by Senan Molony
Lord had earlier made it clear that he did not recollect any such statement as alleged by Groves. He had not said ‘as plainly as possible’ that he had answered the third officer in this manner. The captain’s evidence was continuing when the Attorney General and Lord Mersey next produced this coup de théâtre (British Inquiry, p.149, question 6885–6):
[The Attorney General] My Lord, I think it very desirable that the other witnesses from the Californian should be out of Court whilst this witness is giving evidence.
[The Commissioner] By all means.
[The Attorney General] If your Lordship will direct it.
[The Commissioner] Where are the other witnesses from the Californian? [The officers and men of the Californian stood up in court] Well, gentlemen, I think you had better leave the court at present.
One can imagine as they trooped out what they were thinking, and what must have run through the minds of the audience left inside. A serious turn of events is taking place – and someone is going to hang!
Even at the close of Lord’s evidence, when he was being sympathetically examined by counsel for the Leyland Line, Mersey could not resist delivering a jibe dressed up as a misunderstanding:
7407. [Counsel Robertson Dunlop to Lord] Could you have navigated with any degree of safety to your vessel at night through the ice that you, in fact, encountered? — It would have been most dangerous.
[The Commissioner] Am I to understand that this is what you mean to say, that if he had known that the vessel was the Titanic, he would have made no attempt whatever to reach it?
7408. [Mr Dunlop] No, my Lord, I do not suggest that.
Dunlop would later mildly rebuke the Commissioner when touching on the evidence of Charles Victor Groves, the Californian’s third officer and the third Californian witness after Lord, in his closing submission to the Inquiry (p.834):
[Dunlop] Groves, the Third Officer, was the gentleman who was on watch from 8 till midnight. When he was pressed at the end of his evidence, I will not say by whom, to say he thought it was the Titanic, my Lord, he answered…
[The Commissioner] Did I press him?
[Mr Dunlop] Your Lordship asked the question.
[The Commissioner] I thought so.
[Mr Dunlop] Up to that moment, my Lord, he had not the courage to say that she was the Titanic, but, thus stimulated, he said this: ‘From what I have heard subsequently I do, but I do not put myself forward as an experienced man’.
Lord Mersey’s interruption (question 8838) during the evidence of Californian Chief Officer George Stewart was also most revealing: ‘The previous officer told me, in answer to a question… that he was satisfied that it was the Titanic and at present I do not mind telling you that is my attitude of mind. You may perhaps change it’. And Mersey’s highly coloured interruptions grew more opinionated. By Day 16 he was daring to be even more transparent in his antagonisms. Here, J. Bruce Ismay, managing director of White Star Line gives evidence:
18584. …If you will excuse my saying so, I do not think it was a steamer at all; I think it was a sailing ship we saw.
18585. [The Commissioner] Am I to understand that you do not think it was the Californian? — I am sure it was not.
18586. [The Commissioner] I am rather sorry to hear that…
Also on Day 16, Alfred Crawford, first class bedroom steward gave evidence:
17847. And before you left the ship’s side did Captain Smith give you any directions with regard to a light? — Yes, he pointed to a light on the port side, the two masthead lights of a vessel, and told us to pull for there and land the people and return to the ship.
17848. Did you see those lights yourself? — I did.
17849. And what did you think they were? — I thought they were a vessel with two masthead lights.
17850. A steamer’s masthead lights? — Yes.
[The Commissioner] Is there anyone here representing the Californian? [Immediately equating the Titanic’s Mystery Ship with the Californian]
[Mr Cooper] Mr Dunlop will be here in a few minutes.
[The Attorney General] Somebody will be here, because we are calling somebody from the Californian today, and we have given them notice of it.
17851. [Mr Butler Aspinall, to the Witness]: I do not know whether you are a judge of distance of lights at sea, but what would you say? — I should say she was 5 to 7 miles away from us.
17852. The Captain gave the directions? — Yes, he pointed the ship out.
17853. Having got down to the water’s edge did you obey that direction as well as you could? — We did.
17854. And rowed in the direction of that light? — Yes, we pulled all night in the direction of the steamer.
[The Commissioner] Does 5 to 7 miles away agree with the information from the Californian as to the position she took up when she anchored? [Anchoring in mid-Atlantic!]
[Mr Butler Aspinall] It is widely different, my Lord.
[The Commissioner] That is what I was thinking. The distance would be about 20 miles, would it not?
[Mr Butler Aspinall] Yes, 19 was in my mind – 19 to 20.
[The Commissioner] We have had the log of the Californian.
[Mr Butler Aspinall] We have.
[The Attorney General] The point your Lordship is upon is one which wants a little clearing up. Our attention has been directed to the same point.
[The Commissioner] Very well, I will not say anything more about it now.
But he did, when Crawford was giving evidence:
17976. And should those lights have been seen by the steamer towards which you were pulling? — Yes.
17977. Those rockets should have been seen? — Yes, I think they ought to have been seen.
[The Commissioner] Well, we know they were, Mr Harbinson. [Again appearing to equate the mystery ship with the Californian, the only ship to admit seeing rockets]
And later, also during Crawford’s evidence:
18000. At what time was it you first saw her? — Just after one, when the Captain pointed it out.
18001. And how long had you her under observation? — Nearly all the night.
18002. What happened to her afterwards; did she come nearer to you, or did she disappear? — I could not say. We saw the Carpathia coming up, and we turned round and made for that one.
18003. [The Commissioner] Your interest in the Californian, if it was the Californian, ceased as soon as you saw the Carpathia? — Yes, my Lord.
[The Commissioner] Very naturally.
This naked display of Mersey’s views during the examination of a Titanic steward’s account of a ship he had seen is almost casual. By 18003, he barely manages the figleaf afterthought – ‘if it was the Californian’ – to disguise what is plain to see.
By Day 30, Lord Mersey had reinterpreted the law to put the burden of proof on to the ‘defence’, a reversal of basic principles of criminal law. But Mersey’s was not a criminal court, and Captain Lord and the Californian were not in the dock. Lord was merely a witness, present to help Lord Mersey determine the cause of the marine casualty Titanic. Here is Mersey’s statement (p.749):
[The Commissioner] I do not want to stop you, but I think the onus of proof in this matter is upon the Californian. I think for myself – I do not speak with absolute certainty for my colleagues – that it will be for the Californian to satisfy us that those were not the signals of the Titanic. Whether they will succeed I cannot say, but I think you may leave it.
On Day 24, after all the Californian evidence, the British Inquiry abruptly decided to change its terms of reference. It simply opted to give itself the power to make an adverse finding against the Californian, even though no part of its brief related to venturing into anything other than the circumstances of the loss of the White Star vessel. It was the Attorney General, Sir Rufus Isaacs, who delicately addressed what would otherwise be an obstacle to the apparent pre-formed intention to attach blame to the Californian (British Inquiry, p.611):
At the end o
f the evidence, according to the practice, it would be my duty to submit to your Lordship any further questions which ought to be put in addition to those I placed before the Court at the beginning of the Inquiry.
According to my view at present – and I do not think anything is likely to occur which will alter it – the only question which should be added is one relating to what I may call compendiously the Californian incident. There is no question in the twenty-six before you which would cover that.
It does occur to me, and my friend the Solicitor General associates with me in it, that it is important that the question should be specifically put and that your Lordship should take it into account, and that it ought not to be passed over merely as a matter throwing some general light upon the Inquiry. It has been already examined into, and my friend Mr Dunlop has been here representing the Californian, and, therefore, we ought to put the question and ask your Lordship to answer it.
If Mersey did not know this was coming, he was not in the least discomfited by the retrospective legal somersault and its implications for fairness. Isaacs, in legalese, had invited him to blame the Californian and not to merely ‘pass over’ the issue. Mersey caught the suggestion to make it central – and immediately sought guidance on how far exactly he could go (British Inquiry, p.611):
[The Commissioner] Quite so. I do not suppose I have any jurisdiction to direct that the Captain’s [Lord’s] certificate should be interfered with?
[The Attorney General] No, I think that only arises in a collision between two vessels. Then there is jurisdiction.
[The Commissioner] Assume that I take a view adverse to the conduct of the Captain of the Californian, all I can do is to express an opinion about it?
[The Attorney General] Yes.
Ten days later, at Day 34, Mersey was again publicly voicing possibilities – yet this time finally recognising realities about the inherent unfairness of what was about to be perpetrated against Captain Lord (British Inquiry, p.861):
[The Commissioner] …What I am pointing out is this, that Captain Smith could not be here; he is dead. He could not have been cited. But the Captain of the Californian is here really merely as a witness. He has not been cited to answer a charge of negligence, and I have great reluctance to find people guilty of negligence when they are not cited and charged with it, and have not had a proper opportunity of answering the charge.
[The Attorney General] I will deal with Captain Lord’s case, my Lord.
[The Commissioner] Later on. I am only suggesting that there is an analogy between the two cases; I may be wrong, you know, but that is what I am suggesting.
In the event Mersey’s final report would make no finding of negligence against Captain Smith, the man whose vessel ran into an iceberg at 22 knots. But the verdict on Captain Lord would be very different. This is the damning last paragraph of Mersey’s finding on the Californian (British Inquiry Final Report, p.46):
These circumstances convince me that the ship seen by the Californian was the Titanic, and if so, according to Captain Lord, the two vessels were about five miles apart at the time of the disaster. The evidence from the Titanic corroborates this estimate, but I am advised that the distance was probably greater, though not more than eight to ten miles. The ice by which the SS Californian was surrounded was loose ice extending for a distance of no more than two or three miles in the direction of the Titanic. The night was clear and the sea was smooth. When she first saw the rockets the Californian could have pushed through the ice to the open water without any serious risk, and so have come to the assistance of the Titanic. Had she done so, she might have saved many, if not all, of the lives that were lost.
ALTERNATIVE NONSENSES
Lord Mersey in his final report chose to completely reject the body of evidence from Titanic witnesses stating that the mystery ship seen from the White Star Liner was 5 to 6 miles away. Instead he preferred to believe that she was from 8 to 10 miles away, an arbitrary increase of two-thirds to the mean distance cited by Titanic witnesses (British Inquiry Final Report, p.46):
…according to Captain Lord, the two vessels were about five miles apart at the time of the disaster. The evidence from the Titanic corroborates this estimate, but I am advised that the distance was probably greater, though not more than eight to ten miles.
Read the above paragraph carefully! Mersey is equating the Titanic’s mystery ship with the Californian, and he accepts that the overwhelming thrust of the evidence from the Titanic witnesses is that the distance to their mystery ship (whatever her identity) was 5 miles.
Lord Mersey accepts the Titanic evidence of 5 miles, and Captain Lord’s estimate of 4–5 miles’ separation between his ship and a nearby stranger should simply copper-fasten an obvious conclusion, if indeed the Californian sees Titanic and vice versa. If they see each other, and both say 5 miles, then it should be 5 miles. Indeed the Attorney General, in his closing speech, said as much (British Inquiry, p.900):
If you compare the Titanic evidence with the Californian, it is abundantly plain that the distance between them must have been comparatively small, that is to say certainly within five to seven miles…
But Lord Mersey’s Report not only rejected his own Attorney General’s submission on distance, but more importantly discarded the most common estimate of Titanic witnesses, who certainly had no reason to lie about their impressions. He openly proclaims that he is satisfied Titanic witnesses in the main are wrong, and that he is instead correct to rely on the advice of his nautical assessors. These are his assistants, who sat with him in London during the Inquiry, who certainly were nowhere near the North Atlantic that night, but who knew best. Why do they know best? Only four witnesses in total, from both inquiries, gave evidence supporting the British Report’s final stretching of the nearest distance to what would become the officially endorsed range of 8 to 10 miles. They included two sailors, a nightwatchman and a female first class passenger. AB William Lucas says: ‘It was about eight or nine miles; it was right on the horizon’ (1585). Nightwatchman James Johnson states: ‘I should consider it would be about eight or ten miles off’ (3486). AB George Symons: ‘Roughly between five and ten miles away when they fired the rockets’ (11468). And passenger Mrs J. Stuart White claims: ‘Oh, it was 10 miles away, but we could see it distinctly’.(US Inquiry, p.1008). Steward Alfred Crawford did say ‘not farther than 10 miles’ in his US evidence, but was more specific and circumspect in his British evidence: ‘I should say she was 5 to 7 miles away from us’ (17850). The main 8–10 mile ‘barbershop quartet’ is countered however by all of the RMS Titanic’s surviving officers, each an experienced and trained observer. Second Officer Charles Herbert Lightoller suggests: ‘Certainly not over 5 miles away’ (14150). Third Officer Herbert Pitman says: ‘I thought it was about five miles’ (15062). Fourth Officer Joseph Boxhall states: ‘I judged her to be between 5 and 6 miles when I Morsed to her, and then she turned round’ (15409). Fifth Officer Harold Lowe says:
15825 …I glanced over in that direction casually and I saw a steamer there.
15826. What did you see of her? — I saw her two masthead and her red side lights. [Implying closeness because side lights had to be seen a regulation two miles]
Incidentally, in a 1913 court case, Ryan v. Oceanic Steam Navigation, Boxhall reiterated that the mystery ship was approximately 5 miles away. Officer Lowe, judging the distance for the first time in evidence, said it was 4 miles away. Officer Pitman now estimated only 2 miles. These officers notably did not change their minds in accordance with Lord Mersey’s findings!
Not only all the surviving Titanic officers, but crew members thought the same. A representative sample:
QM Robert Hichens: ‘about five miles away’ (1162).
Lookout Reginald Lee: ‘five or six miles’ (2719).
AB John Poingdexter: ‘A matter of four or five miles’ (3089).
Fireman Charles Hendrickson: ‘A ship, five or six miles ahead of us’ (11076).
QM Walter
Wynn: ‘About seven or eight miles’ (13340).
AB George Moore: ‘Two or three miles away, I should judge’ (US Inquiry, p.564).
AB Edward Buley: ‘I should judge she was about three miles’ (US Inquiry, p.611).
QM George Rowe: ‘Four or five miles’ (17659).
Scullion John Collins: ‘About 4 miles; I am sure, three or four miles’ (US Inquiry, p.629).
QM Arthur John Bright: ‘Possibly four or five miles away’ (US Inquiry, p.836).
We shall not include any passenger observations to counter Mrs White’s ‘ten miles’ above, since passenger estimations are unreliable in general, but will cite just one account to indicate that their guesses ranged widely: Passenger Mrs Imanita Shelley stated in a deposition to the US Inquiry: ‘Right after the Titanic began to sink a steamer was sighted about two miles away, and all were cheered up; as it was figured that they would all be picked up inside an hour or so; however, their hopes were blighted when the steamer’s lights suddenly disappeared’ (US Inquiry, p.1148). The average mileage here – among nineteen estimates cited above from 1912 – works out at 5½ miles.
No-one can tell how far those ships were apart in reality, but the statistical truth is that she was 5½ miles away, and this is indeed in accordance with the figures cited most often. In this respect the Attorney General is correct when he asserts that the evidence proves (being proof in its legal sense) that the separation was ‘certainly within five to seven miles’. So why did Lord Mersey’s nautical examiners stay his hand?
Simple. They knew, as seagoing men, that the Titanic at 5–7 miles would look enormous to the Californian at such an ‘easy distance’, to quote the Attorney General. Captain Lord had previously seen the Olympic, the Titanic’s sister ship, at 5 miles, and had this to say: ‘A ship like the Titanic at sea is an utter impossibility for anyone to mistake’ (6991). The layers of brightness of the Titanic at that distance, her famous length – advertised as the size of a skyscraper laid on its side – could plainly not have given rise to the impression of a tramp with a few minor lights. And not only would her rockets have illuminated the night sky at such a close separation, but the associated detonations might have woken even a sleeping officer of the watch on a nearby vessel! The injection of nearly double the distance in the British findings is now easy to understand. Furthermore, the court must have belatedly realised that a distance of 5–7 miles represented only half an hour’s steaming to the Californian. The Attorney General made this very point in his closing speech (British Inquiry, p.900):
