II.

RUNNING DOWN OF THE “STRATHCLYDE."

The trial of Ferdinand Keyne, the captain of the "Franconia," for the manslaughter of Jessie Dorcas Young, one of the passengers of the "Strathclyde," which was run down by the "Franconia" off Dover, on Feb. 17, was commenced before Mr. Baron Pollock at the Central Criminal Court on April 5. The defendant pleaded not guilty.

The Attorney-General opened the case for the prosecution in a brief address. He said the prisoner was a German and the master of the steamship "Franconia," of 2,000 tons, and the substantial charge against him was that on Feb. 17 he, by negligently navigating that vessel, came into collision with another vessel called the "Strathclyde," that by this collision the Strathclyde was sunk, and the deceased, who was a passenger on board, lost her life. The "Strathclyde" left the Victoria Docks about three o'clock on the morning of Feb. 17, and arrived off Dover about three o'clock in the afternoon, and she took the proper course for proceeding down the Channel on her voyage to Bombay, to which port she was bound. The Attorney-General then proceeded to state the circumstances attending the collision, and said that, according to the rules of the road at sea, the "Franconia" should have been a following vessel to the "Strathclyde," but the case he should have to lay before them was that the "Franconia" had failed to take the necessary step of starboarding her helm, and the consequence was that the collision took place. He then referred to the law of the case, and proceeded to call evidence.

Archibald Donald said: I was master of a vessel called the "Queen of Nations." On the afternoon of Feb. 17 I was off Dover, and picked up the body of the deceased and those of two young men, and I afterwards brought those bodies to London. Miss Young was dead when I took her on board my vessel.

Mr. R. F. Young, a bank clerk, deposed that the deceased was his sister, unmarried, and eighteen years of age. She was on her voyage to Bombay as a first-class passenger. She sailed on Feb. 17, and he saw her dead body at Poplar on the 21st.

Evidence was then given that the death of the deceased was caused by the shock to the system from immersion in the water.

Capt. John Dodd Eaton said: I was captain of the "Strathclyde" at the time of the collision. We started from London on Feb. 17, from Victoria Docks, at five in the morning, for Bombay. We had ninety-five passengers. The vessel arrived off Dover about three o'clock and discharged the pilot, and the vessel proceeded on her course south-east by south. At four o'clock I saw the "Franconia," and the collision took place sixteen minutes afterwards. The "Strathclyde" was going at full speed. The "Franconia" was on our port quarter coming down Channel when I first saw her. She appeared to be going very fast and was overtaking us, and I made a remark

to that effect. She had passed the Goodwin Sands. I continued the course I was steering, and did not alter it until the "Franconia" came close to us and I could read her name, when I altered the course of my vesssel so as to bring her away from the "Franconia." I could see that the "Franconia" was altering her course so as to bring her bows nearer to us, and seeing that a collision was inevitable, I put the helm hard-aport, so that we might not receive a direct but a sliding blow. The "Strathclyde " answered the helm a little, and the "Franconia" struck us about seventy feet from the stern. The "Strathclyde" was three hundred feet long. The stem of the "Franconia" penetrated the side of the "Strathclyde" to the extent of four feet. She rebounded and struck us again nearer the stern, and made another hole in the "Strathclyde." Both holes were on the port side. She dragged along the side, taking away one of our boats, and then cleared our stern. I could not see anyone on the look-out on board the "Franconia,” but if anyone had been standing up I must have seen him. I did see some one on the bridge of the "Franconia," but could not see anyone on the deck. It was nearly high water at the time. The first thing I noticed of the "Franconia" after the collision was that she was about half a mile off and steaming towards Dover. She did not stay by us at all. The water rushed into the "Strathclyde" at a tremendous rate, and I ordered the ladies to come upon the bridge and the lifeboat to be lowered. The port lifeboat was got out and the ladies were placed in it in charge of the third officer and three of the crew, and at this moment the extreme end of the stern of the "Strathclyde" went under water and a number of the passengers rushed into this boat, and I appealed to them for God's sake to come out and let the ladies have the first chance. Some of the gentlemen passengers did get out, and some of the ladies also got out, saying, "Captain, if it will be any help to you, we will get out." The first lifeboat was then swung into the water, and she was shoved off, but a heavy sea, caused by the sinking of the vessel's stern, capsized the boat, and all those who were in it were thrown into the sea. I then turned my attention to the starboard lifeboat, but there was no time to lower her, as the ship was sinking rapidly, and I gave orders to loose all the tackle so that she might float. Immediately after this I was washed off the deck, and the vessel was completely submerged. I next saw that the starboard lifeboat was in the water, bottom upwards. I looked up and saw the "Franconia" still steaming away, the barque the "Queen of Nations," and a Deal lugger not far off. Not being much of a swimmer, I had a plank under my arm and jumped overboard and as I was floating past the ship I saw two ladies holding on to a rope, and with my assistance they left the rope and got hold of my plank. One of them was exhausted in about half an hour, and let go and sank. The other lady kept on for some time, when she also sank. I encouraged them to hold on as long as I could, but I became exhausted, and was only able to hold one of the ladies for a short time, when I was compelled to leave go. I was in the water forty minutes as near as I could judge, and I was then picked up by a Deal lugger. My vessel was only two miles from the pier at Dover at the time she was struck. The tonnage of the "Strathclyde" was 1,245 tons net.

Cross examined by Mr. Serjeant Parry: We landed the pilot about half a mile from Dover pier, and we were off the pier about ten minutes before we started on our course. While we were waiting we were pushed farther to

the east both by the wind and tide. Before we started on our course I first saw the "Franconia," but I took no particular notice of her until after I had given the order to go full speed ahead. At this time I should think the "Franconia" was three or four miles off, and she appeared to be going down channel, and was steering on her right course. I did not notice that she altered her course at all until she ported her helm, and in my opinion thus caused the collision. According to the courses we were going, at some time or other I must have crossed the bows of the " Franconia," or she must have crossed ours, and the defendant might have imagined that I intended to have crossed the bows of the "Franconia." I believe the "Franconia" put her helm hard a port when she was a quarter of a mile from us, and if she had ported her helm half a mile from us, then she would have gone astern of the "Strathclyde," and no harm would have been done. It was a question

of sixty feet whether she came into collision with us or not.

Serjeant Parry: Then in point of fact she ought to have ported her helm a little sooner than she did?—Yes; if the helm had been ported a short distance beyond the quarter of a mile, the collision would not have taken place. I did not see the prisoner or anyone else wave me off from the "Franconia," but I have heard that it was done. I intended to have gone out five miles from the land in order to get an offing. I think I might have obtained a safe offing at a distance of two miles from the land. I could have gone straight down Channel and have avoided the "Franconia" altogether; but by Rule 17 of the road at sea it was my duty to keep on my course.

Serjeant Parry: But the rule of common sense would dictate that you should get out of the way of another vessel and avoid a collision, if you could do so?—I was not allowed to do anything but what I did. The rule I refer to relates to an overtaking vessel. I do not consider that the "Strathclyde" would be regarded as an overtaking vessel in reference to the "Franconia," but there certainly was a question which vessel would cross the bows of the other. Surely, when a collision is seen to be inevitable, you ought to do all you can to avoid it, and not allow yourself to be bound by rules of any kind?-I consider that I did so. I know that it is usual for vessels of the size of the "Strathclyde," with passengers on board, to go out to sea more than a mile to obtain an offing.

Re-examined: I was going out five miles because it had been raining; there was some fog, and I considered it prudent to go that distance from the land in order to obtain a safe offing. I conformed to the rules for navigating a steam vessel at sea until the moment when a collision appeared inevitable, and then I did what I could to prevent mischief. If the "Franconia" had conformed to the rules of navigation, the collision would not have happened. I do not think the defendant ought to have run the distance so fine as 400 yards on porting his helm, and that he ought to have done so some time before he did. By going five miles out to sea I should have got out of the track of any vessels that were coming up channel; and, having a good many lives under my charge, I felt it to be my duty to take every precaution.

Some of the passengers and crew of the "Strathclyde" were then called as witnesses, and the evidence for the prosecution was concluded.

On the Court reassembling on Thursday morning, Mr. Serjeant Parry opened the case for the defence, calling on Heinrich Meyer, Chief Officer of the "Franconia," who stated that the engines of the "Franconia" were stopped by order of the captain when the "Strathclyde" was about two

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ships' length from them, and the captain gave the order to go astern. After the engines had gone astern the captain gave the order to witness to port the helm. Witness signalled to the quartermaster to put the helm over, and he did so. The "Franconia's" engines were actually stopped by orders of the captain, and the engines ordered to go astern. The headway was then strong on the ship, and about four miles-it may have been less. Up to the time of the collision the engines had gone astern about two minutes. Capt. Keyne made a signal to the "Strathclyde" to port her helm and keep off. He waved his cap and shouted "Keep off." In witness's judgment at this time the captain of the "Strathclyde" could have hardly heard this call. Witness did not see the captain on the bridge of the "Strathclyde." After the collision witness remained on the bridge while the captain ran forward, but he came back directly and gave orders to get the boats ready to save the crew of the other ship. The crew were helping to get the boats out, were in good order, and obeyed the orders the captain gave. They had seven boats and one steam launch, and altogether three boats were got ready for lowering; they were but a few feet from the water. At this time-witness being then in the starboard boat-he saw a steam-tug not more than a quarter of a mile off the "Franconia," and perhaps a little farther from the "Strathclyde." At the time of the collision the English pilot was down below, but directly after that occurrence he came up and ran forward. Before witness got the starboard boat ready he received orders to go below, and did so, and found the water coming in. The fore compartment was full of water. Witness came on deck and reported to the captain, and was sent down again to watch.

Cross-examined by the Solicitor-General: The captain took the command of the "Franconia" after they passed the South Sea head light. Witness was on the bridge attending to the course of the ship under the captain's orders down to the time of the collision.-Do you not know that as the "Strathclyde" was on your starboard bow it was your duty to keep out of her way?-But not at such a great distance. On board the "Franconia " it was believed that the "Strathclyde" would go down the Channel the same as we did. He believed that if the "Strathclyde" had slackened her speed when she was approaching them the collision would not have taken place, or at all events it would not have been so serious. He said before the coroner that if the "Franconia" had starboarded her helm when she was about one hundred and sixty yards from the "Strathclyde" there would have still been a collision, because the "Strathclyde" looked as though she meant to cross her bows. If he had been in command of the vessel he believed he should have done as the prisoner did, but it was difficult to say what would be done positively under the circumstances.

Several other witnesses, officers of the "Franconia," were examined for the defence. They stated that when the collision occurred ropes were thrown overboard to the crew of the " Strathclyde," and that there was no confusion or alarm on board the "Franconia," as stated by some of the "Strathclyde" men. The chief mate was in a very excited state when he came on board the "Franconia,” and he wanted to cut the lashings of the steam-tug; but one of the witnesses told him she was of no use, as she could not be rowed.

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At the next hearing, evidence was taken from two engineers, Messrs. Harrington and Barnard, who concurred in stating that the "Franconia

was in imminent danger of sinking after the collision. This, with some evidence as to the exact position of the wreck, concluded the evidence for the defence.

Mr. Serjeant Parry, in addressing the jury for the defence, said that, although he could not maintain that the prisoner had acted with heroism, still he submitted that in such a moment of peril the prisoner ought to be excused for endeavouring to save his own vessel and the lives of the eighty persons who were on board, and that at most he was merely guilty of an error of judgment.

In summing up the case, Baron Pollock said that the only question for the jury was whether the death of the deceased was the result of an act committed by the defendant, and what was the character of that act. If the death resulted from an error of judgment, the prisoner would not be criminally liable. If, however, they should think that the fatal result was brought about by any act which showed that he was guilty of criminal neglect, in that case, and in that case only, he would be guilty of the crime of manslaughter. He must remind them that the mere abandonment of a vessel was an offence against the law of England; but in a case where it was suggested that the mischief had been occasioned in the first instance by the prisoner, it was material to see what his conduct was after the occurrence. The jury returned a verdict of guilty.

Mr. Cohen, Q.C., for the defence, reminded his lordship that a point of law had been raised in the cause, which his lordship had promised to reserve for further consideration. The question was whether the Court had jurisdiction to try the case, the defendant being a foreigner.

Baron Pollock said of course that point would be submitted to the Court of Criminal Appeal, and in the meantime the defendant might go at large upon the same bail as before.

The judgment of the Court for the consideration of Crown Cases Reserved on the point reserved in this case was commenced on November 12. The point had been first argued before six judges, one of whom dissenting, a reargument was directed, which was held before fourteen judges-the six original ones, namely, the Lord Chief Baron, Mr. Justice Lush, Sir R. Phillimore, Baron Pollock, Mr. Justice Field, and Mr. Justice Lindley, with the addition of the Lord Chief Justice, Lord Coleridge, Baron Bramwell, Mr. Justice Brett, Mr. Justice Grove, Baron Amphlett, Mr. Justice Denman, and Mr. Justice Archibald. During the arguments it was abundantly manifest that though the first five named Judges adhered to their opinion, and several of those added agreed with them, yet several of the others were of a different opinion, and agreed with Mr. Justice Lindley that the conviction was right. At the close of the arguments in July, the Judges, being unable to agree, took time to consider their judgments, which were not delivered till after the lapse of four months. During that period great changes arose in the constitution of the Court. One of the Judges, Mr. Justice Archibald, died; and three of them-Sir George Bramwell, Sir Baliol Brett, and Sir R. Amphlett-were removed to the Court of Appeal, and ceased to be numbered among the ordinary Judges of the High Court. But, under a power in the Judicature Act, the Lord Chancellor desired them to continue to sit and act as Judges of this Court for the decision of this case, and so they did. The effect, however, of the lamented death of Mr. Justice Archibald was to change the total number of the Judges from an even to an