From: The Judge Advocate General. To: The Chief of Naval Operations. Via: The Chief of the Bureau of Navigation. Subject: Court of inquiry 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 U. S. Coast Guard destroyer Paulding. 1. Forwarded for consideration and recommendation. 2. It is noted that paragraph 6 of the recommendations of the court of inquiry reads as follows: "Rear Admiral Frank H. Brumby, United States Navy, has been in command of the control force, including all submarines in the Atlantic, since August 1, 1927, and was in command of the forces employed in rescue operations on the S-4 from December 18, 1927, until such operations were discontinued. Rear Admiral Frank H. Brumby's testimony before this court showed that he had not the familiarity with the essential details of construction of submarines and the knowledge of rescue vessels, and the knowledge of the actual work being carried on by his subordinates necessary to direct intelligently the important operations of which he was in charge. While the plans he approved, conceived by an expert staff of which Captain King was the senior, were logical, intelligent, and were diligently executed with good judgment and the greatest possible expedition, yet Rear Admiral Brumby failed to contribute that superior and intelligent guidance, force, and sound judgment expected from an officer of his length of service, experience, and position. The court therefore recommends that Rear Admiral Frank H. Brumby, United States Navy, be detached from the command of the control force." It is also noted that Rear Admiral Frank H. Brumby, United States Navy, was not made a defendant before the court of inquiry. In view of the adverse nature of the recommendation quoted above, it is the opinion of this office that the court of inquiry erred in not making Rear Admiral Frank H. Brumby, United States Navy, a defendant before the court, espcially in view of the fact that paragrpah two of the convening order gave the court full authority to inquire 'into all circumstances attending the subsequent rescue operations" of the U. S. S. S-4. 3. In view of the above, it is the opinion of this office, that in accordance with section 1041, Naval Courts and Boards, 1923, no disciplinary action should be taken against Rear Admiral Frank H. Brumby, United States Navy, other than trial by general court-martial, should such be decided upon until the record of proceedings of the subject named court of inquiry has been referred to that officer for such statement as he may desire to make. 4. Subject to the above remarks, the proceedings, findings, opinion, and recommendation in the attached case are, in the opinion of this office, legal. E. H. CAMPBELL. NAVY DEPARTMENT, BUREAU OF NAVIGATION, Washington, D. C., February 14, 1928. [Second indorsement] From: Chief of Bureau of Navigation. To: Secretary of the Navy. Via: Chief of Naval Operations. Subject: Court of Inquiry, U. S. S. S-4. 1. The court of inquiry in the case of the U. S. S. S-4 has placed the responsibility for the collision between the U. S. S. S-4 and the Coast Guard destroyer Paulding, which resulted in the sinking of the S-4 with the loss of all persons on board, jointly and personally upon the commanding officers of the two vessels, the late Lieut. Commander Roy K. Jones, United States Navy, and Lieut. Commander J. S. Baylis, United States Coast Guard. It considered that serious blame was incurred by each. 2. While the failure of the Paulding to sight and to recognize as a submarine the S-4 in time to take action necessary to clear her, as found by the court, contributed to this disaster, it is the opinion of this bureau that the presumptive major responsibility rests properly on the S-4 for the following reasons: First, under the weather conditions existing, there is a strong presumption that the lookout on the S-4 should have more easily sighted the Paulding than the Paulding should have sighted the periscopes of the S-4 at a safe distance; second, it was the duty of the S-4, under the International Rules of the Road for the Prevention of Collisions at Sea, to keep clear of the Paulding; and, third, under the Doctrine Governing the Operations of Submarines, it was the duty of the S-4 to avoid surface crafts. 3. The bureau can not, however, concur in the finding of the court to the effect that there is a personal repsonsibility for the collision resting on the late Lieut. Commander Roy K. Jones, United States Navy, for, in the opinion of the bureau, it is not shown with the requisite definiteness that the late Lieutenant Commander Jones was directly and personally responsible for the share in the collision that is properly attributable to the S-4. 4. Under Navy Regulations, a commanding officer is always responsible for the safe conduct of his ship. There is a strong presumption in this case that the late Lieutenant Commander Jones was exercising his authority as such. However, this bureau can conceive of situations where, due to accident, sudden illness, or other justifiable emergency, the officer regularly assigned to command may not have been exercising these functions. There are other conceivable situations which may have arisen in the attempts of the operating personnel to maneuver the S-4 in accordance with their responsibilities under the law and which, were they established as facts, might be sufficient to relieve the commanding officer of any culpability. There is no one to give testimony on these matters. The ship itself can not be properly examined at this time. It is not now known what actually transpired on board the S-4 immediately prior to the collision. In the absence of any testimony on this most material point, it appears that any attempt to place a personal responsibility for this collision on any of the officers or crew attached to the S-4 would necessarily be within the realm of surmise rather than of fact. Until these possibilities have been examined and exhausted this bureau can not concur in the placing of the responsibility on any one individual of the S-4 personnel. 5. Referring to paragraph 6 of the Recommendations of the Court of Inquiry, dealing with the character of the testimony before the court of Rear Admiral Brumby and with his performance of duty in charge of the rescue operations, the important and even vital point to be kept in mind is the manner in which he discharged his duty in command of the force engaged in the rescue operations. The court states that the rescue plans adopted and prosecuted under this officer's orders and directions were "logical, intelligent, and were diligently executed with good judgment and the greatest possible expedition." 6. However, after giving expression to this high praise, without a single comment on his conduct of the control force as distinguished from the rescue operations, and without according to him his rights as a defendant in accordance with the provisions of section 1041, Naval Courts and Boards, the court of inquiry recommends the detachment of Rear Admiral Brumby from the command of the control force. 7. Inasmuch as the findings of facts submitted by the court do not appear to support its opinion and recommendation in regard to the officers named above, this bureau recommends that the court be reconvened for the purpose of setting forth with completeness and particularity its reasons on which the opinion and recommendation above referred to were based. It is believed that the nature and importance of this case warrant a full expression from the court on this subject. [Third indorsement] From: The Chief of Naval Operations. To: The Secretary of the Navy (Judge Advocate General). Subject: Court of inquiry, U. S. S. S-4. R. H. LEIGH. FEBRUARY 17, 1928. 1. The Chief of Naval Operations concurs in the opinions expressed and recommendation made by the Chief of the Bureau of Navigation in the second indorsement. C. F. HUGHES. The SECRETARY OF THE NAVY. TREASURY DEIARTMENT, 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." 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. There is no evidence justifying such a finding. The vessel was proceeding 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. 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. 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, 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: "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. |