lordship had as to what conclusion Mr. Reid would eventually reach from his accurate observation with regard to the angle of contact. And yet, if you will take their exhibits you will find that there is an insignificant difference between the pictures as they drew them at the time and the conclusion which Mr. Reid subsequently reached as to what the angle of contact really was.
I think that our story is also absolutely substantiated on the point of the Empress' movement through the water.
Lord Mersey:
Before you leave the question of the angle of contact will you tell us what the significance of the difference between the two stories is?
Mr. Haight:
The significance, as I see it, is that if we, according to their story, strike them at an angle of seven points, it means that our course has been changed nearly seven points from our west by south. If they made the change which brought the vessels together at a seven point angle it means a sheer by the Empress about twice as great as the sheer which we say she took to bring herself across our bow at an angle of 40 degrees. If we are heading west by south and the angle of contact is 40 degrees, then the heading of the Empress is north
Lord Mersey:
Will you help us by taking the two little models and illustrating what you are saying.
Mr. Haight:
(Using models). That, my Lord, is supposed to be the Storstad.
Lord Mersey:
Will you first of all show me the angle at which the Storstad struck the Empress, according to the Empress' case?
Mr. Haight:
Seven points, my Lord, (indicating by using models.)
Lord Mersey:
Now, show me the angle according to your point of view.
Mr. Haight:
(Indicating.) This, my Lord.
Lord Mersey:
Just tell me what is the significance of that difference.
Mr. Haight:
I take the Storstad theoretically heading west by south. If the Storstad, heading west by south, collides with the Empress at an angle of 40 degrees, that means that the heading of the Empress at the moment of contact is north 39 degrees east, and she lies to-day pointing north 45 degrees east.
Lord Mersey:
That is the diver's evidence, is it?
Mr. Haight:
Yes, my Lord. Of course, nobody can pretend to be exact to a minute or a degree in fixing the angle of this contract, but if it is true that 40 degrees is the exact angle, the Empress should have headed north 39 east.
I submit to your Lordships that our testimony is absolutely substantiated, as I said, that the Empress had headway through the water. Captain Kendall insists that by accurate observation of the water he knows that he was still; that he had been dead in the water, absolutely inert, for five or six minutes. But what is the testimony from his own ship on that point? It will take a considerable length of time to give your Lordships the references, but -
Lord Mersey:
I think you had better give them; never mind the time.
Mr. Haight:
The testimony of Toftenes, pages 215, 218, 219, 253. Captain Andersen, 287, 290, 291, 292. Saxe, third officer, pages 946, 970. Those witnesses all say that the Empress was moving and moving at a good speed.
Lord Mersey:
What point do these extracts from the evidence bear upon?
Mr. Haight:
That the Empress had a definite and positive motion through the water at the time of contact, contrary to Captain Kendall's absolutely positive statement. Fremmerlid, the Stordstad's lookout, the man who said that the Empress was moving 'nearer quick'; pages 1002 and 1008. Johannesen, the man at the wheel; page 1030. As to the testimony from the Empress' own witnesses, I would refer the court to Williams, the chief second-class steward, page 684, 686, 687. He says that he jumped up at the shock; he looked out through the port and he saw the Storstad sliding slowly past the port.
Chief Justice McLeod:
Does he say that the Empress was moving?
Mr. Haight:
He does not, my Lord. My point is that when the vessels changed their positions relatively, one or the other or both must have moved.
Lord Mersey:
There you have the court with you.
Mr. Haight:
Then, if, according to Captain Kendall's statement, he being dead in the water, we strike him at right angles, no power known to mechanics can swing our vessel parallel to his and our bow ten or eleven points around, and the boats could not separate by the Empress disappearing in the fog and leaving us astern. Then there is Ferguson, one of the Marconi men, whose evidence on the point may he found on page 692, 702 and 703. He saw the lights of the Storstad passing astern.
Lord Mersey:
Was that after the collision?
Mr. Haight:
Yes, my Lord. You remember that the Marconi men said
Lord Mersey:
Oh, yes, I remember, but you say that was after the collision?
Mr. Haight:
Yes, my Lord.
Lord Mersey:
And he saw the Storstad passing away towards the stern of the Empress. I do not see at present how that is evidence that before the collision the Empress was moving ahead.
Mr. Haight:
It seems to me to be definite evidence that after the collision the Empress was moving ahead.
Lord Mersey:
Is it evidence that she was moving ahead, or is it evidence that the Storstad was moving towards Empress's stern?
Mr. Haight:
If I am correct in my judgment as to the moving bodies, if we collide, as Kendall says, at an angle of seven points and he is dead in the water, there is no way in which the Empress can swing around and leave us astern; he would not leave us at all.
Lord Mersey:
Is it clear that the Empress did swing round? The Storstad, according to Captain Kendall, backed out.
Mr. Haight:
According to Captain Kendall, my Lord, the vessels did swing so that they came approximately parallel.
Lord Mersey:
I am only asking you whether Ferguson's evidence necessarily means that the Empress was moving forward. Just read it again.
Mr. Haight:
He says at page 702, question 2013 [3540]:-
[3540]. How much of a jar was there?
- Practically nothing.[3541]. And when you got the starboard side, you then saw the Storstad going astern?
- Yes, that is right.[3542]. How far had she got on your starboard side abreast of your room or aft?
- She must have been abreast, because I did not look close to the window. I saw her just as she came by the window.
The collision had been some distance forward of the wireless room.
Lord Mersey:
That is to say that after the collision the Storstad was making for the stern of the Empress?
Mr. Haight:
He saw her passing his window.
Lord Mersey:
I am at present at a loss to understand why that is evidence that the Empress was moving ahead.
Mr. Haight:
Of course, if at the time of the collision the Empress did have headway, then the Empress would have continued on.
Lord Mersey:
But if she had not headway and the Storstad was making for the stern of the Empress the same thing would have happened to Ferguson; he would have seen the Storstad moving past him.
Mr. Haight:
But I submit my Lord - the assessors will know better than I -
Lord Mersey:
I thought he said in terms: she was moving past us.
Mr. Haight:
Past the window.
Lord Mersey:
That seems to me to mean that it was the Storstad which was moving.
Mr. Haight:
(Reading):
'She must have been abreast, because I did not look close to the window. I saw her just as she came by the window.'
Now, my view had been - your Lordship and the assessors will correct me if I am wrong - that a vessel colliding with the Empress at seven points could not possibly go sidewise or any other wise back towards the stern of the ship by her own engines, and that if everybody on the Empress after the collision sees either the Empress going ahead or the Storstad broadside going astern, or swinging round and going astern, you must find motion on one boat or the other, and the Storstad cannot go broadside down along the starboard side of the Empress to her stern -
Lord Mersey:
She did go round her stern?
Mr. Haight:
Captain Kendall so states.
Lord Mersey:
There is no doubt about that, is there?
Mr. Haight:
If I am right, there is, therefore, no doubt that the movement which caused that phenomenon was the movement of the Empress.
Chief Justice McLeod:
Your contention is that the Empress moved and carried the stem of the Storstad ahead?
Mr. Haight:
Yes.
Lord Mersey:
Now, you were giving us the evidence from the Empress?
Mr. Haight:
Bamford, another Marconi man, pages 705, 706, 707 and 708.
Lord Mersey:
What is the effect of his evidence?
Mr. Haight:
He says that he saw the Storstad's lights drifting aft; it is to the same effect as to the relative way in which the boats separated.
Lord Mersey:
Your contention is that whenever they use the expression: 'drifting aft' or 'passing aft,' it really means that the Empress was moving forward?
Mr. Haight:
Yes, my Lord. In view of the fact that the vessels came in contact at that angle and that they subsequently swung around, as Captain Kendall says, to this angle, (indicating) then separating with the headings almost parallel, it should be observed that these movements are, under the rules of physics, absolutely impossible on the theory that the Empress was dead in the water and that we were reversing our engines. Instead of swinging parallel with her and drifting astern, we would have backed straight out, as Kendall originally contended, and our bow would have gradually swung under the reversing engines to starboard.
Lord Mersey:
Now, is there any other evidence?
Mr. Haight:
Burns, the assistant storekeeper on the Empress; pages 1658, 1659 and 1660. He says that the Storstad moved round broadside with the Empress, that she swung towards the Empress' stern and the vessels became more or less parallel. Fournier, one of the Empress' trimmers, says that he saw the lights of the Storstad drifting towards the Empress' stern; pages 1277 and 1278. I should also mention the evidence of Reinertz, the second officer of the Storstad, pages 1116, 1117,1118 and 1134. He says that after the contact the lights of the Empress went over to his starboard bow. Aagensen, one of the sailors on the Storstad, says that he saw the lights of the Empress forward, and that they disappeared to starboard; pages 1143 and 1144. Jansen, also a sailor; pages 1144 and 1145. Reid, my naval architect, also says that from his observation of the wound he believes that the Empress was moving; pages 1762, 1776, 1804. The last witness is Larsen, also one of the Storstad men, page 1147. He says that he saw the Empress after the collision disappear to starboard. I submit, therefore, that the evidence given by our side that the Empress had headway is substantiated by these witnesses.
I come now to what I believe to be the principal physical fact which proves our story to be true and disproves theirs completely. We say that we were heading west by south. We say that the angle of collision was approximately 40 degrees. As I have stated, if these two statements are correct, the Empress at collision was headed north 39 east. I may explain that west by south is, of course, the same as east by north.
Lord Mersey:
Just tell me that again. You say that the Storstad was heading west by south?
Mr. Haight:
West by south.
Lord Mersey:
And you say that she struck you at an angle of 40 degrees?
Mr. Haight:
Forty degrees.
Lord Mersey:
And you say that if this be true, the Empress must have been heading north by 39 east?
Mr. Haight:
North 39 east.
Chief Justice McLeod:
That is on the basis that she struck you at an angle of 40 degrees?
Mr. Haight:
Yes, my Lord. West by south is, as I have said, equivalent to east by north. That is, if our head is pointing west by south, our stern is pointing east by north; that is 11¼ degrees from due east towards the north, or one point. Add to your 11 degrees 40 more, and you have 51 degrees; 51 from 90 leaves 39.
Your questions have shown that your Lordships were impressed by the fearful rapidity with which this vessel sank. There was not a steward or a passenger, however fast he moved, or however little clothes he may have put on, who succeeded in getting to the deck until the list was so serious that the port boats were absolutely unmanageable. Some of the passengers who got up and started for the deck almost immediately had to crawl on hands and knees up the stairs and companion ways. Now, what does that prove? It proves what Captain Kendall admits to be the fact; that the vessel sank practically where we hit her. She moved off a few lengths in the fog, but she was careening to starboard immediately and she could have done very little but fill and sink. Now, when she disappeared Captain Anderson says she was heading off shore. He gave that testimony before anybody knew how the wreck lay; before there was a word of evidence as to what the divers would disclose. Captain Kendall had already said that the last of her heading when she went below the water was southeast, definitely and positively.
Chief Justice McLeod:
Who said that?
Mr. Haight:
Captain Kendall.
Chief Justice McLeod:
That she was heading southeast?
Mr. Haight:
He said that his vessel was swung by the blow until she was heading from north 73 east to southeast.
Lord Mersey:
Will you refer to the page, please?
Mr. Haight:
Captain Kendall, pages 85 and 87; Captain Andersen, page 299. Captain Andersen said that when she sank she was heading out from land, and if she was heading southeast, as Captain Kendall said, she would be heading almost directly for the land. Now, how are we going to explain, on Captain Kendall's story, the fact that the Empress is found by the divers lying on the bottom on her starboard side, and heading not on the course he says, but at right angles to it?
Chief Justice McLeod:
Not on the course that Captain Kendall says?
Mr. Haight:
Not on the course that he says of southeast, but on a right angle course of northeast, on a course which is within five or six degrees of the course upon which we say we struck him. The buoys placed on the Empress are northeast and southwest. Wotherspoon, when asked by my learned friend as to whether there were currents which might affect this vessel from the time she disappeared from the surface until she reached the bottom, said that there were currents; he had been there. His testimony is absolutely contrary to the chart, and, better still, is entirely contradicted by the testimony which we have received from the divers from the Essex. There are no whirlpool eddies at the place where this vessel sank. The tide runs fair, but it never runs at a speed which causes a diver any difficulty in going down. The testimony that came in this morning from the chief gunner of the Essex is that on June 19, his diving work was carried on between 11 a.m. and 4 p.m., a period of five hours. On the 19th, high water was 11.14 a.m. and low water 5.13 p.m. In other words, his divers were going up and down from the beginning to the end of the entire ebb movement, which, added to the natural current of the river, gives you absolutely the maximum current that you can get. But no diver experienced any difficulty, apparently, in doing that work. Wotherspoon admits that no attention was paid to the state of the tide; they went down when they wanted to go, and if there were whirlpool conditions which affected this great ship 540 feet long and of 18,000 tons displacement and whirled her round 8 points from the time she disappeared from the surface until she reached the bottom, nothing but the force of Niagara Falls would accomplish it.
Lord Mersey:
That paper has not been in evidence, has it?
Mr. Haight:
Mr. Newcombe has the original; I supposed that it was to be submitted.
Lord Mersey:
It had better be put in and marked. (Paper from gunner of Essex re diving operations, filed and marked as Exhibit H-l).
Mr. Haight:
I come now to Captain Kendall's story. If I am correct in stating that the physical facts substantiate my story, then it should also be true that the physical facts contradict his story. I submit that that is true. Our courses were taken accurately. Our distance off shore was approximated and when we left Metis Point abeam we knew that it was abeam; but we estimated that it was four miles. It is not surprising if that estimate was somewhat out; we could with perfect safety have gone within two miles or one mile; it made no difference. The courses given by Captain Kendall must be accurate. His distances must be correct; his times were noted with the utmost precision. He remembers it all; he never failed to look and he never forgot. I did not want to inflict an additional chart of my own upon the court, but I thought it would be helpful to have Captain Kendall's chart photographed so that it would show a larger scale, and have his diagram transposed.
Chief Justice McLeod:
Is that what we have here?
Mr. Haight:
That blue print is the diagram drawn by Captain Kendall, taken from Chart 'C,' showing the known course of the Empress and the supposed course of the Storstad. 'A' is the position of the collision; 'B' is the course of the Storstad. This line 'B' running down towards Father Point is the supposed course of the Storstad and the point 'B' is the position where the first whistle from the Storstad was heard. ' C' is the position where the second whistle was heard; 'D' is the position where the third whistle was heard, his testimony being that the whistles were two, four and six points on his starboard hand. 'E' is the course that the Storstad took after giving the third whistle, and 'E' is what he says is that the Storstad did under her port wheel. The distance run to the change of course from Father Point pilot station is four and a half miles, and he says he ran that distance in 15 minutes.
Lord Mersey:
What is the four and a half miles?
Mr. Haight:
The distance from the point at the pilot station up to the place where he changed his course to north 73 east.
Lord Mersey:
Where we see the 22 marked?
Mr. Haight:
Yes, my Lord. According to Kendall's testimony, when he changed that course he had Cock Point abeam, and he draws his diagram putting Cock Point light abeam exactly where he says he changed his course. Now, at the change of course, on his own course as plotted by himself on the chart, Cock Point is distant four miles; but Kendall himself testifies that he really cleared Cock Point by only two and a half or three miles. Your Lordships will remember his definite statement that some men clear Cock Point one mile, some two; he, because of his greater caution, gave it two and a half or three miles clearance. But his diagram shows four.
Chief Justice McLeod:
It is drawn to a scale, is it?
Mr. Haight:
Yes, my Lord, this is a photograph from his chart. According to Captain Kendall's story the heading of the Storstad when we make this violent change from 'D' to 'A' is nor'-nor'-west one-half west, making a change from our original course of six and a half points, and it is said, even by learned counsel on the other side, that we accomplished that change of heading and ran that distance in one minute. It is a mile.
Chief Justice McLeod:
That is, a mile from where the helm was ported?
Mr. Haight:
From 'D', where Kendall says we ported, to 'A', where he says the wreck by a mile and a quarter. The letter 'G' indicates the location of the wreck the wreck by a mile and a quarter. The letter 'G' indicates the location of the wreck as absolutely fixed by Gagnon, the man who made the observations and located the buoys for the Government. Now, that does not fit in very well with the known facts. References to the collision as to times are worse. He says definitely and positively, page 1650, that he left Father Point at 1.20.
Chief Justice McLeod:
That is, Captain Kendall?
Mr. Haight:
Yes.
Chief Justice McLeod:
That was when he was called the second time, was it not?
Mr. Haight:
Yes, my Lord. He says he left Father Point at 1.20; the collision was 1.55. He knows the moment of the collision, because two moments before, for some reason unexplained, he was particularly anxious to find out what the time was, and he went into the chart room for no other purpose than to look at the clock. So that figure is precise; that testimony is on page 1651. From 1.20 to 1.55 means a total time elapsed of 35 minutes. He occupied 15 minutes in running on the first course; page 1648. He occupied 12 minutes actually running on the second course; page 1647. That leaves of our 35 minutes only 8 to be accounted for. During those eight minutes he tells us what he did. He blew three whistle signals twice and he blew a two-whistle signal twice; in the eight minutes: three, three, two, two. He was seven minutes dead in the water, page 152. At page 148 he says that he was from five to seven minutes dead in the water. If we take his seven minute statement, on which he first put a good deal of emphasis, it means that he blew three, three, two, two, in 60 seconds. If he was dead in the water five minutes, which is his lowest estimate, he blew those four signals in three minutes. Now, after 27 minutes, when he blew his first signal of three whistles, the Storstad was two miles away, according to Captain Kendall. She was three to four miles away, according to Jones, and according to my learned friend Mr. Aspinall in his argument yesterday, she was two and a half to three miles away. I will compromise with my learned friend at three miles. Assuming that to be the case, the Empress reverses three miles away from us and she stops dead in two lengths. We are, therefore, forced to travel of the three miles in order to get into contact, that entire distance, less only two lengths, which is 1080 feet. In other words, according to Captain Kendall's diagram and his story as told specifically and with precision, he during the eight minutes travelled 1080 feet, and we travelled three miles less 1080 feet, which gives us a rate per hour of twenty-eight and three-quarter miles. We certainly would have had some bow wave if we had been doing that.
Captain Kendall's story also, as I read it, lacks substantiation in its vital points as to the lights. To use once more my learned friend's phraseology, it is most important to Captain Kendall's case that he should have seen our green light; until he could see our green light he was showing his green to our red and to he was bound by the rules to keep of our way. Now, what does he say about seeing the green light? He goes to the upper bridge and he says that he took from his standard compass a special bearing and that he then saw the green light. Jones, the officer on the bridge, could not see the green light, although he was using his binoculars, and he so testifies. Murphy, the stand-by man, could not see the green light. He was not steering; he was standing by. His opportunities for observation and his duty to observe were both present, but he could not see a green light. Carroll, the lookout on the crow's nest, could not see a green light. My friend suggests as to Carroll, that the duty of a lookout on the Empress is to look at a light when it can first be seen and never look at it again; it would not be natural for him to look after he had once reported. Well, it appears to me most extraordinary that with only one ship in view, Captain Kendall is the only man who can be found on the ship who ever saw our green light. Captain Kendall admittedly was in the starboard hand position when he started from Father Point. If we are heading west by south, which is approximately parallel with the shore and he is coming out from Father Point on an angle, we must be on his starboard bow. According to his story, he deliberately changed from north 47 east to north 73 east, and having originally been in a position which put us four points on his starboard bow, while we are still on his starboard bow he deliberately changes to a course that brings us within one point. It is indeed important to his case that he should prove that when he made that change he had crossed our course and could see our green light, and for that proposition you have his word, unsubstantiated; questioned by the fact that Jones used his binoculars and could not see it; contradicted by our evidence that we saw his red light. But, says Captain Kendall, when I changed my course to starboard, I had got a view of your green light; there was nothing wrong about my changing from a position of absolute safety, four points, to one of one, because I had crossed your course; we were green to green. You were two miles away and one point on my starboard bow and the clearance would have been half a mile. Jones, as I have said, puts it at four miles away and three points, which would give a clearance of two and a third miles. And yet, on that story the engines of the Empress are put full speed astern as soon as haze begins to dim the lights of the Storstad.
Captain Kendall's story also, it appears to me, has in it extravagances in other details which go a long way towards discrediting him. He talks about a sheet of fire shooting out when the vessels came together; he talks about a terrible impact, while it has been stated by another witness that there was no jar at all. He says that he, lying dead in the water and heading north 73 east, had changed to southeast, practically six points, when we hit him amidships; whereas Mr. Hillhouse says that hitting him amidships we could not have changed his heading at all. He says that when the Storstad hit the Empress she rebounded like a rubber ball thrown against a wall. Mr. Hillhouse admits that the forward movement of the Storstad would have been absolutely taken up by the crushing of her parts, and that when she penetrated the maximum she would have been inert. Captain Kendall, worst of all, says that when we backed away we backed out straight from him a mile and left his passengers to drown. The truth is that from the time the boats separated, we were constantly blowing our whistle to find where he had gone to in the fog, and during the feverish efforts that were being made on the bridge to do something, nobody ever thought of pulling the whistle cord, that we might get close by and render assistance. It was the cries of drowning people that aided us in groping our way to the sinking vessel. Captain Kendall told us about leaving his bridge to throw the gripes off his boats. I do not doubt that he left the bridge, but your Lordships cannot have overlooked the fact that on cross-examination the officer who did put out the starboard boats says that he himself and his men released all those gripes. I do not know what Kendall did when he left the bridge, but the testimony is uncontradicted that not a gripe was touched until the officer and the men who actually lowered the starboard boats got to them and started their work. One of the most extravagant claims he makes is that we swung seven points, as shown by his diagram; that we had travelled a mile to do it, and that this porting of the wheel was done after our vessel had been slowed for two minutes and stopped for four or five. To have travelled a mile in a minute we would have to be a 60-knot boat, not 27; our change of course is in proportion.
My friend argued yesterday that Captain Kendall must be believed because he had recently faced death, had lost his ship and had been connected with a disaster which meant the loss of over a thousand lives. Now, must he be believed for those reasons?
Is it not more likely that because he lost his ship and because he has lost a thousand lives he would not dare face the world with a frank admission that he had been at fault. It would indeed take herioc courage for any man to stand up and say before the word: 'within four miles from land, with the vessels both known, their positions known and their courses only eight minutes before I so manoeuvred my boat that she came across the bows of the other vessel when that vessel had not changed her course.' Is it not likely my Lords, that the fearful experience through which Captain Kendall went has left its mark and that his testimony bears that mark inevitably? I submit, my Lords, that the heading of the wreck of the Empress was the heading of the Empress at the time of collision, and that because of that heading the Empress alone was to blame.
Lord Mersey:
Now, Mr. Haight I want to perfectly understand, your case involves the necessary conclusion that Kendall and his witnesses have deliberately placed a story before us which they must know is false. That is the effect of your argument.
Mr. Haight:
My argument is that one side or the other has done that very thing and I submit that it is the Empress.
Lord Mersey:
Now, Mr. Aspinall would you rather address us before the adjournment or after. I mean to say we are not going to sit here if you are going to be an hour to finish?
Mr. Aspinall:
I shall certainly be half an hour at least.
Lord Mersey:
Very well, I think I had better have you after the adjournment.