to the gratings.
Re-examined by Mr. Mitchell: The new engines and boilers of the
_Alert_ were six or seven tons lighter than the previous ones, but
the difference was made up to be nearly equal by additions to the
vessel’s hull.
_Q._—It was suggested that by the way you slummed this survey, you
were responsible for the loss of the men at sea? _A._—The survey was
not slummed, and no blame was attached to me at all.
_Q._—Your opinion is that the water must have got in through the
doors and skylights being neglected? _A._—Yes.
HIS HONOUR: _Q._—Assume that before the ship was kept away, and
all her gratings, skylights, doors, and pantry window covered and
protected, do you think there would be any danger in putting the
vessel away on her course for the Heads when she had a south-east sea
and a south-west wind? _A._—No; if all openings had been closed, she
was comparatively safe.
HIS HONOUR: _Q._—A number of the witnesses described the boat as
being rather skittish and tender? _A._—Boats like her require to be
specially handled; but with everything properly fastened, I would
have had no hesitation in going for the Heads, although I think
it would have been better to have kept out to sea. She would have
weathered it.
WILLIAM WATSON, examined by Mr. Purves, stated: I am a surveyor for
Lloyd’s Registry of Shipping. The British Lloyd’s is an institution
that has grown during the last sixty years. It is the biggest thing
in the world. A vessel that is “A1” at Lloyd’s has a character that
any man, who is interested in running risks, takes as a standard.
The document now shown me is a certificate stating that the _Alert_
was classed when first built “ninety A1,” fit to carry dry and
perishable cargo to all parts of the world. Below is a maltese cross
which indicates that she was built under special survey. (Mr. Box
here objected that the certificate given when the vessel was built
had nothing to do with the present case, and his Honour decided to
admit the evidence subject to the objection). Witness continuing
said, “ninety A1” is simply a distinction to show that it is not “one
hundred A1” nor “eighty A1,” but still an “A1” ship. The meaning
of “A1” is that the hull of vessel so classed is fit to carry dry
and perishable cargo. I knew the _Alert_ mentioned in Lloyd’s
certificate, and remember the alterations made in her. I did not see
her officially between July, 1893, and the date when she was lost
(December, 1893). My opinion of her was that she was a good little
ship. She was sea-worthy in every sense of the word, and was a very
nice vessel.
_Q._—What is a nice vessel—a plum cake is very nice but I would not
like to go to sea on one.—? _A._—A very smart craft I would call her.
I have been to sea, but I am not a sailor.
Cross-examined by Mr. Box: I was in the employment of Lloyd’s in
England, but not as surveyor. I was appointed surveyor, but did
not continue in it. I am no authority as to what risks insurance
companies will take. It is not a mere matter of premium. A risk
is taken on the recommendation of surveyors. I am not in receipt
of an annual salary from Lloyd’s, but I make surveys for them in
Melbourne, and I get paid for my services by the owners of the ships
in Melbourne whose vessels I recommend. I re-classified the _Alert_
in July, 1893. She was then in the Bay trade. I don’t know how she
came out to Victoria. I don’t remember when she was built. I never
formed an opinion as to whether she was built for the Bay trade only.
She was, in 1893 when I surveyed her, fit to go all over the world. I
did not go to sea in her, but I would not have been afraid to do so.
She was fit according to Lloyd’s rules, and that was enough for me.
It is not a rule of Lloyd’s that the grating over the engine room and
stoke-hole should be covered.
_Q._—Is this a rule of Lloyd’s: “The engine room skylights are to
be in all cases securely protected, the gratings over stoke-hole
must also be protected with iron plates?” _A._—That rule does not
refer to the grating openings on top. There is no occasion to have
any cover whatever to those gratings. There was no necessity to
have any protection to the pantry window; I did not look upon it as
dangerous. I don’t think there would be any special liability on the
part of that window to burst in when the vessel was on her beam ends.
It would not be a serious matter if it did burst in. I could put a
cushion in and stop it. There was no danger in the grating, and none
in the pantry window.
Re-examined by Mr. Purves: Apart from my position at Lloyd’s, I
have built many thousands of tons of ships. My business was a
shipbuilder, and when busy, I have built over 20,000 tons a year. The
reclassification of the _Alert_ brought her to her original status
equal to a new ship just built. I am trusted with Lloyd’s business in
Melbourne, and have a free hand. The amount of freeboard a ship has
is no proof of her sea-worthiness.
THOMAS HOUSTON, examined by Mr. Mitchell, stated: I am a marine
surveyor for this port. I have had over thirty years’ experience as
ship master, mostly in sailing vessels. I have been in steamships,
but not in command. I have been in Melbourne about nine years. I
knew the _Alert_ well, and have been frequently on board. I have been
under her twice while she was in dock, not in a professional way,
but as a contractor for painting. I have no reason to suppose for a
moment that the vessel would be unsea-worthy. I have been a passenger
in the _Alert_ up and down to Geelong, and in a convivial sort of
way I recollect the pantry window. I could not say its height above
the main deck, but I think it was about half way up the front of the
poop, and the latter was between three and four feet high. I don’t
know how it was fastened. There was nothing about the window to make
the ship unsea-worthy. Any practical man could make the window tight
without bolts or anything else, so that it would not take a gallon of
water in an hour. I have no knowledge of the height of the grating,
but I am told it was seven feet above the main deck. I don’t see any
necessity for cleats; it could be secured in various ways, so that no
water would go down, and the bunker lids also could have been easily
protected by placing a piece of canvas over them. I think the wooden
awning would have assisted to bring the ship to the wind and keep her
there. If the vessel was on her beam ends, the awning would in all
probability tend to throw her over, but by that time she would be
too far gone to recover herself, and hence it would make very little
difference. The fact of having the wooden awning where it was would
not make the ship unsea-worthy.
Cross-examined by Mr. Smyth: I have had a vessel pretty well over
with her yard arms in the water. She came up again by throwing cargo
overboard. There is nothing extraordinary in a vessel rolling over
45 degrees. There is nothing to prevent a ship from righting herself
if she is sea-worthy. I have not the faintest idea what prevented
the _Alert_ from righting herself. I don’t think thirty or forty
tons of water on board of her ought to affect her although she was
low aft. Perhaps the pantry window would have been better if made in
some other way than with glass; but I consider it of no importance.
Anybody could have stopped it splendidly with a cushion. If there
was a lot of water in the stoke-hole as well as the saloon, she
might founder. I do not believe that water came through the grating.
In sending a ship to sea extreme contingencies should be provided
against. An open grating was not unsafe, but still it would be better
covered. I am a contractor for painting ships for Huddart, Parker,
and others.
In reply to His Honour the witness said: Cutting a small window would
not weaken the bulk-head. I think it most likely I would have had an
outside shutter to protect the window.
[Illustration: Decoration]
[Illustration: Decoration]
KILPATRICK v. HUDDART, PARKER & CO., LTD.
SIXTH DAY, TUESDAY, FEBRUARY 19, 1895.
_ Evidence for the Defendants.—(Continued.)_
HUGH BELL MCMEIKAN, examined by Mr. Mitchell, stated: I am master of
the tug boat _Albatross_. I have had experience at sea since 1850.
I have been Master of all sorts of vessels. I knew the _Alert_, and
have been on board of her often. So far as I saw she was all right.
I saw her outside the Heads after she went into the Gippsland trade.
She always behaved well so far as I saw. I have seen the pantry
window often; it would not make the vessel unsea-worthy.
HIS HONOUR: We have heard that when this vessel got within two miles
of the Schanck, she made an offing of about six miles. Supposing you
had been on board of her then with a strong sea running from the S.
E., and wind from the S. W., would you, before putting the ship away
on her course to the Heads, have taken any precautions with regard to
the window? _A._—No, I don’t think I would. It had been there long
before, and had not been found fault with. If I had been in command
of that ship, I would have given orders to the officers to see that
everything was snug. I never heard in my life of a bunker lid coming
off by the rolling of a vessel. I don’t see that the wooden awning
or the forty-four tons of cargo had anything to do with the vessel’s
sea-worthiness. She was sea-worthy enough to come up from Gippsland
to where she did.
Cross-examined by Mr. Smyth: The _Albatross_ is supposed to go
outside in any weather. Her length is one hundred and fifty feet,
beam, inside paddle boxes, nineteen feet six inches, outside paddle
boxes fifty feet, and depth eleven feet six inches. She sits on an
even keel; but the _Alert_ sat very much by the stern. I knew the
late Captain Mathieson, and he was a skilful mariner. The master on
board of his own steamer is the best judge of what to do; he knows
his vessel. There was nothing to prevent Captain Mathieson from
altering his course for the Heads. I don’t think the _Alert_ wanted
any cargo to make her stable. She would float without anything. If
any steamers go to sea with bunker lids simply laid down by their own
weight, that would to a certain extent be a cause of danger. I have a
canvas awning on the _Albatross_.
LUCY EDITH KILPATRICK (the plaintiff) recalled by defendant’s
counsel, in reply to Mr. Mitchell, said: I received some money from
the fund that was subscribed. I am to get £100. I get it in weekly
instalments.
TO MR. SMYTH: The £100 I am to receive is not from Messrs. Huddart,
Parker & Co., but from a fund subscribed by the public. I do not
know the amount of insurance the owners of the _Alert_ received.
WILLIAM WILSON, examined by Mr. Purves, stated: I am the master of
the steamer _Eagle_, a tug boat. Her owners are Messrs. Huddart,
Parker & Co., and I am in their employ. I have been master for
nineteen years. I knew the _Alert_, and was in her for eight months
in 1889. I remember the wreck of the ship _Holyhead_ at Point
Lonsdale, Port Phillip Heads. I was employed on the _Alert_ at that
wreck, for about three weeks altogether. I had an opportunity of
judging the capacity of the _Alert_ as a sea-boat. I say she was
good. I did not see anything in my eight months’ experience of her
that made me think she was a dangerous ship. I did not see any fault
with her at all. I wish she had been mine.
Cross-examined by Mr. Box: We had pretty rough weather when working
at the _Holyhead_. Other boats could not have done the work like
the _Alert_. Nothing would stop her until she met a gale of wind.
Of course in a gale of wind we could not get cargo out of the
_Holyhead_. I had on one occasion one hundred and forty tons of cargo
in the _Alert_. It made her sit differently in the water. It balanced
her.
LOUIS JOHN DALY SCHUTT, examined by Mr. Purves, stated: I am a
Victorian sea pilot, and have been one about six years. Prior to that
time I was in the employment of Huddart, Parker & Co. as captain and
also as mate. I commanded the _Alert_ about four and a half years in
the Geelong trade. During that time we had some heavy weather and
seas for the Bay. I formed the opinion that she was a good little
sea-boat. After I left her the engines were shifted. There was no
great difference in her after the alterations. When I was in her
there was a window under the break of the poop. The glass in it got
broken. It was about a quarter inch thick. I put a new one in three
eights of an inch thick. I maintain that it could not possibly be
broken by a sea, unless the sea washed something against it. When
I had charge of the _Alert_ the gratings were low down, afterwards
they were built up to the top of the engine house. I believe the same
bunker lids were on the ship when she went down as when I had her.
They fastened down with keys, I am positive. Outside the Heads the
seas are bigger than in the Bay. If I had the command offered me, I
would have taken the _Alert_ to sea. I had not the slightest doubt
about her sea-worthiness.
Cross-examined by Mr. Smyth: I was in command of the _Alert_ from
1884 to 1889. She was never out at sea while I was in her. I put the
glass window in myself. One of the passengers who was the worse for
liquor put his foot against the previous one and cracked it. I have
had seas on board in the Bay, and the starboard alleyway full, but
no water ever went below. In my time the engine room went right back
to the front of the poop, and prevented water going from one side of
the ship to the other. One of the new improvements made was that this
casing was cut away and an after hold put in.
_Q._—When the _Alert_ foundered, did the water getting into the
saloon take her down stern first? _A._—I say no. Supposing forty tons
of water were in the cabin it would be pretty well full. I don’t see
that it would take her down, owing to the watertight compartments.
GILBERT MOORE, examined by Mr. Mitchell, stated: I am a master
mariner in charge of the S.S. _Excelsior_, one of Huddart, Parker
& Co’s steamers trading between Melbourne and Geelong. I knew the
_Alert_, and was in command of her. For two or three winters I was
trading with her to Geelong and back to Melbourne, and sometimes
we had heavy weather. She behaved very well indeed. Sometimes in
bad weather she would not behave very grand. In moderate, good,
and fine weather she was beautiful. I went to Tasmania in her in
February, 1893. I had no cargo going over, but coming back I had I
daresay about seventy tons. We had fine weather going but a stiff
breeze coming back. She behaved well and was a bit wet. I remember
the pantry window; it did not affect the ship in any way. It was
about eighteen inches above the deck. It was sufficiently secured to
withstand the pressure of water. The bunker lids had slots and turned
round, thus fixing them in. I saw that they were fastened. I can’t
see how the wooden awning or the open grating would make the ship
unsea-worthy. It is a matter of opinion. There was a tarpaulin to
cover the grating if they liked to put it on.
_Q._—What in your opinion should have been done with the vessel
before changing her course for the Heads? _A._—I would have put the
engines dead slow. As a matter of course a man, in weather like she
was in, should have seen that everything was secure. If I had to run
the ship, I would keep the engines slow; and if I had a sail, I would
set it. If the sea was too heavy and she would not come to the wind,
I would let go a sea anchor.
Cross-examined by Mr. Smyth: I knew the late Captain Mathieson. He
was a careful seaman, and a good ship master. He would be the best
judge of what he ought to do. The grating was six feet wide, and fore
and aft from eleven to thirteen inches.
_Q._—Supposing Mr. Grant, the man who put the grating in, said it
was twelve feet across and three feet six inches long? _A._—I know
differently; I never measured it, but I say it was not three feet
long.
_Q._—You looked very particularly before you went to Tasmania to see
that the bunker lids were fastened with slots? _A._—Yes, I did. I
considered it necessary. They fitted properly and were caught with
slots.
_Q._—If you were the only witness out of thirty who said these lids
did not fit in by their own weight, will you contradict them all?
_A._—Yes.
_Q._—If Mr. Grant, who fitted them in, states that the lids secured
themselves only by their own weight, do you contradict him? _A._—Yes;
I say what I know.
_Q._—You swore at the Marine Board enquiry that you took the _Alert_
to Tasmania as a trial trip? _A._—I meant to say it was a severe
trial to the ship.
_Q._—We are told by witnesses that her freeboard aft was only about
two feet? _A._—That is wrong. She had double that. She never had less
than four feet aft from the water’s edge to the deck. She used to
draw ten feet six inches aft, and her depth of hold was nine feet six
inches.
_Q._—Then how could she get the freeboard? _A._—Because she had a
long heel aft.
_Q._—Did you say to-day that it was according to the weather, and
that in bad weather the _Alert_ would not behave very grand? _A._—I
don’t remember saying that, but if I did, it would be true of her, or
any other ship.
_Q._—When you were in the _Alert_, did she ever take water down into
the engine room or stoke-hole? _A._—It might be a few drops, or a
bucketful, down through the gratings, or the doors.
CHARLES WILLIAM MCLEAN was recalled to explain that although there
was a clause in the _Alert’s_ river and Bay certificate that she was
not fit to ply outside the river and Bay, as defined by the Act, it
did not mean that the vessel was unfit to go outside the Heads.
HIS HONOUR: That is a question for argument.
MR. SMYTH: I shall argue that the vessel was certified as unfit to go
outside the Heads.
MR. PURVES: That is an absurd argument, because there was a
subsequent declaration that she was fit to go outside.
HIS HONOUR: I think it is a question of construction. If the vessel
was going to trade in the river and Bay, she got a certificate to
that effect. If she were going to trade outside the Heads, she must
have a certificate for outside. The one is not inconsistent with the
other. That is the view I hold at present.
CARL GUSTAFSON, examined by Mr. Purves, stated: I am a Russian Finn
and an A.B. seaman in the employ of Huddart, Parker and Co. I am now
forty-eight years of age, and have been at sea since I was nine years
old. I was seaman on board the _Alert_ for four years, and was in
her after she was altered and went to sea. I was not in her outside
the Heads. My experience of her was in the Bay. In heavy weather I
have seen the decks flooded, but never knew of any water going below,
either through gratings or pantry window. From what I knew of the
_Alert_, I would go anywhere in her. I thought her a good strong boat.
Cross-examined by Mr. Box: I remember the _Alert_ in the Bay taking a
very large quantity of water on board. The engines had to be slowed
down because the seas came over. I can’t remember if the fires were
nearly put out on that occasion. She was not in very much trouble.
The pantry window was a round glass in a wooden frame. It had a
wooden slide in front outside that covered it right over. I am in the
_Excelsior_ now, but I an not mixing up her pantry window with the
_Alert’s_. I never noticed how it was fastened inside. When I left
the _Alert_, two years ago, I have been in the _Excelsior_ ever since.
WILLIAM KING, examined by Mr. Purves, stated: I am chief engineer
of the _Excelsior_. I am an engineer by profession, and have had
sixteen years’ experience of shipping. I knew the _Alert_, and was
chief engineer of her from 1890 to 1893 in the Bay trade, and also
for six months after the engines were altered. During that time I
went outside the Heads to Tasmania. On that voyage I considered she
was perfectly sea-worthy. We had fine weather going, and very rough
weather coming back. I was perfectly satisfied with the way she
behaved. I never heard of, or saw, any water coming in through bunker
holes or gratings while I was in her. I would go to sea in her any
time and anywhere.
Cross-examined by Mr. Box: Engineers and seamen have to take a good
deal of risk sometimes. If one is out of employment it is not easy
to get a billet. There was no risk in going in the _Alert_. We were
sixteen hours coming from Tasmania. That was the only time I went
outside in her. The _Excelsior_ is larger than the _Alert_. I have
seen the latter shipping heavy water in the Bay. She had to go slow
at times. The new engines lifted her about six inches higher in the
stern.
JOHN LEGG, examined by Mr. Purves, stated: I am dockmaster in the
employ of Mr. Duke, of Duke’s dock. By trade I am a shipwright, and
have been employed by Mr. Duke for about thirty years. I have had the
_Alert_ in dock on many occasions. She was buoyant and able, in my
opinion, for her size.
Cross-examined by Mr. Box: I have never designed a vessel myself. I
have been to sea as master of sailing-vessels, not steamers. I don’t
know anything about the _Alert’s_ inside. She was not very deep, and
was rather narrow in the beam. I would not call her a very tender
vessel. I was on board of her before she was altered, but not after.
I would call her a stable vessel for her size. There is no doubt
that she was fitted for the Bay trade. As to going outside that all
depends upon the weather. It would be a risky thing taking a vessel
built from that model outside in all sorts of weather. I would go to
sea in the _Alert_ in ordinary weather.
JAMES TRAINOR, examined by Mr. Purves, stated: I am a seaman, but at
present I am a labourer. I was an A.B. on board the _Alert_ and other
ships for sixteen years. I went to Tasmania in the _Alert_. She went
without cargo and came back with seventy tons of oats. She behaved
like any other vessel of her size would do. I considered her as good
as any other vessel.
Cross-examined by Mr. Box: I have been wrecked twice. It was my idea
to go in the _Alert_ to see how she would behave. I asked to go. I
volunteered to go in her. I was Huddart, Parker’s man then.
_Q._—I suppose there was great excitement in the office to see how
she would go? _A._—Yes. (Laughter.) I had heard great talk of the
_Alert_. I was not astonished to get back safely in her.
RICHARD GOUGH, examined by Mr. Mitchell, stated: I am a shipwright
surveyor, and have been working for about three years surveying
ships for the Marine Board. I knew the _Alert_, and on two occasions
made a survey of her for the river and Bay trade. The last survey I
made was in April, 1893. I then made a declaration. I should say the
_Alert_ was sea-worthy in every respect. The opening spoken of as
the pantry window was about fourteen inches by twelve inches square.
The glass was about half-an-inch thick, and was in a strong wooden
frame. I don’t remember how it was fastened. It would not make the
ship unsea-worthy in the slightest degree. The grating was a great
height from the main deck, and if any water went down it would only
be a splash. The bunker lids fitted into sockets. They rested by
their own weight. Unless the ship were upside down no water could go
through them. In my opinion the wooden awning did not make the ship
unsea-worthy. When the alterations were being made I did not have
before me the specification of what had to be done.
Cross-examined by Mr. Box: On one occasion after repairs were
completed the _Alert_ had a permit to go to Tasmania, not a
certificate. A certificate is for a year; a permit is only for the
occasion. I gave a certificate to the engineer. There would be no
examination of the vessel again on her return from Tasmania because
she had a certificate for the river and Bay trade. We do not make a
declaration to give a permit. I did not make a declaration that the
_Alert_ was fit for the outside trade. Captain Deary was appointed
shipwright surveyor, and he took my place. Captain Deary is not
a shipwright, but I cannot help that. He was appointed, and is a
shipwright surveyor by virtue of his office. A shipwright surveyor’s
certificate should be given by a man skilled in shipwright surveying.
I never measured the grating. When I surveyed the _Alert_ for the
permit to go outside the Heads to Tasmania, she had not got a shutter
in front of the window. I do not remember whether she had a shutter
at any time I surveyed her. I signed a certificate about life-boats
only for the river and Bay trade. I signed only the permit to go
outside. The _Alert_ was built for shallow water.
Re-examined by Mr. Mitchell: In my opinion the _Alert_ was a
sea-worthy vessel fit to go to Tasmania. When Captain Deary made the
declaration that she was fit for the outside trade, I was still a
shipwright surveyor, but was receiving no pay from the Marine Board.
I had ceased to be their officer through retrenchment. I believe the
_Alert’s_ trip to Tasmania had something to do with clearing the
Customs duty off her engines.
SAMUEL JOHNSON, examined by Mr. Mitchell, stated: I am assistant
engineer and surveyor for the Marine Board. I have had two and
a-half years’ experience in that capacity. I have had about five
years’ experience at sea as third and chief engineer. I signed the
declaration with Mr. McLean. Alongside the wharf I tested the vessel
under steam to see to the safety valve. The test was satisfactory.
Mr. McLean inspected everything else. I only saw the vessel in dock
for about half an hour.
Cross-examined by Mr. Smyth: So far as the steam was concerned I
made a thorough examination. I signed the declaration for that part
of the survey which I did. I made no examination of the vessel’s
hull. I daresay my examination took over an hour alongside the wharf,
and on that I gave the certificate. So far as I was concerned that
authorised the _Alert_ to go to sea.
[Illustration: Decoration]
[Illustration: Decoration]
KILPATRICK v. HUDDART, PARKER & CO., LTD.
SEVENTH DAY, WEDNESDAY, FEBRUARY 20, 1895.
_Evidence for the Defendants.—(Continued.)_
THOMAS WEBB, examined by Mr. Purves, stated: I am a master mariner,
and a member of the firm of Huddart, Parker & Co. I knew the
S. S. _Alert_. She was built under my special superintendence at
Glasgow. She was classed ninety A1. I have had experience in the
navigation and building of ships. When finished the _Alert_ was
a sea-worthy ship. The pantry window was built in her during her
construction. I was master of her for about twelve years, and my
opinion was that she was a very fine sea-boat. The alteration of her
engines gave her more lift aft, about five inches. During the twelve
years I was in command, she ran every day whatever the weather was. I
saw no indication in her of a danger of shipping seas. In my time no
water went in at the pantry window, nor in the grating, which latter
was four feet lower then than when she was lost. She was insured for
£4,000. She stood in my ledger at that time at £13,000, and we were
satisfied to stand the risk of £9,000.
Cross-examined by Mr. Smyth: The vessel cost about £12,000 at first,
and we expended £7,000 on her here, putting in new machinery in
1893. On the voyage out from England she was insured for £12,000.
She came out under sail, as a barque, with funnels down. She was
then in charge of Captain Munn, who gave her the character of a
splendid sea-boat. He told me that. He is dead now. At the time she
was trading in the Bay I believe the insurance was less than £4,000.
I was managing director of the Company. I am not so now. I am still
a member of the firm and also a member of the Marine Board. During
my twelve years’ command of the _Alert_ in the Bay, I have seen her
take some water on board. She did not quite fill the alleyways. She
could not fill them as the water ran away through the port-holes
and the scuppers. The pantry window was glass in my time. It was
cracked by heat but not by water. I never gave instructions to
Captain Mathieson to hurry up. I told him not to go so fast, and
complained about too much coal being used. There might have been a
time when she was in the Bay trade that she was not insured at all.
She got Lloyd’s certificate in 1877 when she was built, and that was
allowed to drop until 1893. We did not find it necessary to put her
on Lloyd’s Register again in 1893; it was for our own convenience to
put her back on it so as to give her a character again, in case we
wanted to sell her. We paid the fees, £5 5s., for putting her back on
Lloyd’s Register. My company subscribed £100 to the fund got up for
the _Alert_ sufferers. Ponting had some I believe. He got it through
us. I don’t think Huddart, Parker & Co. paid him anything at all.
There was £1,200 subscribed. Mrs. Kilpatrick got her portion of that.
I don’t think Huddart, Parker & Co. gave her anything. Only one writ
has been served on Huddart and Parker in addition to the present
case. I believe the plaintiff in the other case is Mrs. Mathieson—the
late captain’s wife. I consider we did our duty when my firm gave
£100 to the relief fund, to which the public subscribed £1,100 more.
ALEXANDER WILSON, examined by Mr. Purves, stated: I am engineer in
charge of ports and harbours in the employment of the Victorian
Government. I am by profession an engineer. I have no other
qualification. I have had experience of the sea for seven years
in the capacity of a marine engineer. I consider myself competent
to give an opinion as to the sea-worthiness of ships. The steamer
_Alert_ has been under my observation ever since she arrived here.
Up to 1881 I surveyed her every six months. My opinion is that she
was a good sea-worthy boat. I recollect a small pantry window she had
in the poop. I don’t think it affected her sea-worthiness. I don’t
think it would be possible for green seas to find their way down
the grating on top of the stoke-hole. Ring bolts at each corner for
the purpose of fastening a tarpaulin would be quite as efficient as
cleats. The bunker lids rested in the ordinary way. I never knew of
lids being washed off. I don’t think they made the ship unsea-worthy.
Assuming that the wooden awning was made of right material, it would
not affect the ship to any great extent. If she laid over it would
rather have a tendency to raise her again. Wood instead of canvas
would not in the least make her unsea-worthy. There is a wooden
one on the _Lady Loch_, and she goes anywhere. The old steamer
_Western_ had a house on deck with a wooden awning. The _Alert_ had
watertight bulk-heads. She was divided into one, two, three, and four
compartments when I knew her. These bulk-heads would prevent water
going from one part to another. The ship in my opinion had sufficient
stability.
Cross-examined by Mr. Smyth: I am not a shipwright, but I have
designed seven ships. The _Lady Loch_ is one. She does not carry
her awning the whole length of the poop like the _Alert_. The
length of the _Lady Loch_ is one hundred and seventy-five feet,
beam twenty-five feet, and depth about twelve feet. She has only a
small portion of awning aft. Her freeboard depends upon what she is
carrying. I should say with nothing in her but coal and her machinery
it would be about four feet. The _Western_ was not far different
in dimensions to the _Alert_, but was a different class of vessel.
The _Western’s_ length was one hundred and eighty-three feet, beam,
twenty-three feet, and depth, twelve feet six inches. I agree with
Mr. McLean that an iron casement outside screwed down would be a good
protection for the pantry window, but whether it was necessary is
another thing. The water would not have got in if the window had been
shut; and if the window was burst open, it would be a matter of five
minutes to put it right. It could be barricaded from the outside.
I would find my way there with a piece of timber and shove it up
against the face of the window. As for the gratings, if green seas
came down, the only thing the men could do would be to spread canvas
and lash it over the gratings.
_Q._—How long would it take with a vessel lying over on her beam
ends, and heavy seas running, to get your canvas and lash it over?
_A._—You are putting almost an impossibility. I cannot imagine the
ship getting into that position. It would take ten minutes to get the
canvas—supposing the covers were at hand. All these vessels carry
covers, but I would not swear that the _Alert_ carried covers.
_Q._—Do you say that the bunker lids are always let in by their own
weight? _A._—I am not prepared to say positively whether I have seen
any screw on like the lid of a four hundred gallon tank. I think some
are that way. I am not positive how the _Alert’s_ were.
_Q._—Would not a canvas awning that you could take in be better than
a wooden awning at sea? _A._—It would be advantageous I think.
_Q._—You told us that cleats were unnecessary, as ring bolts would
do? _A._—I am informed that there were ring bolts alongside the
grating. I did not see them that I can remember. I am not a master
mariner. I was not in command of a ship. I am not a seaman, mate, or
captain. I am an engineer.
CLEMENT ERNEST JARRETT, examined by Mr. Purves, stated: I am manager
of the Alliance Marine and General Insurance Coy. I remember the
steamer _Alert_. She was insured in my office for £4,000, and valued
at £6,000. I have known her ever since she came out. I employ
experienced people, and I insured her after survey. I would have
insured her for double the amount she was insured for, if required,
without hesitation. I knew the vessel personally. I travelled in her
outside the Heads, and formed the opinion that she was a very nice
little vessel. I am not a seaman. I should not have the slightest
hesitation in going out in her. In fact I had serious thoughts of
going out in her on the trip on which she was lost.
Cross-examined by Mr. Smyth: £6,000 was the owners’ valuation. They
valued her specially for insurance, not necessarily that that was
her value. I accepted their valuation, and considered it too low. I
insured her when she was in the Bay trade. She was insured for the
same amount, and never less. She was insured for less before she had
the new engines. £3,000, I believe, nothing less. I believe she was
always insured.
JAMES ALEXANDER MITCHELL, examined by Mr. Purves, stated: I am a
licensed Port Phillip pilot, and have been such close on twelve
years. Prior to that I was master of steamers and sailing vessels
for eleven years. I knew the _Alert_, and remember the day she
foundered, December 28, 1893. It was reported to me on that date. I
was in charge on that day of the pilot schooner _Rip_. At about 4
o’clock P. M. I was cruising, as near as I could judge, from seven to
eight miles outside Port Phillip Heads. We were cruising about in all
directions. The weather was very thick. We never saw the land. All
along the eastern shore as far as the Barwon the weather was thick.
It was clearer to seawards and towards the west. It was blowing what
we call a southerly gale. The sea was very rough and very high. I
cannot remember what the barometer was. It was heavy weather as a
matter of fact. There was a cross sea from the south-east, and a
swell from the south-west, and the two met and sent the water up.
Our vessel was shipping a good deal of heavy spray. I have seen the
_Alert_ at a distance, when she was passing Williamstown going to
Geelong.
_Q._—After the _Alert_ got off the Schanck, about seven miles, with
the wind and sea as they were, was it, in your opinion, a prudent
thing to do to keep the ship away for the Heads? _A._—I should say
there would be danger in that manœuvre unless they—as sailors would
say—watched a slant, or watched for a smooth, and then put her on her
course. Before doing this, it would be only an ordinary precaution to
make everything snug.
_Q._—Your idea was that the heaviest weather was off the Schanck?
_A._—Yes, and off the Heads.
Cross-examined by Mr. Williams: We boarded some ships on that day
(Dec. 28). There was no particular trouble in boarding them. The same
care had to be exercised that day as in every other gale. As pilot
in charge I do not think that I would have boarded a vessel between
three and five that afternoon. I did not know Captain Mathieson
personally. I cannot say whether he got a slant. I gave my opinion on
a supposed case. For all I know he may have waited for a slant.
_Q._—Assuming that there was a south-east gale blowing all day, and
the _Alert_ in it, in your opinion if things had not been snug on the
ship would anything have happened to her? _A._—I should hardly have
thought that in a gale of wind, blowing all day long, she would have
got as far as the Schanck if things had not been snug. She would have
been full of water before.
_Q._—What sort of gale was it in the early part of the day? _A._—It
started with a fresh breeze in the early morning and gradually
increased to a moderate gale from 10 o’clock till noon. After twelve
it had some indication of getting finer and the barometer rose. Then
the wind veered to the south-west and blew hard. A swell had been
coming from the south-west all day long.
Re-examined by Mr. Purves: I should think a vessel, perhaps two or
three miles from land in the daylight, would have managed to reach
Western Port; but in my opinion it would have been a dangerous thing
to try. We saw nothing at all all day long.
This concluded the evidence.
* * * * *
MR. PURVES submitted a point for the consideration of the judge: That
the obtaining of certificates from the surveyors appointed by the
Marine Act, and recognised under the Act, who surveyed the ship, and
made the necessary declarations, was evidence of such a nature that
in itself it was proof that the owners used all reasonable means to
secure the sea-worthiness of the ship. His Honour would see the vast
importance of this case to shipping companies. The conditions of the
law were complied with in taking all reasonable precautions.
MR. JUSTICE WILLIAMS: You contend that the certificates of the
surveyors authorised by the Act are conclusive evidence?
MR. PURVES: Yes; not merely evidence, but conclusive evidence. Unless
it is shown that the certificates were obtained by fraud, they are
actual proof of sea-worthiness.
MR. PURVES, in addressing the jury on behalf of the defendants,
made a severe attack on the witness, Robert Ponting, and urged at
great length that the evidence given by him was not to be relied
on. He (Mr. Purves) did not think that Ponting had told wilful
untruths, but had simply got up a theory of his own as to how
the wreck occurred, and repeated it so often to himself that he
believed it, and also endeavoured to make other people believe it.
There was no credit due to Ponting in the matter at all. He did not
save or try to save anybody but himself. Indeed, even that he did
not do, for Providence alone had enabled him to reach the shore,
while better men were allowed to go to the bottom. The jury had
sat day by day patiently listening to all the details of this most
important shipping case, and he (Mr. Purves) was sure they would
see that it was a matter which should never have been brought into
court at all. No one sympathised more than he (Mr. Purves) did with
the unfortunate plaintiff, Mrs. Kilpatrick, who had undoubtedly
lost her husband and breadwinner; but that was no reason why the
innocent owners of the _Alert_ should be called upon to recoup
anyone for loss sustained through an accident over which they (the
owners) had not the slightest control. It should also be borne in
mind that Messrs. Huddart, Parker and Co. had sustained a severe
loss themselves by the sinking of the ship, which was one of their
breadwinners. Notwithstanding the serious loss to the firm, they had
liberally subscribed to the fund got up in relief of the sufferers.
From first to last the owners had done all that men could do. When
the _Alert_ was taken from the Bay trade to be put into the outside
trade, she was surveyed by the most skilful men that could be found,
and the owners expended £7,000 in effecting alterations to make her
a most efficient ship. Not content with the local survey they had
her re-classified at Lloyd’s. She proved herself a sea-worthy ship,
even on the occasion of her last voyage, by running under adverse
conditions from Wilson’s Promontory to Cape Schanck without shipping
any water, and it was only when Captain Mathieson in a reckless
moment altered her course to the Heads, in a tremendous sea and heavy
weather, that she foundered. Any of the largest steamers would have
foundered under similar circumstances. Unless it was proved that
the defendants, as reasonable men, were not satisfied that the ship
was sea-worthy, the plaintiff had no case whatever. Was there any
evidence to show that the _Alert_ was unsea-worthy? He would ask
the jury to say that the defendants were not in any way to blame,
and that the disaster, which they all deplored, was an act of God.
He desired to apologise to the jury for being unable to produce,
notwithstanding his promise to do so, the person who, in addition
to Ponting, actually witnessed the foundering of the _Alert_ at
sea. During the course of his remarks, Mr. Purves pointed out that
a good deal had been said by the witnesses for the plaintiff about
the fact of the _Alert_ being rigged with only a foremast. In
contradiction to this theory of danger it was only necessary to draw
the attention of the jury to the fact that the steamships of Her
Majesty’s navy—the best ships in the world—had no masts at all! They
were merely fitted with flag-poles for signalling purposes. Some of
the most incredible stories had been told concerning the wreck of the
_Alert_. For instance, the witness Ponting had said that “flames and
smoke came out of the vessel’s funnel as she sank.” The thing was
simply impossible. (Here Mr. Purves spoke with great emphasis and
considerable warmth.) “Why hang it, gentlemen of the jury, the fires
must have been out a considerable time before the ship went down!”
The learned gentleman then concluded an impassioned appeal by drawing
marked attention to the fact of the plaintiff, Mrs. Kilpatrick,
having attended the court with her baby every day since the trial
began, when she ought to have been at home attending to her household
duties. He (Mr. Purves) could see no other object in her conduct than
that she was desirous, through her presence, and that of her infant,
of enlisting the sympathy of the jury. He was sure, however, that
those gentlemen would not be misled, but would, in bringing in a
verdict for the defendants, estimate her attendance in court at its
true worth.
In addressing the jury, on behalf of the plaintiff, Mr. Smyth said
that he was astonished at the unwarrantable manner in which his
learned friend, Mr. Purves, had dragged Mrs. Kilpatrick’s name before
the jury. In the beginning of the case he (Mr. Smyth) had called Mrs.
Kilpatrick as a witness to testify as to her late husband’s age,
general habits, etc., and was then done with her. Since then his
learned friend, Mr. Purves, had served her, through Messrs. Gaunson
and Wallace, with a notice to appear on his behalf. Therefore, Mrs.
Kilpatrick had attended day by day in response to Mr. Purves’s
demand, and on that account only. She had no one to leave her infant
with, and consequently was compelled to bring the child to court.
Under these circumstances it was mean and contemptible for Mr. Purves
to put the construction he did on the presence of the plaintiff in
court. He (Mr. Smyth) would not make any remark concerning what his
learned friend, Mr. Purves, said about Ponting, as the latter was
perfectly able to defend himself. With regard to the statement made
that the owners of the _Alert_ had acted liberally in relieving the
sufferers, he (Mr. Smyth) failed to see where the liberality came
in. What were the facts? £1,200 were raised by public subscription,
toward which Messrs. Huddart, Parker contributed £100—exactly
one-twelfth of the whole—but they did not aid Ponting, the only
survivor from the wreck of their ship, to the extent of a single
farthing!
In continuation, Mr. Smyth said that the obligation was imposed on
the owners of ships not only to put them in a sea-worthy condition,
but to keep them so during every voyage. The certificates were
the permit to go to sea, but the owners to save themselves must
then take all reasonable precautions that the ship was sent to sea
in a sea-worthy condition, and through their agent, the captain,
that she was kept in a sea-worthy condition during the progress
of the voyage. The certificates were not conclusive evidence of
sea-worthiness, except as to the condition of the vessel at the time
of survey. He contended that the evidence proved that at the time
of the wreck there were such defects in the vessel as to make her
unsea-worthy. She was built for the Bay trade, and was never fit to
go outside.
[Illustration: Decoration]
[Illustration: Decoration]
KILPATRICK v. HUDDART, PARKER & CO., LTD.
EIGHTH DAY, THURSDAY, FEBRUARY 21, 1895.
_Continuation of Mr. Smyth’s address to the jury._
He would ask the jury to say that the pantry window was not
protected, and that it rendered the vessel unsea-worthy. He would
also ask them to say that the defendants had not used all reasonable
means to insure sea-worthiness, especially as the evidence of
Captain Webb, one of the directors of the company, showed that he
was thoroughly acquainted with the condition of that window. The
cargo of forty-four tons of wattle bark and furniture, which the
_Alert_ carried on the occasion when she foundered, was too high
and too light to make her stable. When her trial trip to Tasmania
was made, a fine day was selected, and she carried no cargo; but on
the return journey, when the weather was rough, she carried seventy
tons of oats, and that was very different to forty-four tons of
light loading. Ponting, the cook, said it was the lightest cargo he
ever saw in her, and that the light cargo was the subject of comment
amongst the crew. He would further ask the jury to say that this
light cargo, and the manner in which it was stowed, was another cause
of unsea-worthiness in a vessel that sat so low astern, had such
extreme dimensions, and that was intended for the Bay trade, and even
in the Bay was a wet ship. The gratings over the stoke-hole being
unprotected were a further cause of unsea-worthiness, and, as Ponting
stated, the water entered the ship through them. He (Mr. Smyth) was
perfectly satisfied to leave it to the jury that the plaintiff was
entitled to compensation for the pecuniary loss she had suffered
through losing her husband on this unsea-worthy ship.
* * * * *
MR. JUSTICE WILLIAMS summed up the case to the jury. He said his
charge might be made comparatively short, the evidence having been
placed before them with very great fulness by the witnesses and
learned counsel on both sides.
The plaintiff brought an action under an Act of Parliament, by which,
providing the action were brought within a certain time, she was
entitled to recover damages if the loss of her husband was caused by
the neglect of the defendants. Her ground of action, shortly put,
was that the death of her husband was caused by the negligence of
the defendants. She said in effect that it was part of the contract
of the defendants to take all reasonable means to provide that
their ship should start on all voyages in a reasonably sea-worthy
condition. Sea-worthy condition meant that the ship should be in a
fit state to encounter all the perils of a sea voyage. Of course,
if a vessel got into a cyclone, a typhoon, or some terrible storm
that overwhelmed her, the owners were not to be blamed for that.
Such an occurrence would be due to what Mr. Purves had called “the
act of God.” Speaking for himself he (His Honour) thought the
Almighty got the credit, or the discredit, for many of these things
of which it would be better to say that such occurrences were due
to the destructive agencies of nature for which the owners were not
responsible. He (His Honour) did not give the Almighty the credit
for slaughtering the human creatures He had created right and left
in this indiscriminate manner. The plaintiff, to support her cause
of action, had first to prove that the ship was not sea-worthy,
and then, to render the defendants liable, she would have to prove
that the vessel was not sea-worthy by reason of some precaution not
having been taken by the defendants which they should have taken.
The defendants pleaded that they did take all reasonable means of
making the vessel sea-worthy, and were not guilty of any neglect,
and that, even if this were not so, the cause of the foundering was
the improper navigation of the captain. If that were so, the owners
were not responsible, because the ship did not founder through
their fault, but through the fault of the captain. Owners were not
responsible for the rash act of a captain at sea. This was important
to bear in mind in this case, because the defendants endeavoured to
show that the ship would have come through the gale all right if
she had been properly handled by the captain. They said that if he
had made things all right fore and aft, and had put the covers over
the gratings, he would have come through right enough. If the jury
thought that the foundering of the vessel was contributed to by the
negligence of the defendants, then their duty was to find a verdict
for the plaintiff. They (the jury) had a difficult task to perform,
because they had to decide between experts. Doubtless the jury knew
something of the sea; probably they had all made long voyages, but
what was their knowledge as compared with that of those who were bred
up to the sea, whose nursery was the sea, and who could with a glance
of the eye tell more than the best amateur sailor who ever lived?
The plaintiff through her witnesses attacked the general structure
of the _Alert_, and said that the ship was unsafe to go on the high
seas. It was contended that the vessel was designed and intended for
the Bay service, that her engines were much more aft than they were
generally placed in ocean-going steamers, and this much was generally
admitted. It was said that this put the vessel down by the stern, and
raised her bows. Certainly, if the bows were in the air greater play
was given to the waves and the wind, and if the wind and weather were
on the port-side, there would be great difficulty in bringing the
ship up to the wind. The plaintiff brought a great body of evidence
in support of that view; but on the other hand the defendants brought
a great body of evidence to rebut it. Some very experienced witnesses
had been called on both sides. Captain Bicknell, a coasting pilot of
large experience, gave his evidence very well, and was most emphatic
in condemning the ship as totally unfitted to go to sea; a mere
“cockle boat” he called her. In addition to expert evidence called
to prove that the ship was sea-worthy, the defendants put in certain
certificates, some from Lloyd’s in England, and some from the Marine
Board here. These certificates in his (His Honour’s) opinion were not
conclusive of sea-worthiness—he would reserve that point—but they
were entitled to very great weight. The ship was built at Glasgow in
1877, and the greatest care seemed to have been taken in constructing
her. She was surveyed by Lloyd’s, and certified as fit to carry
perishable cargo to any part of the world. She came out here not
with steam, but under sail, rigged as a barque. She ran in the Bay
trade a long time. In the Bay, with a strong south-east wind blowing,
there were occasionally fair seas to be encountered; but these were
merely pigmy teapot seas as compared with those outside. Talk of
waves! One might as well compare a millpond to the Bay as compare the
Bay waves to those to be met with outside on the high seas. Whoever
heard of a ship being wrecked by heavy seas in Hobson’s Bay? Anyone
who had encountered “great guns” in rounding the Horn in a sailing
ship, or who had seen the seas off the Cape of Good Hope, would not
think of big seas being found in our Bay. Then there was the question
of cargo. This was one of the plaintiff’s strongest points. Some
witnesses said that it did not matter what cargo the ship had, she
would have gone to the bottom all the same. The certificates did
not touch this question. They were strong evidence that the vessel
was sea-worthy, so far as structure and build were concerned, but
did not touch the question of neglect on the part of the captain
to put the ship in a sea-worthy condition before she started on her
voyage. The plaintiff said that, having regard to the ship’s build
and her tendency to be unstable by reason of her build, she should
have been loaded and trimmed with the greatest care and caution,
but defendants’ witnesses said the cargo did not make the slightest
difference to her, so long as she was handled properly. A great deal
had been said about the bunker lids, but there was no evidence to
show that they got out of position, or that any water got through
the bunker holes. This was a weak part of plaintiff’s case. As to
the grating over the stoke-hole, the defendants averred that they
had provided canvas to cover it, and it would be a hard thing to
say that the defendants ever knew, or ought to have known, that the
grating, unless protected by iron or wood, was such a danger as to
render the ship unsea-worthy. The wooden awning had been condemned by
some of the experts as unusual on a small ocean-going steamer. In the
ordinary way, perhaps, such an awning would do no harm, but if the
wind came to blow on the beam, the awning became a kind of fulcrum
against which the wind pressed, and helped to heel the ship over. On
the other hand, two of the witnesses for the defence had said that
the effect of the awning would be contrary and would help to heave
her stern up. Then there was the pantry window on which there had
been such a tremendous onslaught. It was said that it was a source
of danger to the ship, and supposing they (the jury) came to the
conclusion that it rendered the vessel unsea-worthy, they would have
to ask themselves the question, “Did that danger contribute to the
foundering of the ship in this case?” They (the jury) must not only
find that it was a source of danger, but they must also find that the
defendants knew, or ought to have known, it was so, to the extent of
making the ship unsea-worthy.
He (His Honour) regretted very much that the witness Ponting had been
attacked by Mr. Purves. The unfortunate man was the sole survivor of
the wreck, and had spent the whole of that tempestuous night on the
sea, and had done nothing to deserve being spoken ill of. Ponting had
given his evidence in a proper manner, and appeared to be a decent
sort of man; certainly not the kind of being Mr. Purves sought to
make out. Mr. Purves had also said that Ponting had been saved by an
act of Providence, but he (His Honour) did not know why Providence
should have shown any more consideration for Ponting than for anyone
else on board the ship. The man was, providentially no doubt, saved
by his own perseverance and tenacity. If Ponting’s story was true,
undoubtedly the pantry window did give way and the water poured in.
If the jury found that the captain neglected his duty, they would
have to find a verdict for the defendants. On the other hand, if they
found a verdict for the plaintiff with damages, they would have to
say how much they would apportion to the widow and how much to the
child.
In reply to His Honour the foreman of the jury said they would prefer
to consider their verdict next day.
MR. MITCHELL directed His Honour’s attention to the fact that he had
said in his summing up that the certificates had nothing to do with
the loading, whereas, in giving the certificates, the surveyors did
so on the assumption that the vessel might go to sea without cargo.
If there was a condition as to cargo, it would be mentioned in the
certificate. Mr. Mitchell also contended that the defendants would
not be liable unless the captain loaded the vessel in a way that, in
his opinion, would make her unsea-worthy.
HIS HONOUR: These both seem to be good points, and I will bring them
before the jury to-morrow morning.
[Illustration: Decoration]
[Illustration: Decoration]
KILPATRICK V. HUDDART, PARKER & CO., LTD.
NINTH DAY, FRIDAY, FEBRUARY 22, 1895.
HIS HONOUR, addressing the jury, said: Gentlemen, I told you
yesterday, with respect to the charge that is made against the owners
of the vessel, that you should disregard the certificate given when
considering whether the vessel was loaded in such a way as to render
her unsea-worthy. I don’t think I was quite right in saying that. I
had forgotten that Mr. McLean, engineer surveyor to the Marine Board,
told us that the certificate was for an unloaded ship. You cannot
disregard that certificate altogether. Still you must bear this in
mind, that though a vessel may, in the opinion of the Marine Board,
be sea-worthy, the captain, or mate, may load her in such a way as
to make her unsea-worthy. There is some evidence that the cargo put
in her was built so high in the hold as to make her less stable than
if it had been better stowed. I also told you that if the captain
loaded the vessel in such a way as to render her unsea-worthy, the
owners would be responsible. That is a little too bald. The owners
are entitled to some protection in this respect, that is, unless the
captain knew, or ought to have known, that the cargo was loaded in
such a manner as to render her unsea-worthy. If he trims the ship in
a way which he knows, or ought to know, will render the voyage risky
and perilous, then the owners would be responsible. Gentlemen of the
jury, you are to give your verdict for plaintiff, or defendants, but
not your reasons. You may cause endless trouble if you do.
The foreman of the jury asked whether there was any evidence as to
the ballast tanks being filled.
HIS HONOUR replied that the only shred of evidence on that point was
that one of the tanks was stowed away in the forepeak.
The jury retired at a quarter past 10 A. M., and at a quarter past 6
P. M. returned into court with a verdict for the plaintiff for £600,
allotting £500 to Mrs. Kilpatrick and £100 to the child.
* * * * *
NOTE.—The compiler of this book takes the present opportunity of
publicly thanking Mr. J. Wallace (of Messrs. Gaunson and Wallace)
for his kind courtesy in lending a copy of the shorthand notes taken
at the trial. These notes—together with the compiler’s own personal
observation in court—have enabled a clear, full, and authentic
account of this most important shipping case to be now placed before
the public.
[Illustration: Decoration]
Battling with Waves and Lawyers.
I’ll no say men are villains a’;
The real hardened wicked,
Wha hae nae check but human law,
Are to a few restricted;
But, Oh! mankind are unco weak,
And little to be trusted;
If self the wavering balance shake,
It’s rarely right adjusted.—_Burns._
KILPATRICK V. HUDDART, PARKER AND CO. being the first trial of its
sort that ever took place in Victoria, much more than ordinary
interest was taken in the proceedings. Each day during its progress
the court was crowded by people, principally nautical, who apparently
gave the case their closest attention. Considering that the eminent
Counsel engaged on each side were called upon to use and listen
to technical phrases, which they could not possibly know much
about, they got on remarkably well, and talked glibly of “port and
starboard,” “weather and lee bulwarks,” “scupper holes,” “garboard
streaks,” etc. Personally, I spent a good many hours listening to
the different opinions given by the various witnesses as they passed
through the water of examination and the fire of cross-examination.
Being myself an “old salt” I was amused, if not enlightened, at the
familiar jargon, and it did not require a very great stretch of
imagination for me to fancy that I was for the nonce back once more
amongst the “toilers of the sea.”
At the same time I must confess that I was a good deal astonished
at many of the opinions given out from the witness box. These
opinions—while strictly upholding the truth of the old adage, “Many
men, many minds”—were no doubt well meant, and even if some of them
were a little ridiculous, I daresay the various witnesses spoke
“according to their lights.” If not considered audacity on my part,
I would like to draw attention to a number of these “notions.” For
instance, one witness on being asked how he would have blocked the
pantry window during the time the water was pouring through it,
replied that he would have got “a hammer and chisel and cut a few
holes in the iron bulks-head, through which, by means of bolts, he
would have fastened an iron plate, making all secure in half an
hour.” To have done a job like that when the ship was lying alongside
the wharf would have been, in my estimation, a very smart half hour’s
work, but to do it when the ship was wallowing in the sea, now
rolling to windward, and now on her beam ends, and the decks full of
raging water, was simply an utter impossibility. Admitting, which _I_
do not, that the plate could have been put on in half an hour, the
ship would have been down before the job was finished! _Ergo._ It is
much easier to do a perilous job in a witness box than have nerve
enough to do it on a sinking ship!
Another witness for the defendants said he would have fastened a
piece of canvas over the window; while a third, fourth, and fifth
stated they would have stopped the water from getting in by means
of “a cushion” “a pillow,” or “a bit of anything.” Just so; and
this is how these men of imaginary fertile resources throw slush on
the memory of Captain Mathieson—as able and tried a seaman as ever
walked a plank—as if he, and those with him, had not done all that
men could do under the circumstances. Again, two of the defendants’
witnesses—neither of them a sailor by the way—were of opinion that
“by the wind getting underneath the wooden awning when the ship was
lying over, it would have a lifting tendency, and, like a sail, would
buoy the vessel up.” For the benefit of landsmen, or of those whose
knowledge of nautical affairs is only superficial, I may here state
that if a main trysail had been set on the ship, it would have had
a lifting tendency, because the wind, after striking flatly against
the sail, must escape somewhere, and there being considerably more
room for escape at the upper part of the sail than at the lower, the
wind consequently goes upward, _i. e._ Above the gaff the wind has
boundless space to fly to; while beneath the boom the exit space is
confined to the small area between the boom and the ship’s deck.
Anyone who has ever been half way out on a ship’s gaff—as I have been
many a time—when a trysail was set could not fail to feel the wind
blowing him up from below, and pretty strongly too. On the other
hand, a ship lying over with a big wooden awning on her poop, the
wind, being abeam, would enter on the upper or weather side, and
must rush through to leeward or downward, thus having a powerfully
depressing effect upon the ship. Further, if the awning happened
to be choked to leeward by the sea, the depressing tendency would
thereby be rendered all the more acute, by reason of the wind not
being able to get out. Even a schoolboy, if he gave the subject the
slightest reflection, would be convinced that in this case, as in
every other, the wind must follow the dictates of nature, instead of
being guided by the theories of non-practical men. Another witness
for the defence—who also is not a sailor—averred that “the amount of
freeboard a ship has is no proof of her sea-worthiness.” This is true
in a sense, for different ships require to be loaded, or trimmed, in
different ways. I have been in ships that were at their best when
trimmed a few inches by the head, but I never saw, or heard of, a
long, small ship—except, of course, the _Alert_—that was considered
in good trim to go to sea with a freeboard aft of only a few inches,
and nearly the whole of her out of the water foreward! I don’t say
that it is impossible for a vessel in the last named condition to be
sea-worthy, but I do say that I would have to be out at sea with her
a few times in a breeze of wind before I believed it. While dealing
with weather, I may as well point out that Captain Barrett of the
ship _Hesperus_—although his vessel was not within a hundred miles of
where the _Alert_ was—said in his evidence that “it was so bad that
he did not think it just to take a pilot for his ship on account of
the danger to which he (the pilot) would be exposed in boarding on
the afternoon of the _Alert’s_ wreck.” Good, kind, considerate man!
he is just the sort of captain I should like to sail with. Then Pilot
Mitchell also stated that “the weather was so bad between three and
five on the afternoon of 28th December, 1893, that he did not think
he would have boarded any ship at that time.” However, just as there
are different ways of trimming ships, so there are different ways
of getting a pilot on board. As a case in point, I remember on one
voyage we were bound to Queenstown (Cork) for orders. While we were
still out of sight of land—it being at least a hundred miles off—a
pilot boat bore down on us one morning in answer to our signal.
A gale of wind was blowing, and a very heavy sea running at the
time, so much so that if the “hooker” (a name given to Queenstown
pilot boats) had come alongside of us she would have been instantly
swamped. To have attempted to lower a small boat, either from our
ship or the “hooker,” would have been utter madness, as no boat could
have lived in such a sea. After bringing the “hooker” near enough to
make a bargain, by word of mouth, as to the cost of taking us into
port, one of the pilots sung out for us to heave a deep sea leadline
on board of the “hooker.” Our best leadsman threw, after three or
four attempts, the line amongst the pilots, and then one of them made
the line fast around his waist and jumped overboard, his mates at the
same time calling out to us, “Haul away boys!” Whilst the process of
hauling in was going on, we would catch a glimpse of our pilot now
on the crest of a wave, floating “like a cork,” and then he would
disappear altogether in the trough of the sea. A few minutes sufficed
to drag him on board, and his first exclamation as he jumped upon our
deck was, “It’s hurdy weather, me boys.” Within a quarter of an hour
after coming on board, behold our pilot—with a stiff glass of grog
_in_ him and a dry suit of the skipper’s clothes _on_ him—walking
the poop and conning the ship as if he had been on board of her for
a month! We were safe in the “Cove of Cork” next day, and the entire
cost of the job was, as per agreement, £10.
The incident I have just related took place in the month of December,
so it will be easily understood that the pilot’s voluntary bath was
not a very warm one. Do our Victorian pilots go so far in search of
ships, and do they ever board them in the Cork fashion? I trow not.
The two systems of pilotage are very different. Here, pilotage is
compulsory; that is, the ship must pay for a pilot whether she takes
one or not. There, if you don’t take a pilot, you are not required
to pay for one. I may be wrong, but I often think that if the Cork
system were in vogue here, our pilots would go further to sea in
search of ships, and as a natural sequence there would be fewer
wrecks strewn along our coast. When I use the term “Cork system,” I
refer solely to the voluntary plan and the practice of going over
a wider radius in search of ships. The jumping overboard process I
don’t advocate, although emergencies may rise sometimes to make even
that necessary.
Turning back to the opinions given at the trial, I cannot help taking
notice of what Pilot Schutt said in answer to the question as to
whether the water getting into the saloon had taken the _Alert_ down
stern first? His reply was, “I say no. Supposing forty tons of water
were in the saloon, I don’t see that it would take her down, owing to
her watertight compartments.” If the saloon had been in the forepart
of the _Alert_, Mr. Schutt’s opinion would have been a correct one.
Forty tons of anything in the other end of the ship would have
made a wonderful difference, for the ship would have been more on
an even keel, and would have had a better hold of the water with
her forefoot. But forty tons placed in the stern of a small vessel,
already overladen aft, would certainly sink her even if there were no
other causes.
Another witness gave it as his opinion that “beam ends was almost an
impossibility. He could not imagine a ship in such a position.” This
is simply a landsman’s way of putting it because he gets it into his
head that a ship has to be over to an angle of 90 degrees before she
is beam ended. Seamen, however, think and say that a ship is on her
beam ends when she lies down on her side till her deck assumes an
angle of 45 or 50 degrees, and certainly that position is “beam ends”
enough to satisfy the most fastidious man on board. When a ship is in
the position I have described, it is much more easy to crawl about on
the _outside_ of the weather bulwarks, than to crawl about the ship’s
deck.
By way of giving a clearer idea of “beam ends,” I may here relate a
bit of my own experience. On one occasion I was in a splendid ship
called the _Mary Ellen_, bound from the Clyde to Demerara. By the
time we had been a week at sea, we were about 100 miles outside
of Cape Clear, on the Irish Coast, and then got caught in a very
heavy gale of head wind. For three days we lay hove to under the
close reefed main topsail—a position in which some ships will ride
comparatively dry, and skim the waves like a seagull—but for some
reason or other our ship made what in nautical parlance is termed
“very bad weather of it.” Strange as it may seem to landsmen, it is
nevertheless true that ships are like men; you have to be acquainted
with them for a considerable time, under all sorts of circumstances,
before you get to know their good qualities and their bad ones.
Experience alone can make you familiar with their little tricks, or
ways, and then you are in a position to deal with them accordingly.
The _Mary Ellen_ was a new ship, on her first voyage, and seeing
that she was behaving badly, the captain, after consultation with
his officers, determined to try if the ship would ride easier under
the lee clew of the main topsail, or “goose wing” as it is sometimes
called. When everything was ready to execute the movement, I ran
aloft to the maintop, in order to see and keep all the necessary gear
running clear. However, before the weather sheet was half hauled up,
the ship fell off until she was beam on to the sea and wind. The
skipper at once called out, “Get that sheet home again as soon as
you can, but meantime look out, men, and hold on for your lives.” On
glancing up to windward, I saw a tremendous sea coming down broad
on the ship’s beam, its angry looking crest seemed on a level with
where I stood in the main top. Along it came, and struck the ship
with such force that she heeled clean over, so much so that as I
looked down I saw nothing underneath me out of the water except the
ship’s weather topside from the bilge to the top-gallant rail. She
was literally buried under water, the weight of which caused her to
tremble so, that I felt the very mast I was on shiver like a leaf. My
first thought was that the ship would never rise, then, as I saw she
was making an effort to get up and free herself, it flashed across
my mind that if she ever came to the surface again, I would be the
only soul left on board! Slowly the good ship began to uprighten,
and as she did so I saw here and there beneath me, heads, legs and
arms of my shipmates darting out of the water like fish when they are
plentiful in a pond.
As soon as she rose we placed a tarpaulin in the mizzen rigging,
sheeted the topsail home again, and got the ship up to the wind once
more. If another such sea had come along before we got things put
right, it would have been a case with the ship and all of us. As it
was two men were swept overboard; the lee bulwarks were gone from the
poop to the cathead; boats, galley, and almost everything about the
decks had disappeared as if they never had been! Two days afterward
the gale eased off, and we ran back to Queenstown, discharged the
cargo, and docked the ship for repairs before starting again on our
voyage.
In order to show the enormous loss of life amongst seamen in
comparison with other trades, or callings, Mr. J. H. Wilson, a
member of the House of Commons, has compiled a table from statistics
contained in the “Report on the work of the Labour Department of the
Board of Trade” and issued on November 28, 1894.
Mr. Wilson’s table embraces a period of ten years, 1883-4 to 1893-4,
and is as follows:—
Industries Number Employed Ten years loss Annual Average
of Life Loss of Life
Factory and Workshop
Operatives 5,270,835 4,047 405
Railway Servants 381,626 4,717 472
Miners 718,747 10,333 1,033
Seamen 188,391 21,241 2,172
Further, Mr. Wilson estimates that one seventh of the lives lost
amongst seamen is due to causes which could not easily be prevented,
and that the remainder—18,206 for ten years, or 1862 annually—are
lost through preventable causes such as under-manning, incompetent
seamen, insufficient stability, want of proper shifting boards,
over insurance, reckless navigation, superficial surveying and
over loading. The foregoing list, be it remembered, is not ancient
history, but is made up to date, so to speak, and during a time when
the “Plimsol Shipping Act” was supposed to be in full swing!
It is a common saying that, owing to the great improvements made in
connection with modern shipping, the mortality amongst seamen is
considerably less now than it was in former years, but the stern
logic of facts shows that instead of this being the case, the loss
of life is increasing at a fearful rate. On looking back a bit I
find, from a perusal of the “British Wreck Register,” that during
the thirty years preceding Mr. Wilson’s table (namely 1853 to
1883) there were 21,651 seamen lost by shipwreck, or an average of
721 annually. In other words, the annual loss during the past ten
years—1883 to 1893—has been three times as great as the annual loss
during the previous thirty years. Surely this is a startling piece
of information, and one well calculated to make a person ask, Is
this state of matters due to modern improvements, or is it in spite
of them? Speaking as one who has had many years’ experience as a
seaman, I have no hesitation in saying that six out of every ten
disasters which overtake ships are caused by the foolish practice of
hurrying vessels out of port in an unfit condition. Many a time have
I seen, and been in, ships sent away from Melbourne and elsewhere
with hundreds of tons of cargo on deck. In some instances this cargo
was intended to remain on deck, and in others it had to be put below
after the ship got to sea. Indeed, in one notable case a royal
mail steamer actually took with her, from Melbourne, a number of
stevedores men, or lumpers, for the express purpose of stowing the
cargo whilst the vessel was on her way to Adelaide. Every now and
then the community is startled with the account of some appalling
shipping disaster, and, as a rule, the credit of such is given to
the Creator by announcing them as “acts of Providence.” In sober
truth they are mostly “acts of improvidence,” the blame resting
solely with foolish, short-sighted man. A large steamer will come
into port to-day, discharge and load cargo all night, and sail next
morning on a fresh voyage. “Despatch in port” this is called, but too
often it means “danger at sea,” and the sooner ships are compelled
to be worked reasonably in port, and out of it, the better it will
be for all concerned. While dealing with the “despatch in port”
business, I may as well mention another reprehensible practice in
connection with it. All, or nearly all, of the steamers trading on
the Australian coast are so timed that they sail from the various
ports on Fridays and Saturdays, consequently the ships are ploughing
the seas on Sundays and earning money for the various shipowners,
while they (the owners) good, Christian men no doubt, are quietly
sitting, or kneeling, in their pews at church! This system entirely
deprives Jack of his day of rest, for it is well-known “there is no
Sunday in seven fathoms water.” I admit it would seem hard to make
a law preventing coasting steamers from sailing unless there was
reasonable prospect of reaching their destination before Sunday, but
it surely is quite as hard on seamen to carry out the practice which
prevails at present. I can call it nothing but one of the worst forms
of “sweating,” for it “sweats” the ship, the machinery, and the men,
and though it seems a money-making plan it tells its own tale, on all
three, in the end.
Here in Melbourne we are accustomed to receive homilies from pulpit
and press concerning the wickedness of causing railway, tram, and
other employès to work on Sunday, but whoever heard of anyone
speaking, or writing, on behalf of the seamen engaged in the coasting
steamers? As Burns said, “Evil is wrought by want of thought as
well as want of heart,” and shore folk, if they think about the
subject at all, imagine, when they stroll down among the wharves on
Sunday, that because they see no work going on, therefore no Sunday
labour is being done! I don’t, for even a moment, say that Melbourne
shipowners are any worse than those of any other port, for I have
reason to know that almost everywhere Sunday work is winked at. I
got what I may term an “eye-opener” when a boy on my first voyage to
sea. During the Crimean war, the ship I was in took coals out from
Scotland to Constantinople for the Turkish Government. We discharged
cargo at the government dockyard, in the Bosphorus, by means of gangs
of convicts—who, by the way, were chained in pairs, each two being
connected by a ten foot chain which was shackled round one’s right
ankle, and the other’s left—working every day, except Friday, which
is the Turkish sabbath. On that day our own ship’s crew carried on
the discharging, and consequently our cargo was being put out _every
day_ in the week without cessation. This system, doubtless, suited
our owner’s pocket, and yet allowed those belonging to each religion,
Christian and Mahometan, to have their Sunday off!
MR. PURVES, the learned Q. C., in his address on behalf of the
defendants, stated that “Ponting was not the only man who saw the
_Alert_ founder. There was another eye-witness whom he (Mr. Purves)
would produce to tell the court that he saw the ship overwhelmed with
three tremendous seas.” It is almost needless to say that Mr. Purves
did _not_ produce this other “eye-witness.” If there was, or is,
really another man besides Ponting who saw the _Alert_ go down, why
in the name of humanity did he not report the occurrence at the time?
Had he done so a number of valuable lives might have been saved,
or at least steps might have been taken in the direction of making
efforts to save them. The very first intimation, or knowledge, of the
wreck of the _Alert_ was received from the lips of Ponting, the sole
survivor, as he lay on Sorrento Beach, the day _after_ the ship had
gone down, and if any human being on the shore witnessed the accident
without drawing public attention to it at the time, I think he, or
she, richly deserves to be indicted for manslaughter! True it is that
Pilot Mitchell, in his evidence, stated that he “remembered the day
the _Alert_ foundered, December 28, 1893, and that the occurrence
was reported to him on that date;” but nevertheless I would rather
believe that the shorthand writer made a mistake—or the witness
himself made a slip of the tongue—than that he (Pilot Mitchell)
really meant what he is credited with saying.
A good deal of stress was laid by Mr. Purves on the fact that the
_Alert_ was insured, this in itself being, as he said, “a proof of
sea-worthiness.” I, however,—who ought to know at least quite as much
about ships as Mr. Purves—contend that the fact of a vessel being
insured is no more proof of sea-worthiness than the fact of one being
uninsured would be proof of her unsea-worthiness. Indeed, many of
the finest ships afloat are not insured at all, while some of the
worst “coffin” ships that ever left a port are insured “up to the
mast-head,” so to speak! This position of affairs need not cause the
slightest wonder, for insuring a ship is not like insuring a man.
The latter must die, and it is only a question of time when the
insurance company must pay over the money. On the other hand, there
is no “must” concerning the fate of a ship. The chances are great
that she will be lost, but they are quite as great that she will
_never_ be lost. Thousands of ships on which insurance premiums have
been paid for years live to be old hulks, and finally get broken up
without any responsibility on the part of insurance companies, and
thousands of ships go to the bottom, some of them sent there by force
of circumstances, and others by man’s cupidity, or stupidity!
MR. PURVES had firmer ground to stand on when he stated that “the Act
said nothing about the shape of a ship.” This is true, but I think
the day is not far distant when those in authority will pass an act
interfering with both the shape and the rig of ships. The terribly
increasing loss of life and property at sea is forcing both of these
important points into prominence. No further back than February 19,
1895, Mr. Tankerville Chamberlayne, M.P.,—from his place in the House
of Commons—asked the President of the Board of Trade “to consider
the advisability of recommending, or compelling, shipbuilders to
construct steamers with overhanging or raking stems as formerly,
inasmuch as in the event of a collision the damage sustained from a
vessel so constructed is almost always confined to those parts above
the water-line, whereas, with the present ram shaped bows, a ship run
into is almost certain to sink.”
While on the subject of collisions I may as well mention that I
was lately present at a practical exhibition of an invention which
if adopted by shipowners would, I am convinced, reduce the loss of
life and property, through collision or leakage, to a minimum. The
apparatus is the simplest and most effective I have ever seen. It
consists of a double sheet of canvas—the length and width of which
to be regulated by the size of the ship carrying it—interlined with
strong wooden battens. In the event of a collision, this “apron”
(as it is called) has only to be carried by one or two men, from
its place on deck, the upper end made fast to the bulwark above the
fracture, and the rest pitched overboard. This done in less than
ten seconds the apron will unroll right down,—as far as the keel if
necessary—completely cover the hole, make it watertight, and allow
permanent repairs to be made from within while the ship proceeds on
her voyage to a port! The rapidity and certainty with which the apron
flies to the aperture is like magic, and must be seen to be believed
by those who do not understand that it simply follows a natural law
in being drawn by the suction of the inrushing water. The inventor
and patentee, Mr. James Holmes, the Auckland shipbuilder, is now
resident in Melbourne, where (as also in Sydney and New Zealand) he
has given a number of practical tests in the presence, and with the
entire approval, of the highest engineering and nautical authorities.
The apron is inexpensive, and should be added by all our Marine
Boards to the life saving apparatus which all ships are compelled to
carry.
Another source of danger which tends to make ships unsea-worthy is
the system of building vessels now-a-days with “well decks.” The
proper name for these in my estimation is “ill decks.” “Well decks”
are not only weak points in a ship from a structural point of view,
but in addition are positively dangerous, inasmuch as they are
open to take in, and retain, water. As nobody likes these decks,
neither designer, builder, commander, or seaman, it may be asked why
ships are built with them? The explanation is simply this: Every
ship on entering or clearing out of a port has to pay pilotage,
towage, harbour, wharf, and other dues. These dues are, as a rule,
calculated on the registered tonnage of the vessel at so much per
ton,—in some cases even the number of hands on board is dependent
on the tonnage—and where a “well deck” occurs in a ship, being open
space, it is not calculated as carrying space in reckoning the ship’s
tonnage. Hence two ships might really be of the same size, but if one
of them had a “well deck”—or two or three as some ships have—her
registered tonnage would be considerably less than the other vessel
whose upper deck was flush fore and aft. At first sight this might
seem a very slight difference, not worth mentioning, but when it
comes to be remembered that every time a ship goes into a port the
allowance, or shortage, for her “well decks” is saved by the owner,
and as ships are in and out of port a good many times in the course
of their career, the saving soon runs up to a considerable sum of
money.
Some of the witnesses examined at the trial stated that there was
“no hard and fast rule with regard to the length, breadth, and
depth of ships.” While agreeing as to the truth of this statement,
I may add that, in my opinion, it is a great pity there is _not_
such a rule to go by so that shipowners could not get a sea-going
ship built just whatever shape they pleased. Difference of opinion
there may be—and perhaps must be—concerning the exact proportions
of a sea-worthy ship; but there can be no difference of opinion
regarding certain natural laws; for instance, a pyramid won’t stand
upon its apex, and hence ships built on what I may call the “rule of
thumb” principle are more apt to be wrong than right. Independently
of loading and rig, the longer a ship is, the less her ability to
keep out of the trough of the sea; her depth is the measure of her
strength to resist a vertical strain, and her breadth of beam is the
measure of her strength to stand a side blow. When iron steamers were
first built they were constructed about five times as long as they
were broad, and about seven times as long as their depth. These were
considered safe proportions, but a genius arose who discovered—after
studying the twelfth proposition of Euclid’s first book no doubt—that
without any other alteration than adding two and a-half breadths to
a steamship’s length, she could carry just double the quantity of
cargo, while the working expense of the ship was not much increased.
This, therefore, is the real reason why steamships are frequently
built with their length ten times their width and sixteen times their
depth. A few are even worse than this, their depth being only an
eighteenth part of their length! The latter are not worthy of being
called _ships_, they are mere _logs_ from a sea-going point of view!
This much may, however, be said, that, in spite of the bad shape of a
ship, a great deal, by means of loading and rig, can be done to help
a “lame” vessel to behave herself. At the same time the reverse is
also true that the best shaped ship ever built can be “crippled” by
loading and rig. Any seaman reading this will thoroughly understand
what I mean; but as this book is written for both “sea and shore”
readers, perhaps, for the benefit of the latter class, I had better
explain the apparent paradox, thus: Take a ship, the best and most
sea-worthy ever built, load her with a dead cargo, say pig-iron, as
much as she can safely carry, stow it fore and aft in the hold as low
down as possible, that is, on the ship’s floor or “skin.” Send her to
sea, and when she gets into heavy weather she will be so “stiff” that
she will strain herself, and shake the masts out of her. On the other
hand take a similar ship, put the iron cargo in the tween-decks, that
is, the upper hold, and she will be so tender, or “crank,” that in
a moderately heavy sea she will roll over and founder. The reasons
are simply these: In the instance of the first ship the centre of
gravity of the cargo would be too far below the centre of the ship’s
displacement, and hence when a wave struck the vessel’s side she
would, after heeling over, recover her perpendicular so suddenly
that a severe jerk would be the result. The other ship, having the
centre of gravity of the cargo too high, would roll too easily and
would be so slow in starting to recover herself that her decks would
be flooded from the lee side, and if there were places where the
water could go below, no human aid or skill could keep her afloat,
unless she could at once be brought up head to wind and sea. The
latter movement would, of course, be an impossibility in the case
of a sailing ship—or a steamer with weakened power—so rigged that
she could not set after canvas. Anything beyond smooth water and a
light breeze will put a “lame” ship in peril at sea, and little or
nothing can be done by the people on board to help her; but a good,
sea-worthy ship, even in very bad weather, may give time for skill
and courage to do much. As an instance in point I have much pleasure
in relating the following incident:—
In 1890 the ship _Enterkin_, commanded by Captain James Logan, who,
by the way, was a schoolboy with me, and in after years we were
both together “before the mast,” was on her passage from England
to Melbourne with 2,500 tons of steel rails for the Victorian
Government. The ship had got nearly as far along as Cape Leuwin when
she experienced a heavy gale which, through bad stowage in port,
shifted the cargo and threw the vessel on her beam ends. After some
trouble the _Enterkin_ was put round on the other tack, but this
did no good for the cargo shifted again, and the ship lay down just
as bad on her other side. She was then put away before the wind,
and whilst running along in her crippled state Captain Logan, with
great presence of mind, caused all the wooden upper spars to be
sent down from aloft. These spars, top-gallant and royal masts with
their respective yards, were, together with all the spare ones on
deck, sawn into short chunks. Watching chances between the rolls
these chunks were thrown down the hatchways amongst the rails, and
thus the cargo was wedged up enough to enable the ship to run back
to Mauritius, where the rails were re-stowed and the _Enterkin_
made all “atanto” again. Afterwards she brought her cargo safely to
Melbourne, and loaded up for England. When she reached there the
insurance agents were so well pleased at the captain’s conduct that
they forwarded a cheque for £300 as a slight token of appreciation.
This sum, I may add, Captain Logan divided amongst all hands, from
the smallest boy upward, as he considered all were entitled to share
as well as himself.
Since writing the former portion, or first edition, of this book,
fresh proof has been supplied of the danger incurred by allowing
steamships to go to sea, without being sufficiently provided with
spars and sails. In February last two of our own coasters, the
_Gabo_ and the _Bothwell Castle_, broke down at sea, and for days
were drifting about unable to make a port. Fortunately it was fine
weather, and they both succeeded in getting assistance to tow them
in. The steamer _Gascogne_, which left Havre for New York on January
26 last, had a much more trying time of it. On the third day after
leaving port her machinery broke down. It was patched and she went
on her way for two days more when a second and more serious break
took place. This was also patched up, but in less than twelve hours
a third stoppage took place. The engineers worked night and day for
ninety-six hours, meanwhile the great ship was wallowing in the heavy
sea, and drifting hundreds of miles out of her course. The passengers
were battened down below, and all hope was abandoned, as the
_Gascogne_ had got far from the track of ships. Finally the engines
were started again, and the vessel steamed slowly on, arriving at New
York after a fearful passage, which took seventeen days from port
to port. The _Daily Chronicle_, an English newspaper, in commenting
on the case, stated: “In steamship circles here the speculations
concerning the whereabouts of the _Gascogne_ during the period of
anxiety are looked upon as the beginning of a new departure. This
feeling applies especially to a scheme for the immediate organisation
of ocean-search parties, and the reserve of Government, or other
ships at hand to perform this duty. The ports of the world will thus
be able to mobilise a flying squadron in the interests of humanity.”
This is what I call a mad scheme, very much like sending the blind
to look for the blind. The better plan is to either compel steamers
to be fitted with twin screws or carry enough sail to give them at
least steerage way. Prevention is better than cure in this as in
every other matter. The annual marine commerce of the British empire
is estimated by competent authorities to amount to £970,000,000. Of
this one-seventh (or £138,571,428) belongs to the self-governing
colonies. Surely the interests involved in these immense sums demand
that all possible means should be used to avoid casualties of every
description.
The following remarks I quote from the “British Nautical Magazine,” a
journal which certainly cannot be accused of pandering to the views
of seamen: “In considering the safety of ships, we should not look
to their efficiency in fine, or even moderately rough weather, but
they should have a fair margin to meet any contingency. Indeed, the
whole subject is one which has a right to be judged alone by a very
high standard, as its issues are not ordinary commercial ones, but
_human lives_. The question of the freeboard of ships is at once
one of the most important, and one of the most complex subjects
connected with naval architecture. It is only just to those who have
to encounter the dangers of the sea that the vessel in which they
sail shall not be loaded beyond the limit of safety, and, on the
other hand, the gain of the owner upon his investment may depend
upon that limit being reached. There have been, so far, only three
principal proposals for fixing the load-line. _First_, a certain
proportion of the depth of hold, three inches to the foot being about
the average, _i. e._, the ship should have a freeboard at least about
one-fourth of her depth of hold. _Second_, one-eighth of the beam is
the minimum freeboard for ships whose length is not more than five
times their breadth, and 1/32 of the beam should further be added to
the freeboard for each additional breadth—beyond the five times—in
the length of the ship, _Third_, the actual buoyancy of every ship
should be calculated, and a percentage of the whole (say 30 per
cent.) kept above the load-line, as reserve, or surplus buoyancy. In
calculating the buoyancy of a ship, the measurements should be from
the underneath side of the cargo deck—add to this the capacity of
watertight erections above the deck—and thus the whole cubic content
is ascertained. Allowing thirty-five cubic feet to the ton (since
a ton of sea-water occupies about thirty-five cubic feet of space)
the total capacity of the ship is arrived at, and 30 per cent. of
the whole amount should be kept above water as spare buoyancy in an
ordinary ship loaded with a general cargo. Were a cargo of less
specific gravity than water carried, little or no spare buoyancy
would be required, but a _maximum_ would be needed in the case of a
heavy cargo where there is necessarily much empty space capable of
being rapidly filled by water in the event of a leak. Freeboard has a
good deal to do with the stability of a ship, and there is, probably,
no department of science of which so many false notions are current,
and none in which the terms employed have been so often misunderstood
and misapplied. The terms _stability_ and _steadiness_ are popularly
looked upon as synonymous, although they really have, in connection
with this subject, widely different meanings, so diverse, indeed,
that the presence of one in excess implies a want of the other. The
word _metacentre_, too, has proved a stumbling-block to many people,
and it is a very common error to suppose that it is the point about
which the ship rolls. So far from this being the case, that a ship
really does not roll about any fixed axis whatever, it is only in
scientific language that she can be said to roll about an axis at
all, the axis being an instantaneous one, that is, one which is
constantly changing. In the case of ships whose cargoes are badly
stowed, so that as the ship rolls the cargo shifts, stability, or
righting force, is largely diminished, and there is thus little or
no tendency to return to the upright, the ship rolling, as it were,
lifelessly about at the mercy of the waves. Water-logged ships
afford another illustration of the same state of things, but in
these cases the evil is aggravated, as the water moves so freely
that a _momentum_ is acquired which holds the ship back even when
the waves have a tendency to restore her to the upright. We are not
in a position to estimate the proportion of losses at sea which are
caused by bad stowage; it is, without doubt, considerable, and when
we remember how comparatively small a difference in the disposition
of the cargo will affect the behaviour of the ship at sea, we are
inclined to think that as many losses may be put down to this cause
as to overloading. We must not be understood now to refer to loose,
imperfect stowage, though that is the cause of great evil, but to
improper disposition of the weight. This can only be remedied by the
more general diffusion and appreciation of scientific knowledge;
ignorance and carelessness, not greed, are the chief causes of
mischief in these cases. So far as the question of stability is
concerned, steamers require less freeboard than sailing ships;
strong ships less than weak ones, and it is even possible to have a
prescribed freeboard, according to rule, and yet such conditions of
stowage that the ship would be safer if immersed deeper.”
One of the witnesses for the defence stated that the _Alert’s_
displacement, with everything on board except cargo, was 312 tons,
and that her surplus buoyancy was 400 tons. Assuming this statement
as correct, then by adding 44 tons—the weight of the cargo said
to have been on board during the fatal voyage—I find the total
displacement to have been 356 tons. This leaves the surplus buoyancy
to be exactly 100 per cent. or half of the whole. If this were really
the case, and in addition the ship trimmed heavily by the stern, need
there be any wonder why, when the ship rolled her lee bulwarks under
water, she was unable to rise to an upright position?
APPLICATION FOR A NEW TRIAL.
“The law is a sort of _hocus-pocus_ science that smiles in yer face
while it picks yer pocket, and the glorious uncertainty of it is of
mair use to the professors than the justice of it.”
—_Macklin._
“Law was made for property alone.”
—_Macaulay._
The hearing of Messrs. Huddart, Parker and Co.’s appeal commenced
on Wednesday, May 8, 1895, in the Supreme Court, Melbourne, before
the full court consisting of Chief Justice Madden, Mr. Justice
Hodges, and Mr. Justice Hood. The Attorney-General (Mr. Isaacs), Mr.
Purves, and Mr. Coldham (instructed by Messrs. Malleson, England, and
Stewart) appeared for the defendants in support of the application,
and Mr. C. A. Smyth, Mr. Box, and Mr. Williams, for the plaintiff to
oppose it.
MR. ISAACS, at great length, read over portions of the evidence given
before Mr. Justice Williams during the previous trial, and concluded
by strongly urging that a new trial should be granted on the grounds,
first of misdirection by the judge; and second, of the jury’s verdict
being given against the weight of evidence.
MR. SMYTH, Mr. Box, and Mr. Williams, also at great length, read over
portions of the evidence, and contended that the judge’s direction
to the jury was a fair one, and the jury’s verdict a just one which
should not be disturbed.
During the course of arguing the various items, the Chief Justice
pointed out that “the effect of a second mast on the _Alert_ would
have been to weigh the stern of the vessel down still more than it
was down.”
MR. SMYTH: It would have assisted in getting the vessel up to the
wind.
CHIEF JUSTICE MADDEN: I cannot see how much better off the vessel
would be had there been another mast, except that with a sail on it,
perhaps the steamer might have been steadied.
MR. JUSTICE HOOD: No doubt had there been another mast, persons would
have come forward and said that was the cause of the disaster.
CHIEF JUSTICE MADDEN: When persons are in misfortune, generous people
come forward and find ingenious reasons. The first thing a captain
would do, if there were a second mast with a sail up, would probably
be to strip it off like a shot.
MR. SMYTH: Many of the numerous experts were of opinion that a sail
aft would have been not only useful, but actually necessary.
CHIEF JUSTICE MADDEN: These witnesses wished, in a generous impulse,
to make the best argument they could. The generous impulses which
were usually exhibited were attachable in an enlarged degree to
sailors. I think the man would be a wicked one who, knowing the
unsea-worthy condition of a vessel, did not report it to the proper
authorities.
MR. JUSTICE HOOD: What do you say that the owners ought to have done
that they did not do?
MR. SMYTH: The Act says the owner is to take all reasonable means to
ensure the sea-worthiness of the vessel.
MR. JUSTICE HODGES: What would be reasonable means?
MR. SMYTH: One reasonable thing would be to see that there was
protection for the pantry window.
MR. JUSTICE HOOD: Take some other steamer, the _Despatch_ for
instance. What should the owners do to find out whether she was
sea-worthy?
MR. SMYTH: I cannot say exactly. They run the risk.
MR. JUSTICE HODGES: They run the risk of being considered
unreasonable whatever they do.
MR. SMYTH: In addition to the question of the _Alert’s_
sea-worthiness there was the condition of the cargo.
MR. JUSTICE HOOD: But the certificate is that she is fit to go to sea
without any cargo.
MR. SMYTH: Nevertheless judgment should be exercised in loading the
ship so that she would occupy a proper position in the water.
MR. JUSTICE HOOD: If your contention is correct, the certificate
should state that the vessel was sea-worthy so long as she was loaded
in a particular way. Was there any witness who said that, assuming
the vessel was sea-worthy, the loading rendered her unfit for sea?
MR. SMYTH: All the plaintiff’s witnesses deposed that the vessel was
not fit to go outside the Heads.
CHIEF JUSTICE MADDEN: Is there evidence that 44 tons of cargo could
not have been stowed without making the steamer unstable?
MR. SMYTH: We have the fact that 44 tons of light cargo were stowed
on board.
MR. JUSTICE HODGES: Wattle bark loaded up to below the water-line
would not make the vessel unstable.
MR. SMYTH: There is no evidence that it was below the water-line.
MR. JUSTICE HODGES: Nor any that it was above.
MR. SMYTH: The nature of the cargo was such that it would take space
high up in the vessel, and thus render her unstable.
MR. BOX submitted that the owners were liable if the steamer was so
loaded as to make her more top heavy than she ordinarily was. It was
a case of taking a bay-trade vessel for coastal service, and the
first gale she met with she went to the bottom. The only cargo on the
ship was furniture and bark, which was piled right up to the deck.
It was to be remembered that a very small thing would alter the trim
of a ship. Another thing to be considered was that the action of the
screw tended to lower the vessel aft.
THE CHIEF JUSTICE said that the evidence as to the manner in which
the cargo was stowed left the matter very much in doubt. The lighter
the cargo was the more naturally the vessel would sit. Was it fair to
assume, in the absence of evidence, that the cargo was necessarily
stowed in the worst possible way, the presumption ordinarily drawn
being that men acted in the best possible way?
MR. JUSTICE HOOD: Why should it be assumed that the chief officer did
the work all wrong?
MR. BOX referred to the evidence of Ponting as to a conversation with
Mr. Hodges when he said the ship was too light.
MR. JUSTICE HOOD: That does not mean that the cargo was improperly
stowed, but that there was not enough of it. Did he stow it in such a
way that he could go to the bottom if he had a chance?
MR. BOX said that if the cargo and window had no effect on the
vessel, then why did she not right herself? The steamer never righted
herself after she shipped the first sea.
MR. JUSTICE HODGES: The owner has to use all reasonable means to
ensure the sea-worthiness of the vessel; that involves doing two
things, viz., finding out what ought to be done, and, secondly, doing
it.
MR. JUSTICE HOOD: What do you say the owner ought to have done?
MR. BOX: See that the window catches were safe. If there is a
manifestly dangerous opening, and the catches are merely little
screws, then the owner has not taken all reasonable means. The owner
takes the responsibility of a jury finding that he has not taken all
reasonable means of ensuring the safety of the vessel. The issue is
one which the jury has a right to determine. Suppose there were no
question of a certificate, and it were a fight between the two of us,
I would submit that we would be entitled to hold the verdict.
THE CHIEF JUSTICE remarked that in the case of a concealed defect
known only to the owner, or a palpable defect, the certificate
would amount to nothing, but in the case of a defect which was not
observed, but which proved fatal, the owner should not be held liable.
THE CHIEF JUSTICE: One of the witnesses makes a very important
observation, viz., that when once on her beam ends it was all over
with the steamer, and if that were so it was not the pantry window
did it.
MR. BOX: All that points to the vessel not being fit for outside
service.
THE ATTORNEY-GENERAL reminded Mr. Box that the vessel had been to
Tasmania.
MR. BOX observed that this was a trial trip, and she took a man who
volunteered to go. Once the _Alert_ nearly got swamped in the Bay.
The pantry window should have been passed by a shipwright surveyor,
which Captain Deary was not.
THE ATTORNEY-GENERAL said that Captain Deary was described as a
shipwright surveyor, but he was not qualified as such.
THE CHIEF JUSTICE: Is not that a ground for attacking the Government
which put him there?
THE CHIEF JUSTICE gave the results of a calculation he had made,
which showed that the cargo was below the water line.
MR. BOX: What is your Honour’s authority?
THE CHIEF JUSTICE: The authority which I started with is the twelfth
proposition of Euclid’s first book. (Laughter.)
MR. WILLIAMS submitted that the reasonable means to be taken to
ensure the sea-worthiness of the vessel did not depend on the opinion
of the owner or master, but on those of the jury.