Plymouth memories of an octogenarian

by William T. Davis

CHAPTER XI.

The following is a detailed account of the loss of the Plymouth bark Charles Bartlett, which on the 27th of June, 1849, was run down and sunk by the Cunard steamship Europa. The incidents attending the disaster possess an interest in themselves, while the trial in the English law courts of a suit for damages brought by the owners of the bark in the early days of ocean steam navigation, was an important one, establishing as it did the duties of steam navigators and their liability in damages for a failure to perform them.

The Charles Bartlett was a bark of four hundred tons, built in Westbrook, Maine, and owned by Wm. L. Finney and others of Plymouth. She left the Downs on the 14th of June, 1849, bound for New York with a cargo of about four hundred and fifty tons of iron, lead, etc., and with one cabin passenger and one hundred and sixty-two in the steerage. Her officers and crew were William Bartlett of Plymouth, Captain; Thomas Parker of Charleston, S. C., first officer; Wm. Prince, second officer, and George Parsons of Portland, Me., Wm. Rich of Gravesend, England, Isaac Hanson, James Fraser, John Bell, Joshua Carey, Levi Hunt, Wm. Perry, John Jordan, John Jackson and Harrison D. White, seamen. On the 27th of June, in latitude 50.48 N., longitude 29 W., in a thick fog, which gathered after the noon observation had been taken, the bark was heading northwest with the wind west by south, close hauled and all sails set. At half-past three the captain, who was standing on the weather side of the poop deck, caught sight of the steamship about one point forward of the beam, and about four hundred yards distant. He ordered his helm up and shouted to the steamer to port her helm. The officer of the deck on the Europa, however, ordered his helm put to starboard, which order was countermanded before the wheel had been turned one round. If the starboard helm had produced any effect, it was of course to make a collision the more sure, while if the helm had been at first promptly put to port there is room for doubt whether, as the bark was all the time going ahead, the steamer might not have slipped by her stern without causing serious damage. As it was, the Europa going at twelve and a half knots, struck the bark abreast of her main shrouds in one minute after she was first seen, and three minutes later the bark went down. The steamer’s bow entered to within a foot of the after hatch, tearing away twenty feet of the bark’s side, and suffering as her own damage only the loss of her head knees and her foretopmast. At the moment of the collision, about one hundred passengers were on deck, and it was estimated that about one half of them were killed by the impact. The captain and second officer and nine of the crew and thirty passengers were saved, all but ten of whom, who were picked up by boats, were saved by clinging to the bows of the steamer, and climbing on board.

The Europa had a full passenger list, and the excitement caused by the terrible scenes of the collision was followed by a serious anxiety for the safety of their own vessel, which only prompt investigations and the assurance of the officers that the hull was uninjured could allay. Among the passengers was Capt. Robert B. Forbes of Boston, who with that generous impulse and heroic courage which had always characterized him risked his life by leaping into the sea and aided in the rescue of his drowning fellow men. For the service rendered by him, a medal was presented to him by the Liverpool Shipwreck and Humane Society, and another by the Massachusetts Humane Society. The Cunard Steamship Company gave twenty pounds toward the relief of the survivors of the Charles Bartlett, and a free passage to America.

A suit was brought by the owners and underwriters to recover damages estimated at twelve thousand pounds, and tried in the English Admiralty Court, and the facts which I have stated were presented to the court by the plaintiffs. The responsive allegation in behalf of the Europa, claimed that the collision occurred in the usual track for steamers, but that it was two or three degrees to the north of the usual track of sailing vessels. It denied that there was a concentrating point in the Atlantic, and alleged that the noise of the paddle wheels might have been heard in the direction of the bark three or four miles, and that it was owing to some negligence that the bark was not therefore warned of the approach of the steamer. It further alleged that though the third officer ordered the helm to be starboarded, before the order could be obeyed the order was revoked, and the wheel was directed to be put hard a port. The engines were stopped so that before the collision the steamer had come up to the wind a point and a half. It was still further alleged that the bark was going from five and a half to six knots an hour, having all possible sails set, and had neglected to fire guns, blow her fog horn or ring her bell at short intervals, so that those on board the steamer could be cognizant of her approach.

The presiding judge, addressing his brethren of the Court, said that these cases are becoming so numerous that it was for the interest of the owners of ships that they should be decided promptly. With regard to the burden of proof, it is of course necessary for the plaintiff to present all the evidence reasonably within his power, but that after he has done that it rests upon the other party to show that they have not been guilty of the acts attributed to them. With regard to the distance at which the vessels were seen by each other, and the time which elapsed before the collision, nothing is more difficult than to find consistent evidence. The conclusion of the allegation in defense is in substance that the collision was either the result of inevitable accident, or was the fault of those on board the Charles Bartlett. What is an inevitable accident? Inevitable must be considered as a variable term, and must be construed with regard to the circumstances of each case. In almost every case it is possible to avoid a collision by going at a slow pace, or lying to during a fog, but the import of the words “inevitable accident” is this, where a man is pursuing his lawful vocation in a lawful manner, and something occurs which no ordinary caution could prevent. Continuing, the presiding Judge said to his brethren of the Court, “It is very easy to define what is a lawful vocation, but it is not so easy to say what is a lawful manner. The test is the probability of injury to others, and that of course depends on circumstances, as for instance the time and locality where the occurrences take place. The object of our inquiry is whether in the case of the Europa going about twelve and a half knots an hour in so dense a fog that she could not see beyond one hundred and fifty or two hundred yards, and in latitude 50.48 and longitude 29, there was more than ordinary probability of meeting vessels. If there was a reasonable probability of a collision, then beyond all doubt she would be to blame. If, however, there was no reasonable probability of meeting vessels in the track pursued, she was nevertheless bound to take all necessary precautions to insure safety. One of the most important questions as to these precautions which we are to decide, is whether there was or was not a sufficient lookout on board the Europa. The law undoubtedly requires as a reasonable lookout the most ample that could be adopted. Was there such a lookout on board the steamer? According to the evidence the general practice on the Europa in dense fogs was as follows: first to station an officer on the foremost bridge; second, his junior at the Con; third, a quartermaster at the wheel; fourth, a second hand in the wheelhouse, and fifth and sixth, two lookouts on the topgallant forecastle. There is some evidence also tending to show that a man was stationed in case of a fog on the lee side of the bridge, and also a man at the crank to convey orders to the engine room. Now, the actual watch when the collision occurred was as follows: Wardell, the second officer, was on the bridge; Coates, a quartermaster, on the topgallant forecastle; White, at the wheel, and Fern, another quartermaster, at the Con, and I do not find any other person on the lookout. The second man is placed at the wheel so that in case of necessity it may be turned as promptly as possible. There is an entire absence of evidence as to whether at the time of the collision there was in operation any means of communicating orders to the engine room, or whether any orders were really communicated.” Continuing, the presiding Judge said: “You will have to decide also whether there was more than one man at the wheel, and lastly, whether the order to starboard the helm, which is agreed on all hands to have been erroneous, did or did not produce any effect in the case. Looking at the rapidity with which the vessels were approaching each other, the last mentioned consideration is one of importance.”

With regard to the Charles Bartlett the Judge said, “Was she carrying too much sail; was there a want of a sufficient look-out, and above all is it your opinion that she ought to have sounded a fog horn or rung a bell? Whether she ought to have heard the paddle wheels before she did, and neglected to take measures to avert a collision, is one of the questions for you to decide. But it is in evidence that even if she could have heard them, no fog horn could have been heard on board the steamer above the sound of the paddles.”

The Court retired, and returning at the end of half an hour, Dr. Lushington, the presiding Judge, then said: “In conjunction with the gentlemen by whom I am assisted, we have considered all the points in this case, which I have suggested as necessary to be determined, and I trust that there has been no omission as to any one of them. We have come unanimously to the following determination: That no rate of sailing by steamers or other vessels can be said to be absolutely dangerous; but whether any given rate is dangerous or not, must depend on the circumstances of each individual case, as the state of the weather, locality and other similar facts. That the rate of twelve and a half knots an hour in a dense fog in the locality where this occurrence took place, must be attended with more risk than a slower pace; but assuming that it might be accomplished with reasonable security, and without probable risk to other vessels, such rate of going could not be maintained with such security, except by taking every possible precaution against collision. That proper precaution was not taken by the Europa: First, she had not a sufficient look-out; second, we think that no proper arrangement was made as to the engines; third, because no person was placed to report to the engineers the orders as to the engines; fourth, because no second person was placed in the wheel house; fifth, that the order to starboard the helm was erroneous. We are of the opinion that if proper precautions had been adopted, the accident might have been avoided, and that the collision took place for want of the proper precautions. With respect to the Charles Bartlett, we are of opinion that a good look-out was kept on board; that she discovered the approach of the Europa as soon as circumstances would permit; that she adopted all proper measures to avoid the collision by ringing the bell and putting the helm to port. Therefore, I must pronounce against the Europa in this case.”

After the decision of the Court was read, Mr. Rothery, the proctor for the Europa, gave notice of appeal. All appeals from the Admiralty Court, which until the time of William 4th were made to the High Court of Admiralty, are now made to the King in council, and are referred to the Judicial Committee of the Privy Council, which committee is composed of the Chief Justice of the Court of King’s Bench, the Master of the Rolls, the Vice Chancellor of England, and other ex-officio officers. The appeal in question was heard by Lord Justice Cranworth, Lord Justice Sir James Knight Bruce, Sir Herbert Jenner Fust, and Sir Edward Ryan, and judgment was delivered by Lord Justice Cranworth, December 1, 1851. It is unnecessary to relate the grounds of the judgment of the committee, as they were for the most part the same as those which entered into the decision of the Admiralty Court. There is one part, however, to which I wish to refer, because it lays down a rule for the guidance of ocean steam navigators, broader and more exacting than any suggested by the Admiralty Court. An important question in the examination of witnesses was whether it would have been possible to stop the steamer, or so far stop her as to enable her to get out of the way within the distance between the two vessels when they were first seen by each other. The preponderance of testimony was that she could not if going twelve and a half knots an hour. The peculiarity of this question is that an answer either in the affirmative or negative would bear against the Europa. If she could get out of the way and did not, she is to blame. If she could not get out of the way, the committee say that “it follows as an inevitable consequence that she was sailing at a rate of speed at which it was not lawful for her to navigate.” The judgment closes as follows: “Their lordships have come to the opinion that the accident was without default on the part of the Charles Bartlett and was through the neglect of the Europa. The consequences will be that the appeal will be dismissed with costs.”

In closing the narrative of this important case it is pleasant to remember the enconiums of the London press on the intelligence and general demeanor of our late townsman, Capt. William Bartlett, as displayed by him during the trial. The master mariners of New England were fortunate in having in a foreign land so worthy a representative.