This is the second part that began with the topic "The Californian" Incident. There is more to come including the Appendix. Emphasis/italics are presented as originally appeared.
The Legal Position
"It is manifest that Captain Lord has been treated here in a way which is absolutely contrary to the principles on which justice is usually administered." …Mr. C. Robertson Dunlop, at the British inquiry, June 28, 1912.
The following are the basic reasons supporting the contention that Captain Lord was denied the legal aid and protection which it was his right to expect at the British inquiry in 1912:
1. Captain Lord was called only as a witness. He was not made a party to the inquiry; no notice of investigation was served upon him; and, at the time he appeared as a witness, no question was before the court which specifically affected him.
2. Captain Lord was nominally represented by Mr. C. Robertson Dunlop. However, Mr. Dunlop was in fact appointed as counsel by the Leyland Line, the owners of the Californian, and he made it clear that the company had decided that it was not proper, nor their duty, to try to find out what other ships might have been in the vicinity. This was a most important decision taken without any reference to Captain Lord and it substantially prejudiced his case. In any event, he had no reason to think he was involved in the inquiry in any other capacity than as a witness. For this reason, he made no effort to see that his case was properly presented or to consult with Mr. Dunlop either before he gave evidence or afterwards.
3. Before Captain Lord gave evidence, Mr. Dunlop had formally applied for the owners and officers of the Californian to be made parties to the inquiry. This application was only a general one and made without Captain Lord's knowledge or consent. Nevertheless, its acceptance by the court would have had the technical effect of his having voluntarily subjected himself to the court's jurisdiction in exactly the same way as if a formal notice of investigation had been served on him. In the event, however, the court rejected counsel's request, and for the rest of the inquiry Mr. Dunlop held only a "watching brief" on Captain Lord's behalf. By their refusal of counsel's request, the court deliberately excluded such jurisdiction as it might otherwise have thought it had concerning Captain Lord.
4. After Captain Lord and the other officers of the Californian had completed their evidence on the eighth day of the inquiry, they were released by the court and were not present during the rest of the proceedings.
5. After the Californian witnesses had completed their evidence, it must have been clear to the representatives of the Board of Trade that they then had enough information to make it possible to warn Captain Lord of their intention to add a question to those already before the court which was clearly designed to deal with his conduct. That the court did not do so but let him return to his home was a grave error of judgment which left him in no position to influence subsequent events.
6. On the 27th day of the inquiry, a question was added to the list of those which the court were required to answer which clearly dealt with the Californian's position and Captain Lord's conduct. He was not warned of this development and was not in court at the time. He had not instructed counsel how to deal with such a development, and counsel could consequently not be held to represent a client who was quite unaware of the charge made against him. The fact that the inclusion of this new question was not contested can apparently only be accounted for by the absence from the court of counsel who, at best, was holding only a watching brief and who, in his final address to the court, stated that he had “been present very rarely during the course of this inquiry”.
7. Despite counsel's final protest that Captain Lord had not been served with a notice of investigation and that he himself had held only a watching brief (Appendix 4), the court adopted what in the circumstances was the extremely irregular attitude of considering Captain Lord's conduct and recording adverse findings upon it.
For the above reasons, it is submitted that Captain Lord was not given a fair chance to defend himself at the inquiry or to call additional evidence in his favour. The failure of the court to give him the legal protection to which he was entitled, by making him a party to the inquiry and granting him completely separate representation from that of the Californian's owners and other officers, also led to his being technically prevented from exercising any right of appeal––a right which should be the entitlement of every British citizen. His personal appeals for a re-hearing were turned down by the Board of Trade (Appendix 5).
After the inquiry, Captain Lord was left with his reputation seriously damaged and his previously unblemished service with the Leyland Line was terminated. These consequences followed what was clearly a "charge" laid against Captain Lord by the Board of Trade, a charge which was considered by the court and held to have been proved. In the only legal text book dealing with marine inquiries (McMillan's Shipping Courts and Inquiries) the editor states: "Such charges as are substantiated may have serious consequences for the persons concerned. An express duty is therefore laid on the court to ensure that the person charged shall have an opportunity of making a defence and express provision is made throughout the act and throughout the rules of procedure for its observation".
If, as this petition submits, the court failed to carry out the "express duty" laid upon it to protect Captain Lord's interests, then there was a miscarriage of justice which, under Section 475 of the Merchant Shipping Acts, 1894, can be rectified by the ordering of a re-hearing by the President of the Board of Trade.
"The truth of the matter is plain." …Lord Mersey's findings.
Quite apart from the fact that Captain Lord's case was obviously prejudiced by the failure to make him a party to the inquiry proceedings, were the Court justified in coming to the conclusion, on the evidence before them, that the Californian might have saved many if not all of the lives that were lost when the Titanic sank?
There is a single vital point which by itself completely destroys the case against Captain Lord, namely, that neither the Californian nor the Titanic sighted another ship at approximately the same time, as would have been the case if these two ships alone were involved.
The discrepancy is not a small one, which could be explained by a failure to note times accurately, but is so great that it must be regarded as being conclusive. Before it is examined, however, it is essential to do what neither the British nor American courts did, which is to bring to a common datum the times being kept in the individual ships.
Having regard to the essential need to establish the correct relationship in times if apparent coincidences were to be accepted which incriminated the Californian, here is the full text of the exchange which took place on the last day of the British inquiry between Lord Mersey, the President, and Sir Rufus Isaacs, the Attorney-General. The latter was concluding his submission to the Court that the Californian could have rescued many, if not all, of those lost in the Titanic, although in this passage he misinterprets the evidence from the Californian.
THE ATTORNEY-GENERAL: ... It is said, for example, in this case that this white rocket, the first distress signal, was not seen till a quarter-past one. It is very difficult to explain that, in view of the evidence of the Titanic, which is that they were sending up these rockets from 12.45. I should have thought upon this evidence and upon the evidence which follows it, that the estimate of time must be quite wrong.
LORD MERSEY: There might be some difference in the clocks of the two vessels.
THE ATTORNEY-GENERAL: Yes, certainly, there might be.
LORD MERSEY: That might partly account for it.
THE ATTORNEY-GENERAL: Yes, it might.
The Californian's clocks had been set at noon on Sunday, April 14, to the apparent time of her then longitude, 47 ½ ˚ West, an "Apparent Time Ship" three hours and ten minutes behind Greenwich Mean Time. As the area in which the Titanic disaster occurred is closer to the American coast, however, it is more convenient to use New York Time as a common basis. This is five hours behind Greenwich Mean Time, so that the time being kept by the Californian was 1 hr. 50 mins. ahead of New York Time.
The Titanic's noon longitude on April 14 was about 44 1/2˚ West, that is, twelve minutes in time ahead of the clock time being kept by the Californian, and 2 hrs. 2 mins. ahead of New York Time.
For the purpose of this petition, all the ships' times involved, unless otherwise stated, are accordingly adjusted to the common basis of New York Time; times before 2400 are for the evening of April 14, and 0001 and after are for the morning of April 15.
As the Titanic was steaming to the westward, it was necessary for her clocks to be adjusted by retarding them each night so that they would be at approximately the correct apparent time of her anticipated noon longitude for the following day. On the night of April 14/15 it had been arranged that her clocks would be put back 47 minutes, the first stage being to retard them 23 minutes at midnight. The Titanic stopped at 11.40 p.m. ship's time, however, and this adjustment was never made. As Mr. Pitman, the liner's third officer, stated at the American inquiry: "We had something else to think of". Consequently, the time being kept on board the Titanic was still 2 hrs. 2 mins. ahead of New York Time.
No other ship was in sight from the Titanic when she hit the iceberg at about 2140 NYT and nothing was seen until 45 minutes later, at about 2230 or 2235. This was when those in the liner first sighted a ship approaching from ahead and began to fire distress rockets.
From the Californian another ship––a ship which the courts held was the Titanic––had been in sight since some time between 2030 and 2100, that is, from at least one and a half hours before any other ship was seen from the Titanic. There can be no possible question of there being any mistake in this statement. Indeed, one of the most vital pieces of evidence accepted by both the British and American courts as irrefutably condemning the Californian was the fact that the ship she was watching stopped at "11.40 p.m.", that is, at "the same time" as the Titanic hit the iceberg. But "11.40 p.m." in the Titanic was twelve minutes ahead of the ship's time being kept in the Californian. Adjusted to New York Time, the Titanic stopped at 2140; the ship seen from the Californian did not stop until 2150, and had then been in sight for over half an hour.
It is hard to believe that there was no one officially concerned with the British and American inquiries who did not appreciate this essential point, and realise that at the very least it was a warning that apparent coincidences such as the above should be very closely examined. When they are examined, they are found to reveal discrepancies confirming the assertion that in fact four ships were involved; the Californian and a second ship first seen sometime about 2100, and the Titanic and a fourth ship first seen about 2230.
In the light of this single incontestable fact, the charge against Captain Lord and the Californian is completely demolished. But Lord Mersey in his findings listed a number of points which, in his view and in that of his assessors, bore out his conclusion that: "The truth of the matter is plain". Although much of the discussion is academic, it is consequently necessary to examine these points in more detail against the background of a common datum such as is provided by adjusting each of the individual ships' times to New York Time.
“AlI the times subsequent to the collision mentioned by the witnesses are unreliable." …Lord Mersey's findings.
The first of the Titanic's radio distress calls to be picked up was logged by the wireless station at Cape Race, by the British liner Mount Temple and by the French liner La Provence at 2225 NYT. The position given in this first message was 41˚ 44' N., 50˚ 24' W. Shortly afterwards, this position was amended to 41˚ 46' N., 50˚ 14' W., being first received in this form by Cape Race and several ships at 2235. This amendment followed action taken in the intervening ten minutes by the Titanic's fourth officer, Mr. J. Boxhall, and by an extraordinary and most revealing series of interrelated incidents on board the Titanic it not only clearly marks the time at which the liner first began to send up distress rockets but also the time before which at least two of her lifeboats had already been lowered into the water (Appendix 6).
At 2235, the ship lying stopped only four to five miles away from the Californian was completely inactive, and it was to be another twenty minutes before the first of a series of eight rockets or flares was to be seen, apparently coming from her, by Mr. Stone, the Californian's second officer. It is therefore evident that this ship could not have been the Titanic.
(ii) A Ship Stops
"The 'Titanic' collided with the berg at 11.40. The vessel seen by the 'Californian' stopped at this time."…Lord Mersey's findings.
The Titanic collided with the iceberg at about 2140 NYT. At both the inquiries her lookouts confirmed that no other ship was then in sight. Their range of visibility to sea level would extend to at least 9 miles, while the masthead lights of a ship such as the Californian would have been seen at a range of 15 or 16 miles.
At 2140, while those on watch in the Titanic could see no other ship within 10 to 15 miles of them, from the Californian a ship had been seen approaching "slowly and obliquely" from the southward, to stop at 2150 only four to five miles away. Anyone on watch aboard her could not fail to see the Californian, which was showing all her electric deck and navigation lights. Thus the approaching ship could not have been the Titanic.
(iii) The Rockets
(a) "The rockets sent up from the 'Titanic' were distress signals. The 'Californian' saw distress signals."…Lord Mersey's findings.
The distress signals sent up from the Titanic were rocket signals carried "in lieu of guns"––that is, they depended on detonation as well as illumination to attract attention.
They were in effect "timed shells", fired from a miniature gun barrel to burst from two to three hundred feet up with an explosion which could have been heard for many miles in the uniquely calm and clear conditions which prevailed on the night that the Titanic was lost. The Carpathia was also using similar signals while on her way to the rescue, and survivors in the Titanic's lifeboats stated that these signals were heard, and in fact mistaken for gun fire, before the Carpathia's masthead lights were sighted.
No one in the Californian heard any explosions that night, and the second officer held steadfastly to his opinion that the rockets or flares which he saw apparently from the nearby ship were not distress signals, nor did they rise any higher than the other ship's masthead light.
(b) "The number [of rockets] sent up by the 'Titanic' was about eight. The 'Californian' saw eight. The time over which the rockets from the 'Titanic' were sent up was from about 12.45 to 1.45 o'clock. lt was about this time that the 'Californian' saw the rockets."...Lord Mersey's findings.
The first of a series of about eight rockets sent up from the Titanic was fired at about 2235; the first of the series of eight seen from the Californian was not seen until about 2255, that is, about twenty minutes later. It is impossible to determine at what intervals the rockets were being fired from the Titanic, for estimates vary from “every minute or so" to every five minutes. The period involved must accordingly have been anything from ten to forty minutes, that is, from 2235 to 2245, or to 2315. From the Californian, the period over which the rockets were seen is equally indefinite but it appears to have been from about 2255 to 2330. In any event, it appears that rockets were being fired from the Titanic for at least fifteen minutes before any were seen from the Californian; it also appears that the last rocket seen from the Californian was fired some time after the final rocket was sent up from the Titanic. As the rockets or flares seen by the Californian's second officer and apprentice did not explode, and as they came from a ship which was steaming away from them, they could not have been distress signals, and could not have come from the stationary Titanic.
(iv) A Ship Disappears
"At 2.40 Mr. Stone called to the Master that the ship from which he had seen the rockets had disappeared. At 2.20 a.m. the 'Titanic' had foundered."…Lord Mersey's findings.
The Titanic sank at 0018. It was not until 0030 that Mr. Stone saw the ship's stern light which he had been watching through binoculars disappear over the horizon. Between 2255 and 0030 this ship had moved from her original position, of from four to five miles away on a compass bearing of SSE, to a final position hull down on the horizon on a compass bearing of SW 1/2 W. Had this ship been the Titanic, she would have remained in her original position on a steady bearing until she finally disappeared. Therefore the ship seen from the Californian could not have been the Titanic.
(v) Some other Ship?
"It was suggested that the rockets seen by the 'Californian' were from some other ship not the 'Titanic'. But no other ship to fit this theory has ever been found."––Lord Mersey's findings.
No properly organised attempt was ever made in 1912 to trace the several ships known to have been in the vicinity of the Titanic disaster during the night of April 14/15, and the Leyland Line made it clear that, so far as they were concerned (and their attitude governed the conduct of counsel nominally responsible for the presentation of Captain Lord's case), they looked on it as no part of their duty to do so. It was consequently most unjust to cast on Captain Lord the burden of proving his innocence by identifying the other two ships which must have been involved, for this was a task which could only be effectively carried out by consultation and co-operation between the governments of several nations.
Having regard to the speed with which Captain Lord was officially condemned and publicly vilified as a result of the American inquiry, a verdict shortly to be reflected by the British court, it is not perhaps surprising that those responsible for the navigation of the other two ships––the one seen from the Californian, and the other seen from the Titanic––preferred to remain anonymous. Fifty years after the event, it is possible that there are still in existence contemporary records from which these two ships could be identified; until these records are produced and verified, however, it is possible only to speculate as to who these two ships were and why they behaved as they did.
(vi) " . . . About five miles apart"
"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." …Lord Mersey's findings.
All the expert witnesses from both the Titanic and the Californian estimated the nearest approach of the other ships they were watching to be about five miles. At such a relatively short range the Titanic, with all her navigation and deck lights burning and her many port holes illuminated, would have been absolutely unmistakable for what she was––one of the world's largest passenger liners.
There can be no doubt that it was for this reason that Lord Mersey found himself unable finally to record this distance of about five miles in findings which held that only the Titanic and the Californian were involved. Consequently, his original conviction that these two ships were "about five miles apart at the time of the disaster" had to be modified, and his report accordingly goes on to state; "I am advised that the distance was probably greater though not more than eight to ten miles".
lt is a most revealing comment on the impracticability of the conclusion that only the Titanic and the Californian were involved that the estimates of distances given by qualified, practical seamen who were actually there at the time should have to be rejected by the Court. These estimates were replaced in the findings by distances never given by witnesses but which were evidently calculated several weeks later by Lord Mersey's assessors in an attempt to find the most reasonable figures acceptable to commonsense, assuming that it was indeed the Titanic which was seen from the Californian.
(vii) Could the "Californian" have saved lives?
"[The Californian] might have saved many if not all of the lives that were lost." …Lord Mersey's findings.
The truly appalling nature of the Court's findings insofar as they personally affected Captain Lord lay in the direct charge that he was responsible for the loss of up to 1,500 lives.
This charge rests solely on the assumption that the Californian was indeed only about five miles (or 8 to 10 miles, according to the Court's amended findings) from the Titanic as she struck the iceberg, and on the assumption that the serious nature of the incident was immediately appreciated when the first rocket was seen. In these circumstances, any discussion of this point is really academic, for no ship was in fact within about five miles, or 8 to 10 miles, of the Titanic at the moment of impact. Had there been, there is little doubt that those in the Titanic, once they had proved that the liner, although inevitably bound to sink, was still temporarily manoeuvreable, would have proceeded at best possible speed in the direction of any help. Their actual decision to blow down the boilers and to begin to lower the lifeboats irrevocably immobilised the liner before any other ship came in sight, and thereafter they were entirely dependent on that ship to come to their aid.
For reasons given elsewhere in this petition, however, it is evident that the ship they saw approaching, which later turned and steamed away, was not the Californian.
It is obvious that no part, however small, of the blame for the loss of life when the Titanic sank can be attributed to Captain Lord personally. The first he knew of any signals giving any cause for potential concern was at 2325 NYT, when the second officer first reported that rockets (or, as Captain Lord understood the report "a rocket") had been seen; the Titanic sank at about 0020, or only 55 minutes later. Had Captain' Lord then and there issued orders for the Californian to proceed at her full speed of 13 knots and had this been immediately practicable, the Californian at best would have had only fifty minutes' steaming time, during which no more than twelve miles could have been covered, before the Titanic sank. Yet, according to the account given by the Carpathia's second officer, that vessel when finally approaching the Titanic's lifeboats found it necessary to cover the last mile or so cautiously at slow speed, an action for which she was not criticised.
If similar considerations are allowed to apply to the Californian, and it could possibly be assumed that the Titanic was only ten miles away, then the time of 2325 at which the signals were first reported to Captain Lord was already too late for his ship to play any effective part in the rescue operations. But all the evidence, as distinct from personal opinions, is that the Californian was much more than ten miles away, for it took her two-and-a-half hours in daylight, under the best of conditions, to proceed from the position in which she had lain stopped all night to the area, marked by the Carpathia, where the Titanic's wreckage and lifeboats were found.
If the Titanic had actually foundered in the position accepted by the Court, namely, 41˚ 46' N., 50˚ 14' W., and the Californian had been in the position estimated by Captain Lord, then the intervening distance was 19 ½ miles. If it had been possible for the Californian to use her maximum speed of 13 ½ knots at night in an icefield of unknown extent––and within twenty miles of them a ship was in difficulties through going at an immoderate speed in just such conditions––then in order to reach that position at the identical moment that the Titanic sank at 0020, the Californian would have had to be under way at 2255, that is, 85 minutes beforehand. But it was at about 2255 that the first rocket or flare was seen by the second officer; before the Californian could be brought under way, time would have to be allowed for confirmation of the fact that it was indeed rockets he was viewing; for Captain Lord to be advised; for the wireless operator to be called to confirm the nature of the emergency; and for the engines to be brought to a full state of readiness.
If all this could have been done within the short space of five minutes, the Californian would still not have reached the position of 41°46' N., 50° 14' W., before 0025, that is, after the Titanic had sunk; and on reaching that position she would have found no more than she, did later that morning, which was the Mount Temple marking the reported position of the sinking and the Carpathia some eight to ten miles to the south-east completing her rescue operations at the actual scene of the disaster.
No matter what assumptions are made, it was clearly impossible for the Californian to have been alerted by the rockets first seen at 2255 in sufficient time for her to have reached the Titanic before she sank, and before the survivors who had been cast into the water had perished from exposure. Consequently the findings of the Court which placed the whole of the blame for the loss of life on Captain Lord are invalid.
"Giving money and power to government is like giving whiskey and car keys to teenage boys.” ~~ P. J. O’Rourke