When That Great Ship Went Down: The Legal and Political Repercussions of the Loss of RMS Titanic

When That Great Ship Went Down:

The Legal and Political Repercussions of the Loss of RMS Titanic

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GMW Wemyss

Markham Shaw Pyle

A Bapton Books History Selection

Copyright © 2012 (First Edition), 2012 (Second Edition)

by Bapton Literary Trust No 1 (for GMW Wemyss & Markham Shaw Pyle)

All rights reserved

Second e-text edition

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The authors:

GMW Wemyss lives and writes, wisely pseudonymously, in Wilts. Having, by invoking the protective colouration of tweeds, cricket (he was a dry bob at school), and country matters, somehow evaded immersion in Mercury whilst up at University, he survived to become the author of The Confidence of the House: May 1940 and of Sensible Places: essays on time, place & countryside; co-author of The Transatlantic Disputations: Essays & Observation; The Bapton Books Sampler: a literary chrestomathy; and When That Great Ship Went Down: the legal and political repercussions of the loss of RMS Titanic; and co-editor and co-annotator of The Complete Mowgli Stories, Duly Annotated, and The Annotated Wind in the Willows, for Adults and Sensible Children (or, possibly, Children and Sensible Adults). He is also the co-author of the recent '37: the year of portent.

Markham Shaw Pyle, author of Fools, Drunks, and the United States: August 12 1941, holds his undergraduate and law degrees from Washington & Lee. He is a past or current member of, inter alia, the Organization of American Historians; the Society for Military History; the Southern Historical Association; the Southwestern Social Science Association; the Southwestern Historical Association; the Southwestern Political Science Association; the Virginia Historical Society; and the Texas State Historical Association. He is the co-author of The Transatlantic Disputations: Essays & Observation; The Bapton Books Sampler: a literary chrestomathy; and When That Great Ship Went Down: the legal and political repercussions of the loss of RMS Titanic; co-editor and co-annotator of The Complete Mowgli Stories, Duly Annotated, and The Annotated Wind in the Willows, for Adults and Sensible Children (or, possibly, Children and Sensible Adults); and co-author of the recent '37: the year of portent.

Together, they are the partners in Bapton Books.

Praise for When That Great Ship Went Down: the legal and political repercussions of the loss of RMS Titanic:

'What sank the Titanic? Its builders' belief that, when it came to building ships, the Science Was Settled. And, as this cool reassessment of the US and British Titanic enquiries shows, politicians and regulators in 1912 were just as bad as the current lot: they had a progressive political narrative to push, and their own secrets to hide. Sounds familiar.'

– James Delingpole, Daily Telegraph columnist, 2010 winner of the Bastiat Prize for Online Journalism, and author of, most recently, Watermelons: The Green Movement's True Colours

'In this sharply and eruditely-drawn account of the Titanic Inquiries on either side of the Atlantic, the authors warn: What lessons this may hold for Mr Cameron and Mr Salmond is beyond the scope of this work. Fortunately, their vivid reconstruction and analysis enable us to draw plenty of damning parallels. This is a parliamentary procedural as well as the re-creation of a vanished pre-War world; its political and intellectual processes as well as a sociology ranging from Trollope to Joyce. This is far more than another clever Titanic book.'

– Anne-Elisabeth Moutet, Paris Contributing Columnist, The Sunday Telegraph

To the Lost, and all those who sought to do Justice.

Contents

Introduction: The Skeleton Rag

Prologue: Last Night Was the End of the World

On Moonlight Bay

The Band Played On

Hello, ma baby, hello, ma honey

The Harbour of Love

Roamin' in the Gloamin'

Any Place the Old Flag Flies

I Do Like to Be Beside the Seaside

Come Back to Erin

Big Steamers

Bibliography

Table of Authorities

Narrative notes

Colophon

Footnotes

When That Great Ship Went Down:

The Legal and Political Repercussions of the Loss of RMS Titanic

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GMW Wemyss

Markham Shaw Pyle

Bapton Books

Introduction: The Skeleton Rag

RMS Titanic is a Ghost Ship. She sails on forever in the imagination, and in her wake are old political and legal issues that, unnoticed, yet shape our world, just as she has become a metaphor that shapes our language: and language, always, shapes thought.

In sober fact, she sank a century ago, in April 1912, although in the imagination and in the world her loss made, she sails on, unsinkably. Her story has been told time and again, well and poorly: yet it has almost always been the dramatic story of her loss, the sinking of a ship that became a symbol. The consequences, in the politics of Britain and the United States, in law, and in international affairs, are commonly forgotten. What is remembered is the myth.

The myth set sail even as the great liner slipped into the death-cold embrace of the North Atlantic. We know, a century on, much that was not known in 1912: her true position, the probable cause of her loss, and how much of the myth was false in fact. It does not matter – in several senses. Perception again trumps reality. For the purposes of this volume, it does not matter that we know now what the Wreck Commissioners and Senate subcommittee and courts of admiralty and House of Commons did not know: for they acted upon what they knew and upon what they believed to be true, without the benefits of our after-knowledge; and this work is concerned with what they did and why they did it: and that rests upon what they knew and assumed, not what upon we have learnt since.

And as a potent symbol, a popular myth, Titanic and her loss reck nothing of the facts then known or the facts known now. Almost before the survivors reached New York aboard Carpathia, the Titanic of myth had been salvaged and had commenced her eternal journey. Fashionable preachers denounced her as having, by hubris, invoked Nemesis, although this intensely Greek concept was wrapt in the diction of Protestant Christianity. African-Americans sang of her fate, as punishment for not having allowed Jack Johnson to take passage on her, an episode that simply did not occur: 'Captain said, I ain't haulin' no coal: Fare thee, Titanic, fare thee well'. Ismay was represented as having donned women's clothing to sneak into a lifeboat; the 'rich would not ride with the poor'; God's mighty hand showed the world that boasts of her 'unsinkability' 'would not stand: it was sad when that great ship went down'…. Harland & Wolff, the myth has it, and their Ulster Protestant workforce, gave the ship in the yard a number of 390904, being, reversed, an approximation of 'No Pope' – another outright fabrication. And of course, there are the contrary myths – for myth is never consistent – of the band's playing Nearer My God to Thee and of the stoic gallantry of the (first-class) gentlemen going down with the ship once the women and children were away; the myths of 'an Italian' or 'a Latin of some sort' attempting to force his way into the boats ahead of the women and children, and being forced back at gunpoint; the myths of fate and curses….

Leaving aside the curious theology of God's drowning fifteen hundred souls to rebuke scientific and engineering complacency and other forms of mortal hubris, there remain the facts beneath the myths of popular imagination. There was a huge loss of life, by a cause other than a natural disaster such as storms or ocean cyclones, an insurer's 'Act of God'; and it was upon a scale that – two years before the Great War should bring casualties that put Titanic's death toll in the shade – was so vast as to be simply incomprehensible. There was the fact that Titanic was owned, ultimately, by a JP Morgan transatlantic 'Trust', which was to the US Senate's Progressives sin enough to bring condign punishment by God and by the Congress. There was the fact that she had been built in Belfast by Belfast Protestants – and the countervailing political fact that the head of Harland & Wolff was a Liberal, Ascendancy supporter of Irish Home Rule. And there was the fact that the drowned emigrants from Ireland and the Continent had been fatally segregated in steerage by strict measures, cordoned off … to satisfy nativist, often Progressive, US immigration restrictions.

And finally, there was the question of regulatory incompetence, of the capture of the legislators and the regulators by industry: all bound up with the national pride that the great Atlantic liners represented. Titanic was ultimately owned by an Anglo-American consortium, but she was British-registered, a Royal Mail Ship, and so far as the public imagination was concerned, a British ship and a British symbol – for good and ill alike. Her loss was a reflection upon British shipping, British seamanship, British engineering, and the Board of Trade.

The Atlantic liners were all of them symbols, then and after, to the end of the trade. Cunard were subsidised by HM Government to Fly the Flag. American shipping lines won subsidies. The French government to the very end assisted the French Line, the Compagnie Générale Transatlantique, with mail contracts and fleet concessions, a method that continued through the launch of France in 1961. There were Swedish lines, Dutch lines, North German Lloyd, Hamburg America…. If the industry had captured its regulators, it had first been captured itself by governments: enterprises that had been undertaken as bold capitalist ventures had long since become vessels of crony capitalism. And if this was so of the shipping companies, it was still more so of the Marconi companies.

The story of Titanic is, then, the story – as it is the story of all liners – not only of regulatory capture; it, and the story of all the liners of the day, is not the story only of an engineering consensus, a smug belief that The Science Was Settled: it is also the story of an industry that was as a whole beset by and happily entoiled in corporatism, being a monopolistic and rent-seeking 'interlocking directorate' of business and government in restraint of trade and against the public interest and public safety.¹

British mercantilism, and corporatism in the relationship of the Treasury with the East India Company, had lost Britain thirteen American colonies: and the Liberal Party had in no small measure been the party of free trade, in rebuking response to those old errors. By 1912, it was sunk in corporatism, and the banner of free trade was being taken up by the Conservatives. America had been born in revolt against a corporatist, statist settlement, and had within a few years seen the emergence of Henry Clay's 'American System', all tariffs and protectionism, federal subsidies to transport, and central banking: the quarrel, under many names and within all parties as well as between them, between Hamilton and Jefferson, Clay and Jackson, has never ended. In these factors also is a part, at least, of Titanic's story.

The story of Titanic's actual sinking in April 1912 is a story of a natural disaster that might have been avoided by human action, and a tale of tragedy and heroism and cowardice and hope. It is a 1912 story, in which it was imperative that gentlemen emulate Scott of the Antarctic, whose martyrdom had been achieved only a few months before.

But that is not our story. It does not matter to our story whether Titanic might better have struck the iceberg full ahead; or to what extent² the ice was loosed into the shipping lanes by the January 1912 coincidence of perihelion and a perigean spring tide; or what messages were received and not received by the bridge; or why her dead reckoning position was off by some miles; or who behaved nobly and who, feebly, aboard. Just so, it does not, in the end, matter what was true in fact, but rather what was believed to be true in 1912, when, floating to the surface and bobbing amidst the wreckage, the legal and political, the diplomatic and economic, consequences of Titanic's loss appeared: for those consequences, resulting from what was known and thought in 1912, are our story, and shape the world in which we live unto this day.

The story of the legacy of Titanic's loss is a story of how the 'consensus' of a 'settled science' causes complacency and stagnation – and disaster. It is the story of the failings of crony capitalism. It is the story of how politics created an American agreed truth, a Narrative that dominated the responses to the disaster, and it is the story of how politics, in the form of a cherished political Project in Britain, to which all else was made subservient, twisted justice and corrupted politics and law. It is the story, also, of legal and political corruption; of a misplaced faith in diplomacy as a response to disaster; of the impotence of coalition government; of the political supremacy of perception – and spin – over reality. It is very much the story of the twin dangers of an ossified legal regime, and of the injustice inherent in changing the law in the midst of proceedings, which temptation the Wreck Commissioners and the American courts resisted. And as was recognised from the outset by the Wreck Commissioners, the House of Commons, and the US Senate, it is the story of how Britain, past her apogee, and crescent America, saw that they could use, and did use, their economic muscle to enforce their regulations upon an unwilling international industry.

Because the United Kingdom, yet shaken by the Boer Wars, newly confounded by new economic challenges, wracked by sectarian and labour strife, was past her apogee, this is the story, also, of how, five years before America's entry into the Great War, the United States had already taken over Britain's role as the great English-speaking Power.

Titanic's manifest did not list her cargo of fate, and of unintended consequences, but when she sailed, when she sank, and when as a symbol she sailed on forever, the Flying Dutchman of law and policy, she carried aboard her the beginnings of our modern world.

... _ _ _ ...

Prologue: Last Night Was the End of the World

The 11th of the month was a calm and pleasant day: no horror lurked in sea or sky, to anyone's discerning.

The century was yet new.

The attention of the House of Commons was engaged by contentious issues of domestic policy; foreign challenge; the threat of sectarian violence against civilians; and minor wars amongst other, of course lesser, nations far away, poor benighted souls, which wanted watching only so that HM Government and the United Kingdom might make certain not to become involved in them. Across the pacific-seeming Atlantic, in Washington, the Congress of the United States droned on as well, dealing with trade and tariffs, defence appropriations, defence reform and retrenchment, pensions and welfare, navigation, gun control, patronage and logrolling, and, always, pork. Both parties were struggling – successfully – with their consciences: over crony capitalism, antitrust issues, populism, 'progressivism', foreign aid and interventions abroad, nation-building, and, above all, with the necessity for national political parties to drive disparate horses of very different colours in harness, however uneasy that harness might be.

Americans were well into the toils of baseball fever already – particularly in Boston and New York. In England, there was much grumbling and agitation for change of approach and manager by Gooners, Spurs supporters, and both of the Mancunian tribes, who were locked as ever in internecine bitterness. In Britain, Australia, India, South Africa, New Zealand, and the West Indies, the jars and upsets of the Muddied Oafs were disregarded by Mr Kipling's Flannelled Fools, who were wholly absorbed by the greatest of games – not least due to England's recrescent superiority over Australia.

International travel was more popular, widespread, and popularly affordable than ever before. As a result, and in the face of restrictions upon immigration that accomplished nothing, America was becoming daily more cosmopolitan – and more populous, as emigration from 'less happier lands' built steadily.

Not everyone was content with his lot; not all were content to emigrate. There were protests and incidents and smashed shop-fronts, notably in the West End; and Old Labour and the working classes felt themselves increasingly betrayed.

In Southampton, there was but a minor incident in harbour: no omen at all.

Men of law, barristers and solicitors in London, admiralty lawyers in New York, went their ways without foreboding.

No one foresaw that, within a week, all should be shattered and upset; all the old certainties, all the promises of the new, dashed into fragments: that there should come without warning a loss of life on a scale that none could comprehend. No one imagined on the 11th of the month that international carriage and travel should be shaken to its core, that communications and transport and intelligence of threats should be shown up as failed and failing, that a mass disaster should cause man to question all his certainties, and to seek answers in class resentments and find causes in perceived greed, hubris, the nemesis that waits upon hubris, and the chastening and almighty hand of a vengeful God, visiting condign punishment upon gilded sinners and upon modernity in its pride.

No one imagined that within the week, and over the succeeding years, even as war engulfed the world, new treaties and new policies should be crafted to respond to a threat no one on this day imagined, and law and politics be changed forever by the loss of so inconceivably many lives.

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This is not, of course, a recounting of the events of 11 September 2001, for all its curious consonances. Nor is it the story of the stricken RMS³ Titanic, as such. That tale has been told and retold, honestly and captiously, well and badly: 'EJ' and Ismay and Duff Gordon, California and Carpathia, berg ice and Mrs Brown. This is, rather, a history of what came after, in the US Senate hearings, the Board of Trade enquiry, the litigation brought, the treaties adopted, and the regulations rewritten. It is the story of how the United States Congress, the House of Commons, the regulatory agencies, and, ultimately, the Supreme Court of the United States, all of them responded to the truly titanic loss of the 'great ship' and so many souls aboard her.

Mr Wemyss is the historian of how the House of Commons, in May 1940, threw down the Chamberlain Ministry and set Churchill in his place; not a few of the same figures who appeared in The Confidence of the House: May 1940, appear here, eight and twenty years before that fateful day.⁴ Mr Pyle has been a lawyer, although he avoided admiralty law as sedulously as he should have avoided a plague of clichés; it is as a Congressional historian, the author of 'Fools, Drunks, and the United States': August 12, 1941, that he approaches the legal and congressional consequences of the loss of Titanic. The authors have in purpose the recounting of what, in legislatures and law courts, came in consequence when, sadly, 'that great ship went down': a curious and largely forgotten history that even now affects the daily lives of each of us, not least by its marking, in some sense, well before the AEF arrived in France in 1917, the emergence of American dominance and the passing of the mantle of the world's great power from one of the English-speaking nations to another.

… _ _ _ …

On Moonlight Bay

Twice in 1910 had Asquith gone to the country in a general election. Twice had the Conservative and Unionist Party matched the Liberals, creating a hung parliament. The balance of power was held – firmly and crushingly – by the Irish Nationalists, with seventy-four seats. They were led, insofar as the Irish could be led, by the canny, patient, moderate hon. member for Waterford City, the barrister John Redmond. Mr Redmond was not a TCD man for nothing: crafty, intelligent, and tied to Ireland by seven hundred years of his family's fortunes, from the Redmonds' first arrival in Strongbow's train, he knew what to do with a transient and uncovenanted advantage after years of playing a long game. The price of Irish support for a continued Liberal government – the object of which above all else was to neuter the House of Lords by what became the Parliament Act 1911, which stripped them of their veto – was simply Home Rule and nothing less.

HH 'Squiffy' Asquith had set out to give the Irish just that.

**********

The Sixty-Second Congress of the United States numbered ninety-six senators – where the Republicans had a narrow majority – and three hundred ninety-four representatives in the House, which was firmly in Democratic hands. This represented four more senators and three more representatives than were seated in the Sixty-First Congress, for at the beginning of 1912, the last two contiguous states of the Union had been admitted: New Mexico and Arizona. Both US Senators from Arizona were Democrats; both US Senators from New Mexico, Republicans. The single congressman from Arizona was likewise a Democrat; New Mexico's House members, one Democrat and one Republican. Both parties, in the older states as in the new, were rived through with internal divisions: the Republican Old Guard were Not Pleased with the Republican Progressives: not even with those of them who had not yet deserted the standard of President Taft to support Teddy Roosevelt's insurgency.⁵ Equally, the Democrats comprised a bewildering and mutually hostile congeries of factions, Progressive, conservative, urban, agrarian, pro-finance, Bryanite, Wall Street, economically radical, Wet, Dry, New South, Old South, outright Bourbon-Confederate,⁶ pro-tariff, anti-tariff, anti-Klan, pro-Kluxer, moralistic, and frankly corrupt.⁷

Things were fractious enough in the Senate that the Republicans, let alone both parties, could not agree on who should be president pro tempore of that body (a problem that would become more pressing later in the year when the Vice-President of the United States, James S Sherman, should die, leaving the Senate without its presiding officer ex officio for its third session, until the new, Democratic Vice-President took office in March 1913): they had to rotate the office between one Democrat and four Republicans.⁸ In the House, Speaker Champ Clark of Missouri was fortunate to be a quick learner: Speaker only since 1911, he was forced to mollify, cajole, threaten, oil, and sell his unruly charges to preserve a Democratic majority that was much less impressive in the chamber than on paper. There seemed sometimes to be any number of Democratic Parties at large in the House, all of them at odds with all of the others, in a Hobbesian state of nature.

**********

On 10 April 1912, the House of Commons concerned itself with Naval and marine insurance matters – the First Lord, Mr Churchill, being absent – with Welsh Disestablishment, local schools in Birkenhead, the RFC (with reference to the Italian use of air attacks in Italy's ongoing little war with the Ottoman Empire), imperial trade, district nurses and National Insurance, the Army estimates, punishment for Other Ranks found to have fathered bastards, and new buildings for the Board of Trade.

The sclerotic Board of Trade, so lately headed by the now First Lord, Mr Churchill, in succession to the current Chancellor, David Lloyd George, might move its offices; otherwise, it was not noted for much in the way of movement. Schoolchildren in Birkenhead and everyone on either side of the Mersey, including that Liverpudlian QC and jurist Lord Mersey, knew that perfectly well. Certainly it had offered no real scope for the energies of the First Lord when he had been President of the Board of Trade, nor yet for those of that most signally disestablished Welshman, the Chancellor, who was singularly fortunate that fornication and adultery were not regarded as offences against Parliamentary – as they were against military – discipline. The Front Bench were concerned with National Insurance, in an off-hand fashion, and, far more, with the coming fight for Home Rule – and the consequences of the Parliament Act 1911 which, by emasculating the Lords, allowed a Home Rule bill to have some sort of chance.

As for imperial trade and foreign affairs, wars and rumours of war, these were the concerns of the First Lord and the Chancellor, the latter of whom had profited handsomely from the decision to create, as had long been contemplated, the Imperial Wireless Chain … and to award it to Marconi's Wireless Telegraph Company.

The departure, at Noon on 10 April, of RMS Titanic from Southampton, bound for New York via Cherbourg and Queenstown,⁹ went unnoticed, unless perhaps for its celebrity in the popular press, the curious incident of its wake tearing SS New York from her moorings and nearly drawing the American ship into a collision with Titanic, and, in the First Lord's case, possibly a dim recollection that, when New York had been the British Inman Line passenger liner City of New York, she had been 'christened' by Lady Randolph Churchill, the First Lord's New York-born mother.

**********

In Washington, by 10 April 1912, Congress had defeated an amendment to a bill authorising additional aids to navigation in the lighthouse service (the amendment should have taken away a provision for using appropriations to feed and clothe survivors of shipwrecks), and had reduced the duties on wool and woollens. The Senate had also increased the mandatory retirement age for US Navy dentists. Now the Senate was debating whether to amend a House bill concerning the carrying of concealed weapons in the District of Columbia, and whether to amend a House bill on Army appropriations which had served to reduce the size of the US Cavalry.

The sailing of Titanic for New York was a matter only for the social pages of the newspapers, not for legislators.

**********

If the Irish Members held the Liberal government firmly by the bollocks, Labour were grasping the hem of the Liberal garment. Even now, Mr Asquith's majority was dependent upon support from Mr Redmond's Irish Nationalists and Ramsay MacDonald's Labour members. Asquith himself had been overmastered by events, drink, vanity, social climbing, and sexual obsession: once Campbell-Bannerman's forensic and silken 'sledge-hammer' in Commons debates, a free-trader and a Classical, Gladstonian Liberal very much of the Rightmost wing of the party, he had been forced already to abdicate much of his power. The Naval crises with Wilhelmine Germany, the Irish Question that had bedevilled the Liberals since the end of Gladstone's second ministry, the rise of Labour, and his own personal failings, had left him shackled hand and foot to Mr Redmond, and at the mercy of his chancellor, Mr Lloyd George.

The Lords had badly and inarguably overreached themselves in 1909 by rejecting the Budget in a way that violated Parliamentary convention and placed them irreparably in the wrong; but they had been provoked and indeed almost forced into doing so by a deliberately outrageous 'People's Budget' crafted by Lloyd George expressly to provoke the crisis it did provoke. With the consequent loss of the Lords' Veto, there was no longer any excuse for delaying a Home Rule bill – an excuse Liberal prime ministers had not been above using in the past – and no bar to further experiments in social welfare spending put up by the Chancellor (less out of conviction than to dish Labour).

Home Rule for Ireland had become The Project, the indispensable, inexorable goal with which nothing was to be allowed to interfere. It was a political necessity for the Liberal Party so far as the Liberals wished to remain in government. More dangerously, it was a personal obsession of the PM's. If he was shackled to the Irish members, he had participated in riveting the fetters. Asquith was one of the few, proud members of Commons – 'the remnant' – who had been members in Commons what time Gladstone had made his last, heart-breaking attempt to put Home Rule through, and he was determined that neither the repeated refusal of the people to give him a mandate, nor any other cause, should prevent him in succeeding where his old chief and idol had failed. Home Rule was The Project, and nothing – not the deaths of hundreds, not corruption in the Cabinet, not his Chancellor's cherished schemes – should be allowed to divert from it his path.

David Lloyd George had begun his ascent as the voice of the valleys, the