The Night Lives On

by Walter Lord

  “A born fool,” concluded the London press, and contempt was added to chauvinism in the continued attack on the Senate’s investigation. There was a general feeling that things would be different when the British launched their own inquiry into the tragedy. As the Daily Telegraph politely explained:

  The inquiry which has been in progress in America has effectively illustrated the inability of the lay mind to grasp the problem of marine navigation. It is a matter of congratulation that British custom provides a more satisfactory method of investigating the circumstances attending a wreck.

  The “more satisfactory method” was a special court, convened by the Board of Trade, headed by Lord Mersey, a prominent jurist appointed by the Lord Chancellor at the Board of Trade’s request. Assisting him were five “assessors,” but they were in no sense associate judges; they were strictly technical experts, there to help Lord Mersey, if and when called upon. As Commissioner of Wrecks, he had the final say on everything—the matters to be investigated, the witnesses to be called, the interests that would be represented, and ultimately the findings of the Court itself.

  The Daily Telegraph called Lord Mersey “one of the country’s leading authorities on nautical affairs,” but actually he was far from that. Although an experienced judge, his field was commercial law, and he had served as president of the Probate, Divorce and Admiralty Division of the High Court for only a year. Yet he was shrewd, witty, and possessed the kind of legal mind that could readily assimilate the facts of a complicated case.

  The Inquiry opened May 2 at the London Scottish Drill Hall, a great barn of a building with dreadful acoustics, but the only available place big enough to hold all who had reason to come. For 36 days the story of the Titanic unfolded once again, as a steady parade of witnesses were examined by counsel representing such varied interests as the White Star Line, the National Sailors and Firemen’s Union, the Third Class passengers, the owners and officers of the Californian, and the Board of Trade itself. Over 50 lawyers were present altogether, constantly jockeying to protect or promote their clients’ interests.

  Through it all, Lord Mersey remained in firm command. Usually he was content to let the testimony unfold, but if he thought that it was getting nowhere, he would break in with an irritated, “This is not helping me at all.” Evasive witnesses especially annoyed him. At one point in the questioning of the unfortunate Herbert Stone, Second Officer of the Californian, Mersey suddenly declared, “You know, you do not make a good impression upon me at present.”

  Above all, he did not tolerate fools gladly. During the testimony of Alexander Carlisle, designer of the Titanic, Carlisle described a meeting at which he and Harold Sanderson of the White Star Line were present but did not say anything. “Mr. Sanderson and I were more or less dummies,” Carlisle explained.

  “That has a certain verisimilitude,” Lord Mersey observed.

  Apart from the Commissioner’s urbanity—along with an unruffled atmosphere where opposing counsel politely called one another “my good friend”—the British Inquiry differed in a less noticeable but more important way from the rough-and-tumble of the Senate’s investigation. It put much more emphasis on the technical side of the disaster: the faulty design of the Titanic; the Board of Trade’s outdated lifeboat regulations; the Board’s casual acceptance of inadequate boat drill; the reckless navigation practiced by shipmasters in the competitive struggle on the North Atlantic run.

  Unconsciously, through the testimony of witnesses, the Inquiry also brought out the laxity of the Board of Trade in administering its own regulations. Captain Maurice Henry Clarke, the inspector who cleared the Titanic for sailing, approved a “boat drill” that consisted of lowering only two lifeboats, manned by a handpicked crew, while the ship was tied up at dock. While he conceded that he had tightened his requirements since the disaster, Lord Mersey broke in:

  “Then you do not think your system before the Titanic disaster was very satisfactory?”

  “No, sir.”

  “Did you think it satisfactory before the Titanic disaster?”

  “No, sir.”

  “Then why did you do it?”

  “Because it was the custom.”

  “Do you follow a custom because it is bad?”

  “Well, I am a civil servant, sir, and custom guides us a good bit.”

  Even more depressing was the testimony of Sir Alfred Chalmers, who had been Nautical Advisor to the Marine Department of the Board of Trade, 1896-1911. It was felt that he would know better than anybody else why the Board’s lifeboat regulations had not been updated to reflect the enormous increase in the size of vessels since 1896. Sir Alfred, it turned out, had no interest in updating regulations; he thought there were too many already. He preferred, as far as possible, to do away with all regulations, leaving such matters as lifeboats to the “voluntary action of shipowners.” He was, in short, an owner’s dream: a regulator who didn’t believe in regulations.

  As for the Titanic, Chalmers declared, no lives were lost because the required number of boats had not been increased since 1896. Her problem was not too few, but too many boats. He pointed out that many of the boats had left half-filled. This was often due to complacency. If there had been fewer boats, the passengers would have been less complacent. The boats would then have left with more people in them, and ultimately more would have been saved.

  While the British Inquiry explored even the murkiest minds on the technical aspects of the disaster, Lord Mersey seemed to show relatively little interest in the passengers’ ordeal. Of 102 witnesses, the only passengers to testify were Sir Cosmo and Lady Duff Gordon. Along with Lady Duff Gordon’s secretary, Miss Francatelli, they were among the 12 persons who left the Titanic in Boat 1, which was supposed to hold 40. Ugly rumors were spreading that Sir Cosmo had bribed the boat crew to row away, and now he was trying to clear himself.

  On May 17 the Duff Gordons arrived at the hearings flanked by their lawyers. Attracted by the whiff of possible scandal in high places, the gallery was filled with prominent spectators, including the Earl of Clarendon, the Russian Ambassador, Prince Leopold of Battenberg, and Mrs. Asquith, wife of the Prime Minister. If they were hoping for some sensational revelation, they were in for a disappointment. Sir Cosmo convinced the Court that he had not ordered Boat 1 to row away, and that the £5 payment he later made to each member of the boat crew was simply a gift to help them buy a new kit. He had done nothing improper, and Lord Mersey’s only criticism was that he might have exercised a little positive leadership at a time when the boat was drifting, largely empty, within easy reach of the hundreds struggling in the water. The Duff Gordons cleared, the Inquiry went back to its diligent probing of the causes of the wreck.

  In contrast, the Senate investigation concentrated much more heavily on what might be called the human side of the disaster. Not counting Bruce Ismay, some 20 passengers from all three classes gave testimony, throwing a great deal of light on such pertinent points as the way the alarm was spread after the collision, the amount of warning given, the mustering for the boats, the different procedures followed on the port and starboard sides, the varying treatment accorded each of the three classes.

  In the end, both the American and the British approaches proved useful in getting at the truth. Neither showed the “right” or the “wrong” way to conduct an investigation. Nor were they in any sense redundant. Rather, they complemented each other, together throwing a great deal of light on the disaster, and incidentally providing future students with 2,111 pages of firsthand information that would be sifted and sifted forever more.

  Despite different approaches, it was not too surprising, then, that the two inquiries reached similar conclusions. Both decided that the Titanic was going too fast; that a good and proper lookout was not kept; that there was poor organization in loading and lowering the lifeboats; that the Californian was in sight, saw the rockets, and could have come; that there was no discrimination against Third Class.

  B
oth inquiries recommended that passenger vessels should carry lifeboats for all on board; that there should be better and more frequent boat drills; that wireless operators should be on duty 24 hours a day; that steps should be taken to improve the watertight integrity of the ever-greater liners that were now sailing the seas.

  In both investigations the findings on Third Class were curious. It is perhaps understandable that Lord Mersey saw no discrimination. Mr. Harbinson, officially representing Third Class interests, did not call on a single steerage survivor to testify, and he personally assured the Court that there was “not an atom or a tittle of evidence” that anyone in Third Class was held back.

  Less understandable were the findings of the Senate investigation. Of the three Third Class witnesses examined, two clearly stated that members of the crew tried to keep them below. Yet, it must be conceded, they also said they did not believe they had been discriminated against. One can only conclude that steerage aspirations were low: in 1912 it was enough to be given a life belt.

  There were differences, too, between the two reports. Lord Mersey’s findings were definitely more cautious. Considering his cutting comments during the testimony, one might have expected some of that bite in his report, but this was not the case. “It carries reticence to the severest extreme,” complained the Daily Mail. Even more disappointed was Nautical Magazine, the merchant service officer’s professional journal:

  Lord Mersey’s judgement in the Titanic inquiry leaves us very much where we were before. It is colourless, timid, and cautious. We had expected more backbone in Lord Mersey….

  On the question of lifeboats, for instance, Senator Smith flatly demanded that in the future there should be boats for all, passengers and crew. Lord Mersey, on the other hand, was content to say that “the accommodation should be sufficient for all persons on board, with, however, the qualification that in special cases where, in the opinion of the Board of Trade, such provision is impracticable, the requirements may be modified as the Board may think right.”

  The qualification created a loophole big enough for any shipowner to slip through, and left the recommendation virtually meaningless.

  But the biggest difference between the two reports was on the question of Captain Smith’s blame. He was so beloved—and faced his end so bravely—that it seemed almost brutal to criticize him at all. More in sorrow than in anger, Senator Smith finally blamed the Captain as gently as he could:

  Captain Smith knew the sea, and his clear eye and steady hand had often guided his ship through dangerous paths….His indifference to danger was one of the direct and contributing causes to this unnecessary tragedy…. Overconfidence seems to have dulled the faculties usually so alert.

  Lord Mersey came to the opposite conclusion. The White Star Line had paraded 11 sea captains before the Court, all of whom testified that when there was ice ahead and the weather was good, they always went full speed until the ice was actually sighted. Captain Smith had simply done what everybody else did, and the fact that in his case the ice wasn’t sighted until the ship was almost on top of it made no difference:

  I am not able to blame Captain Smith….He was doing only that which other skilled men would have done in the same position….He made a mistake, a very grievous mistake, but one in which, in face of the practice and of past experience negligence cannot be said to have had any part; and in the absence of negligence it is, in my opinion, impossible to fix Captain Smith with blame.

  The whole question of blame was becoming more and more important, for the damage claims were now piling up. Ultimately they totaled some $16 million—which works out at about $176 million in terms of today’s dollars. It was a staggering sum in 1912, an innocent era when litigants were more easily satisfied than now.

  The claims for loss of life were especially revealing. The highest was for $1,000,000, filed by the widow of Henry B. Harris, the Broadway theater owner and producer. His magic touch was a unique gift that Mrs. Harris felt she couldn’t possibly carry on.

  At the opposite extreme, some of the wealthiest and most socially prominent families sought nothing at all. In 1912 it seemed somehow demeaning to put a price tag on a gentleman’s life, and the Astors, Wideners, Guggenheims, and Strauses filed no claims whatsoever. The Thayers did file a claim for the luggage of John B. Thayer, but nothing for the loss of his life.

  As the claims poured in, the White Star Line’s New York attorney, Charles C. Burlingham faced the avalanche with the sangfroid a good Wall Street lawyer can always muster in a tight corner. He had, after all, guided the imperious Bruce Ismay safely through the Senate hearings, and nothing could be much harder than that. Besides, he now had a powerful defensive weapon at his disposal—the doctrine of limited liability.

  Both American and British law had long given special protection to shipowners whose vessels, through negligent handling, caused damage to others. The risks of sending ships to sea were so great that some special incentive was needed, if maritime nations were to grow and prosper. Moreover, on land the factory owner could at least theoretically oversee the acts of his employees, but the shipowner had no such control over his captain and crew. By the very nature of the business he was usually out of touch, and it seemed unfair to hold him to the same degree of responsibility when something went wrong. Therefore, as long as he did not have “privity or knowledge” of the negligence, his liability would be limited.

  Limited to what? A valid question, for the two nations applied completely different formulas in computing the amount of money the White Star Line would have to divvy up to settle the claims. In England the formula was £8 ($40) per registered ton for loss of property, and £15 ($75) per registered ton for injury or loss of life. For the 46,000-ton Titanic, this meant a pool of about £690,000 ($3,450,000) altogether.

  In America the formula was completely different. It was the total value of everything salvaged from the ship plus the money paid in by shippers and passengers who were never carried to their destinations. But the only salvage from the Titanic was the cluster of 13 lifeboats picked up by the Carpathia and brought back to New York; and the money paid by the passengers and shippers added up to less than $40,000—meaning the pool to pay off the claims would amount to just $97,772.12.

  On October 8, 1912, the White Star Line formally petitioned the Federal District Court in New York for limited liability as spelled out under the American law. The claimants, whose lawyers had by now formed a loose coalition, opposed the petition, arguing that the far more generous English law should apply. Even though the forum was an American court, the argument ran, the accident occurred on the high seas where nobody had jurisdiction, and in such cases the governing law should be the law of the country where the ship was registered.

  The District Court found for the White Star Line, but was reversed on appeal, and ultimately the Supreme Court itself made the final decision. It ruled that an American court could only apply American law, and therefore the White Star Line was correct in seeking limited liability under the American formula. Whether the line was justified in seeking limited liability was another matter, which would have to be decided separately.

  Meanwhile there were legal battles in England too. An Irish farmer named Thomas Ryan sued in the High Court of Justice, King’s Bench Division, for the loss of his son, and his lawyer argued that the doctrine of limited liability didn’t even apply, because the White Star Line itself was negligent, as well as the crew of the ship. Lord Mersey had seen no negligence anywhere, but a jury of 12 independent-minded citizens found that the White Star Line was at least partly to blame for the Titanic’s excessive speed. Farmer Ryan was awarded £125 in damages, and the verdict was upheld on appeal.

  Not surprisingly, this decision started a small rush of American claimants to the British courts, where it looked as if they might have a better chance of winning. The American courts took a benign view of this exodus—it was up to the British courts to keep order in their own house.

  Most of the A
merican claimants, however, stayed put, and on June 22, 1915, the case finally came to trial. Speaking as the White Star’s chief attorney, C. C. Burlingham took the position that there was no negligence at all, but if there was, it was not the owners who were to blame; their liability should be limited to the $97,772.12 prescribed under American law.

  The claimants fought back, arguing that there was indeed negligence in the handling of the ship, and the owners had a share in it through the presence of Bruce Ismay on board. He was described as virtually a super-captain, giving orders for speed trials and the lighting of extra boilers.

  Once again the picture was conjured up of the famous meeting before lunch on that fatal Sunday when Captain Smith handed Ismay the Baltic’s ice warning, and Ismay stuffed it into his pocket. Surely, the claimants contended, that constituted “privity or knowledge” of negligence, removing the owners from the protection of limited liability. Final arguments were heard July 27-29, and Judge Julius M. Mayer began his consideration of the case. On the surface, life settled down to a long period of silent waiting.

  Beneath the surface, all was activity. It seems that C. C. Burlingham was not as confident as he sounded. His presentation was flawless, but the country was in a progressive mood, and to many people $97,772 seemed a scandalously low price for the owners of the Titanic to pay. Nor were the claimants free from doubt. Claims now totaled over $16 million, and some seemed extravagant or even frivolous. Certainly it didn’t strengthen the credibility of the figure to have Edith Rosenbaum include $2.00 for a hot water bottle and $20 for perfume, powder, and rouge. Nor did it help to have Mary McGovern add $20 to her claim for time spent listening to highly technical arguments in court.