The Night Lives On (19 page)

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.

Both 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 American 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.

Who initiated the step is uncertain, but lawyers for both sides began quietly conferring in an effort to find some acceptable compromise. The claimants gradually scaled down their demands from the original $16 million to less man $3 million, while White Star began inching up the $97,772 it owed under limited liability.

On December 17, 1915, Burlingham suddenly announced that the parties were near settlement. White Star agreed to pay $664,000, to be apportioned among the claimants according to their scaled-down schedule. In return the claimants agreed to drop all suits both in America and in England, and agreed that the White Star Line had no “privity or knowledge” of any negligence on the
Titanic.
This last constituted an acknowledgment that the ship’s owners were indeed protected by limited liability and presumably barred any suits in the future. The lawyers for nearly all the claimants went along with the deal. Only a few loose ends remained to be cleared up.

The loose ends, it turned out, took another six months. Much of the time was spent trying to divide up equitably the $664,000. The maximum allowed, for instance, would be $50,000 for loss of life under certain conditions—which meant that Renée Harris had to come down quite a bit from the $1,000,000 she
originally claimed. On the other hand, the cut was far less severe for loss of life in steerage. The average claim had been $1,500; the average award would be $1,000.