The Chief Justice, in delivering judgmen_Battling with waves and lawyers

action brought by the personal representative of Mr. Kilpatrick to

recover damages for the loss sustained by his being drowned by the

foundering of a steamer, which the defendants called the _Alert_, in

which the deceased was an engineer. The action was based on section

103 of the Marine Act. The vessel was built in 1877, and certified

to be fit to carry goods to any part of the world. In 1891 she was

fitted up here for sea traffic, and she received from the Marine

Board of Victoria a certificate of her fitness for sea. She made

several voyages to the Gippsland Lakes and Tasmania. In November,

1893, she was again repaired, and her certificate was renewed. On

December 28, 1893, she left Bairnsdale with some bark and furniture.

She fell in with a gale, and when the captain tried to put her head

to the wind she fell off. It was said, as seemed probable, that

being trimmed very low aft and very high forward, the wind caught

her head and blew her off. Finally she fell over on her beam and

foundered within a very short time. All her crew, unhappily, were

drowned, except Mr. Ponting, her cook, who, after desperate and

heroic efforts, escaped with life. Ponting, who was called for the

plaintiff, said that a huge wave struck the vessel on the windward

or port side, and she heeled over to her beam end, and did not rise

again. Three waves dashed over while she lay so. The water entered

in part through the starboard door of the saloon, and through a

window which was in the saloon bulk-head used for the purpose of

passing food from the galley to the pantry, which window was open.

The door was then closed by the chief officer, and the window by

the steward. From these and other facts the plaintiff said that

the _Alert_ was inherently unsea-worthy from defective design and

construction, and was, at all events, rendered unsea-worthy by bad

and imprudent arrangement of her cargo, and, therefore, that the

defendants did not “take all reasonable means to send her to sea

in a sea-worthy condition,” and so that they were liable for the

loss of Mr. Kilpatrick’s life within the meaning of the Marine Act.

That Act established a court of marine survey to inquire into the

propriety and fitness of granting a certificate that any vessel was

sea-worthy. This court might be warned or advised by anyone of any

defect in the vessel sought to be certificated, and was constituted

of persons specially qualified to deal with such questions. The

plaintiff practically contended that the section was intended to

ignore the certificate, which was in fact a formality which every

vessel must possess if she was to go to sea, and disregarding

the certificate as any evidence of the satisfaction of the law’s

requirements, so as to relieve the owner of liability for injuries

caused by the vessel’s unsea-worthiness. He did not concur in this

view. The statute, in his opinion, aimed at assuring safety to the

sea-going public, and that by the examination of qualified experts

acting honestly, and by the application of sufficient tests the

vessel should be certified a reasonably safe, sound and sea-worthy

one. And then the section imposed on the owner the obligation that

neither he nor his agents should lessen the sea-worthiness by

improper loading or other interference with her safety or stability

as certified. The plaintiff admitted that the section did not compel

the owner to warrant the sea-worthiness of the vessel. If not, then

the certificate, which in his Honour’s opinion was certainly not

conclusive of sea-worthiness of the vessel to satisfy section 103,

must nevertheless be an exceedingly important element in satisfying

it, because it embodied the deliberate opinion of skilled men

responsibly chosen. There are always men, pretty numerous too, who,

not being in office themselves, were ever prepared to sneer at,

and belittle those who were, but it could not be assumed that those

in whose hands the lives of the public were placed were chosen

without the requisite knowledge, caution and discretion. If this

be assumed, then it must be assumed that the section contemplated

all ship owners, and these must include persons who know nothing

about ships, as to their construction or sea-going necessities. If

such a person’s ship was certified by a board of experts appointed

by the state to be sea-worthy, unless he were compelled to warrant

her sea-worthiness, what more could he be expected to do? In his

opinion the board’s certificate was intended to be conclusive when

granted, unless there were some fraudulent concealment of defect. The

plaintiff’s contention in concrete shape was that the fastenings of

the pantry window were not sufficient, and that it was by means of

this window that the saloon was flooded. This involved the question

whether this window was so obviously unsafe that if it escaped the

notice of the board, the owner or master should have seen and mended

it. Again, it was argued that the gratings on the top of the engine

house were an obvious source of danger, because it was not supplied

with means to cover it securely, but all the evidence showed that

this contrivance, which was seven feet above the deck, took in no

water till the vessel were on her beam ends. The answer to all

this seemed to be that a vessel that got on her beam ends was like

a vessel that got on shore. It was a condition by no means to be

ordinarily expected, and so to be reasonably provided against in

anticipation. She might get up in one case as she might get off in

the other, but the chances were ordinarily very strongly against her,

and any of her equipment might prove insufficient under a stress,

which it was never to be reasonably expected she would encounter. How

she came to be on her beam ends no evidence had explained, except Mr.

Ponting’s statement that a great wave struck her on the port side,

and threw her right on her beam ends. Hence it was to be assumed

that if Mr. Ponting (who from the earliest moment of the disaster

was acting rationally, struggling for his life) observed accurately

all that occurred, the steamer getting on her beam ends was to be

accounted for by her having been knocked down as by the mere blow of

a wave. The plaintiff argued that this itself was evidence that a

vessel with so little stability or flotative power as to be capable

of being so knocked down was not sea-worthy. The interpretation,

however, which his Honour put on the statue assumed that a vessel

might be in fact unsea-worthy, but if certified by the board to be

sea-worthy no liability would, in the absence of the exceptions

already stated, attach to the owner. The contention would then be

that those who were presumably best qualified to know had determined

that the _Alert_ was sea-worthy, but through no fault of the owner

they were mistaken. It was then contended for the plaintiff that

whatever the _Alert’s_ condition might have been, within the meaning

of the certificate as to construction or equipment, she was loaded

so improperly as to destroy any stability she might have possessed,

and so imprudently as not to mitigate as far as might have been her

constructive difficulty of getting up to the wind which helped to

set her on her beam ends. The first of these contentions would, in

his Honour’s opinion, if proved, destroy any protection which the

board’s certificate gave the owner, because that certificate meant

sea-worthiness as long as she was properly loaded. If cargo was put

in the _Alert_ in such a fashion that it made her top-heavy, or that

it shifted from negligent stowage, that would account for all that

happened in fact, and in law it would show that a sea-worthy boat

under the certificate was made unsea-worthy by the owner’s agents.

The evidence on this point, however, was absolutely inconclusive.

It amounted to no more than that an unusually light cargo of bark

and furniture went into the ship through her main hold. As to how

or where it was stowed there was absolutely nothing to show. A

verdict founded on what might be conjectured would be eminently

unsatisfactory. But for this contention of the plaintiff his Honour

would have thought that a verdict might have been entered at the

trial for the defendants as a matter of law. This, however, was a

matter of fact, which might be proved in favour of the plaintiff

at another trial by other additional evidence. The argument that

the cargo should have been stowed as far forward as possible was

fallacious as attaching any liability to the defendants. It was not

proved as a fact where it was stowed, and from anything that appeared

in evidence it might have been stowed right forward. But apart from

this the board’s certificate was that the _Alert_ was sea-worthy

without cargo. The plaintiff contended that the low freeboard aft

was a prominent feature of unsea-worthiness. If then the forty-four

tons of cargo as assumed were under the main hatch, that fact must

have improved her trim, and putting it further forward would only

have been one step better. It was no detriment, but an advantage,

from the plaintiff’s point of view, to the ship’s sea-worthiness. He

considered the verdict on the present evidence quite unsatisfactory

and against the weight of it. He had not overlooked the rule relating

to juries, which was sometimes considered to amount to this—that the

court should not disturb even an absurd verdict as long as it was not

insane. The latest view of the Privy Council in Aitken v. M’Meikan on

this point was that which bound the court, and, though it laid down

no rule of general application, it was decided on a ground applicable

here. The evidence for the plaintiff ran in a different plane from

that for the defendants, and regarding that fact and that the jury

had never considered the case in its true legal aspect, he thought

there must be a new trial. Verdict for plaintiff set aside, and new

trial granted, with costs, the costs of the former trial to abide the

event of the new trial.

MR. JUSTICE HODGES agreed that there should be a new trial. In the

face of the evidence, the verdict, he considered, was one which

reasonable men could not find. He desired to say nothing as to the

extent to which the certificate of the Marine Board was conclusive

as to the sea-worthiness of the vessel.

MR. JUSTICE HOOD concurred, because he saw no evidence to justify

a jury acting by reason and not by sympathy in finding that the

defendants had not taken all reasonable care to make this ship

sea-worthy. They had done all that the Act of Parliament required

them to do. Competent men had examined their vessel, and these men

had informed them that there was nothing wrong with her, and that she

was perfectly fit to go to sea. As against that the plaintiff had

proved nothing, but desired it to be laid down that, no matter what

the owners of ships did, if an accident happened and a jury could be

persuaded that the defendants were to blame, there was an end of it.

In his opinion that would be legislating and not interpreting the Act

of Parliament. It would be to say that shipowners were required to

warrant the safety and sea-worthiness of their ships, and that was

more than the law required them to do.

* * * * *

The full court, in giving judgment on the appeal for a new trial,

placed a good deal of weight on the fact of the _Alert_ having passed

successfully through the surveys made by the English and Victorian

Marine authorities, and, further, the court was of opinion that the

certificates given by these authorities were _prima facie_ evidence

that the vessel was in all respects not only perfectly sea-worthy,

but proof also that the owners had done everything which the law

required them to do. Had I sufficient time and space at my disposal,

I could cite hundreds of cases showing clearly that these surveys

and certificates are more theoretical than practical. Suffice it for

the present that I, as briefly as possible, relate two instances

of certificated examinations which came under my own personal

observation thus:—

In 1863 I was an officer on board of a large ship called the

_Saldanha_, which was chartered to carry sheep from Victoria to

New Zealand. At Geelong we took 6000 sheep on board consigned

to Port Chalmers. By way of parenthesis I may mention, what may

read rather curious now-a-days, that we had ten shillings per head

freight alone for every sheep we landed alive. On the passage down

we lost 1000 of them; some died, but the major portion were killed

by being trodden to death during the heavy lurches of the ship to

leeward. We cast them overboard every day in such quantities that

it would have been almost possible by means of the carcases to

have tracked our ship’s way from Port Phillip to Port Chalmers!

After discharging our living freight at the latter port, we sailed

again for Melbourne in order to bring down another hatch, but,

unfortunately, through the ship being “flying light”—she was like

a balloon on the water—we got caught in a heavy squall and were

driven ashore, in spite of letting go both anchors, on a sandy

beach near the entrance to Port Chalmers Heads. By means of our

boats we all landed safely and lived amongst Maoris for a few days

until three steamers came to our assistance. By means of our united

efforts, aided by a high spring tide, we got the ship off the beach

and towed her back to Port Chalmers, where, with all due solemnity,

an examination was held by Lloyd’s surveyors, and also by the

insurance agents. The result of these, and other numerous surveys,

was that the _Saldanha_ was condemned as unsea-worthy, and sold

by the insurance agents for a few hundred pounds to a company who

desired to make a coal hulk of her. Accordingly she was “stripped

to a gantlin” and used for such purpose.

And now for the sequel: Within eighteen months after the purchase,

this ship—notwithstanding her condemnation by certificates—under

the name of the _Retriever_ was sent to Melbourne and put upon the

patent slip at Williamstown for examination. After being on the

slip for twenty-four hours, the first real examination, for there

was neither dock or slip in those days at Port Chalmers, the ship

was found all correct, certified accordingly and taken across to

Sandridge Railway Pier, where she loaded a first class cargo of

wool, hides, tallow, etc., consigned to the United Kingdom. For

aught I know to the contrary, the _Retriever_, late _Saldanha_, is

afloat doing duty yet!

The second instance occurred in 1871, when the S. S. _Queen of the

Thames_ was in Melbourne on her first and only voyage. She belonged

to the then well-known firm of Davitt and Moore, and arrived here

safe after what was, at that time, considered a remarkably quick

passage of fifty-two days from London. Just a few days prior to

the _Queen of the Thames_ leaving here for England, attention

was drawn to the fact that she had no “long boat,” and it was

suggested that she should be compelled to carry one in the interest

of sea-worthiness. Her commander, Captain McDonald, became quite

indignant at the idea of “colonials” daring to interfere with the

equipments of his ship. In those days there was no Marine Board

composed of shipowners, but there were other means of looking

after the interests of “those who go down to the sea in ships,”

and consequently the captain was informed that unless he obtained

the requisite boat, his ship would not be allowed to clear at the

customs.

The following are extracts from a bitter letter of Captain McDonald’s

which appeared in the _Argus_ newspaper of February 20, 1871:—

“The _Queen of the Thames_ and everything about her was planned

and built with a special view to the Australian passenger and mail

service, and the best skill and experience procurable in Great

Britain were enlisted in her service.... Although the Board of

Trade, Lloyds, the Emigration Commissioners of Great Britain, etc.,

passed the _Queen_ with her life boats, and though she and they

were highly complimented by all the authorities at home, still

_your_ Mr. Gossett is not satisfied with these arrangements. He

has discovered the dreadful truth that she has no long boat, and

he threatens that he will not allow her to leave the port until

she is provided with one.... It seems hard that a non-professional

Victorian official should have the power to dictate changes in the

vessel’s arrangements, and enforce these changes under such a heavy

penalty as the detention of the ship would imply.”

Mr. Gossett was, however, inexorable, although the captain pleaded

that he was nearly ready for sea, and there was not time to get a

boat built. At length the difficulty was got over by the _Queen of

the Thames_ getting the _Lady Jocelyn’s_ long boat and the latter

ship giving an order for a new one in its place. As may be imagined

Captain McDonald, in anything but a good humour, quickly sailed for

London. On the way there the ship got wrecked close to the Cape of

Good Hope, and that very boat which the captain had so reluctantly

taken with him was the principal means of saving all hands from a

watery grave! I may just add that the _Queen of the Thames_ was

classed AA I at Lloyd’s, a much higher class than that of the

_Alert_, and yet Mr. Gossett, I am glad to say, refused to recognise

the certificate—although undoubtedly a high one—and had the courage

to carry out what he believed to be a measure for the safety of all

concerned.

During the progress of the arguments in the Kilpatrick v. Huddart,

Parker and Co. appeal case, Mr. Justice Hood, in commenting on the

rig of the _Alert_, said: “No doubt had there been another mast in

the ship persons would have come forward and said that was the cause

of the disaster.” While Chief Justice Madden, on the same subject,

was of opinion that “the first thing a captain would do, if there

was a second mast with a sail up, would probably be to strip it off

like a shot.” With regard to both of these opinions, although I feel

constrained to comment at length on them, I must, for the sake of

brevity, content myself with the remark that the dictum or logic they

contain “may do for the marines, but certainly won’t do for sailors.”

Furthermore, the Chief Justice said, “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.” Now, while all

right-minded people will heartily agree regarding the healthy

sentiment contained in the foregoing sentence, nevertheless it

is well known that a good deal depends upon circumstances. There

are positions wherein men can report defects in anything, and get

praise—as they should—for so doing, and there are also positions

wherein men, on shore, if they drew attention to defects, would be

instantly “sacked” from their employment, and, if on board ship,

would in all probability be sent to jail as wicked designing men! I

will try to give an instance in point: About three weeks after the

jury brought in a verdict in favour of Mrs. Kilpatrick, I interviewed

a seaman on board of a steamer then lying in the Yarra at the

Australian wharf. He made a statement which I took down in writing,

and after reading same over to him, he, in my presence, declared it

was true in every particular. Here it is, “I solemnly and sincerely

declare that my name is ——.[2] I am an able seaman, and came out to

Melbourne as such in the barque _Alert_. She was a long, narrow,

and shallow vessel, built for a river steamer, but we brought her

out under sail only. Her machinery was in position but her funnels

were not; they were stowed below. In the first instance she sailed

for Melbourne from Greenock, and after being a week at sea the crew

refused to go any further in her. They all went aft and desired

the captain to put the ship into the nearest port. Accordingly the

_Alert_ was taken in to St. Tudwell Roads, Cardigan Bay, Wales, where

the crew were taken ashore, tried for refusing duty, and sent to

jail for six weeks. At the earnest request of the men a surveyor was

sent to examine the ship. He stated that the men had a just cause

of complaint, and he pronounced the _Alert_ to be unsea-worthy. The

magistrates, on learning this, at once made an order releasing the

men from confinement. A new crew was shipped, of whom I was one; but,

owing to the name the vessel had got, and the extra risk to run,

we demanded, and got, £3 15s. per month, the then highest wages out

of the port for coasters. During a period of three weeks, fifteen

attempts were made to get the _Alert_ out of the Bay, and fifteen

times she had to go back to her anchorage. The reason we could not

get outside was because the wind was not fair and the ship would not

stay. There was no room to wear her round, so there was nothing for

it but go back. At last a slant was got, and we sailed for Melbourne.

Prior to leaving St. Tudwell Roads the authorities on shore told

us that although we had signed articles we need not go in the ship

unless we liked, and Captain Webb, to encourage us, said he was

going out himself as a passenger in her to Melbourne. At the last

moment he changed his mind and did not come with us. Captain Munn

was in command, and the _Alert_ carried eight hands all told. She

was very crank, or tender, and every night at sundown, fine or foul,

the top-gallant sails were taken in and stowed. At no time during

the passage out would the vessel stay. When we wanted to put her on

the other tack we had always to wear her round. She was loaded with

ballast and trimmed on a fairly even keel. The decks were never dry

except during calms. Frequently a lot of water got into the saloon,

and was got out by all hands bailing with buckets. In one breeze we

had she shipped a sea which smashed in the skylight and carried away

the wheel and binnacle. We were about five months coming out, and

ran short of provisions on the way. I do not remember a window in

front of the poop. If there was one it must have been covered over,

for I never saw it or heard of it at any time. We never expected to

reach Melbourne in her. She was a dangerous vessel, and not fit, in a

breeze with a seaway, to either stay, wear, or run. I would not ship

in her again under any circumstances. When in Queensland I read in

the newspapers some account of the trial, and was sorry that I was

not in Melbourne to give evidence as to what I knew of the _Alert_.

And I make this solemn declaration, conscientiously believing the

same to be true, and by virtue of the provisions of an Act of the

Parliament of Victoria rendering persons making a false declaration

punishable for wilful and corrupt perjury.” (Signed)

Declared at Melbourne this 19th day of March, 1895, before me, J. A.

Reid, J.P.

The following comments on the decision of the Full Court appeared in

the Sydney _Bulletin_, published June 1, 1895:—

“The Victorian Full Court lately granted a new trial in the _Alert_

case, with costs against the unfortunate woman who won a verdict some

few months ago. The _Alert_ foundered in a gale off Port Phillip

Heads, and all hands, save one, were drowned. Mrs. Kilpatrick, widow

of the second engineer, sued Huddart, Parker and Co., for damages,

alleging that they had not taken every reasonable means to ensure

the sea-worthiness of their vessel, her complaint being bracketed,

so to speak, with a suggestion that the said _Alert_, having little

margin of sea-worthiness to spare, stood always in need of special

precautions against accident. The case was tried by Judge Williams

and a jury of six, and Mrs. Kilpatrick was awarded £600 damages.

Judge Williams explained his view of the law concerning shipowners’

responsibility, and analysed the evidence, and did his best, no

doubt, to procure a fair, honest expression of intelligent opinion

from the jurymen. Messrs. Huddart, Parker and Co. availed themselves

of the Law of Appeal—which is the birthright of capital, and will

remain its birthright until the people arise and kick. The Full Court

set aside the verdict of Justice Williams’ jury. Widow Kilpatrick

asked for justice, and thought she had got it in the form of £600

damages. Had _she_ lost the case, she didn’t possess the money-power

to appeal—but this is, in legal eyes, an irrelevant detail. The Full

Court finds that the outcome of a long trial was not justice, nor

law, nor anything except costs. Justice Madden and his two colleagues

ruled that “the jury had never considered the case in its true legal

aspect.” Nobody knows the law, says the lawyers, nevertheless the

true aspect of the thing they can’t swear to is easily recognised.

This by the way. Perhaps the jurymen who gave damages to the

engineer’s widow were all wrong, according to the Act. If so, Judge

Williams, their adviser, should have told them that no vessel

certificated by the Marine Board, and floating comfortably on the

water, can be called unsea-worthy. The lack of proper fastenings to a

pantry window may be of grave consequence when the vessel gets on her

beam ends, “but this defect would not be obviously dangerous,” in the

ordinary way, and sea-worthiness is estimated in quite an ordinary

way, says the Full Court. Judge Williams, by this showing, should

have directed the jury to find for the defendant, but the Full Court

made no reference to him. Common-sense asks why Justice Williams

allowed an obviously absurd verdict to pass. And if he couldn’t

squelch it on the spot, why couldn’t he, seeing that one judge is, or

ought to be, as good as the rest of them? And if it wasn’t absurd—but

the list of questions that suggest themselves is appalling. The

answer is costs. An appeal to a higher court is an accusation of

injustice, or ignorance, or dense stupidity against the lower court.

The setting aside of a jury’s verdict, on the ground that they “never

considered the case in its true legal aspect” is an assertion that

the judge didn’t present it to them in a proper way. When the world

troubles to consider the legal aspect of these appeals, it will

suddenly observe that the law invites contempt, purely for the sake

of costs.”

I have a strong impression that our new Governor, Lord Brassey, when

he arrives and gets fairly into his new position, will be found to be

the right man in the right place. His Excellency is both a lawyer and

a seaman in his own person. He was educated at Oxford, and took his

M. A. degree there. In 1864 he was called to the bar, but he never

had any inclination to follow it up, for his natural bent was toward

the sea and shipping. He passed for, and holds, a Master-mariner’s

certificate. From 1880 to 1884 he was a Lord of the Admiralty, and

during the ensuing year filled the more important post of Secretary

to the Board. He was created a Peer in 1886, and since then has

served as a very useful member of the “Commission on unsea-worthy

ships.”

In order to show that Lord Brassey is not what seamen term “a fresh

water sailor,” it may be mentioned that from 1854 to 1893, inclusive,

he has sailed upwards of 228,680 knots, a distance which would

girth our entire globe nearly ten times! During the above period he

has, in his own vessels, been to Australia, Africa, Borneo, Canada,

India (east and west), Norway, Russia, Straits Settlements, United

States of America, etc., etc. In short, his Lordship has been—in

the homely language of the “Geordie” sailor when asked how much he

had travelled—“to Rooshayah, Prooshayah, Memel, and Shields, the

fower quarters o’ the globe ye noodle.” Having had such a remarkable

experience of sea and ships, it may be taken for granted that Captain

Lord Brassey is a pretty good judge of what constitutes safety—so

far as human knowledge can go—with regard to the shape and rig of

a vessel. He is very wealthy, and, if he desired, could have his

steam yacht full powered enough to be driven thirty knots an hour,

but his is not a policy of “speed and smash,” it is one of “sense

and security.” Hence the _Sunbeam_, in case of a breakdown of her

machinery, carries sail amounting to 9200 square yards of canvas.

Under steam alone she averages about ten knots an hour, but with a

spanking breeze, and all sail set, fifteen knots per hour are easily

got out of her.

[Illustration: THE S.S. SUNBEAM UNDER FULL SAIL.]

In a large port like Melbourne where important shipping cases are

often before the law courts, it is certainly a serious drawback that

there are so few lawyers who are possessed of nautical experience.

Of course many of our Victorian legal luminaries have been out

on yachting excursions, and perhaps now and then got wet both

_outside_ and _inside_, but this kind of experience, like the “little

learning,” is really worse, and therefore more “dangerous” than if

they knew nothing at all! Whenever I hear, or read of, one of these

would be “sea-lawyers” floundering through a shipping case, I am

always reminded of the story told of the seaman who was a witness in

an assault case. When Jack entered the witness-box, he was asked by

one or the lawyers whether he (Jack) appeared for the plaintiff or

the defendant. Jack replied that he did not understand the terms,

and therefore did not know whose side he was on. To this the lawyer

sarcastically remarked: “A pretty kind of a witness you are not to

know whether you are for the plaintiff or defendant.” As the case

proceeded Jack detailed that the scrimmage took place just “abaft the

binnacle.” “Where is that?” asked the lawyer, sharply. “Don’t you

know where it is?” queried Jack. “I do not,” replied the limb of the

law. With a broad grin on his face Jack interjected, “A pretty kind

of a lawyer you are not to know where abaft the binnacle is!”

The new trial, which had been ordered by the Full Court, commenced

on Wednesday, Oct. 23, 1895, before Mr. Justice Hodges and a fresh

jury of six. Mr. W. Williams and Mr. Meagher, instructed by Messrs.

Ebsworth and Wilson[3], appeared for the plaintiff (Mrs. Kilpatrick),

and Mr. Coldham with Mr. Schutt, instructed by Messrs. Malleson,

England, and Stewart, appeared for the defendant company. On both

sides fewer witnesses were examined than on the first trial, and the

evidence, so far as it went, was almost a repetition of that given in

the previous case with the exception that the position of the cargo

was more fully dealt with. At the close of the evidence on the fifth

day of the trial, both Mr. Coldham and Mr. Williams delivered very

able addresses to the jury. His Honour, Mr. Justice Hodges, then

summed up. He dealt with all the points of the case, and his charge

to the jury, in brief, amounted to this: “If they determined that

the _Alert_ was sea-worthy there would be an end to the matter, for

in that event they would at once give a verdict for the defendants.

On the other hand, it was for the jury to say whether reasonable

precautions were taken to ensure the sea-worthiness of the ship,

and if they found that such was not done, they would then consider

the measure of damages to be awarded to the plaintiff because of

such neglect. With regard to this neglect the defendants had a

strong answer seeing that they had Lloyd’s and the Marine Board’s

certificates of sea-worthiness, yet it might be that Lloyd’s and the

others were all wrong. If the jury found a verdict for the plaintiff,

then in assessing damages, they (the jury) were to remember that the

plaintiff would only be entitled to receive pecuniary compensation

for pecuniary loss; but the mother or the child could not be

compensated for the grief or pain they suffered. The jury were to

throw all sympathy out of the question, and deal with the matter as

one requiring simply cold justice to be dispensed.” After retiring

for about an hour the jury returned into court with a verdict for

the plaintiff. Damages £791, to be apportioned thus, £666 to Mrs.

Kilpatrick and £125 to the child.

I quote the following from the _Age_ newspaper of November 26, 1895:—

“The S.S. _Ethiope_, which was placed in the Alfred Graving Dock,

Williamstown, for the purpose of ascertaining the leakage in her

hull, which occurred during her passage down the Bay on leaving for

London with a full cargo of wool, was floated out yesterday and

berthed at the railway pier, Williamstown, where she will receive

on board the portion of her cargo that was landed prior to her

entering the dock. Whilst in the dock a thorough examination was

made of the vessel, and the cause of the leakage was discovered

under the engine room. The bolts in several of the seams had

started, and allowed sufficient water to inflow to cause the

vessel’s return to port for examination and repairs. The repairs

were speedily carried out, and on the reloading being completed

Captain Miles feels confident that the cargo by the ship will

arrive in London in time to catch the January wool sales. During

the stay of the _Ethiope_ in dock her bottom was cleaned and coated

with Rahjten’s anti-fouling composition. The _Ethiope_ will leave

again for London during the week.”

And hereby hangs a tale. Here it is: In the matter of the survey

of the S.S. _Ethiope_ “I, Robert Barclay, chief engineer of the

S.S. _Ethiope_, solemnly and sincerely declare that we sailed from

Melbourne on Sunday, November 17, 1895, bound to London with a cargo

of wool and preserved meats. During the passage down Hobson’s Bay my

attention was drawn to the fact that there was a leak somewhere in

the ship, and by measurement I ascertained there were five feet of

water in the bilges. I reported the matter to the captain; then we

rigged the pumps and put on the donkey engines to work them. As the

state of affairs looked serious, the ship was brought to an anchor

inside the Heads on Sunday afternoon. We kept the pumps going all

night and next day (Monday), until they became choked with coal-dust.

I then advised Captain Miles to return to Melbourne, and have the

ship docked and examined. He, the captain, at first was under the

impression that it was only the water ballast tank that was leaking,

and he demurred to go back with the ship. I was so convinced that

the ship was leaking that I told the captain that I declined to risk

the men’s lives, and my own, in going to sea before the ship was

surveyed. Captain Miles told me that if there was nothing the matter

with her, I would have to be responsible for detaining the ship. I

undertook the responsibility, and the vessel was accordingly brought

back to Williamstown on Tuesday, Nov. 19, 1895. After discharging

a portion of the cargo into lighters, the ship was taken into the

Graving Dock on Thursday, Nov. 21. One of Lloyd’s surveyors, Mr.

Watson (and others, I believe), examined the ship, and reported to

the captain, and through him to me, that there was nothing the matter

with the vessel, and insinuated that the whole affair was simply a

scheme to get the ship’s bottom cleaned, in order to make a quicker

passage, at the expense of the underwriters. It was further stated

that I would have to pay all the expense of the survey and delay;

that I was an incompetent man, and in all probability my certificate

would be taken from me. Being ill and weak—through exposure in the

water while previously trying to find the leak when the ship was

down the Bay—I was confined to my bed by order of Dr. McLean of

Williamstown, who was tending on me. When the survey report and

comments were given to me, they did not help to make me feel any

better; but ill as I was, I determined that I would search for the

leak myself. On Monday morning, Nov. 25, the ship being then painted

over and ready to be taken out of dock, I went under the ship’s

bottom with a table-knife, and had not searched many minutes until I

discovered—about ten feet distant from the place where I suspected

the leak—an opening where the plates overlap each other. I inserted

the knife, and found that only the handle stopped the blade from

going in further. I ran on deck, and came back with a long piece of

tin, this I inserted in the seam with the result that it went clear

in to a depth of eight inches. Still keeping the tin inserted, I

found I could carry it along the edge of the plate for a distance

of eighteen inches. I then went and brought Captain Miles down to

see for himself. He said he felt very glad that I had discovered the

cause of the leak, and desired me to leave the knife and tin sticking

in the aperture until he telephoned for the surveyors to come from

Melbourne. On being sent for Mr. Watson did not come, but Mr. McLean,

the Marine Board Surveyor, came down to Williamstown, and on his

arrival he at once acknowledged that the whole mystery had been

solved. He thanked me for pointing the matter out, and stated that

everything would have to be done to make the ship sea-worthy before

she was allowed to proceed to sea.

During the past nineteen years I have been engineer on board some

of the largest steamers afloat, and have also superintended the

building of a number of these ships, and it is not pleasant, after

my experience, to have my competency questioned in the offensive

manner in which it has been. The above statement is, to the best of

my belief and knowledge, true in every particular. And I make this

solemn declaration, conscientiously believing the same to be true,

and by virtue of the provisions of an Act of Parliament of Victoria

rendering persons making a false declaration punishable for wilful

and corrupt perjury.” Robert Barclay, Chief Engineer. Taken at

Williamstown this 29th day of November, 1895, before me, J. A. Reid,

J.P.

As a sequel to the foregoing it may not be out of place to give

the subjoined extract from the proceedings of the Marine Board, as

reported in the _Argus_ of November 30, 1895:—

“The steamer _Ethiope_, having returned to port in a leaking

condition, was detained for repairs, and was to be examined on

November 30 before receiving the permission of the board’s engineer

to proceed to sea. Captain Clark stated that he heard a rumour that

since the vessel had left the dock she was leaking worse than ever.

Mr. McLean, the board’s engineer, said there was no foundation for

the report, and it arose from the fact that the water which was

in the vessel ran aft as her trim was altered. He had given great

attention to the pumps and bilges and was satisfied that she was

now quite dry and watertight. His report was adopted.”

[Illustration: SUPREME COURT BUILDINGS, MELBOURNE.

Containing eight Halls of Justice.]

The _Ethiope’s_ case requires no comment from me. It speaks volumes

for itself! And now my self-imposed task is done; and in bidding

good-bye to the readers of this little book, I may state that in

writing it I have endeavoured to effect a twofold object. Firstly, to

aid Robert Ponting, the _Alert_ survivor, in earning a living, and,

secondly, to aid in drawing public attention to what I believe to be

important matters, affecting not only the safety of ships, but the

lives of men. If I succeed in either of these objects, I shall feel

that my labour—which to me has been a pleasure—has been put forth

in a good cause. My long experience at, and connection with, the sea

have given me at least some little warrant for dealing with subjects

relating to seamen and shipping; but whether the ideas I have given

expression to will please or not I cannot tell. Under the impression

that _some_ good might be done—to use the language of Burns:—

“Sae I begun to scrawl, but whether

In rhyme or prose, or baith thegither,

Or some hotch-potch that’s rightly neither,

Let time mak proof.”

Seamen are not saints by any means, but if there be one class of

men beyond another who should, in the exercise of their calling,

have things made for them as safe and as comfortable as possible,

surely it is those “who go down to the sea in ships.” I use the term

“seamen” in its broadest sense, including “skipper” and all, for I am

not altogether a believer in the witticism of the Irishman who said,

“There’s but one good billet on board of a ship and, be japers, the

captain always takes it.” The latter’s position is a responsible one,

and his duty, where rightly performed, is by far the most important

of any. Various circumstances have caused this book to remain “on the

stocks” for a considerable time, and now that I launch it out on the

great sea of PUBLIC OPINION, I cannot give it a better “send-off”

than by heartily re-echoing the prayer of the poet:—

“When wilt thou save the seamen,

Great God of mercy—When?

Not shipping kings, but seamen,

Not property, but men!”

AMEN.

[Illustration: Decoration]

FOOTNOTES:

[2] For obvious reasons the declarant’s name is kept back from

publication.

[3] It is but an act of “cold justice” to mention that Mr. Ebsworth,

in addition to being an able lawyer, is a practical seaman who has

passed through eight years’ experience, and holds a chief mate’s

certificate from the Board of Trade.

[Illustration: Decoration]

Final Battle with the Lawyers.

“Law was design’d to keep a state in peace,

To punish robbery, that wrong might cease;

To be impregnable: a constant fort,

To which the weak and injured might resort,

But oft, perverted minds its force employ,

Not to protect mankind, but to annoy;

And, long as ammunition can be found,

Its lightning flashes and its thunders sound.”

_Crabbe._

When I wrote the word “Amen” on the last page of the second

edition of this book, I believed that my task had come to an end.

Fate, however, has decreed otherwise; and in view of surrounding

circumstances it is absolutely necessary that this (the third)

edition should be considerably enlarged. Moreover, to have kept

silent with regard to the after-transactions—which hinge on the

events already related—would have been, in my estimation, a sort of

moral cowardice, displaying a lack of duty to my readers, and also to

myself as a faithful chronicler. Having given the above brief remarks

by way of preliminary, I now proceed to relate the incidents in the

order in which they took place.

Mr. Robert Ponting sued Messrs. Huddart, Parker & Co., shipowners,

for £500 as damages for loss of health and property caused by, as

alleged, the sinking of the S.S. _Alert_ through unsea-worthiness;

and on July 26, 1896, law proceedings were commenced in the

County Court, Melbourne, before Judge Chomley and a jury of four.

Mr. J. Ebsworth, solicitor, conducted the case for the plaintiff,

and Messrs. Coldham and Schutt, barristers (instructed by Messrs.

Malleson, England & Stewart, solicitors), acted on behalf of the

defendants. The trial lasted four or five days, and the evidence on

both sides was almost a repetition of that given in the two previous

trials of “Kilpatrick _v._ Huddart, Parker & Co.” At the close of the

case on Monday, August 3, the jury brought in a verdict in favour

of defendants, and accordingly judgment (with costs) was entered

against Ponting. In all probability the case would have ended here

but for a singular circumstance which ultimately completely altered

the position of affairs. It came about thus: I (the present writer)

took a good deal of interest in the case and attended the court

daily. During the address of Mr. Coldham to the jury—on the Friday

prior to the conclusion of the trial—I heard one of the jurymen

(McGregor) call out to Mr. Coldham these words, “Your argument is

absurd.” I know not whether the judge heard the remark. I only know

that he did not rebuke the juryman. After adjourning the case till

the ensuing Monday the Court rose, and as I passed out of one of the

Little Bourke Street entrances I heard Mr. Coldham remark to Mr.

Stewart, as they left the doorway, “I promised to meet him (or them)

at Menzies’.” No attention was paid by me to what I deemed a casual

remark until a few minutes afterwards, when an acquaintance said to

me, “If you want to see Huddart Parker’s barrister and solicitor

talking to the jury, just go into the bar of Menzies’ Hotel.”

Though believing my friend had made a mistake, I, out of curiosity,

went into Menzies’ bar, and there saw, sure enough, Messrs. Coldham

and Stewart and three of the jurymen (including McGregor) drinking,

smoking, and talking together in the most friendly manner, so far

as appearances went. The matter seemed so incredible that I, on

reflection, deemed it best to go and bring in some person, as a

witness, to the bar. Accordingly I went out, and happening to meet

Mr. Ebsworth (solicitor for Ponting) on the street, I succeeded in

getting him, somewhat reluctantly, to go with me to the bar. It is

almost needless to add that, the moment the five gentlemen saw Mr.

Ebsworth, they did not wait for a ceremonious introduction; but, on

the contrary, took a hasty departure at once. Immediately after their

disappearance I asked Mr. Ebsworth, “What are you going to do about

this affair?” “Oh,” he replied. “I can do nothing. Mr. Coldham is at

the top of the profession; I am only, so to speak, a new beginner,

and it would be against professional etiquette for me to take any

notice of these people having a drink together.” To this I rejoined,

“And so, rather than break through ‘professional etiquette,’ you

would stand by and see your client, Ponting, suffer an injustice.

If this be the view you take of what I call a serious matter, I may

as well tell you what I will do. In the event of this jury bringing

in a verdict in favour of the defendants, and of your drawing no

attention to what you, as well as myself, have seen, I will, in the

public press, expose the whole affair, including the conversation I

have had with you on the subject.” This had the desired effect; and

when the jury brought in their verdict against Ponting—as before

related—Mr. Ebsworth ventured to draw the Judge’s attention to

the hotel bar proceedings. Judge Chomley, however, “pooh-poohed”

the incident, and remarked that “in all probability the gentlemen

concerned had met by chance in a public bar, and were only taking a

friendly glass together.” Nevertheless, he added that if affidavits

were brought to him showing that serious wrong had been done, he, the

Judge, would consider the matter, and give a decision at a future

time. Affidavits were taken by myself and others detailing the whole

of the circumstances, and these sworn statements were considered by

Judge Chomley about six weeks after the trial; but he saw nothing

serious in them, and finally refused to grant a new trial. Notice

of appeal to the Supreme Court was at once given by Mr. Ebsworth;

but, notwithstanding this notice, a demand for costs was served on

Ponting, and because it was returned unsatisfied, the defendants’

lawyers applied for, and obtained, an order _nisi_ to make Ponting

compulsorily insolvent. Mr. Justice Hood, however, refused to make

the order _absolute_ until after the appeal case had been heard.

Matters remained in this state of suspension till March 3, 1897,

when the hearing of the case commenced. The following is an abridged

report, culled from the columns of the Melbourne _Age_ of March 4 and

6:—

LAWYERS AND JURORS—THE PONTING APPEAL CASE.

CONDUCT OF COUNSEL AND SOLICITOR

“HIGHLY INDISCREET AND IMPRUDENT.”

MAJORITY OF THE COURT FAVOUR A NEW TRIAL.

The Full Court, consisting of Mr. Justice Williams, Mr. Justice

Holroyd, and Mr. Justice A’Beckett, yesterday commenced the

hearing of an appeal by the plaintiff in the suit of Ponting _v._

Huddart, Parker & Co., Limited, against a decision by Judge Chomley

refusing to grant a new trial of the action. The first ground of

the appeal was that the jury, or some of them, did not act fairly

and impartially; but were biassed or influenced by reason of the

fact that they, or the majority of them, had had conversations with

defendants’ senior counsel, Mr. W. T. Coldham, and the defendants’

solicitor, Mr. Gordon R. Stewart, with reference to the action and

the matters in dispute therein. That three of the said jury were

for a period of at least fifteen minutes drinking and smoking with

defendants’ senior counsel and solicitor at the bar of Menzies’

Hotel, and conversing with them with reference to this action, such

interview having been made by arrangement and appointment. That a

written communication passed between one of the jury (McGregor)

and Mr. Coldham, and the contents thereof were discussed at the

Law Courts, and afterwards at Menzies’ Hotel, such communication

having reference to a point in connection with the action, as to

which McGregor had from the jury-box expressed himself as being

unfavourable to defendant. That the learned Judge exercised a wrong

discretion in refusing to grant a new trial on facts as detailed

and set forth in the several affidavits filed in support of and in

opposition to the summons. The other ground on which the appeal was

based was that certain documents were improperly admitted as evidence

at the trial.

Mr. Leon, instructed by Messrs. Ebsworth & Wilson, appeared for

the appellant plaintiff; and Mr. Box, Mr. Coldham, and Mr. Schutt,

instructed by Messrs. Malleson, England & Stewart, for the respondent

defendant. It will be remembered that in July last Ponting, the sole

survivor of the wreck of the _Alert_, brought an action against the

owners of the vessel, Messrs. Huddart, Parker & Co., Limited, to

recover damages for injuries sustained by him as the result of the

disaster. The case was tried before Judge Chomley and a jury of four,

and resulted in a verdict for defendants. On August 20 last plaintiff

applied for a new trial on grounds similar to those of the present

appeal, but his summons was dismissed with costs.

MR. LEON, in support of the first ground of appeal, read the

affidavits that were used at the application for a new trial made to

Judge Chomley, full particulars of which have already been published.

The effect of the affidavits made on behalf of the plaintiff was that

on July 31, while Mr. Ebsworth, in the course of his address to the

jury, paused for a moment to look at some documents before him, Mr.

Coldham came into court, leant on the railing of the steps leading to

the jury-box, and smiled and winked at the jury. Mr. Mitchell, one

of the jurors, gave him a significant glance, and smiled in return.

Immediately after the Court adjournment, at 4 o’clock, and while the

case was still part heard, Mr. Coldham was heard to say to Mr. G. R.

Stewart, “I have promised to meet them at Menzies’ Hotel,” and about

the same time was seen to run, with his wig and gown on, towards

Goldsbrough’s Lane. He called out to a juryman, Mr. McGregor, “Don’t

go away, McGregor, I want to see you. I will meet you at Menzies’.”

About 4.20 p. m. the foreman, Mr. Hopkins, and Messrs. Mitchell and

McGregor, two other jurors, were seen standing before the bar at

Menzies’ Hotel with Messrs. Coldham and Stewart, talking earnestly

and drinking and smoking. It was also said that as the jurymen left

the box on the afternoon in question, one of them (McGregor) handed

Mr. Coldham a written communication. In answer to these allegations

affidavits were filed denying that Mr. Coldham told Mr. Stewart that

he had “promised to meet them,” or that he had said anything to that

effect. While standing at the barristers’ table immediately after

the adjournment, Mr. Coldham was handed a piece of blotting-paper,

on which was a sketch and figures relating to the _Alert’s_ funnel,

concerning which the juryman McGregor had spoken in the box while the

case was proceeding. He ran after McGregor to give it to him back,

and on meeting him accidentally at Menzies’ handed it to him, saying,

“Here is your beautiful production.” He, with Mr. Stewart, then

accepted McGregor’s invitation to have a drink. Nothing whatever was

said about the case, and the allegation that counsel winked at the

jury was false, and a grotesque invention.

MR. BOX said the whole point of this matter was whether there was

any pre-arranged meeting at Menzies’. His client said there was no

pre-arrangement, and that the meeting was purely accidental. Who

cared twopence about a glass of wine?

MR. JUSTICE WILLIAMS: I would say it was very imprudent, to say the

least of it, of counsel and solicitor, to go drinking with three of

the jury during the hearing of the case.

MR. BOX: Whether they had a drink or not, it was not by

pre-arrangement. Mr. Coldham swears that he made no such statement as

that alleged relative to a promise to meet any of the jurymen.

MR. LEON said he did not care whether there was a conflict of

evidence on that point or not. He did not rely on that. In his

opinion Mr. Coldham supported Mr. Reid’s statement, because he said

in his affidavit that he called out to McGregor that he wanted to

see him. The main feature of this affair was the agreement of all

the deponents, and the admission by Mr. Coldham and Mr. Stewart

that they were drinking with three jurymen in the bar of an hotel

before the case had been concluded. He had not got to prove that

there was actual impropriety, but there could be no doubt about the

principle that even the appearance of wrong-doing must not be shown

in the administration of justice. In the first place, it was a gross

impropriety on the part of these three jurymen to drink and smoke

and converse in a public bar with counsel and solicitor for one of

the parties in a case being heard by them. It was very improper for

counsel and solicitor to be seen with members of the jury in a public

bar in the presence of people who knew that litigation was going on,

and that the judges of the facts in that litigation and the advocates

for one of the parties to that litigation were “hobnobbing” together.

He had no hesitation in saying it was most indiscreet and improper,

and if there was the appearance of impropriety in connection with the

case the trial must be void. The public must feel satisfied and rest

content in their minds that not even the shadow of suspicion could be

cast on the administration of justice. That principle had been laid

down by the Court, and such being so, this occurrence was such an

impropriety as would vitiate the proceedings. It was admitted that

the juryman McGregor was a friend of Mr. Coldham’s, and had passed

him a paper relating to the case.

MR. BOX: In open court.

MR. LEON did not care whether it was in open court or not. It was a

most improper thing to do. Communications had no right to be passed

between the judge of the facts of the case and the advocates of one

of the parties in the case. Nothing of that kind could be tolerated,

because people would say, and be justified in saying, there was a

very fine understanding between defendants’ counsel in the case and

that juryman; that they seemed to be on excellent terms with each

other. To allow such a thing to pass would be intolerable, and bring

the administration of justice into contempt, The principle for which

he contended had been laid down by Mr. Justice Hood in a considered

judgment.

MR. SCHUTT said that before the Court proceeded to deliver judgment

on the first ground of appeal, he would like it to consider a point

of law raised as a defence at the trial of the action in the lower

Court, but not then argued, as the jury found in defendants’ favour.

He believed the point was absolutely fatal to plaintiff’s case, and

even if the Court were of opinion that a new trial should be granted,

it would be useless in the face of this point to order a new trial to

go on.

MR. JUSTICE WILLIAMS said the Court would deliver judgment, and the

point could be argued after.

MR. JUSTICE A’BECKETT said he had the misfortune to differ from his

learned brothers as to the course which should be taken with regard

to this appeal. The ground on which he thought a new trial should not

be ordered, was that beyond all question it would inflict a great

hardship on the defendants, who had succeeded in the action, and who

were in no way to blame for the indiscretion which had occurred. He

thought the duty of the Court in dealing with litigation between the

parties was to do justice between the plaintiff and defendants, and

not to make an order subjecting to injustice one of those parties in

vindication of a principle, unless it was absolutely necessary that

they should proceed to that vindication; nor should they make it for

the mere purpose of marking strongly their disapproval of that which

had occurred. Viewing the case in that aspect, it appeared to be that

they were not called upon to vindicate any principle, or to express

their disapprobation of what had occurred (disapprobation that both

sides admitted must be expressed), in a way which would produce the

very serious results that would follow the granting of a new trial.

What occurred was done openly, and, as Judge Chomley had said, it

was the very last mode of approaching a jury improperly that any man

in his sober senses—in his “glass of wine” senses—would attempt. The

evidence did not show that there was the slightest attempt made to

influence the jury, and when it was known what really occurred, he

did not think the conduct would convey to a rational mind any cause

for suspicion. The drinking of this glass of wine at the invitation

of one of the jurymen was a matter which people might observe upon.

They might say it did not look well to see counsel treated by that

juryman. He thought that observation would be quite right; it was

conduct which the Court would not sanction or countenance, and if

the Court had called upon those engaged in this matter for an

explanation, it would express its disapprobation and make them pay.

But he did not think they should go beyond that, particularly as the

judge who tried the case thought it was not a matter in which it

would be right to order a new trial. Being convinced that the jury

were not influenced, and that the fact that counsel and solicitor had

accepted sixpennyworth of hospitality from one of the jurymen would

not induce anyone to suppose they would be influenced, he thought

this new trial should not be granted. The impropriety, such as it

was, did not require such an expression of disapprobation by this

Court as would be expressed by granting a new trial.

MR. JUSTICE WILLIAMS thought there should be a new trial. It was said

that they should not grant a new trial, because their so doing would

be a hardship upon the defendant. That such was not an objection to

the granting of a new trial was decided by authority. In the case

of Costa _v._ Merest (3 B. and B., 272), some one, a stranger to

both the parties, circulated in the Court handbills reflecting on

the plaintiff’s character. Defendant was absolutely innocent of any

connection with the distribution of these handbills, and the Court

that heard the application for a new trial assumed that the jury had

not been unduly influenced. But, taking the defendant’s statement as

true, the Court made the rule absolute for a new trial. If any case

would be a hardship on a defendant he thought that would have been.

There was a defendant entirely innocent, yet because it might be

alleged with reasonable suspicion or belief that the administration

of justice had been influenced by the distribution of the handbills,

the Court on that ground granted a new trial. In this case, so far as

the question of hardship was concerned—with which he thought they had

nothing to do—the defendant was not so entirely innocent. The parties

to litigation lost their personality in their counsel and solicitor,

and the persons who did these acts which gave rise to reasonable

suspicion in the minds of plaintiff and others who witnessed them,

were the defendants’ own counsel and legal adviser. Therefore, in the

circumstances, he did not think the argument of hardship applied.

Then it was said the learned Judge of the County Court had already

decided the matter of this application; that in the exercise of his

discretion he refused a new trial. In his opinion, however, the

learned Judge had not dealt with the application on the grounds upon

which it now came before the Court on appeal. He had apparently gone

on the aspect of what was the intention of the defendants’ solicitor

and counsel, whether they were actuated by any corrupt motive, and

whether the jury were in point of fact influenced by what they did.

Those were the grounds on which Judge Chomley dealt with the case;

and, speaking for himself, he did not differ from the view taken

by the learned Judge on that aspect. The principle upon which the

Court should exercise its discretionary power in granting a new

trial on an application of this kind was, that if from the acts of

the jury or the legal advisers of one of the parties in connection

with the jury, there were reasonable grounds for suspicion that

the administration of justice was being improperly influenced, the

Court should, in order to preserve the administration of justice

from that stain or taint, grant a new trial. It appeared to have

been established on authority that where acts had been committed

such as to give reasonable ground for suspicion, in the minds of

the litigating party and his advisers or the public, that there had

been an attempt to bias and influence the proper administration of

justice, the Court, for the purpose of placing the administration

of justice as far as possible above reasonable suspicion, would

grant a new trial. Another case had been cited (Hughes _v._ Budds,

4 _Jurist_, p. 156), where some of the jury managed to get out of

their room on more than one occasion while considering their verdict,

and two of them went to an hotel, where they were seen drinking

beer and eating bread and cheese in the company of the plaintiff’s

attorney. The Court there held that these were acts of impropriety

on the part of the jury sufficient to awaken a reasonable suspicion

that the administration of justice had been tampered with. In the

Victorian Court the same principle seemed to be observed, according

to decisions by Mr. Justice Hood and the Chief Justice. He accepted

every word of Mr. Coldham’s affidavit, and from the undisputed facts

it was apparent that he knew the juryman (McGregor) before. This was

all the more reason why he should have kept him at arm’s length.

It appeared that McGregor handed Mr. Coldham a piece of paper just

as the Court had adjourned. That fact alone would be calculated to

excite suspicion. The learned counsel thoughtlessly and indiscreetly

took this piece of paper, and looked at it, when his proper course

would have been to hand it back at once, and say to the juryman, “You

must not communicate with me.” This piece of paper contained, in the

shape of a drawing, the juryman’s views on the construction of a

portion of the vessel. That was an improper act. Mr. Coldham ran out

into the street, and called out that it was of no use to him. Getting

as a response “That’s all right,” he shouted out that he intended to

take it down to him. Learned counsel could not remember whether he

said “at Menzies’ Hotel,” but what was present in his mind was that

he would bring it to the Menzies’. Therefore, he must have known the

juryman was going there. He did meet the juryman there, and together

with the defendants’ solicitor had a drink with him after handing

the paper back. Such conduct on the part of both the counsel and the

solicitor was highly indiscreet and highly imprudent, or, as Mr. Box

admitted, “heedlessly indiscreet.” Coming back to the principle he

had enunciated, what would these undisputed facts give rise to in the

minds of the plaintiff and the public generally? They would naturally

give rise to the suspicion that plaintiff’s case, so far as the

administration of justice was concerned, was not receiving fair play.

He would go further and say that the facts would reasonably give rise

to the suspicion that there was some underhand work going on which

was calculated to influence the jury in favour of the defendant.

Upon that ground, and acting on the principle he had referred to, he

thought there should be a new trial, and in coming to that conclusion

he did not think it was in the slightest degree contrary to that on

which Judge Chomley relied. Upon these grounds, and the principle he

had named, and with the view of keeping the administration of justice

free from reasonable suspicion or taint, he thought this Court was

acting wisely, if he might say so, in following authorities, both

ancient and modern, and saying that there should be a new trial.

MR. JUSTICE HOLROYD said he concurred with his learned brother,

Williams. He considered Mr. Coldham’s affidavit, on the very face

of it, bore the stamp of truth; but he felt that he was absolutely

constrained, by authority, to arrive at the same conclusion as

his brother, Williams. He would be directly contravening English

decisions, and decisions of this Court, if he were to decide

otherwise. No doubt it was a great hardship to the defendant that

he should lose the fruits of his victory because of an indiscretion

upon the part of jurymen or his counsel or solicitor. At the same

time that was a necessary condition of the relationship which

existed between counsel and solicitor and client. Some people, not

familiar with the great caution that both bench and bar, he believed,

exercised in maintaining the pure administration of justice, might

fancy that the Court in coming to this decision suspected some foul

play. Speaking for himself—the other members of the Bench had spoken

for themselves—he suspected none, but he cordially agreed that the

administration of justice must be free from suspicion. Therefore he

concurred in the judgment pronounced by his brother, Williams.

MR. LEON: Then your Honour will make an order allowing the appeal,

with costs?

MR. JUSTICE WILLIAMS: Before doing so we will hear what Mr. Schutt’s

law point is.

MR. LEON said he was not instructed as to the point, and the Court,

therefore, adjourned the case until Thursday next, the understanding

being that subject to the point of law involved a new trial should be

ordered.

* * * * *

The Menzies’ Hotel incident, as a matter of course, created a good

deal of stir in the Melbourne Press. It is impossible in these pages

to give all the comments; but the following well-argued article front

the leading columns of _The Age_ of March 10, 1897, is worth quoting:—

“‘A highly indiscreet and highly imprudent act’ on the part of

Mr. Coldham, the barrister, has involved Messrs. Huddart, Parker.

& Co., and Mr. Ponting, in pretty stiff law costs. So says Mr.

Justice Williams; and Mr. Justice Holroyd adds his verdict that

this is ‘a necessary condition of the relationship between counsel

and client.’ If counsel blunder clients necessarily suffer, while

the advocates may reap advantages from their own mistakes. This is

one of the delightful aspects of the administration of the law, as

distinguished from every other kind of profession. The ship captain

who commits a ‘highly indiscreet and highly imprudent act’ runs the

risk of being disrated for his rashness or carelessness. The surgeon

who carves his patient like a butcher may be sued for improper and

unskilful treatment, and if unsuccessful in his defence loses cash

and credit at the same time. The carpenter or plumber who builds

unskilfully must repair the damages of his default. But the lawyer

who gives unsound advice, or conducts his case with imprudence and

indiscretion, may simply shunt the consequences on to his client, and

is as merry as before.

“Mr. Coldham’s case necessarily raises the question of what ought

to be a lawyer’s responsibility in the management of his client’s

concerns. Mr. Ponting, the sole survivor from the wreck of the

_Alert_, sued the owners of that steamer for damages. The case was

tried in the County Court before a judge and jury. Mr. Coldham

acted as counsel for the defendant shipowners. One of the jury, a

man named McGregor, was a personal acquaintance of the barrister.

During the progress of the trial, according to one set of affidavits,

certain winks and nods and smiles and by-play were indulged in

between counsel and this juryman. Mr. Coldham denies the winking

part of the business. However, there is something that he does not

deny. This juryman of his acquaintance handed to him during the

trial a private paper connected with the case, and subsequently he

met his friend at an hotel bar, and had some drink and talk with

him. This almost inevitably gave rise to the suspicion that the

jury had been improperly influenced. A new trial was applied for,

principally on that ground; and though Judge Chomley refused to grant

it, and sustained the jury’s verdict, the Full Court judges have

done otherwise, on the ground of the ‘highly indiscreet and highly

improper’ conduct of Mr. Coldham.

“To the man of law the interest that centres in this case will be

the grounds on which the judges differed from each other. To the

ordinary citizen it will rather lie in the fact that the verdict of

the Court mulcts the client for the lapse of the lawyer. Mr. Justice

Chomley refused to disturb the jury’s verdict on the ground that,

though Mr. Coldham’s conduct had been wrong, it had not corruptly

influenced the jury’s minds. Mr. A’Beckett held the same opinion.

Mr. Coldham, he holds, had done an exceedingly foolish act in

hobnobbing with jurymen in an hotel bar during the progress of the

trial. He said ‘it was conduct which the Court would not sanction or

countenance; and if the Court had called upon those engaged in this

matter, it would express its disapprobation and make them pay.’ But

as the conduct in question was not corrupt, he refused to inflict the

hardship of a new trial on Messrs. Huddart, Parker & Co. That is one

view of the case. Justices Williams and Holroyd take quite another.

They hold that Mr. Coldham’s acts gave rise to reasonable suspicions

in the minds of onlookers. They no more say that the barrister

acted corruptly than do the other judges, but they are clear that

his conduct was such that any reasonable man might have entertained

from it a suspicion of corruption. Mr. Justice Williams says that it

was apparent that he knew the juryman (McGregor) before. This was