The court resumed at 2.35 p.m.
Mr. ASPINALL'S SPEECH IN REPLY.
Mr. Aspinall, K.C.:
My Lords, while I am not in accord with many things that Mr. Haight has said, yet I am entirely at one with the opening observations which fell from him. May I remind your Lordship what he told you? He said this was a case in which according to his view, and I agree, one or other of these ships is to blame. It is not a case of both to blame, and the view that he has presented to your Lordship is in accordance with the view that I have been seeking to present to your Lordship, that being red to red and green to green unless one altered course these ships would have safely passed one another, either starboard to starboard or port to port. And he also proceeds to say that he has no complaint against the Empress unless he (Mr. Haight) can establish that the Empress changed her course. Now that is the fight between us.
Lord Mersey:
Forgive me for interrupting. Does it follow that it is not probable that each ship may have been partly to blame for what happened? You say it follows logically that only one ship can be blamed.
Mr. Aspinall:
If I might be allowed to correct your Lordship. What so far I have said is that is the way in which Mr. Haight has presented his case. He is an advocate of experience and I have no doubt he is not ready to give away anything and that is the position he takes. And that equally I may now answer your Lordship that is the position I take up, that if this evidence be anything like right on either side that these two ships were passing one another at a safe distance be it red to red or be it green to green, and that the error or blunder which brought about this trouble was the change of course on the part of one, I am prepared to admit this or possibly on the part of either, because I feel -
Lord Mersey:
When you say possibly on the part of either don't you mean possibly on the part of both?
Mr. Aspinall:
I did, my Lord, I used the wrong word. It is possible of course in this class of case, but in view of the contentions that have been put forward on either side, if either contention is right with regard to what happened to the helm, with regard to what happened to the speed it followed if either I establish my case with regard to that matter or Mr. Haight establishes his case with regard to that matter, that my ship could not have altered course or his ship could not have altered course it all comes back to that -
Lord Mersey:
That I quite understand before asking this question - because the view may be taken by some members of the court - if your story is right it follows logically that the witnesses for the Storstad are either telling deliberate lies - and I don't think you can escape from saying it - if on the other hand Mr. Haight's story is right it follows as he says that the witnesses from the Empress must be deliberately putting forward a story which they know is untrue. That seems to me to be the position involved by the pretensions of the two sides. What I am asking is this, is it according to your view possible that there may be a middle course involving both sides in blame?
Mr. Aspinall:
As your Lordship says of course it is possible, but what I submit is the manner in which your Lordships will approach the consideration of this case will be your Lordships will consider the evidence, and I submit that in a court of law that the court is slow, and properly slow to arrive at a conclusion which neither party to the dispute invites the court to come to, and to which conclusion neither party has addressed its evidence.
Lord Mersey:
Of course you must remember that this is not a suit.
Mr. Aspinall:
I admit that.
Lord Mersey:
This is an inquiry.
Mr. Aspinall:
That is clear, but nevertheless I submit I am entitled to put forward this contention, that where you find two ship-owners represented, if I may say so, by counsel who know their business, if in accord with this view that it is one to blame, and not both, and when it is remembered that the evidence on both sides has been massed so to speak to arrive at that conclusion, that whether it be a tribunal which is inquiring, or whether it is a tribunal which is determining liability, that that tribunal would be slow to say that they propose under these circumstances to arrive at a middle course.
Judge McLeod:
What this commission wishes to do is not to try the case between the Empress and the Storstad but to satisfy ourselves and, if we can, satisfy the public, just how this accident happened, and if coming to that conclusion we have to find that both are to blame we are entitled to do it.
Mr. Aspinall:
Undoubtedly.
Judge McLeod:
Regardless of what counsel say on either side.
Mr. Aspinall:
I say it is possible, and of course your Lordships are entitled to do it, but what I am submitting to you with some confidence is that any tribunal, if it be a tribunal inquiring as to the causes of the collision, or if it be a tribunal determining whether there is liability would be slow, where the case has been conducted in the way the case has, to arrive at a middle course. My lords, I have always understood that a tribunal is much guided by the conduct of the case. The tribunal is necessarily much guided and influenced by the points to which the evidence is directed, and here Mr. Haight and I are in agreement that on this part of the case we have each of us directed our evidence, massed it on this one point. Did the Empress alter course, or did the other vessel alter course, and after the evidence of it the two speeches have been addressed to your Lordships in support of that view, and that view only. And I submit that under those circumstances as I said before, the Court would be slow, and if I may say so respectfully, properly slow to arrive at any other conclusion.
Lord Mersey:
I put it to you again. Your case is that the course of the Storstad was changed?
Mr. Aspinall:
Yes.
Lord Mersey:
In such a way as to bring about the collision?
Mr. Aspinall:
Yes.
Lord Mersey:
His case is that the course of the Empress was changed in such a way as to bring about this collision.
Mr. Aspinall:
Yes.
Lord Mersey:
And you say that inasmuch as the happening of the collision undoubtedly depends upon some change of course it is extremely improbable that both changed their course and brought about the collision?
Mr. Aspinall:
Yes, that is my point. I don't for one moment suggest that your Lordships could not take that course, but with submission I submit it would be a strange course, and an unusual course for the Court to pursue in view of the way this case has been conducted, and in view of the way in which the evidence has been directed.
Lord Mersey:
Those are the issues between the parties. I say no more, only in order that I may see on what lines you are running your case. I have asked pretty much the same questions of Mr. Haight, and I understand exactly the position that he takes.
Mr. Aspinall:
Mr. Haight, without any inquiry from your Lordship in the very opening sentences of his address made that extremely clear, that that is his position, and that is my position. Having said that Mr. Haight then says this, that he pins his case in support of his charge that the Empress altered her course upon the defect either in the gear which operates the rudder, or a defect in the rudder. One wants to get down in this case, if one can, to what is the broad issue between the parties. Now we have got it in view of what Mr. Haight says.
Lord Mersey:
I think you left out the third, that for some reason or another Captain Kindall entirely lost his head.
Mr. Aspinall:
Yes, I shall be able to deal with that. I confess that in view of what Mr. Haight had said in the early part of his case that his attack was upon the steering qualities of this vessel, I fail to appreciate the importance of that latter observation. I fail to appreciate it, and with all respect to Mr. Haight I still do. But it is a point that if need be I will deal with. As I understand the point of his attack, and that is the bing issue between us, was did the Empress alter course because the steam steering gear failed or the rudder, on account of its area. It was to that I proposed to address my remarks in reply to your Lordship. Now Mr. Haight, having committed himself to that gave reasons, various reasons why he claims that he establishes that charge. I shall deal with them very shortly because I really have practically dealt with them yesterday. I want to make this observation, that he says, and says no doubt with some force that if Captain Kendall has failed there is every reason why he should lie. He is using strong language, and perhaps it is better one should do so, it makes for brevity, that Captain Kendall is wrong and that in view of the fact that he has lost his ship, and that so many human lives have been lost, that unless Captain Kendall can exculpate himself he can never hold up his head again among his fellow men. But consider what is Mr. Haight's attack, not that the man has failed, but that the ship has failed, and if he established his proposition that the ship had failed why should Captain Kendall come here and seek to sacrifice himself in order to save the pocket of the Canadian Pacific Railway Company? The very manner in which Mr. Haight has put forward his case with regard to this entitles me to reply to him, and to reply to him with force that if you Mr. Haight establish that the ship failed, why does not Captain Kendall at once say I did not fail, it was the instrument that the Canadian Pacific Railway Company entrusted to my charge that failed. I submit that is a good reason for rejecting this, because this trouble was a defect in the steering, a defect in this ship. That is the issue between us, did the ship fail. But it is to be remembered in that connection, that this vessel since her rudder was altered in 1908 has sailed the seas many thousands and thousands of miles. Mr. Haight, to use his own expression, says there was a radical defect in the steering qualities of this vessel. Is it conceivable that if there was a radical defect in the steering qualities of the Empress in view of the many voyages she has made that defect was never brought to the notice of the Canadian Pacific Railway Company and remedied. One must look at this from a business point of view, and it is obvious that if there was this radical defect in the steering quality of the Empress that she would have failed time out of mind, and that Captain Kendall for the safety of his own life, would at once have communicated to the Canadian Pacific Railway Company that this ship is unsatisfactory. He has got to take her up narrow waters. I don't know the navigation of the River St. Lawrence, but I am told and from what one hears in the evidence, that there are very many narrow parts, and it is essential to the safety of the men in that ship that she should be a good steering vessel. I submit this broad point for consideration, which is of enormous value when one comes to consider, as Mr. Haight establishes, the point which he says is essential to his success, namely, not that the man failed, but that the ship failed. Now what is the evidence which he relies upon in support of this suggestion that the ship failed? It comes back to Galway, because that is what it comes back to, to Galway and to the Alden incident. I dealt with it yesterday, and pointed out to your Lordships that according to Galway what happened on that occasion was that the wheel jammed, whereas, what the people from the Alden say, referring to the Empress, was that she was performing these serpentine evolutions upon the port bow. I suggested that the two things were quite inconsistent. Mr. Haight relied, as he was entitled to do, on the testimony of his pilot: I am entitled to remind your Lordships that according to the evidence of my pilot, that this incident did not happen. I am also entitled to rely on the fact that our pilot swears, and it is a thing he cannot be mistaken about, that it was never suggested to him by Galway, as Galway says it was. The next point that Mr. Haight makes is: look at the evidence of Murphy. Now what does Mr. Murphy say about about it, on the third day, page 662? Murphy was a gentleman who was asked - he had been at the wheel - how her helm was working. He was asked whether this witness (Galway had told him something to this effect: to be careful of the ship, that she was not steering properly, and he was asked: is that true, and his answer was: never, sir. Mr. Haight finds this, and upon this he seeks to build up his theory that the ship had bad steering qualities.
"By Mr. Haight.
[3290]. "I understand, Murphy, you have never had any trouble with the steering gear?
- Never since I have been on the ship.[3291]. "You found that it worked with absolute promptness whenever you put the wheel one way or the other?
- No, sir. 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 on right away."
Mr. Haight says that the witness said that sometimes happened, but Mr. Haight had not the book. The word 'sometimes' occurs in the question put by Mr. Haight, for the next question is:
"[3292]. Sometimes, when you first put the wheel over, she does not catch on, and then you have to bring her back amidships?"
and the answer,
- That might occur every two years."
[3293]. It has occurred?
- Only once since I have been on the ship."
And then on page 420 - I missed that and my friend, Mr. Holden, pointed it out to me -
Lord Mersey:
Where is the page you have just been reading from?
Mr. Aspinall:
Page 662. He is asked later on in the same page, "Has she ever jammed with you?" and the answer is: "No, sir, never."
Now the evidence of Galway was that she jammed.
Lord Mersey:
That she jammed on one occasion and that she sheered on two other occasions, once when she was coming up the St. Lawrence river, and once when she was in the Mersey river.
Mr. Aspinall:
Then on page 420, which I had overlooked, this witness, who had been examined earlier in the proceedings, was asked:
"[2167]. How long have you been quarter-master on the Empress of Ireland?
- Four years and five months."
So that in the course of that gentleman's experience it had never jammed. And he speaks to this incident of not catching, and that is the sort of evidence upon which your Lordships are asked to come to the conclusion that this ship was sailing the seas with a rudder which really made her an animal feri naturae - a more dangerous beast I can hardly imagine. This great vessel, travelling the seas, carrying thousands of lives, was allowed to go on all these years in this condition. It is incredible, it is asking your Lordships to accept too much. It is always to be remembered that we have that strong body of affirmative evidence from other people, that the rudder was in good order and condition. Your Lordship asked in this connection what was the evidence with regard to the tank. Mr. Haight made a point with regard to the tank. Mr. Hillhouse, on the eighth day, told us this with regard to the tank, page 1598-99: He was being examined by me with regard to this suggested leakage, assuming there is any leakage.
"[6946]. Assuming that there is any leakage, is it taken up from the tank which supplies the material?"
Mr. Hillhouse's answer is:
"- Yes, that is the object of the tank.
[6947]. You have the tank in the wheelhouse, have you?
- Yes.[6948]. And that automatically feeds the machine?
- Yes.[6949]. So that in the event of there being any leakage, if the tank does its work properly the leakage is at once taken up and gone?
- Yes.[6950]. Is that simply a mechanism?
- Yes.[6951]. In your experience, is it effective?
- Yes.'
That is strong evidence, and it is the evidence of a man who knows what he is talking about. Well now, that in effect sums up, apart from the view of Mr. Reid, which it was to be noticed was singularly in conflict with the views of Dr. Elgar and Mr. Hillhouse, sums up this attack on the steering qualities of the Empress.
Passing away from that point, Mr. Haight then commented upon the manoeuvre of Captain Kendall in stopping and reversing his engines. As I said yesterday, in view of the fact that they admit that they twice heard our three short blasts, it seems almost to follow that unless Captain Kendall was wishful to give them false information, he must have been doing what he was saying by his whistle he was doing. As I said, if they had come here and said you did no such thing, and we heard no three blasts, and we say that is a manoeuvre which a seaman is not likely to make, there would have been some strength in the observation. But they say: yes, we heard you give three short blasts, and we heard you give them twice. As I pointed out yesterday that was the case we pinned ourselves to from the first, and it is corroborated by the evidence given on the other side.
Lord Mersey:
Would you let us know what in your view, the view that you desire to submit to the court, was the cause of the movement that those three short blasts referred to? What was Captain Kendall doing?
Mr. Aspinall:
My suggestion to your Lordship in connection with that is this: As your Lordship said yesterday to me, I won't say in criticism, I like observations from the bench, because it enables me to see what is in their minds, it gives me the opportunity of dealing with it, but your Lordship pointed out that in view of the fact that the Empress had met two fogs, she might reasonably meet a third fog, and of course she might very reasonably meet a very bad fog. And one is entitled, in a large passenger ship, such as this, to expect a high standard of care from the officers in charge of the Empress. What is his duty? You are told by the rule, in terms, to travel at a moderate speed, but it had been laid down by the tribunals in England that it is your duty, if you see fog ahead of you, to take your way off before you run into the fog. It is common sense, it is good and safe navigation. You are not to run into a fog and then begin to reduce your speed. If you have got great way upon you, reduce your speed before you go on. My Lord, that is to be found on page 373 of the sixth edition of Marsden's Collisions at Sea.
Lord Mersey:
Sixth edition - is that the last edition?
Mr. Aspinall:
I think so. I am told it is. Well, that is the obligation imposed upon a ship, and when it is remembered that these two ships were approaching one another very nearly at thirty miles an hour, certainly thirty land miles, it would be 27 or 28 nautical miles, and here is the fog sweeping out from the land, is it such a surprising manoeuvre for a ship-master to take? It may be that he is acting up to the high standard of care one is entitled to expect, a high standard of care when you are dealing with a large vessel, which is travelling at 17 or 18 knots an hour, and I submit, under these circumstances, when one remembers the other side said they heard us blow three short blasts, not only once but twice, there is no reason, no good reason, for saying that that testimony is to be rejected.
Lord Mersey:
You will not forget what Mr. Haight said, that the lights were still showing on the Storstad and when the ships were three miles away from each other, and the Storstad was three points on his starboard bow, that is to say, as Mr. Haight suggests, when he was in a position of absolute safety, he, nevertheless, puts his engines full speed astern.
Mr. Aspinall:
With regard to the bearing I think Mr. Haight is exaggerating. I don't mean wittingly, but unconsciously. I don't think at that time the bearing was three points, but what I do wish to suggest to your Lordship is this, it is merely my suggestion, you will be guided by the view of your Assessors, that probably distance and bearing were exaggerated. It is a common failing with sailors, particularly when they get into courts of admiralty - probably the distance and the bearings haye been exaggerated by the seamen. It is to be remembered that the time when the engines were ordered to be put astern, the fog was then obscuring the lights of the Storstad. That was the condition of affairs. It is true that he had seen the lights, and had got them in a safe position, but still the fog is now coming on, and the density of the fog cannot be predetermined. It may be an extremely thick fog, as in actual fact it is, because the powerful lights of these two ships were only seen at very very close quarters, and under these circumstances, I submit that manoeuvre was taken. I have much stronger evidence in regard to this matter and these things. I have the evidence of the engineer who was in charge of the port engine and of the engineer who was in charge of the starboard engine, and this has to be remembered that in this case the bridge has its control over the engine room department, and the officers in the engine room are merely, so to speak, the machine to carry out the orders that come from the bridge. Now what do these gentlemen say? On the third day, at page 455, we find the evidence of these two gentlemen. The first is Brennan. He was in charge of the port engine, and at the top of the page he tells us this:
"[2413]. When you got full speed ahead, after leaving Father Point, was that carried out on the engines?
- Yes, sir.[2414]. Now will you tell us the next indication of speed that you got in the engine room- After that one?
- About 26 minutes past two on our clock.[2415]. You don't know as to whether your clock agreed with the bridge clock.
- No, sir.[2416]. I am asking you what were the next signals that you got from the bridge as to speed on the telegraph?
- Stop, full speed astern.[2417]. Were they given one after the other or were they given simultaneously?
- Practically right around.[2418]. Was that carried out?
- Yes, sir.[2419]. Will you please tell us, to the best of your knowledge, for how long the engines were kept full speed astern?
- I should say about three minutes, sir.[2420]. What was the next signal you got by the telegraph from the bridge?
- Stop, sir.[2421]. Was that following the three minutes?
- Yes, sir.[2422]. How long after that stop order was it before the impact took place, how long from the stop was it you felt any impact caused by the collision?
- I should say approximately four or five minutes."
It is essential for Mr. Haight's case to say that that is a lie. Here is a man in charge of the engines, not on his trial, down below, only carrying out the orders that are given from the bridge. That is the evidence of Mr. Brennan, and Mr. Liddell is a gentleman who was in charge of the engines on the starboard side. Mr. Liddell, page 493, in his evidence, says this: He is asked to give the orders he got, and he says:
[2537] - 'The telegraph stood full speed ahead, and it was turned around to stop and full speed astern.
[2538]. Was that order carried out?
- Yes.[2539]. After that, how long, to the best of your knowledge, were the engines kept reversing?
- Bear in mind that any time I shall give shall be approximate.[2540]. I understand.
- About three minutes.[2541]. Then you got the order to stop?
- Yes.[2541]. Was the order to stop carried out?
- Yes."
If that evidence is anything like right, it must be that the way was taken off the Empress. There is a criticism that it is false testimony, but there it is, strong, affirmative evidence, which was in no way broken down by cross-examination. I am not reflecting on the powers of Mr. Haight, who is a most effective and powerful crossexaminer. We have heard him. But I submit he in no way broke down the evidence which was given by these two gentlemen. That, I submit, carries an immense way in this ease. First of all, it results in this: that the Empress had been brought to a standstill, and, secondly, it results in this: that if the Empress was brought to a standstill, any helm-action that they had been wishful to give to the ship is necessarily ineffective. She is lying like a log, so to speak, out upon the water. No steerage way. I submit that was very strong evidence for my friend Mr. Haight, to seek to get over in the way in which he seeks to get over it by his suggestion that there was some defect in the steam steering gear. If we had been brought to a standstill, the defect becomes immaterial, even assuming that he establishes to the satisfaction of the Court, that this radical defect, as he calls it, existed. Now he has, in connection with the speed, called your Lordships' attention to a good deal of evidence from the Storstad, and to a certain amount of evidence from passengers and stewards—whose opportunities for observation, certainly for accurate observation, would be extremely small—but he is relying on that class of testimony to show that the Empress was travelling ahead. What they say, namely, that the Storstad is passing astern, would be equally consistent with the Empress going ahead or the Storstad going astern.
Lord Mersey:
Well, Mr. Haight says not because of the angle at which the two ships came into collision.
Mr. Aspinall:
My Lord, may I just read the evidence I rely upon.
Lord Mersey:
Certainly, by all means. When you make an observation of that kind, my mind goes at once to what was said on the other side.
Mr. Aspinall:
As I said, I welcome interruptions because it enables me to deal with any difficulties that your Lordships will have in your minds. My Lord, I wanted just to remind your Lordship of what, according to the engine-room log of the Storstad, was being done with their engines.
'3.05, full speed astern; 3.10, stop; 3.20, slow speed" ahead.'
So that there is five minutes full speed astern, and ten minutes stop. My submission is, that that would follow from what these people thought they saw, if they saw it happen at all. Five minutes full speed astern. This ship has been brought up by reason of her having driven herself into the side of the Empress, her engines are put full speed astern, she is a stationary vessel, and her engines, I submit, would pretty rapidly give her sternway, and then, as she comes out, the tendency is to cant her head to starboard, and as she goes the swing on her, every moment, becomes more effective. Now it is put against me that the stern of the Storstad was tending to come in a line parallel with the Empress, that is what would happen. To what extent it became approximately parallel with the fore and aft line ofi the Empress no one is, of course, in a position to tell. No one on board either ship then was thinking to what extent the Storstad had inclined around after she had emerged from the wound. They were then all thinking of saving their lives, and the opportunity for observation at night and in a fog, when the minds of these people were directed to saving their lives, is practically nil, certainly of no value. In a general way, that would be what they would be seeing, her tending to become parallel, in view of the fact that she has been reversing her engines for five minutes drifting astern of the stationary Empress. My Lord, I submit that that is quite an adequate and intelligible explanation of what some of the witnesses, upon whom Mr. Haight relies, said they saw.
As I reminded your Lordships yesterday, this has always to be remembered, that whilst one feels a difficulty in thinking that passengers or stewards, for the matter of that, under these circumstances can give us correct evidence, with regard to the movement of the ships, it is to be remembered that a large number of these witnesses, stewards and passengers and others, say that they heard us blow two long blasts, and of course if that be right, then unless Captain Kendall was again guilty of this remarkable stupidity, that he is on three different occasions and more saying on his whistle that he is doing something or rather representing to the world that his ship is doing something which, in fact, it was not doing, is incredible. That three short and two long blasts were given, many other witnesses have told us. My Lord, Mr. Haight has made a spirited attack upon the chart that Captain Kendall marked. I ventured yesterday when I was dealing with charts, to suggest that in view of the facts that the distances run are estimates, that the positions are estimates, certainly the distances of the Storstad approaching in the fog are pure guesses, that very little reliable information could be gathered from the markings upon charts, and if my memory serves me right, while I was dealing with the matter, your Lordship said that was your opinion. It was somewhere said, would that my enemy had written a book. Mr. Toftenes, who possesses a fine liteiary style when he comes to write up his log, felt himself quite unequal to this task of doing that which Captain Kendal has attempted to do. And perhaps he was wise, because T think it is highly probable that if Mr. Toftenes had found himself capable of doing that which Captain Kendall had done, that probably I should have been able to get a spirited attack upon it.
Lord Mersey:
Mr. Toftenes at once declared that he was not competent to do it.
Mr. Aspinall:
He wasn't, but if he had done it, as I say, it is highly probable that the same class of observations would have been made by me. Perhaps I should have been wasting time also in making them. But that is the outcome of that. I submit it is not of the slightest value. The only value that it occurred to me the court might derive from it, and it is very small, is that it appears to me that the course we claim we took and think we took takes us nearer to the wreck than the course Mr. Haight's vessel claims to have taken. But I don't think the slightest value is to be attached to it at all, because these are all guesses, estimates of distances, guesses of places, uncertainty as to speed, and matter of that sort. Ons criticism of that chart, prepared by Captain Kendall, is that at the place where he purports to have altered course, the buoy at Cock Point is not abeam to begin witK I think I could have helped Mr. Haight if he had come to my room last night with a few more criticisms of this kind.
Lord Mersey:
The B is what?
Mr. Aspinall:
The buoy which is supposed to have been abeam at the time he altered his course is at right angles, it does not seem to be abeam.
Lord Mersey:
What is B? B here is the position when the first whistle was heard. It was supposed to be two points and then it becomes four and then six.
Lord Mersey:
What are you saying about B?
Mr. Aspinall:
I was not saying anything about B. What I was referring to was the buoy at Cock Point.
Lord Mersey:
I thought you were referring to a buoy at B.
Mr. Aspinall:
No. What I was saying was that it seems to me I don't know whether Cock Point buoy is really abeam to the course, but I really don't wish to worry your Lordship about criticisms or comments on this chart. If your Lordship looks at B, C, D, E, they are the purest guesses. First of all, there is a curtain of fog -
Lord Mersey:
But they are on the course laid down by Captain Kendall as the speculative course so far as he is concerned of the Storstad. That is what, he says, I imagine we must have done.
Mr. Aspinall:
Yes. What I am pointing out, my Lord, is that in a broad way it represents his course and nothing more than that. He is not seeing the other ship, the curtain of fog has now shut her out, and this is also to be remembered, that in a fog, any indications which are given by sound are often inaccurate, and most misleading. My submission to your Lordship is that that is not helpful to the tribunal, in any sense, in deciding this case.
My Lord, the only other matter I would like to invite your Lordship's attention to is the log of the Storstad, because that represents the story which they claim to be the real statement of the facts. This is a document which was written by Mr. Toftenes. He cannot do any work on charts, but he has got a very good literary style when he comes to write up the log: and it is to be remembered that what he did was this: he drafted it out. Xow I thought at the time, when your Lordship made some remarks to the effect that it was not an unusual thing to do, I thought your Lordship was thinking that it was a scrap-book.
Lord Mersey:
I was.
Mr. Aspinall:
I thought so at the time. Afterwards, when it came to your Lordship's knowledge that it was not a scrap-book, but the official final log-book, then I submitted your Lordship would be surprised to find that any drafts had been made, drafts of logs are not made, but a draft was made in this case and finally approved of. And finally, it finds its way into the log-book. May I read to your Lordship the approved form of the draft ( It is a very clear and lucid statement of the case as now presented.
Lord Mersey:
This is the ship's log.
Mr. Aspinall:
Yes, the official log. It could not be better exposition of the case, to do justice to anybody and it reads thus:
'At 2.30 o'clock saw about two points on our port bow the top lights of a steamer, and immediately afterwards the green side light of same. At 2.50 we saw the other steamer change its course and show its red side light, about one and one-half points on the port bow, and thus red to red.'
Lord Mersey:
Now that is a critical point, is it not?
Mr. Aspinall:
Oh it is quite in order with the evidence we have heard.
Lord Mersey:
From which?
Mr. Aspinall:
From the Storstad.
Lord Mersey:
Yes, I know, but that is a movement that you say is entirely wrong.
Mr. Aspinall:
Quite. Then this document continues thus:
"The course of the Storstad was continued steady. Some minutes later the lights of the other steamer were hidden by a fog bank. The Storstad remained herself in clear weather, and a long blast of a whistle was heard which was answered by a similar one and the speed was at the same time reduced to slow. Now the Storstad also entered the fog. Immediately afterwards the engines were stopped and the steering was carefully watched so as to keep the ship on its course."
That statement seems an odd entry to put in the log. The steering was carefully watched so as to keep the ship on its course.
"Simultaneously three short blasts of the 'whistle were heard from the other boat, on the port bow, which was answered by a long blast. About five minutes afterwards the engines were stopped and as the vessel glided along against the downgoing current, the speed was so considerably reduced that fears were entertained that the vessel would take a sheer over to port. To prevent this, port helm was given. It proved, however, that the speed of the vessel was so considerably reduced that it remained on its course. We then gave two long blasts on our steam whistle. Immediately afterwards three blasts were heard from the meeting vessel; we then gave a few turns slow ahead to keep the ship on its course. The ship was then under the command of the chief officer, Alfred Toftenes, assisted by third mate S. Saxe. The chief officer, who as usual had orders to call the captain in case of foggy or hazy weather, now called the captain who also came upon the bridge at once. Immediately afterwards we saw the top lights of the other steamer, about three points on the port bow, and shortly afterwards the green side-light. We then gave full speed astern to prevent collision and gave three short blasts of the whistle. Shortly afterwards the collision occurred,_ so that the starboard side of the steamer, about midships, was struck by the bow of the Storstad. The engines were immediately stopped, and we gave full speed ahead to hold the vessels together and if possible to save those on board. The other steamer, however, proceeded with so much speed ahead that the bow of the Storstad, which proved to be several feet into the side of the other steamer, was twisted over to port, such as is now known. So that the Storstad, with the bow into the side of the other steamer, was swung nearly parallel with the latter. As the other steamer continued ahead, the bow was wrenched out of the hole in the side of the other steamer, and she disappeared in the fog. The engine was stopped, and all possible attention was paid to try to find the other steamer, from whom no signals were given in spite of several blasts from the Storstad. The boats were immediately swung out and manned and sounding of the holds were made by which we found fore-peak tank to be full but the holds and tanks apparently tight. About ten minutes after the collision, cries of distress were heard, and we manoeuvred in the direction thereof as carefully as possible. When the steamer was sighted, the Storstad was manoeuvred as near as circumstances would permit, and all the boats of the ship sent for assistance. The boats made several trips back and forward, and about 350 persons were saved on board the Storstad
My Lord, my submission is this: this is a remarkable document for a gentlemen, in the position of Mr. Tofteness, to have compiled. Of course, if it is right, it means that the Storstad wins the day. My submission is that it is entirely wrong.
Lord Mersey:
Now there are some gentlemen here, and I suppose they are here now, who represent the crew of the Empress. I suppose that none of them desire to say anything.
Mr. Cecil Thomson:
No, my Lord.
Lord Mersey:
Is there anyone else, with the exception of Mr. Newcombe, who is representing any interest here, who desires to say anything?
Mr. Haight:
Might I correct an inadvertence in the statement made by Mr. Aspinall? I understood your Lordships to accept from his statement the idea that the Galway incident, so-called, occurred while the Empress was passing the Alden. That is a mistake, my Lord. Galway was steering from 10 to 12 on the occasion of her trip down the river. The Alden had been passed.
Lord Mersey:
I think I understood that, what Galway said was that he noticed this irregularity in the steering gear and drew the attention of Murphy, I think, to it, and of the pilot.
Mr. Haight:
That was not at the time the Alden was passing.
Lord Mersey:
That may be, I think you are right about that. But what he said was, he drew the attention of Murphy and the pilot to the fact that the steering gear was not in order, and I think he said also that he drew the attention of another man, who has been drowned.
Mr. Haight:
Yes, I think so, but as it stands there are two occasions, the Alden and the witness testified to one -
Lord Mersey:
There is the Alden incident, and then there is the incident of Galway. That is right.
Mr. Aspinall:
Yes, I am afraid I have been under a misapprehension, and I am told I am wrong. I think Mr. Haight is right.
Lord Mersey:
I think he is.
Mr. Haight:
There is one other point which comes very late in the day. At the opening of the hearing it appeared that a man of the name of Jones, one of the men on watch, had inadvertently been allowed to go to the other side. I learned that he has been sent for and that he is now in Quebec, having arrived, I believe, yesterday afternoon. It is exceedingly unfortunate to break in, but would the Court be willing that his testimony be taken out of court, by deposition and submitted?
Lord Mersey:
Is that the man who arrived yesterday by the Alsatian?
Mr. Haight:
I understand so.
Lord Mersey:
I heard of four or five men who arrived yesterday by the Alsatian, and I waited yesterday to know whether either of you desired to ask that any one of these five men should be put into the box, and I was agreeably pleased when I heard that neither of you desired anything of that kind. I think, Mr. Haight, it is a little late now.
Mr. Haight:
I realize it is, my Lord.
Lord Mersey:
The whole of the case now is exposed to view. Your case, Mr. Aspinall's case, and I really don't think it would be wise now, after the evidence is closed, and speeches made, to re-open it.
Mr. Haight:
I am very sorry that we did not know that he was here until the evidence was closed.
Lord Mersey:
Now, Mr. Newcombe, it is your turn to begin.
Mr. NEWCOMBE'S SPEECH.
Mr. Newcombe:
In the course of any observations which I purpose addressing to the Court I will refrain from making any reference to Galway, or the telemotor, or the steering gear of the Empress. It seems to me that this case has involved in it considerations more important than any attaching to these matters. In the suggestions which I propose to make, I find myself in some disagreement with both my learned friend representing the Empress and my learned friend representing the Storstad. I shall submit to the tribunal that it is possible, and perhaps desirable, for your Lordships to make a finding in this case that is consistent with the absence of any intention on the part of leading witnesses from either ship to misrepresent the facts as they lie within their memory. The case is certainly a very peculiar one. By the testimony of the Empress as well as by the testimony of the Storstad, both ships held their respective courses from the time they sighted each other's lights before the fog came on until the very moment of the collision. In approaching each other the Empress saw the Storstad on her starboard bow and the Storstad saw the Empress on her port bow. One ship therefore must have made a mistake as to the position of the other. The circumstance that the Storstad ultimately found the Empress on her starboard bow, or to the northward of her course would perhaps be regarded as being conclusive on the question as to whether these two ships had originally been red to red or green to green. As I say, the Storstad ultimately found the Empress on her starboard bow and to the northward of her course, and there is evidence that shortly before the collision the wheel of the Storstad was ported, and hard-a-ported. Coupled with that comes the statement that although these operations took place with the wheel, no effect was produced upon the course of the vessel. It may possibly be, as contended, that that is true, but at the same time I think your Lordships will find it impossible to accept the view that these operations should not have influenced the course of the Storstad. Thus you get a turning movement to the northward, the porting of the helm, the ship answering to this course and the Empress located where she was, according to the testimony of Captain Kendall to the northward are showing green to green with the Storstad. With regard to the porting of the helm of the Storstad, the testimony given by her witnesses seems to point very strongly to the honesty of the testimony that was given. If they were making up a
case, if they were coming here, as has been suggested, to mislead the Court with false testimony, it was an entirely unnecessary proceeding to say anything about porting the helm; on the contrary, by so doing they have to throw up an obstacle to the success of their case here which perhaps they may find it impossible to demolish.
I would submit for the consideration of the Tribunal that the testimony in regard to the porting of the helm shows at least that there was an intention on the part of these Norwegian witnesses to give honest testimony. They may have been mistaken about many things but I submit that they were not intending to mislead, and I think the case can be disposed of consistently with the same assumption in reference to the testimony offered by the Empress.
My learned friend, Mr. Aspinall, in his speech, divided the case into six heads. It seems to me that it might be very well divided into two for my purposes, namely, first, the question as to the navigation of the ships; that is the direct, proximate question that we have to deal with - the immediate cause of the accident - and, secondly, as to defects in equipment, or in the manipulation of the equipment after the collision, which might have accelerated or increased the effects of that collision. These two points in the case run very much into each other. There are for a ship, independently of storm and tempest, periods or places of special danger - narrow channels, proximity to land or ice, fog where other ships may be encountered, thoroughfares such as such frequented harbours or roadsteads and their approaches, where ships resort and converge, involving risk of collision and requiring a corresponding measure of good judgment and caution. This case is very special and peculiar. It was a clear night; the ships observed each other for some time before any fog was encountered and were less than two miles apart and, according to the testimony of both ships, upon well ascertained bearings and courses before the fog shut them out. Capt. Kendall tells us that he landed his pilot one mile north of Father Point gas buoy. Thence he proceeded N. 47 E. magnetic (p. 57); then he had Cock Point buoy reported and then the Storstad lights were sighted six miles away three to four points on the starboard bow. It seems to be clear that the lights of the Storstad had been seen and reported by Carrol, the lookout, very shortly after they left Father Point and before the change in the course of the Empress was made to run down the river after making her offing from the land.
They stood on until they had Cock Point buoy abeam, then ported to N. 73 E. magnetic (p. 60). This brought the Storstad one point on the starboard bow (p. 61) N. 87 E. by compass or 11 degrees on the starboard bow (pp. 60-62). The Storstad's lights were then open to starboard (p. 62). Then they noticed the fog bank coming from the land in a northwestern direction and they stood on until the Storstad's lights got misty. They could then see the mast and starboard lights and then they stopped the ship and went full speed astern giving three short blasts. They could even then see the Storstad's lights. That is shown at p. 67 and and that is not an immaterial circumstance, I think, in the case. At p. 67, Captain Kendall says:
"[175]. At the time when you gave the three short blasts, were you still seeing to any extent the lights of the Storstad?
- Yes, I was.[176]. But dim?
- Dim.[177]. And did you continue to see them for a short time?
- I did."
On the following page:
"[189]. That is what you last saw of the Storstad; where were they bearing from you?
- About a point on my starboard bow.[190]. So that when you last saw the Storstad, she was away on your starboard bow, green to green?
- Yes."
Then there were the three short blasts of the Empress. She was lying still in the water and at this stage the Storstad's lights had disappeared. Then he stopped the engines; he was lying N 75 E by compass, (p.69). Ten minutes elapsed from the time the fog shut out the lights until the collision occurred. Therefore, assuming the Storstad to have gone at ten knots through the fog, the ships were less than two miles apart at the time that they last sighted each other. Toftenes says at page 206 that they were a mile and three quarters or two miles apart. Upon the Storstad they say that they left Metis abeam at 12.30, Montreal time, that their course was W-� S magnetic for six miles, then W by S magnetic for five miles, that they then changed to W by S magnetic and that at that time they saw the Empress' lights.
According to that, and the evidence on the part of both ships, I think, agrees, they were less than two miles apart when they lost sight of each other and when they had a bearing of one point. These are mere assumptions and there is no actual point ascertainable. It is impossible to chart the exact position of these vessels or to ascertain exactly where they were at different periods in their courses. The one started somewhere off Father Point and the other somewhere off Metis Point. They commenced their courses from there but you cannot locate that upon the chart because it is impossible to fix these exact points of departure. What I submit to the Tribunal is that all the substantial evidence in this case points to the fact that these ships were a great deal less than two miles apart when the lights disappeared in the fog. Two miles apart, with a bearing of one point on the starboard bow, as the Empress says she had the Storstad, would bring them together at a distance of half a mile, the area of a point at two miles would be half a mile. Having regard to the testimony, the Storstad would be half a mile to the south and the traversing of that distance, the making of that much northing, could never be accomplished under the port helm, and the hard a-port helm, of the Storstad. She never did that; I submit that is absolutely certain.
Lord Mersey:
She never what?
Mr. Newcombe:
She never travelled half a mile out of her course with a port or hard-a-port helm. She tells us that she was stopped. Mr. Haight contends that she had some way but it was very slow
- stopped, perhaps, according to the weight of testimony. The ship had been going fast up to three o'clock; then slow at three o'clock; at two minutes past three stopped; then put engines ahead and at five minutes past three the collision. She was under a port helm less than three minutes. I do not suggest that the testimony is not true but I would not be surprised if you should find that she was under port helm for considerably less than three minutes. She could not have drifted very far to the north under that helm. What follows from that? - that the ships must have been closer together because this fog was a momentary thing, the most unfortunate thing that ever happened. It was a beautiful night; the fog came drifting across the river and did not last longer than the passage of the two ships over the space it covered but when the fog disappeared, as it did immediately, the Empress was gone. The ships must have been very close together when they entered the fog and bearing forward a point on the starboard bow of the Empress, the distance within which these two ships would pass each other, pursuing the courses upon which they were, would be measured by ship's lengths, and a very few ship's lengths.
It must be remembered that Captain Kendall tells us that when he came down the river on this voyage he had encountered fog on two occasions previously. He had passed through two fog banks before the one in which he met disaster. He had slowed; he had not reversed or stopped, or brought himself to a standstill, as he did on this occasion. He had eased his speed and passed through the fog. On this particular occasion, when he is entering the fog bank with the Storstad in front of him, bearing fine on his starboard bow, he reverses his engines, gives three blasts and brings his ship to a dead standstill just as soon as the power with which he is supplied possibly can stop the ship. What his further intention was I do not know but aparently it was to remain there. I submit it would be well to consider whether that was not an inconsequential and unexpected proceeding for him to take under the circumstances. Under what rule of navigation is that justified? Article 16 says that:
- Every vessel shall, in a fog, mist, falling snow, or heavy rain storm, go at a moderate speed, having careful regard to the existing circumstances and conditions.'7
They are to go at a moderate speed. Moderate speed, of course, has to be interpreted having regard to all the circumstances of the case. What would be a moderate speed in one set of facts would be immoderate in another. But according to the rule he has to go, he has not to reverse and stop.
'A steam vessel hearing, apparently forward of her beam, the fog signal of a vessel the position of which is not ascertained, shall, so far as the circumstances of the case admit, stop her engines, and then navigate with caution until danger of collision is over.'
That, I should suppose, is the part of the rule that applies to the Storstad. The Empress had the Storstad on her starboard bow and she knew she had her on the starboard bow. The Storstad had the Empress on her starboard bow and she thought she had her on her port bow. I think I can suggest to the Tribunal why she thought so. We have the Empress coming out from Father Point where the lights of the Storstad were first sighted by Carrol whom, you remember, when in the crow's nest, two or three minutes after he had climbed up there, (the boat having left Father Point), picked up these lights. She goes on to make the offing on a course of N. 47 E. magnetic, she pursues that course for a certain distance and she then turns to N. 73 E. If there were any one to tell us exactly where that turning took place and to say where the Storstad was at that time, I believe it would solve the riddle of this case.
I suggest that when she changed her course there to run down the river N. 73 E. before she stood upon her course, she exposed her red light to the Storstad and it was when she exposed that light that the Storstad came to the conclusion that the ships were red to red and that they would pass clear. Probably the lookout and the watch were not very good on the Storstad and it may be that by some vagary of the fog they could see better from the Empress than from the Storstad; I do not know. Apparently the evidence indicates that when the Empress finally stiffened up on her course she exposed her green light and only her green light, but the Storstad, in view of the other impression which she got when the Empress ported her helm to work her course down the river, thought she was engaged with a ship red to red. Otherwise it would be ridiculous to suppose that this man ported his helm. They were listening for fog signals. It is said, and not denied, and I suppose it is true, that it is not very easy to locate precisely where a whistle comes from in a fog, and if you think you know where it comes from you are more inclined to believe that it does really come from that direction than if you do not know anything about it. If you are in a fog bank and you do not know there is a ship there at all and you hear a whistle there is nothing to incline the mind one way or the other as to the position of this sound. But if you have observed a boat and if you know its location until the fog shuts in you are quite likely to be influenced by that fact. It is upon some such consideration as that that the Storstad believed that they had the Empress to the southward of them and they were therefore trying to give a little broader berth under a port helm. They stopped - there can be no doubt that they stopped - they were going slow and the ship did not answer readily. It is said now that this young officer took hold of the wheel and turned it over full stop. Doubtless he did, but I am not so sure that he is chargeable with any breach of duty in respect to that. They had an order from the officer to port and they ported. Your Lordships will be advised, of course, by the assessors, who know much better than I about these things, but when he gets the order to port, the evidence tells us that the quartermaster turn the helm until he is told to steady. I suppose he is influenced somewhat by the fact that he has reached the point where the ship swings in answer to the movement of the wheel. If he was going very slow the wheel put a-port a few degrees may not have been answered by the ship. I understand that the third officer then took hold of the spokes and turned the wheel hard over. That is what they did and they did it no doubt because they thought they were getting away from the Empress by doing that rather than going towards her. Rule 16, I say, does not provide that she shall stop and rule 23 says that:
"Every steam vessel which is directed by these Rules to keep out of the way of another vessel shall, on approaching her, if necessary, slacken her speed or stop or reverse."
That rule does not apply to the Storstad. She is one of those ships that is not directed by these rules to keep out of the way of the other. This is a case which is provided for under many rules and notably by the starboard rules. It was in in answer to that rule, I suppose, that the Empress stopped or reversed but it is, I submit, a grave question whether this or any other rule would justify a proceeding of that kind. This was, I submit, an inconsequential proceeding not responsive to any rule and moreover a proceeding which might easily have been embarrassing to the Storstad. There is another thing; the Empress might have stopped on her way, she might have sounded her whistles, she might equally well have anchored and rung a bell but she could not escape from her obligation to use good seamanship in respect to the crossing of this vessel that was approaching her at a short distance and on a very fine bearing.
Lord Mersey:
May I ask you Mr. Newcombe, what it is exactly that you contend for or suggest? Is it that neither of these ships was to blame?
Mr. Newcombe:
No, I do not say that.
Lord Mersey:
Or that both ships were to blame?
Mr. Newcombe:
I am suggesting that there was an improper use of the port helm by the Storstad, and an improper reversing and stopping on the part of the Empress. It is for the Court to consider.
Lord Mersey:
I thought you began by saying that it was possible to deal with the two cases without imputing anything like false swearing to either.
Mr. Newcombe:
I suggested that.
Lord Mersey:
That is what you want us to consider?
Mr. Newcombe:
Yes, my Lord. It does not follow from that that there was any fault on either party; it is consistent with that that there may have been fault on both sides.
Lord Mersey:
I can understand a mistake of judgment on each side, which is, of course, a very different thing from negligence. I can understand negligence on one side and not on the other, and I can understand negligence on both sides. I want to know which of the three it is that you are suggesting.
Mr. Newcombe:
I am suggesting negligence on both sides; as to whether or not the negligence I suggest with respect to the Empress goes to the extent of legal fault I have no observation to offer. But certainly the accident could not have happened if the Empress had not taken this extraordinary course of reversing and stopping almost in the track of the approaching Storstad.
Lord Mersey:
According to your theory, the Empress was stopped in what you might call the distorted track of the Storstad.
Mr. Newcombe:
Very close to the track.
Lord Mersey:
You are putting it, you know, that the Storstad was wrong in porting her helm. If she was, the result was that she brought herself up against the approaching Empress.
Mr. Newcombe:
So she did, my Lord; I would suppose that she would have gone clear otherwise.
Lord Mersey:
That is the fault that you attribute to the Storstad; now tell me again what is the fault that you attribute to the Empress?
Mr. Newcombe:
In view of the fact that the steamers were proceeding upon courses which were divergent on an angle of five and three quarter degrees, and that the proceeding at moderate speed by the Empress would take her every moment farther and farther away from the Storstad, why does he stop the moment the vessel comes under the first impression of fog and take the way off the ship and lie there so close to the track? It is true that the Storstad, if she held her course, would have gone clear by a ship's length, perhaps, or a close shade, but I call the attention of the tribunal to the question
- although I am not making any contention about it - as to whether that was good seamanship; as to whether that sort of conduct of a ship carrying so many passengers is as should be expected? Did Captain Kendall discharge his responsibility, having regard to the fact that there was, besides the two, not another ship in sight?
Lord Mersey:
You say that he ought to have gone on in the fog at moderate speed?
Mr. Newcombe:
At moderate speed.
Lord Mersey:
And that if he had gone on in the fog at moderate speed, the deflecting Storstad should never have touched him?
Mr. Newcombe:
Never have touched him. I myself should not have seen any impropriety in his continuing his northerly course somewhat further, in view of the fact that he had a steamer on his starboard bow, but he took the easterly course. He was in a position where he could have used his starboard helm without limit. There was nothing to the northward to affect him; he had 30 miles of seaway, and he had a ship approaching him on a fine bearing
- not more than half a mile away - on his star-board bow. Now, why stop there so close and take the chances of any such accident as that which has happened?
That brings me to what is involved in the consideration of this phase of the question. If there were fog there, as there admittedly was; and if in respect of such cases it was necessary to formulate a rule - because this seems to be a rule which is not printed in the rules of navigation: that you must reverse and immediately stop - why not apply at the same time the rules with relation to the water-tight doors? - Rule No. 50 of the regulations, which are in proof, says:
'The Commander will see that all times in foggy weather or in falling snow hands are stationed to close instantly all water-tight doors which are not already closed. All self-closing doors will be kept closed. If at any time fog or snow shut down in the Gulf of St. Lawrence or St. Lawrence river, the same special precaution must at once be taken, entry being made in the Ship's Log Book and in the Engineer's Log Book of the time of opening and closing.'
Lord Mersey:
What are these rules?
Mr. Newcombe:
These are the rules of the Company, which are in proof, for the navigation and discipline of the steamships of the Canadian Pacific Railway Company, Atlantic services. These are not official rules.
Lord Mersey:
These are what may be called the domestic rules of the Canadian Pacific Railway Company.
Mr. Newcombe:
Yes; of course not affecting the liability in Admiralty, but for the purposes of the tribunal I call attention to them.
Sir Adolphe Routhier:
They are not binding upon either party.
Lord Mersey:
It lays upon him no legal obligation.
Mr. Newcombe:
No legal obligation, but it is a question of what suggestions your tribunal is going to make with regard to water-tight doors.
Lord Mersey:
It has nothing to do with the Storstad.
Mr. Newcombe:
Nothing to do with the Storstad at all, certainly not.
Chief Justice McLeod:
Does the rule not say that there shall be a man at each door?
Mr. Newcombe:
Yes, (reading):
'The Commander will see that at all times in foggy weather or in falling snow hands are stationed to close instantly all water-tight doors which are not already closed.'
Rule 44 says:
'In fog or snow speed is always to be reduced. Water-tight doors are to be ready to be closed instantly, and every possible precaution taken for the safety of the ship.'
Lord Mersey:
Your complaint is that he not merely reduced speed, but stopped?
Mr. Newcombe:
He stopped, my Lord, contrary to the rule. Now, rule 130 says:
' In the event of fog or thick weather and in narrow waters, orders will be issued from the bridge to stand by to close all water-tight doors between engine rooms and boiler rooms and in bunkers. All self-closing doors will always be kept closed.7
Now, it would appear that this ship went down very much in the condition in which she stood before the fog came on. Doors that were open remained open; those that were closed remained closed. Unfortunately, through the loss of so many of the hands and the consequent lack of evidence, it is impossible to say exactly what the condition of those doors was. We know that one door was closed leading into the engine room; we know that other doors were not closed because they could not be closed or because the place from which they were worked could not be reached. According to the rule to which I have referred, a steward or hand should have been standing over each one of the machines which operate the doors the moment they entered the fog. It takes one man to close them, and if there had been a man there - apparently the siren was sounded immediately as a signal for the closing of the watertight doors, and the getting out of the boats - there would have been ample time, I should suppose, before the members of the crew became disturbed by the enormous list which the vessel had, to close those doors. Whether that would have saved the ship or not, it is impossible to tell.
Lord Mersey:
I should think that the men could have been much more usefully employed in taking out the lifeboats.
Mr. Newcombe:
Well, that is a matter, perhaps of conjecture. The vessel was built in 1906, and it may be that the system of watertight doors in the bulkheads existing on board her at the time of her loss was one which might not now be considered to be quite up to date. The evidence shows that the water-tight doors fitted in her main bulkheads were sliding doors, individually operated from the deck above. In other words, each door required the services of a man to shut it. In the Empress a man was appointed to operate each door and the practice appears to have been in case of emergency for the siren to be sounded as a signal for the
men to go to their respective doors, and close them. The siren was sounded in the present case, but it is evident that the operation of closing one of these doors by hand would take some minutes, and there is no evidence that all the bulkhead doors either were or could be closed before the vessel keeled over to starboard very shortly after the collision. Of course, there is an additional difficulty, as I understand it, in the closing of these doors, caused by the list. When the vessel listed over the vertical doors had to be worked up hill, so that it would have been a difficult operation to close these doors with such an extremely heavy list on the ship. Having regard to the fact that the vessel sank so quickly after being struck, it would seem that all the water-tight doors in the bulkheads were not closed and that the water, instead of being confined to the compartments into which it entered, spread all over the ship.
It would seem obvious that the less time which is occupied in case of emergency in closing bulkhead doors the better. Loss of even a short time in effecting this may represent the difference between safety and the loss of the ship and many lives. It would seem to be most desirable that the watertight doors in the main transverse bulkheads, or, at all events, all those situated below the load water line, should be capable of being automatically and simultaneously closed from a station situated on the bridge of a vessel, if such an arrangement be practicable.
Very specific and urgent directions are laid down in the companies book of rules and instructions to their masters and officers as to the closing of the water-tight doors in the bulkheads. Rule 50 directs that special precautions are to be taken in this respect at all times in foggy weather and at any time when fog or snow shuts down in the Gulf of St. Lawrence and St. Lawrence river. In this case the master of the Empress saw a bank of fog coming across the river and knew that his vessel would be enveloped in it, but it does not appear from the evidence that at that time he considered it necessary to station men at the bulkhead doors to close them. Men were allotted to the bulkhead doors, and each man knew that it was his duty to close his door when the order to do so reached him. The person who had the knowledge of the necessity for closing the doors was on the bridge or on the deck; the man whose duty it was to do it would have no knowledge until he was told or the order was conveyed to him in some way. The sounding of the siren was a recognized signal: "Close water-tight doors; each man to his boat." But this signal was not given before the collision, or, at all events, in time for the men to get to their respective doors and close them before the water rushed in after the collision had happened. Some of the men were in bed and were only awakened by the crash, and it seems clear from the evidence that though efforts were made, some of the doors could not be closed, either because the vessel had listed heavily to starboard, or by reason of the water which was rushing into her.
The list taken by the vessel after receiving the damage may have resulted in the port-holes in the cabins and passageways being submerged, and if some of them were open, might not sufficient water have poured through them to bring about what in fact occurred, that is, the capsizing and foundering of the vessel in about 15 minutes? If this explanation of the sudden foundering of the vessel be accepted by the court, after they have considered the evidence as the right one, the question arises: Could the disaster have been averted, and if so, how?
There appears to be no way of doing away with or of preventing collisions altogether, and the story of this case conclusively proves that one of the results of a collision may be that the vessel struck may list heavily over to the side on which the injuries are received; therefore it is necessary to be able to shut the water-tight doors immediately in case of emergncy.
If it has been proved that open port-holes played an important part in the quick foundering of the ship, here is an object lesson which does not require any confirmation by similar disasters in the future. Never again ought open port-holes to be allowed to contribute to the effects of a collision. Should not the rule be that when navigating in fog and perhaps also in narrow or crowded waters where possibilities of collision are frequent, the master who is on the bridge and who knows the circumstances should communicate an order by some recognized signal to the stewards or other people in charge of the port-holes, but who are down below and may not be alive to the circumstances which necessitate the closing of all port-holes; that they be closed and not opened again until the vessel is out of the fog or crowded waters?
These are the suggestions which I submit for the consideration of the tribunal with regard to water-tight doors and port-holes. They are that when the vessel is in a fog, and, perhaps when in crowded waters, in any case where it is reasonably probable, or perhaps, possible, that a collision may be anticipated, it is too late to wait until after the event before closing the doors and the ports. These doors, so far as they may be closed consistently with the working of the ship, should be immediately closed. All port-holes should be closed and all precautions taken which this case suggests to minimize or render impossible the recurrence of such a calamity.
My Lord, that is my summing up of the case. I have referred your Lordships to the circumstances of the collision, to the fact that the Empress stopped upon or very close to the course of the Storstad when by pursuing the rule of navigation she would have gone away from the Stonstad. I have referred to the closing of the water-tight doors and the closing of the ports, and I suggest that this case points very strongly to the desirability of a recommendation upon the part of the tribunal to navigators to see that in all circumstances of risk these water-tight doors and port-holes are not again allowed to play the part which they played in the destruction of the Empress and the loss of so many lives.
Lord Mersey:
Thank you, Mr. Newcombe. Now that we have heard all the evidence and the addresses of Counsel, I should like, on behalf of my learned colleagues and myself, to say a few words.
This Court is constituted by the Canadian Government under a special Act, partly of the nominees of that Government and partly of nominees of the United Kingdom. It was so constituted because on the one hand it was desired by the Canadian Government that the enquiry should take place in Canada, and on the other it was considered by the Government of the United Kingdom that as the Empress of Ireland was registered in the United Kingdom it was desirable that the Mother Country should be represented on the tribunal. It was felt by both Governments that their co-operation in this manner would result in the institution of an inquiry of the most exhaustive and searching character possible into the cause of this lamentable disaster. I think the proceedings in this court from day to day show that this object has been attained.
There is one further matter to which I should like to allude. I refer to certain words which were used by Mr. Haight this morning, from which he appeared to be under the impression that Counsel might in some way or another have rendered greater assistance to the Court. I can assure Mr. Haight that he can dismiss that impression from his mind. On the contrary, I should like to take this opportunity of saying - and I think I may speak on behalf of my colleagues as well as myself - that we have been much impressed by the ability, the fairness and the patience with which Counsel for all the parties concerned have put forward their cases. These remarks apply also to Mr Newcombe, upon whom the onerous responsibility has fallen of seeing that all the facts and all the evidence should be put before the Court which would enable the Court to form a judgment upon the various questions submitted to it. We thank all these gentlemen cordially for the assistance which they have given us.
We must now address ourselves to the heavy task of sifting and considering the evidence. We hope to be able to do this work within a fortnight or thereabouts, and we shall then be in a position to make our report.
The Commission adjourned sine die.
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