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The SECRETARY OF THE NAVY.

TREASURY DEI ARTMENT, Washington, February 18, 1928.

SIR: I have the honor to acknowledge the receipt, by office messenger, on February 8, 1928, of a copy, sent me for my information, of the proceedings, findings, and opinion of the naval court of inquiry which investigated the sinking of the submarine S-4.

Immediately upon the receipt of the copy of the record of the court, which, as you know, was quite voluminous, a board was designated by me to study carefully all of the testimony taken before the naval court of inquiry having a bearing upon the responsibility of the destroyer Paulding for the collision. This board, after carefully considering the testimony and findings of the naval court, is of the opinion that, in view of all the conditions and circumstances preceding and existing at the time of the collision, as disclosed by the testimony, no blame attaches to the commanding officer of the Coast Guard destroyer Paulding, Lieut. Commander John S. Baylis. A preliminary report of the board designated by me to study the testimony is inclosed..

On the day of the collision the Paulding, in the usual course of her duties of inspecting a large area, including Cape Cod Bay, for the violation of customs and other laws, rounded Cape Cod shortly after 3 o'clock in the afternoon. A strong wind was blowing, with a heavy swell and white-capped waves, the sky being overcast. Keeping well clear of buoys, the destroyer followed the course prescribed by the United States Coast Pilot, published by the United States Coast States Coast and Geodetic Survey, for approaching Provincetown Harbor, using the fairway indicated and in regular use by all vessels bound for that harbor. The captain, commissioned officer of the deck, a chief petty officer, and the quartermaster, in addition to the helmsman, were on the bridge watching the course of the vessel, making observations as to her progress and direction, and observing the presence of other vessels. Taking into consideration the Coast Guard Regulations and existing circumstances, this would appear to be an adequate lookout.

The Paulding had received no notice or warning of any kind, by radio or otherwise, that a submarine was operating in the vicinity, and her commanding officer had never seen a submarine operating submerged in that area.

The officers responsible for the navigation of the Paulding were entirely familiar with the Pilot Chart of the North Atlantic Ocean, issued by the Hydrographic Office, United States Navy, which contains information for the use of mariners, issued monthly. That chart displayed, and has so displayed, for many years, a picture of "United States submarine warning flag" and the following legend:

"The submarine distinguishing and warning flag is hoisted on the tender or parent ship of United States submarines to indicate that submarines are operating in that vicinity. It consists of a rectangular red flag with white center on which is the profile of a torpedo in black. Launches accompanying submarines also fly this flag.

"Vessels seeing this signal should give the escorting vessel a wide berth and keep a good lookout for submarines."

The testimony shows that the commanding officer of the Paulding relied upon this information and that it was his understanding that when submarines were operating submerged, surface craft would be so warned, in order that they might give wide berth. In this connection, it is noted that the Navy Signal Manual, 1920, Navy Department, C. S. P. 293, page 125, section 661, contains the following:

"The submarine warning flag is hoisted on the tender or parent ship of submarines or on launches accompanying them to indicate that submarines are operating submerged in that vicinity.'

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Under these conditions as the Paulding passed to the southward of Wood End along the usual course followed by vessels, periscopes were observed 200 feet distant on the port bow, immediately followed by the rapid emergence of a submarine's conning tower just under the destroyer's bow. According to all witnesses and the findings of the naval court, it was thereafter impossible, under the conditions, to avoid a collision, although everything which could be done by the Paulding to avoid the crash was promptly done. Therefore, if the commander of the Paulding was blameworthy, it must be upon some theory of negligence prior to the emergence of the submarine as stated.

The vessel was proceeding

There is no evidence justifying such a finding. at a usual and proper speed, manned by capable, experienced officers and men, an adequate number of whom were present on the bridge directing the course of the vessel and attentive to their duties. They had had no warning and nothing was visible to indicate the presence of a submarine. It is true that the testimony of naval officers shows that a trial course between specified white buoys had been used for submarine tests forty-nine times in a period of 20 years, but never in the personal observation of the Paulding's officers had a submarine been there operated submerged.

The testimony indicates that the S-4 was completing certain standardization runs between buoys on the inner trial course and was accustomed to swing out into the fairway at the end of each run before circling for the return run. The runs were being made at "periscope depth," which means that the periscopes, painted the war color designed to make them invisible, were from 2 to 4 feet above the water in the choppy sea. At each periscope there was supposed to be an officer on watch, one of them specially charged with the duty of scanning the horizon for approaching surface vessels. Under the conditions named, it was estimated that the destroyer would be visible to this officer at a distance of 5,000 yards, or almost 3 miles. At the speed of the Paulding, it would take over eight minutes to run this distance. On the other hand, the testimony showed that periscopes, under similar conditions, would not be visible to the officers on the bridge of the Paulding at more than a few hundred yards, assuming they were looking for a submarine, and the evidence showed that if the vessel were within 1,200 yards, immediate, complete submergence by the submarine would be necessary to avoid the collision. Therefore, the officers of the submarine had the opportunity to see the destroyer at a considerable distance and seek immediate safety at a greater depth, while the destroyer, approaching a vessel admittedly designed to see and not be seen,' " and only evidenced by two "finger periscopes" a little above the water in a choppy, white-capped sea, can not be held negligent for failing to observe these as the periscopes moved slowly through the water.

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As between surface vessels and submarines operating submerged, it can not be questioned that the latter are expected to take care of themselves with respect to avoiding collisions. It was testified that "it is the doctrine of all submarines that a submerged submarine is responsible for her safety against surface vessels." The naval court of inquiry has found that "It is the training and duty of the commanding officer of a submarine running at periscope depth to keep clear of surface vessels. The testimony shows that under naval doctrine governing their operations, submarines running submerged are required to keep clear of surface craft. Furthermore, under the International Rules of the Road for the Prevention of Collisions at Sea, it was the duty of the S-4 to keep clear of the Paulding.

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If the officer at the periscope had been scanning the horizon, he would have seen the destroyer in time to avoid her. Had the submarine remained on the inner trial course between buoys, without encroaching on the fairway, no collision would have taken place. Had the trials been conducted so that the turn at the end of the course was toward the shore, where there was plenty of distance and deep water, instead of into the fairway used by all vessels entering or leaving the harbor, the collision would not have occurred.

The tug Wandank had been detailed to Provincetown as a tender for these tests and was at anchor in the harbor, less than 4 miles distant, at the time of the collision. She displayed no warning flag. This tug could easily have been placed opposite the course of the submarine, with a warning flag displayed that would have been observable by a surface craft, without interfering with the conduct of the tests.

The Treasury Department deeply deplores the fact of the collision and its tragic consequences. It can not, however, permit an experienced, capable officer in its Coast Guard to be blamed for a collision for which this department has determined, after careful investigation, that he was not responsible.

Respectfully,

A. W. MELLON, Secretary of the Treasury

[Fourth indorsement]

NAVY DEPARTMENT,
April 13, 1928.

Subject: Court of inquiry and court of inquiry in revision to inquire into all the facts and circumstances surrounding the loss of the U. S. S. S-4 which occurred off Provincetown, Mass., on December 17, 1927, as a result of the collision between that vessel and United States Coast Guard destroyer Paulding.

1. From a careful reading of the record in this case it is evident to the Navy Department that the court conducted a most thorough inquiry into the subject matter submitted to it. The court is therefore to be commended for the painstaking care and thoroughness with which it has inquired into the circumstances surrounding the disaster in question and the attempted rescue of the crew of the U. S. S. S-4.

2. The evidence shows that the collision between the United States Coast Guard destroyer Paulding and the U. S. S. S-4 occurred while the S-4 was emerging. The confidential textbook used in the instruction of personnel on submarines recognized the danger of such collisions while emerging from a dive and indicated the method of avoiding such as follows:

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"Keep a bright lookout through the periscope. If the boat is at such a depth that the periscope can be used, an officer should be stationed at it at all times. Periodically, sweep the horizon to observe the positions of surface ships. Do not keep the periscope below the surface too long in peace time before taking an observation. On June 8, 1912, the French submarine Vendimiare whlie making a submerged attack on a battleship was run down by the St. Louis and all hands were lost. Observations frequent enough were not taken through the periscope. Operations should take place either at periscope depth or at such a depth that all surface ships will pass over the submarines. In coming up from a deep dive it is possible that another ship may be directly above you. Several collisions like this have occurred. But it is now possible to prevent an accident of this nature. Nowadays each boat has an instrument aboard for detecting the direction and intensity of sound waves given off by a ship's propellers. By using this instrument intelligently a sound operator can inform the commanding officer of the direction and danger zone of any ship.

"If a periscope becomes covered with a film of ice, lower it into the water until the ice is melted.

"The submarine listening station should report all sounds heard. It must be routine to keep this apparatus manned while submerged. Before coming up from 60 feet or more, stop the motors and 'listen in,' then raise periscope and come up slowly. Use the periscope as a sounding rod."

3. The S-4 was operating with two periscopes exposed. The collision resulted from a failure of the Paulding to observe the exposed periscopes in time, and from the failure of the submarine to observe the approach of the Paulding on a collision course in time to avoid the collision.

4. The court of inquiry finds that Lieut. Commander Roy K. Jones, commanding officer of the S-4, is worthy of blame for the accident because of the failure to determine the presence of the destroyer in time to avoid the collision. This finding is based wholly on circumstantial evidence indicating that Lieutenant Commander Jones was in actual command, and pointing to the fact that the periscope and listening devices were not effectively used in determining the presence of the destroyer. The Chief of the Bureau of Navigation in commenting on the finding concerning Lieutenant Commander Jones calls attention to the fact that there are possibilities which might completely exculpate him from all blame. There can be no doubt, however, that under all the facts shown by the evidence and found by the court, the preponderance of probability is in favor of the finding that the failure to discover the presence of the Paulding in time to avoid the collision was the result of the failure to use the extraordinary care required by the hazards involved in emerging.

5. In determining issues of fact in a civil action, a proponderence of evidence is a sufficient basis for a finding of fact. This is sometimes spoken of as the weight of the evidence and sometimes as the proponderence of probability. In criminal matters a much higher degree of proof is required. If the evidence is direct, it must satisfy the court and jury beyond a reasonable doubt. If it is entirely circumstantial, in order to justify a verdict against the accused, the circumstantial evidence must be of so persuasive a character, and point so unerringly to the guilt of the accused, as to exclude every other reasonable hypothesis than that of guilt. It is manifest that the proof in this case, so far as it affects the conduct of Lieutenant Commander Jones, is wholly insufficient to justify a finding of guilt.

In other words, by a verdict of a general court-martial, whose verdict of guilty must be based upon circumstantial evidence, excluding every other reasonable hypothesis, it is manifest that Lieutenant Commander Jones would be acquitted. 6. The Navy Department has already had occasion to consider the conduct of Lieutenant Commander Jones at the inquest held on his remains wherein it was essential to determine whether or not his death was the result of his own misconduct. It was found that his death was not the result of his misconduct and in pursuance of that finding, the death gratuity due to the widow had already been paid to her.

7. If the officers of the S-4 were living, it would undoubtedly be proper and appropriate, in view of the findings of the court of inquiry, to order a trial by general court-artial of the commanding officer. It is equally manifest that if such a court were held without further or additional evidence tending to convict him of neglect, and without any additional evidence tending to exculpate him or explain the collision, he would be acquitted. In view of the fact that Lieutenant Commander Jones lost his life by this collision, and in view of the fact the evidence presented to the court of inquiry by reason of the loss of the whole crew of the S-4 would be insufficient to convict him of wrongdoing, in case the evidence was presented to a general court-martial, and in view of the fact that no such trial can be had, it seems unnecessary to expressly approve or disapprove of the finding against Lieutenant Commander Jones other than to point out that such finding is in accordance with the probabilities, but that these probabilities are insufficient to justify disciplinary action, assuming such action was possible. The only possible punitive action that could be taken by the department, based upon the misconduct of Lieutenant Commander Jones, would be the withholding of the gratuity to the widow, and it has already been determined that the evidence in this case did not justify such action and on the contrary it has been expressly found by the department that he was not guilty of misconduct.

8. The court of inquiry found the commander of the United States Coast Guard destroyer Paulding at fault for not maintaining a lookout in a position with an unobstructed view with no other duties to perform, and recommended that a copy of the evidence and findings be furnished to the Secretary of the Treasury. This has been done. The evidence with relation to the collision is clear and without substantial conflict. Inasmuch as the question of the conduct of the commander of the Paulding is a matter more particularly for the Treasury Department, it is unnecessary to do more than has already been done to advise the Secretary of the Treasury of the evidence and findings. In this connection it should be observed that while it is incumbent upon officers of the submarine in coming to the surface to exercise extraordinary care and precaution, and that while the failure to do so is culpable negligence, this does not excuse surface vessels from exercising the degree of care reasonably to be exepcted of them in their operations on the surface, and among these obligations is that of keeping a sharp lookout.

9. The court recommends that Rear Admiral Frank H. Brumby, United States Navy, be removed from his command of the control force. This recommendation was not based upon any failure of the officers under his command to do all that was possible to do in the rescue and salvage operations, nor was it due to the failure to obtain supplies or equipment essential for those operations, but it is based upon the theory that Rear Admiral Brumby's testimony showed an insufficient familiarity with the details of the construction of submarines. The proceedings were referred to the court for a more definite statement of the basis of its recommendation, and in the supplemental findings the court includes some of the statements made by Rear Admiral Brumby upon which they based their conclusions. In item 43 of the court's supplemental findings it states as follows: "In the prepared statement of Rear Admiral Brumby, read to the court, he stated:

"The Falcon anchored near this boat, and bubbles were seen coming up right under the stern of the Falcon. Grapnels were thrown from the stern and caught on something and were hauled taut, and the line was used for the descending line for the first diver.'

"As a matter of fact, a Coast Guard picket boat caught its grapnel on the wreck and carried the line to the Falcon, which was used as a descending line." Just before this statement Rear Admiral Brumby's evidence was as follows: "The Falcon arrived at the scene of the wreck shortly after 7 a. m. on the 18th and planted buoys near the wreck. None of them were actually attached to the wreck. A Coast Guard boat that was dragging near the Falcon caught on some heavy object."

It is obviously unimportant whether the first diver descended on the line Rear Admiral Brumby refers to as having been caught on some heavy object from a Coast Guard boat, or whether the line was one thrown over the stern of the Falcon. Admiral Brumby in response to the question of the court: "Why didn't Carr go down and connect up the air to the torpedo room?" answered: "I am not thoroughly familiar with the details of construction, but those who were there thought that the attempt that we were making was the proper one. The connection that we made to the torpedo room was not the ordinary air connection; it was through the signal tube." Again the witness was asked; "You have testified that the air hose was connected up at 8.36 and that air started going in at 10.05. Why could not air have been going in at 8.36?" And he replied: "I don't know what the details were, but the technical people can tell you that." Rear Admiral Brumby in his opening statement testified with regard to what happened after the return of the Falcon to the scene of the disaster on the morning of the 21st. He stated that the S-4 was not located until about 4 p. m.; that the first diver went overboard not long after 5 o'clock; that the first hose was connected with the ship about 8.36 p. m. and that air was blowing into the compartment at 10.05 p. m. on the 21st. On cross-examination he was asked why could not air have been going in at 8.36 and replied as above, "I don't know what the details were, but the technical people can tell you that." It appears from the findings of the court of inquiry that the air connections were not made until 10.05 p. m. and that air was immediately started into the torpedo room. It is evident from the findings of the court that Rear Admiral Brumby was mistaken in his recollection concerning the exact hour when the connection was made by the divers below 100 feet below on the deck of the submarine. Another instance cited appears in item 88, wherein it was asked, "When Carr went down to connect up a connection to the tank salvage, did he have any particular difficulty in making that connection?" Rear Admiral Brumby replied, "I think not."

"Q. Then would it have been possible for him to have made a connection at that time to the compartment salvage?—A. I can't answer that question directly. My memory that every single one of those divers did just as much as one could do, and one diver would come and another would go down, and just the detail of it, as to exactly what happened, I can't submit. I think probably Captain King, when he appears, or Mr. Hartley, can tell you.

"Q. When was the compartment air line connected?-A. I don't know that the compartment air line was ever connected. That was the one they were attempting to connect the Sunday night that they had to give up the work."

10. In connection with these questions and answers it is to be observed that most of them call for hearsay evidence. Rear Admiral Brumby was asked to relate what had occurred upon the bottom of the bay and what difficulties the divers had encountered there. It is obvious that he could have no knowledge of these facts other than hearsay. While it would have been proper for him to have stated what reports had been made to him by the divers, either by telephone from the bottom or after returning to the surface, it is obvious that it would be better for the divers themselves to testify as to the work done on the bottom and the difficulties they encountered there. If, as appears, the divers reported to Mr. Hartley or Captain King, rather than to Rear Admiral Brumby personally, it was obviously more appropriate to have them testify than to have hearsay upon hearsay which would have been the result had Rear Admiral Brumby made the statement.

11. The findings of the court of inquiry were referred to Rear Admiral Brumby for comment. He makes the following statement:

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"The judge advocate of the court of inquiry had told me in a general way what he wanted me to cover and I directed my efforts as regards my testimony to the points he had covered. There were officers at hand who could give technical details, and who were to testify after I had finished. I anticipated no technical questions, as I knew there were others who could testify in detail where I could only answer in general terms. So I prepared a statement that gave a running account of all that had happened.

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"The department's attention is invited to conditions prevailing at the scene for the first few days. The Falcon, rescue ship, had left New London Saturday afternoon, December 17, within less than two hours of receipt of news of the sinking of a submarine off Provincetown. Steps had been taken by the Department, by the commander, control force, and by others in the Navy to provide everything that could be thought of as being of any possible assistance.

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