Battling with the Lawyers.
“Let us consider the reason of the case; for nothing
Is law that is not reason.”—Sir John Powell.
KILPATRICK v. HUDDART, PARKER & CO., LTD.
On Monday, the 11th February, 1895, in the First Civil Court, Melbourne, before his Honour, Sir Hartley Williams and a jury of six, an action was commenced in which the plaintiff, Mrs. Lucy Kilpatrick, widow of John Kennedy Kilpatrick, sued the defendants, Messrs. Huddart, Parker and Co., to recover £3000 damages for the loss of her husband.
Mr. C. A. Smyth, Mr. Box, and Mr. W. H. Williams (instructed by Messrs. Gaunson and Wallace) appeared for the plaintiff, and Mr. Purves Q. C. and Mr. Mitchell (instructed by Messrs. Malleson, England, and Stewart) for the defendants. Mr. Purves requested at the outset that all witnesses be ordered out of court, and his Honour, Mr. Justice Williams, made the necessary order, except in the case of two experts whose evidences would not relate to the facts of the trial.
THE PLAINTIFF’S CASE.
Mr. Smyth, in opening the case, stated that the action was brought by the widow Mrs. Kilpatrick on behalf of herself and her infant daughter, born in September, 1892, to recover damages from the defendants on account of the loss of her husband; and the ground of the action was that he had lost his life through the conduct of the defendants in sending to sea, and keeping at sea, the steamer Alert in an unsea-worthy condition. At the time of his death, the deceased was engaged as second engineer on the ship. He was a young man in the prime of life, being only twenty-nine years of age, and held a certificate of a high class as first engineer, although he was employed in a subordinate capacity on the fatal voyage. He was also a man of strong and vigorous constitution. The action was based on the 103rd section of the Marine Act 1890, which was precisely the same as the section of the Imperial Act, under which many decisions had been given. These showed that the representatives of any person who had lost his life in an accident arising from the unsea-worthiness of a vessel, were entitled to recover damages. The jury would be told by a number of witnesses that the steamer, from a variety of causes, was utterly and entirely unfit for the sea-going trade at the time of the disaster. The unsea-worthiness was a question of fact depending on the circumstances of the case, and would be decided by the jury under the direction of the judge.
Mr. Justice Williams: The cause of the action is that the defendants did not take reasonable precaution to ensure the sea-worthiness of the ship. You have not only to prove that she was unsea-worthy, but that she was so by some act of negligence on the part of the defendants.
Mr. Smyth in continuation said the Alert was a small steamship of 243 tons gross measurement, built at Glasgow about seventeen years ago. She was unduly long as compared with her beam, and particularly so as compared with her depth. The engines and boilers were all placed aft, and she was constructed as a river boat on very fine lines. The weight of her machinery was about 150 tons, and in consequence of having all this weight in the after part, she sat in the water with her bow up and her stern low down. Her engines were very powerful, and when she steamed fast the effect was to bring her stern down still deeper, and of course raise her bow still higher out of the water. Then at the aft part of the ship were the saloon and engine rooms; but the entrance doors to these, instead of opening outwards, opened inwards, so that in the event of pressure of water they would open instead of closing. In addition to these, there were doors, or lids, on each side of the vessel’s deck leading into the stoke-hole and coal bunkers. Further, there were gratings, or “fiddleys,” as they are often called, on each side for admitting light and ventilation to the engineers and firemen below. In the opinion of experts, provision should have been made for covering these openings with tarpaulins, so as to prevent water from going below in heavy weather. There was also in the front of the poop a hole cut through the iron bulk-head, which was fitted with a square glass window in a wooden frame. This also opened inwards, and was used for the purpose of passing dishes of food into the pantry and saloon, when required, from the cook’s galley. Such an opening might be very well for river trade, but was a most improper thing in a small vessel sent out on the high seas. It was no wonder that the pressure of water burst this window in and caused the saloon to fill. Notwithstanding all these defects, more had to be mentioned. There was a large wooden awning which extended all over the poop, and constituted a highly dangerous article on board a vessel of the Alert’s dimensions. She had besides only about forty-four tons of cargo on board, and it was stowed away in the main hold, and none in the foreward part of the ship. Consequently, the vessel was out of all trim, and not in a fit state to go to sea. The state of the weather and the manner of her loading caused the ship to list to starboard, or leeward, and all the efforts of Captain Mathieson to get her head to windward failed entirely. This was principally due to the fact that the Alert had only one mast, and hence no sail could be set aft to help the ship’s head up. As a result of the way in which the vessel was loaded, she had little or no “freeboard” aft, while foreward she had a very large amount, hence the wind and waves had tremendous power on the bow as compared with the after part. Experts would be called on behalf of the plaintiff, shipwrights, pilots, master-mariners, and others acquainted with navigation, who would testify to the jury that any of the matters which he (Mr. Smyth) had drawn attention to would be sufficient to make the vessel unsea-worthy. For these reasons he would ask the jury to award the plaintiff damages for the lamented death of Mr. Kilpatrick.
EVIDENCE FOR THE PLAINTIFF.
The first witness called was Robert Ponting, the sole survivor of the wreck. Under examination by Mr. Box, the witness stated: I know the Alert pretty well. I was on board of her in the capacity of cook. I was in Messrs. Huddart, Parker, and Co.’s employment. I was on the S. S. Despatch before I went to the Alert. The Alert temporarily took the place of the Despatch in order to get the latter repaired, and at the time of the wreck we were on the eighth trip, I believe, after taking the place of the Despatch. These trips were from Melbourne to Port Albert, and Bairnsdale, and the lakes, and back, not always calling at Port Albert on the way back. I have been at sea twelve years altogether.
I recollect going to Bairnsdale on this last trip of the Alert. We got to Bairnsdale on that trip on Christmas night, 1893. We did not discharge cargo next day, as it was a holiday—Boxing day. The vessel discharged on Wednesday, 27th December. I saw some cargo taken in on that day. It was put in the main hold. The main hold was abaft the mast and immediately in advance of the bridge. The Alert had another hold forward of the mast, and also another one, but no cargo was placed in any hold except the main. The cargo consisted principally of wattle bark, sheepskins, and some furniture. We left Bairnsdale on Wednesday afternoon about two o’clock, and called at Metung, where we took in some more bark in bundles. This was also put in the main hold. So far as I know, we had no heavy cargo on board. During the previous seven trips we never brought so light a cargo. We passed through the Lake’s Entrance that night. Outside there was a calm sea, and not much wind. Sometime after getting out to sea, the weather became thick and foggy, and during the night the ship was hove to for about four hours until the fog lifted. A breeze sprang up from the S. E., and we steered for Wilson’s Promontory, and succeeded in passing it at about seven o’clock on Thursday morning. There was not much swell on until we got through the Straits. While the wind was S. E., the trysail and staysail were set. After passing the Promontory, the wind began to vary, but it was not blowing hard, although there was a rising swell from the S. W. When passing Cape Liptrap, the ship was very lively and knocking about a good deal. She shipped no water, only spray now and then. I was not always in the cook’s galley. I kept moving about, and could see how the vessel was sitting in the water. I could not say how much freeboard she had, but she was high out of the water foreward, and down aft. The ship had an awning aft. It was made of weather-board, and was a fixture. The grating on the top of the deck was to let air into the stoke-hole. I never saw it covered over, and did not see any covering for it. The bunker holes were on deck. They were covered with iron tops, or lids. The entrances to the stoke-hole and engine room were on the port and starboard sides. There was a window in front of the poop on the starboard side. It was about sixteen inches square, a wooden frame with glass fitted in. It was large enough for an ordinary man to get through, and was used for passing food into the saloon. It opened into the pantry, and the pantry led to the saloon. When unfastened, it was made to fall down on its hinges horizontal inside the pantry, thus forming a sort of shelf on which dishes were placed. A small bracket underneath kept it in position as a shelf. When shut, the fastenings were two small brass bolts, one each side. These bolts were not so thick as my little finger, and when the window was closed they shot into catch holes at the sides of the wooden frame work. They fitted loosely, and when shutting the window we used to turn the bolts round to prevent them slipping out of their sockets. The window was constantly being used, and sometimes was left open on a fine day. I remember the ship getting to about two miles east of Cape Schanck, at three o’clock on Thursday afternoon (28th December). There was a heavy sea running off the Cape, but not so heavy as I have seen by a long way. The wind veered round to S. W., and the captain altered the ship’s course. By altering the course, the ship was kept close enough up to the wind to allow of the sail drawing to keep her steady. The crew came aft at eight bells (4. P. M.), while the ship was still heading off the land. Shortly afterwards Captain Mathieson kept the ship away on her course for Port Phillip Heads. I suppose it would be about ten minutes after the ship was kept away that she shipped the first heavy sea on the lee side. All the doors leading into the galley and stoke-hole were closed on the port (the weather) side. I could not say whether at that time they were open on the starboard (the lee) side, but they were open all the time previously. She took the sea I have spoken of on board close by the engine room. It canted her over to starboard. The deck was right full up with the water, which ran all the way aft. The after part of the alleyway was under water up to the break of the poop. The pantry window would be about two feet above the level of the main deck. I could not say whether the water covered the window altogether, but it was sufficiently up against it to get in if it were open. This was the sea that swung the saloon lamps up against the ceiling and broke them. Sail was then taken off the ship, and her head brought up to windward, but she would be no sooner close up than the seas would knock her off into the trough again. The captain was at the wheel on the bridge at this time. Another sea came over the lee side and washed me overboard feet first. This sea sent a lot of water into the saloon, the sliding door of which was wide open. After I got washed on board again, I went below into the saloon and found the water rushing about there. The pantry window was then open, and the sea coming in. The steward and I succeeded in closing the window and refastening the bolts before we went on deck again. I did not afterwards go below, but the chief mate, steward, and myself on looking down the companion saw that the water was still rising in the saloon. At this time the water on the main deck was up right over the pantry window, so that we could not see it at all. The steward said the window must have been carried away. I do not know what state the engine room and stoke-hole were in then; but shortly afterwards all the people connected with the motive power came on deck, saying they could not remain below on account of the water. I had a conversation with the chief officer concerning the condition of the ship and the weather. I got washed away some little time before the vessel foundered. She went down about half past four with her nose sticking up in the air. I am the only man that was saved out of her. After being nearly sixteen hours in the water, I was ultimately thrown ashore about ten miles from where the ship went down.
Cross-examined by Mr. Purves: Before I was wrecked, I did not know exactly what the dimensions of the Alert were. I saw the figures in the papers after the Marine Board enquiry. It is correct when I say this was the lightest cargo I had ever known on board the vessel. It was the general talk of everybody on board about the cargo being the smallest we ever had. I could not swear that the captain said so. The crew said it before we left the wharf at Bairnsdale, and they said it when they were putting their life-belts on before the ship went down.
Question.—You received certain moneys from a fund subscribed by the public? Answer.—Yes.
Q.—Do you know whether Messrs. Huddart, Parker and Co. contributed to that fund? A.—It was advertised in the newspapers that they contributed £100 to the fund, and from the £1200 subscribed by the public I received £25.
Q.—Did you have any bad weather on this particular voyage? A.—Not exceptionally bad.
Q.—Did you have a choppy sea,—mind I don’t mean a sea cook’s chops? (Laughter.) A.—Yes, we had some choppy seas.
Q.—Was it blowing a gale? A.—Not before we reached the Schanck.
Q.—Do you know how many miles you went from seven o’clock till four? A.—About nine or ten knots an hour.
Q.—At three o’clock you were two miles east of the Schanck? A.—Yes; and at four o’clock we were six or seven miles to windward of the Schanck.
Q.—You were going out to sea from two miles until the time you foundered? A.—No; we were making for the Heads when she went down.
Q.—How do you know when the vessel foundered? A.—When I got back to the ship, after being washed overboard the first time, I found on examining my pockets that the water had stopped my watch at five minutes past four, and I estimate that she sank about twenty minutes after that. (At counsel’s request the witness here handed the watch over, and its rusty works—together with the time its dial indicated—were evidently examined with much interest.)
Q.—Up to the time you were two miles east of the Schanck, did the vessel ship any water. A.—Only spray. There was no heavy sea. The wind kept increasing as we went along. It was a fresh, but not a heavy gale.
Q.—If I call a witness who said it was a heavy gale, and that it was blowing a gale before you got to Cape Schanck, you will contradict him? A.—Yes.
Q.—The ship never was in any danger until her course was changed to the Heads? A.—None whatever.
Q.—Did the danger not commence when within two miles of the Schanck at the time the course was altered so as to head out seaward? A.—No; it was no danger that we would be frightened of.
Q.—Did the ship have the trysail on her when shaping for the Heads? A.—Yes.
Q.—Did she have it on her when the captain tried to bring her head to the wind? A.—No, they took it in.
Q.—Up to about a quarter of an hour after her course was shaped to the Heads, you never apprehended any danger? A.—I can’t swear to a few minutes.
Q.—Had you ever faced such weather as this before? A.—Not in the Alert.
Q.—Had you in any ship? A.—Yes, in the Despatch on the coast.
Q.—That is the only ship you saw such heavy weather in? A.—I have been in dozens. I have been in the Despatch in far heavier weather.
Q.—Up to the time the ship was headed out to sea, was there any water in the saloon at all? A.—No, not a drop.
Q.—Do you say that the water that went in at the pantry window caused the ship to founder? A.—I say it helped to founder her.
Q.—Directly she was put on her course, she came on her beam ends and never righted herself. Was it not the shifting of her course that caused her to founder? A.—Not that I am aware of.
Q.—When she foundered, you were in the sea looking on? A.—Yes.
Q.—Does that picture correctly represent the sinking of the Alert? (Picture showing the vessel in the act of going down handed to witness.) A.—I don’t say correctly. It is something fair.
Q.—Do you call that a moderate gale which is depicted there? A.—I did not make that picture. I told them the ship went down stern first, and they drew it themselves.
Q.—In your previous evidence before the Marine Board you said, “The second sea that came washed me overboard and I clung to the rail, and the next sea took me on board again. The second sea washed me into the saloon, and the water dashed in the cabin door. The steward drew my attention to the water in the saloon.” What did you mean by that? A.—I never used those expressions. They are put down wrongly.
Q.—The statement was read over to you, and you signed it. Why did you not correct it? A.—I certainly would have done so if I had understood it when it was read over. I do not remember hearing it read. It may have been read, but I could not follow it.
Q.—Was the ship going ahead at the time she disappeared? A.—No, she was drifting in.
Q.—Did not the smoke and flame rush out of the funnel before she foundered? A.—It rushed out when she was foundering.
Re-examined by Mr. C. A. Smyth: I have been suffering ever since the wreck, and was confined to bed in the first instance for about three months. When I was examined before the Marine Board was four or five weeks after the wreck. I was not recovered at that time, and had to take to my bed after that. I cannot say whether the statement I then made was read to me before I signed it. Some of the passages are not correct. My memory varies sometimes, but it is fairly good on the whole subject. I was in the saloon when the lamps were smashed, and there was no water in the place at that time. The lightness of the ship and the show of getting her round were matters of conversation amongst all of us.
His Honour Mr. Justice Williams: Q.—Supposing all the doors of the companion were shut, could the water get into the saloon in any way except through the pantry window? A.—That was the only way.
Re-cross-examined by Mr. Mitchell: Q.—Are you able to say whether water could get from the saloon to the engine room and back again? A.—There was a little round door over the shaft big enough for one man to get through. It would lead to the stern of the ship. I could not say whether it was open or shut.
Q.—When you saw the water rising in the saloon, could you see the condition of the lee companion doors? A.—All three of us—chief mate, steward, and myself—were standing in the port door at the time we saw the water rising. It was not safe then to go into the saloon.
KILPATRICK v. HUDDART, PARKER & CO., LTD.
Second Day, Tuesday, February 12, 1895.
Evidence for the Plaintiff.—(Continued.)
James Grant, examined by Mr. C. A. Smyth, stated: I am a shipwright, with about forty years’ experience in the business, and amongst shipping. I have a certificate for navigation as chief officer. I got it in 1875. I also passed my examination before the Steam Navigation Board as marine engineer. I have seen the S. S. Alert running up and down the Bay several times as a Bay trader. Some repairs were effected to her machinery in the year 1893, some months before she was lost. Messrs. Robinson Bros. had the contract for the job, and I was engaged as their ship carpenter to carry out the shipwrighting work. I was working on her two months altogether. Speaking of her generally, she had very fine lines. The model now shown me appears to be like her. There is no bearing here (pointing to bottom of model). To give her stability, the flat part should be carried further along. There is no bearing until the bulging part touches the water, and it would have the effect of throwing her deep in the water aft. She was about 170 feet long, her breadth eighteen or nineteen feet, and her depth between nine and ten feet. In my opinion the Alert was very long for her beam and for her depth. According to the Alert’s certificate of register, she came out from England as a three masted schooner, or barque, under sail only. When I was making the alterations she had only one mast, a foremast, as shown in that model. The captain’s bridge went right across the ship, and there was a gangway going fore and aft on the starboard side, from the bridge to the poop. There was nothing on the port side at all. The stoke-hole would be about twelve feet in width athwart ships, and about five feet fore and aft. It was covered over with a grating composed of ¾-inch iron running fore and aft, and these bars were about two inches apart. There was no provision made for covering this grating with a tarpaulin by means of cleats. Nor was there any provision made for covering any of the skylights. There was nothing to prevent the water getting through either grating or skylights. If water went through either of these places, it would go into the engine room and stoke-hole. The height of the ship’s bulwarks above the main deck was four feet six inches. The breadth of the alleyways between the bulwarks and the side of the machinery casing would be about three feet at the narrowest part, and five feet further on. There was a port hole in the bulwarks opposite; but if the vessel shipped water while lying on her side, that port could not discharge inside water, and there was no provision for discharging water in the alleyways except that port hole. I remember the window made for passing food to the saloon. I did not make it. Originally it must have been cut out of the iron. It was a glass window about 16 x 14 inches, with a wooden frame. I did not notice how it opened; but if it opened inwards it would be a source of danger if the vessel shipped much water aft. I remember the bunker holes for shipping the coal. I fixed them in. Each had a cast-iron frame sunk in the deck. The covers were about sixteen inches in diameter. They were flush with the deck, and were only held in their places by their own weight. In the case of a vessel dashing about heavily with water rolling inside, those covers might get knocked off, and the stoke-hole would be filled direct from the sea. If a lug were placed on the lower part of the cover, and a half-turn given, then it would stay on and prevent water going down. The Alert’s covers had no lugs. The weight of her boiler and engines would be about one hundred and fifty tons. The weight of the water in the boiler would be twenty-three to twenty-five tons. Taking into consideration the ship’s cargo, build and trim, I do not think she was fit for a sea voyage. If she had had an after mast with a sail on, it might have helped a bit when efforts were made to bring her to the wind; but as long as she was so light foreward she would be hard to bring up, if not impossible. The light cargo would affect her stability. She was not fit to stand a gale of wind. She was right enough for the Bay trade; but with my experience at sea, I say she was not safe, and I would not have gone to sea in her. She had very little freeboard aft and too much foreward. I know the awning that was over her. It was wooden and permanently fixed. When the vessel was lying over, the wind would get under it and prevent her from righting herself. The proper awning at sea is canvas. In bad weather a vessel is better without any awning.
Cross-examined by Mr. Purves: Q.—You have described yourself as a chief officer? A.—Yes; I will show you my discharges if you like.
Mr. Purves: Oh, I don’t want to see them. What vessels were you chief officer of? A.—The S. S. Omeo, and also two sailing ships.
Q.—Did you examine the lines of the Alert? A.—Yes; I saw her out of the water in the dry dock in the River Yarra. In most good trust worthy ships’ bottoms there is a floor running a long way foreward and aft; but when working in the after hold of the Alert, the floor was so fine that one could not stand on it.
Q.—What height was the casing around the engine room and stoke-hole? A.—It was about seven feet above the deck of the vessel, and when the doors on each side are closed the only way water can get in is through the top.
Q.—Did you ever see a sea go as high as that? A.—I have seen a sea go over a ship’s foretopsail yard.
Q.—What ship was that? A.—The Royal Bride.
Mr. Purves: The Royal Bride, I presume, stood on her head to accomplish that remarkable feat. (Laughter.)
Q.—Seas that would go over the topsail yard would also go down the funnel? A.—I should say so. I have seen steamers at Greymouth with bags tied over the funnel.
Q.—Then the water would be just as likely to go down the Alert’s funnel as her grating? A.—No; it would not be just as likely that the sea would go down the funnel as the grating; but seas might come over the weather side, and a good deal go down the grating. I do not say sufficient would go down that way to sink the ship.
Q.—How many tons of water do you calculate the Alert would ship through the pantry window in the course of a minute? A.—Nearly twenty tons. It would depend a good deal on the height of the water outside. If the vessel were on her beam ends, and the window covered with water, enough would rush in to knock everything down.
Q.—Would the wooden awning help to bring the Alert’s head round in a gale? A.—By putting up a sail aft to the wind, you can always bring a vessel up. The wooden awning might have that effect, but in my opinion it would do more harm than good.
Q.—Suppose during a six hours’ gale, keeping a certain course, the Alert never shipped a sea, would you consider that a proof of her sea-worthiness? A.—Not altogether. The moment she altered her course she might ship a sea and go down. If I were on board, and found in a violent gale that by pursuing a certain course I was safe, I would not alter that course.
Q.—Supposing your alleyways were full of water, and the bunkers had the covers on, how could the water get the covers off? A.—It is very different with a vessel turning over and jumping. The sea would make you jump off your feet sometimes.
Q.—Have you seen the Excelsior steamer? A.—I have, but I have not travelled in her. She is fine in her lines, but she is only a river boat. No man with any experience would build a vessel like the Alert to go to sea.
Q.—How much cargo would it take to make the Alert sea-worthy? A.—It could not have been done anyhow. No amount of cargo would make her sea-worthy. She might be better in a gale if she were heavily laden. She should have had about 100 tons of cargo; it would put her more on an even keel. If the forty-four tons of cargo had been put in the forehold, a difference would have been made.
Q.—Which would make the more stable cargo, 100 tons of feather beds, or 100 tons of pig-iron? A.—They would both be the same weight, but the feather beds would be more lively than the pig-iron. (Loud laughter.) They would, however, be the very worst cargo a vessel could possibly take, for the one would be all too high, and the other all too low. There is a medium in everything.
Re-examined by Mr. Smyth: A vessel coming out here as a barque, or schooner, would have square, as well as fore and aft canvas, and would be in proper trim. She would not require water in her boiler, and when sailing the funnel would be unshipped and put down below. The Alert had two boilers, but when the alterations were made, one boiler as large as the previous two was put in. This boiler was in her when she was lost. It stood about four feet above the level of the main deck. The old boilers did not come above the deck. A light cargo would make the ship more lively, and would affect her stability. She did not have enough. If the vessel were on her course standing out to seaward, and there was no apprehension of danger, there would be nothing to prevent me, as a seaman, from altering her course. It was good seamanship to make for the Heads. I knew the late Captain Mathieson. He was a first-rate seaman, understood his business, was sober and attentive, and quite fit for the position. The greater the head of water outside the pantry window, the greater the pressure, and the more quickly the water would be forced through.
Q.—We are told by Mr. Ponting that the vessel was lying over, and that the water was over the whole of that aperture, coming up to the break of the poop; and there is that body of water constantly coming in from the sea. That is as far as we can give you the pressure of the water outside. Can you make a calculation of the quantity of water that would go through that aperture per minute, and the weight of it? A.—Assuming the water is two feet higher than the aperture, I make it 2,820 gallons, and 28,200 lbs. in a minute. There are 2,240 lbs. to the ton, that would give between twelve and thirteen tons.
Q.—Supposing the water is only one foot above the aperture, what difference would it make? A.—It would be a third less, and that would be eight or ten tons. If the water were flush with the top of the aperture, the discharge through would be a little less than I have stated, and if fifty or sixty tons of water were down that aperture, a small sea would smother the vessel, and she would go right down stern first.
To His Honour.—If the forty-four tons of cargo had been placed further foreward, it certainly would have helped the ship a bit by giving her a more even trim.
James Scott Sutherland, examined by Mr. Williams, deposed: I am a shipwright, and have had experience of about fifty years. I knew the S. S. Alert for about seventeen years. I never worked on board of her until on the last occasion, when she got new engines, about two years ago. I was employed by Mr. Grant. My work was principally in the stoke-hole and engine room putting beams and flooring down there, and also in the cargo hold. I had an opportunity of judging her. In my opinion she was never intended for an ocean going vessel. I think she was altogether out of proportion by being too long for her depth and width, and too fine in her after section. She could scarcely have any freeboard according to her depth. If she were drawing nine feet six inches aft, and only had nine feet depth of hold, she could not have any freeboard. On the top of the boiler there was a skylight, and just at its after part were some gratings. These gratings led down to the stoke-hole. There was no protection for them that I saw. I lined the bunker holes on her deck. The rims where the lid fits in were let down flush with the deck; a grating went into the flange on the inside, and the lid went down on that again. From having passed over it, I say the whole was level with the deck. The vessel sat in the water with her bows up. If she shipped any water she could not help taking it into the alleyways. There were two little ports, one on each side of the bulwarks, to take the water away. There were none foreward in front of the engine room. I did not notice the window in the poop. I do not consider the wooden awning much of a disadvantage, except that it would give her extra top weight when she was off an even keel. It would do for the Bay trade, but for encountering a heavy gale there should have been a canvas awning. I do not consider forty-four tons of wattle bark and furniture a sufficient cargo to put her on an even keel. She would not be in proper trim to go to sea.
Cross-examined by Mr. Mitchell: The awning would be about equal to the weight of a mast, and would make the vessel top heavy, otherwise it would make no appreciable difference. I was working inside, and anything I saw of the outside of the ship was from casually looking at her.
Andrew Michael McCann, examined by Mr. Smyth, stated: I am a shipwright, shipbuilder, and general contractor, and have had over thirty years’ experience as such. I have had about thirteen years’ experience at sea in sailing vessels and steamers. I have been ship’s carpenter, second mate, and chief mate. I was partner in the firm of Campbell, Sloss & McCann, and shareholder in Robison Bros. & Co. I knew the Alert since she arrived in the colony. She was engaged in the trade between Melbourne and Geelong, inside the Heads. During that time my firm did several jobs on various occasions to the vessel. I have made trips to Geelong in her as a passenger. She was a fast boat in the Bay. She was very low down aft, and carried her cargo foreward. I put that wooden awning on myself about ten years ago. It was intended as an awning. In a small boat it would not be beneficial outside the Bay. I don’t think the tendency would be good in a boat of this kind. It would take the wind pressure and incline the vessel over and keep her there. Canvas is admitted to be the proper awning, so that it can be furled, and it should be furled when the wind increases. There is a difference in the dimensions of vessels. I know the length and depth and beam of the Alert approximately. From the model I know where the engines were placed. They were abaft the midship section, and would have a tendency to bring her down aft. I can only give an estimate that the engines, boiler, water, and coal would weigh about one hundred and forty tons. In ordinary fine weather, the Alert would be sea-worthy with forty-four tons of cargo. There is a likelihood of heavy weather at any time outside Port Phillip Heads. In consequence of the general construction, the small freeboard, and the want of aft canvas to assist in fetching her up in the wind, if necessary, I do not think the Alert was suitable for heavy weather at any time, and in my opinion she was never constructed or intended for sea voyages. The great number of times her length exceeds her beam and her depth makes her unsuitable for sea going purposes. She would make bad weather even in the ordinary weather got in the Straits outside. That means she would be a very wet ship in bad weather. She was very finely built, and was fine all round. A second mast would enable the helmsman, or master, to have more command over the ship. For the safety of the vessel more canvas would have been of great assistance, and the helm would have had more effective power. If she had after sail, and they had taken the head sail off her, it would have had a tendency to fetch her up to the wind.
Q.—Assuming there was a grating over the stoke-hole unprotected, would that be a cause of danger? A.—Unless properly protected, it would be a serious cause of injury. It is the ordinary custom for all hatches to be protected by tarpaulins, cleated and battened down. It would be a reasonable and proper thing to make a provision for tarpaulins over that grating, and it should be compulsory to have such fastenings. I have not seen the window in the fore part of the poop, but if there was, it should have had a shutter outside on hinges capable of being fastened inside and out. It is customary on all new ships to have the bunker hole covers secured, and so they ought to be.
Cross-examined by Mr. Mitchell: I have been on the Alert I daresay one hundred times doing repairs to the ship. It was an improper thing not to be able to attach a cover to the grating. It would be a very heavy sea that would go over it from the weather side, but if the vessel were thrown on her beam ends, there is nothing to prevent it going in on the lee side. An angle of 45 degrees would be sufficient to throw her over enough to take in a lee sea that would cover it. It is not the throw over of the vessel alone, it is simultaneously the rise of the sea to leeward. I have no knowledge how far the ship did go over on this occasion, but I think there would not be much of a sea from the weather side. If she did take water in on the weather side, it would be principally forward of the bridge, and it would get to the lee side before getting to the grating. By 45 degrees I mean the vessel has to go 45 degrees from the perpendicular. This is not an unusual angle for a ship to heel over; in my experience I have known them to heel over almost to a right angle.
His Honour,—I have known large steamers to roll over to a greater degree than an angle of 45.
Q.—By Mr. Mitchell: What is your idea as to how the Alert was lost? A.—The opinion I have formed is that they had a change of wind and a mixed sea; that the vessel began to labor and take in much water, which eventually took her down. On measuring the model of the Alert now shown in court, I find that the vessel’s length was eighteen times her depth and nine times her beam, approximately.
John McKenzie, examined by Mr. Smyth, said: I am a Marine Surveyor, and I have been a Master Mariner. I have had twenty-one years’ experience at sea, and have been thirteen years as captain to almost every part of the globe. Since the year 1870, I have been a Marine Surveyor. I have also had a good deal of experience in shipbuilding, and was for two years Shipwright Surveyor for the Underwriters’ Association. I knew the Alert, and first became acquainted with her thirteen years ago. I officially surveyed the vessel in one of the dry docks in Melbourne. I was then Surveyor to the Lloyd’s Associated. Captain Webb, now the managing Director of Huddart, Parker & Co., was in command of the ship at that time. I was seeing if she was in good condition and fit for risk for insurance. I did not see Captain Webb on that occasion. I found some rivets defective in the after keel of the vessel. They were not done on that occasion. Captain Webb called at our office the day after, and wished to know if I would allow the vessel to run another six mouths before completing the repairs I had asked for. He told me she was only intended for the Geelong trade. I have been on board the Alert a good many times since. I remember when the last repairs to the engines were made. On several occasions I was there while they were going on. I saw the work being done. The alterations that were made would, in my opinion, not alter the trim of the ship. They were very powerful engines for such a small vessel. I have been on her several trips to Geelong. In those days she sat very much by the stern, and did not show much freeboard.
The effect of the engines going full speed had a tendency to pull her down aft fully a foot. The model on the table there was made from my instructions. It has the dimensions of the Alert, and it is only made from recollections of the vessel. I had no plans to guide me. It is, I believe, a very fair representation of the Alert. She had very fine lines both fore and aft, and thus her stability was reduced very considerably. I have calculated the weight of machinery, including shaft and propeller, as about 150 tons. That also includes the coal bunkers. With that weight in such a small vessel, it had the effect of putting her so far down in the water that she showed very little freeboard. It was too heavy for the vessel. She was not able to carry such a weight in that particular part of the ship, and it brought her down too much aft. Putting whatever cargo you like in her foreward, in my opinion she would not be fit for ocean going under any circumstances. By the time you got the vessel sufficiently loaded foreward, she would be so deeply immersed that she would show very little freeboard from the midship section aft. Assuming she had nine feet six inches of water-line aft, and four feet six inches foreward, then she had about one foot nine inches freeboard aft, and eight feet of freeboard foreward. I heard it stated in evidence that there were forty-four tons of cargo on board on her last trip. With that amount of cargo, and placed in the position it was, from the nature of the cargo—it being of so light a description—it would take so much space in the hold that it would add to her instability. It would be stowed up to the deck, and would not lie far enough foreward in the vessel. In my opinion with all that weight aft, she was not fit for sea going at that time of the year. Southerly gales are more frequent and more heavy about Bass Straits in summer than in winter. From the extraordinary dimensions of the ship in the first place, and from her being so deeply immersed in the water aft, she was not sea-worthy. For the length to be eighteen times that of her depth is, I think, out of all proportion. There is not any hard and fast rule as to what a vessel’s dimensions should be, but in my opinion, according to Lloyd’s rule, the length should never exceed sixteen times the depth. I remember the grating. It was not safe to go to sea without some protection for it. It would have been only a necessary precaution to have had cleats and tarpaulins ready. I think that the whole of the casing round the engine room was unsafe. It left only the alleyways on each side to hold water. The two sides would hold somewhere about fifty tons, and that quantity would be sufficient to put the ship out of sight. The sides of the vessel ought to have been carried up as high as the top of the casing, and the whole thing covered over with a deck. The entrances to the engine room and stoke-hole were dangerous. When the alleyways are full of water, it is bound to get through the doors of those places. I remember the window in front of the poop. It was a most improper thing to have, and was simply dangerous. In smooth water it was not so important, but it is necessary to secure every aperture to any vessel when she has to go outside the Heads. With such a window as it was, the Alert was not a sea going vessel, even if her bunker lids had been fastened, which they were not.
I heard the evidence of Mr. Ponting yesterday that the vessel encountered certain weather after passing Cape Schanck, and that she stood out to sea three or four miles. It was a right thing to do to give the land a good berth, and after getting a good offing there was nothing improper in Captain Mathieson making for the Heads. I knew Captain Mathieson by reputation. He was always considered to be a careful seaman. I heard of the efforts made to get the vessel’s head up to the wind, and that every time she was brought up she paid off. I should think that was on account of her being so light foreward. If she had had an after mast it would have had some effect, but under the circumstances I question if it would have had the desired effect. When the vessel was struck by the seas, she must have been struck on the port side and hurled over to such an extent that the whole of the lee deck became flooded. The vessel was simply waterlogged, and could not steer. In all probability there was water in the engine room and stoke-hole which interfered with the fireman keeping up sufficient steam in order to get the proper amount of power. These things, combined with her light bow and the wind striking on it, would make the ship lie like a helpless log impossible to be steered. I saw the wooden awning on the Alert. It was very useful for passengers down the Bay, but for a small vessel like her going outside, it should not have been a fixture. The effect would be that when she came over on her beam ends, the wind would get underneath the awning and hold the ship down. If an awning were wanted, it ought to be of canvas, and not spread at all even in half a gale.
Cross-examined by Mr. Purves: I was not discharged from the Underwriters’ Association, but left their employment because I had finished my agreement with them. I am now in business for myself. I am a surveyor of shipping, and also teach navigation. I have the same authority to survey ships as any other surveyor. I have not got up this case. I made the model exhibited, and McKenzie the shipwright finished it. I have spoken to Captain Mathieson on several occasions. He did not carry a pilot on board. He was an exempt master and a skilful sailor. From Melbourne to Bairnsdale and back, would be about 530 miles, and the Alert would need about fifty tons of coal to do the round. She would burn twenty tons in twenty-four hours, and at the time she foundered, she would have burnt a good deal of her supply of coal. A ton of water is about three feet by two feet in size. There would be a ton and three quarters in a 400 gallon tank. If both the alleyways were filled, they would hold about fifty tons of water, and the ship would go under. At the time the Alert was built, the bunker tops on a good many vessels were fitted in the same way as hers; but they are not allowed to be fitted in such a way now. I surveyed the Alert. I did not pass her for insurance. She was refused by the Underwriters. I will swear the Secretary informed me that she was not to be insured until she was passed. She was not passed by me. Glass ports are just as efficient to keep out the sea as an iron casing, because they are properly secured inside. A window like the Alert’s could be made perfectly secure, but in her case it was not. When I surveyed the ship I did not complain of the window. I would not object to it because the ship was only trading to Geelong. I know the S. S. Excelsior. She is not fit to go to sea. I would not pass her.
Henry William Byrant, examined by Mr. Smyth: I am a duly qualified medical practitioner residing at Williamstown. I knew John Kennedy Kilpatrick for four years. He never ailed in any way. I examined him once or twice, and found him perfectly sound and a very strong man. I would not make any statement as to how long he might have lived, but he would live as long as any healthy man might live. His age was twenty-eight to thirty.
KILPATRICK v. HUDDART, PARKER & CO., LTD
Third Day, February 13, 1895.
Evidence for the Plaintiff.—(Continued.)
William Matthews, examined by Mr. Smyth, stated: I am a ship and boat builder. I have had about thirty-seven years’ experience. I knew the Alert and travelled in her to Geelong a few times, but not outside the Heads. I see the model on the table. I think the Alert was finer aft than the model. Otherwise it fairly represents her. I think she had about two feet freeboard aft, and about eight or ten feet or more out of the water foreward. I know the weight of the engines which were in the aft part of the ship. I knew her hull very well. Having regard to her length, breadth, and depth, I do not think any sane man would send a ship like that outside the Heads. I have been in the Alert in the Bay, with a south-east wind, and she was nearly going down then. It was not a very heavy wind, but there was a nasty sea, and she nearly drowned the lot of us. The water came in aft over the lower part. There is no doubt that the gratings over the engine room and stoke-hole should be secured. I would fasten them with tarpaulins, iron cleats, and wedges. I think a glass and wooden frame in the bulk-head of the saloon of a vessel like the Alert would be easily smashed. The glass would be a mere bagatelle against the water. It should not have been where it was in the front of the poop on a sea-going vessel like this one at any rate. I know the bunker holes. The covers should be screwed down and fastened below by a bar. They would not be secure by simply being fastened down by their own weight in a boat like that, rolling about as she did. I think if the vessel had had more cargo than the forty-four tons placed in her main hold, she would have been even worse than she was. That cargo was not right to go outside the Heads with, as the vessel, considering her length, was not fit to carry it. If the cargo had been stowed in the forehatch it would have put her more on even keel. It was a great mistake to place that wooden awning on the boat. If a gale of wind were blowing, the wind would get under the awning, and if the vessel were lying over, it would help her to go over further without doubt. It would keep her down when she was down. If the Alert had had another mast and sail on it, her head could have been brought up to the wind and sea. At all events it would help in doing that.
Cross-examined by Mr. Purves: I carry on business at Williamstown. I have built small vessels larger than the Alert, but never built a full rigged ship. It was some years ago that I was nearly drowned in the Alert. It was on the way to Geelong, when we were just the other side of Point Cook. The sea came in one side and out the other. I cannot say the decks were full, but the after part of the boat was flooded particularly. I was not frightened, as I am used to that sort of thing. Of course if I had been washed overboard, I might have lost my life, but I did not think there was any great danger so long as I had something to hold on by. The water came over both aft and amidships. It came over the port side from the mast to the poop, heavy seas, quite enough to wash you overboard. The fires were not put out, but some water went down the bunker holes. One of the bunker lids I saw off myself. I don’t know how it came off. The sea did not go on the poop. At the time I speak of, the Alert had about eighteen inches freeboard. By freeboard I mean the distance from the water up to the level of the deck. It has nothing to do with the bulwarks. I still think that forty-four tons of cargo was too much for that vessel to go to sea with. Of course if it had been placed further foreward, it would have been better.
Q.—You appear to think that Captain Mathieson and his crew were a pack of lunatics to go outside with the Alert? A.—I don’t think I ever said so. I said no sane man would send such a ship outside the Heads.
Q.—That is pretty well the same thing. What would be the greatest risk you would have taken in the Alert. Albert Park Lagoon, or the upper Yarra? A.—She was more fit for the Lagoon if the water were deep enough. Even in the Upper Yarra she would not have been safe if she encountered the wash of a big steamer. (Laughter).
Q.—Where would you have put another mast? A.—I would have put it just aft of the house on deck, and fitted it with a trysail and gaff. I am not prepared to say what size the sail should be.
William White, examined by Mr. Williams, said: I am a shipbuilder, and have been engaged as such for fifty years. I carried on business at Williamstown for forty years, during which time I built many ships. I knew the Alert. The whole weight of the engines being aft, she sat very low in the water. Her bow was up. Stability at sea is gained in two ways, first by breadth and shallowness, requiring very little ballast, or by being deep and narrow. I should say that the Alert required a good deal of ballast to make her stable. Forty-four tons of cargo in the main hatch would not give her sufficient stability. She would not be sea-worthy in my opinion with it. Forty-four tons in the forehold would help to lift her stern out of the water and put the bow down.
The Alert had only one mast. In trying to bring the ship to the wind, it would be almost impossible to do so on account of the height of the bow out of the water, and any sail that could be set would be so much foreward that it would be next to impossible to keep her end on to the sea. A sail aft would keep her bow to the wind. The best thing a ship can do in a gale of wind is to lie to. She had a wooden awning, and that would be a very great hindrance to the sea-worthiness of the ship. It was a very bad thing, because it would hold a great deal of wind, and could not be taken away. In the Bay wooden awnings are used, and it appears this vessel was allowed to go outside with one. It would help to blow her over and keep her in that position. As to the pantry window, I did not see it, but I say it would be extremely dangerous placed where it is said to have been. Every sea that came on board would rush aft, and tend to break everything that was not sufficiently strong to resist its force. The set of the ship in the water, being so high foreward, would naturally throw the water aft, and it would rush aft of its own accord. The grating over the engine room and stoke-hole should have been covered with tarpaulins held in cleats and battened down.
Cross-examined by Mr. Mitchell: I last went to sea as a seaman about forty years ago. I was second officer and carpenter. I have not built any large ships, because there is nothing of that sort done here, but I have built vessels larger than the Alert, and better sea-boats. The Alert was very long and lean; if she had carried a main mast with sail, she might have been more safe.
Q.—Did you ever measure the Alert? A.—No.
Q.—Then how do you know she was long and lean when you never measured her? A.—In the same way that I know you are long and lean, though I never measured you. (Laughter.)
Q.—What in your opinion was the cause of the ship foundering? A.—I always understood that—(here Mr. Mitchell complained that the witness was going away from the subject.) Witness in a firm, determined tone said, You asked for my opinion, and I am going to give it to you, or I am going to give you nothing. (Laughter.) I always understood that the ship was blown round broadside on, and was wallowing in the sea. She became unmanageable in the trough, and, being top-heavy, rolled over till she filled with water and sank.
John Murray Robertson, examined by Mr. Smyth, stated: I am an engineer, employed as second engineer on the P. S. Ozone. I have been about twenty-six years at sea, and I hold a chief engineer’s certificate. I know what the dimensions of the Alert were, and I know where her machinery was. It was placed aft. She had only one mast. The grating over the stoke-hole should have had a covering on it of iron, wood, or tarpaulin. In my opinion it is not right to have a window in the front of the poop in a sea-going vessel going outside the Heads. It should be blocked up with a door, or shutter opening outwards. If below the level of the bulwarks, it was not safe to have such an aperture in a vessel like the Alert. I knew the covers for the coal bunkers. They should have been fastened down. I think a second mast would have been an advantage to the Alert.
Cross-examined by Mr. Purves: The Ozone is a very fast boat, and we often have heavy weather going down the Bay. Sometimes we have a lot of water on the deck. Our bunker lids have something that fastens them down when they are turned round a bit. The Ozone could not jump them off, because they fit in a socket. I should think the Alert was a sea-worthy ship if she had been further at sea. It is often the case that a captain has to bring the head of his steamer to the wind and lay to; when that is done, we steam easy ahead just to keep steerage way on her. I presume the Alert was sea-worthy when the Board of Trade gave her her certificate.
Re-examined by Mr. Smyth: I would not say the Alert was an ocean going vessel. I would call her a coasting steamer.
Occasionally there is worse weather near the land than out on the ocean. I did say there are means by which a man could batten down the window in the poop.
Q.—How would a man batten down on the iron frame-work? A.—In the iron I should put some small holes and put a plate over it. I would make the holes with a hammer and chisel. It would take half an hour.
Q.—Where would you get the iron plate? A.—It is a queer ship if there is not a bit of iron on board. Of course it would be better to have an iron door outside fastened on hinges.
Andrew Brown McKenzie, examined by Mr. Box, said: I am a shipwright, and have been about thirty-six years, more or less, in that business. I have been on board the Alert several times, and have known the vessel for a long time. She had very fine lines, and was very sharp foreward and aft. She had no bearings under her counter. Any time I saw her, she never had more than about eighteen inches of freeboard. To look at the vessel, she was like a snake in the grass. If the engines had been more amidships, she would have been a better vessel. The pantry window should not have been where it was; but being there, it should have been protected. I knew the engine room and stoke-hole. There ought to have been a tarpaulin on top of the grating. The Alert was very long and narrow, and should have had another mast placed aft with sail on it to help if the engines got disabled. A wooden awning covered the ship’s poop, and, in my opinion, it should have been made of canvas, so that it could be taken in when blowing. The bunker lids should have been fastened in with a turn screw, the same as the lid of an iron tank.
Cross-examined by Mr. Mitchell: I have been eight years at sea. I am the plaintiff’s father, and was on board the Alert seeing my son-in-law just before the fatal voyage. I have built all sorts of ships in the old country, and have built vessels here for the Melbourne Shipping and Coal Company.
Q.—Do you seriously say that this ship, the Alert, was like a snake in the grass?. A.—Yes. That was my opinion of her. She was so long and low. I did not take particular notice of the pantry window, but if the brass bolts dropped out, the aperture could not be properly secured. I saw the grating on the stoke-hole. I say that a seaman could not with his hands have secured anything on that grating to prevent the water from coming in. In times of storm it is too late to think of these things. They ought to be provided for before a vessel leaves a port. As a rule it is the ship’s carpenter, who, under the instruction of the captain, sees to these matters, but the Alert had no carpenter.
William Malone, examined by Mr. Box, stated: I am a seaman, and belong to the steamer Dawn at present. I was engaged on the Alert last November twelve months. That was four weeks before she foundered. I have been off and on at sea during the past twenty years, and was on the Alert when she went outside the Heads to Bairnsdale. I never thought her a trustworthy boat for going outside. I did not see any very bad weather in her. On one trip there was a stiff breeze, and she did not act very well. With a beam sea she shipped a lot of water. She took the most of the water on board amidships, and about the alleyways. This was between Cape Schanck and Port Phillip Heads, with a fresh, but not a heavy, breeze blowing. The Alert had no mast aft. A boat going outside should have an after mast in case they want to keep her head to wind in a heavy sea. There is no means of getting her head to wind without that. Her coal and engines were in the after part of the ship, and during my time she carried no carpenter. I was not discharged from the Alert. I had a word or two with the Captain, and luckily left her the voyage before she was lost.
Cross-examined by Mr. Mitchell; Q.—Did the Captain accuse you of being drunk while in the performance of your duty? A.—No, nothing of that kind. He could not do that, because I did not have any drink. Some ships will ship more water than others, but in an ordinary strong breeze a vessel should not take water on board. The water taken in by the Alert on the occasion I speak of ran out aft.
John Leith, examined by Mr. Smyth, stated: I am a master mariner. At the present time I am captain of the S. S. Maitland. She is engaged in the regular trade between Melbourne, Port Albert, and the Gippsland Lakes. I went to sea in 1857. I was master in 1871, and have been sailing out that way since 1880. Southerly bursters come in that trade pretty nigh any time. Mr. Justice Williams: I wish to goodness you would bring one along now. (Laughter.) (Here it may be stated that during the time this trial was going on, a very hot northerly wind was blowing, making the court as warm as an oven.) The witness continuing, said: I know the Alert, and have been down the Bay a number of times in her as a passenger. She was always well down by the stern. She was long and narrow, with no great depth. She had one mast only, and the engines were well aft. She was not fit to be in a gale of wind, and gales do come along in Bass Straits.
Q.—Assuming that she had an iron grating open about twelve feet athwart and four feet fore and aft, was that a proper thing to leave unprotected in a sea-going vessel of that kind? A.—It was not in a vessel down by the heels as she was. In a gale of wind, or any heavy sea, everything would sweep over her, and fill the stoke-hole and engine room. In my opinion, provision ought to have been made for covering that grating before going outside. There ought to have been something over it, and a very good strong arrangement, such a thing as a skylight with flaps, that could have been opened and shut. A tarpaulin might stand a little time, but it would not stand many seas. I knew the alleyways between the bulwarks and the casing of the machinery. I also remember seeing the pantry window. It was open when I saw it in Hobson’s Bay, and they were passing food through it into the cabin. It was right enough for the Bay traffic, but for a sea-going vessel it should have been secured so that it would stand the same weight of water as the bulk-head. The glass should have been protected the same as port holes are protected, with a cast iron port either inside or outside. I cannot bring myself to think that a piece of glass is sufficient protection against a heavy sea. The hole that was there was big enough to fill the saloon with water, and cripple the ship. I could not say how many tons would go through, but when water runs through a hole in a ship, it goes with a great rush. With only a piece of glass between her and filling the saloon, it is a dead certainty she would founder. I never saw a bunker-hole with a lid resting by its own weight. It should be dropped into notches. Forty-four tons of cargo was not sufficient ballast for the Alert. At the same time I should say that one ship acts differently to another. One could go empty, while another would require a lot of cargo. The vessel that would go empty would have more beam and a flatter floor, or bottom, than the Alert. Amidships was the best place for the cargo, but I don’t think the Alert had stability enough for a gale of wind even if she were fully loaded. I knew the late Captain Mathieson, and thoroughly agree with the statement that he was a skilful seaman and a good master of a vessel. If she had a second mast and canvas aft, the Alert would have kept to the wind, head on to the sea, with less pressure on the screw propeller. The wooden awning, when the vessel was laid down on the starboard side, would assist in keeping her over to leeward.
Cross-examined by Mr. Purves: The steamer I am in, the Maitland, is not flat. She is round, and is a sea-worthy vessel. She can go to sea in any ordinary weather. We trade to the Lakes, the same trade in which the Alert was when she was lost.
Q.—The Maitland knows how to roll, does she not? A.—She does not.
Q.—Does she not belong to some bill-sticker? A.—No, unless you call the Commercial Bank by that name. There may be some bills sticking in there (Great laughter). I remember taking the Maitland down to the Heads on the afternoon the Alert was lost. I did not go outside because a strong ebb-tide was running. A gale rose with the ebb-tide, and made the “Rip”[1] dangerous. The wind was from the south-west, but it was not that I feared, it was the “Rip.” Had I been able to get the ship down to the Heads earlier, I would have gone on outside to sea. A south-west wind would not give smooth water under Point Lonsdale. The bunker lids of the Maitland have catches. They fit in notches like the top of an iron tank.
Q.—Supposing your gratings were open, and the ship taking water on board, what would you do? A.—We have none on the Maitland.
Q.—But if you had a grating, how long would it take you to put a spare jib over it? A.—The spare jib might be stowed away in the fore peak and not easily got at. It might take a lot of time to get a spare sail, and then it would not be fit for the purpose.
Q.—Would it not be prudent to make everything snug in a gale? A.—We always make everything snug before we leave port. We don’t wait for a gale to do that. The Alert was not a fit vessel for the trade she was engaged in. She was a ship never meant to go outside the Heads. She was not sea-worthy.
Q.—Did you have any night-caps last night, Captain? A.—No, I don’t like them.
Q.—How is that? A.—Ever since I was with you, I gave them up (Laughter).
Re-examined by Mr. Smyth: In my opinion there was nothing to prevent Captain Mathieson, as a skilful seaman, from making his course for the Heads. I reckon that he was as good a ship-master as any on the coast.
Mr. Justice Williams: Q.—Were you lying inside the Heads on the night of the Alert’s wreck? A.—I came to an anchor about nine o’clock that evening. I knew there would be a bad “Rip” on, and therefore did not go out.
His Honour: Q.—What was the weather like? A.—It was a fresh gale with fierce squalls and blinding rain. From three to four o’clock in the afternoon it blew hard at times, and then would lull off for a bit.
Thomas Bicknell, examined by Mr. Box: I am a master mariner. I have been coasting pilot in Australian and New Zealand waters for the last ten years, and have been in all sorts of vessels. I knew the Alert well for a great number of years. I have been often on board of her, and frequently a passenger in her to Geelong and back. I considered her a very unsuitable boat even for the Geelong trade, or anywhere else in the Bay; for outside the Heads she was a perfect water trap. Her extreme length did not compare with her depth, and she had a very narrow beam. She was very fine, with no bearings, and not sufficient stability. Her engines and boilers were well aft, and gave her a lift in the bow, at the same time depressing her stern. I have seen the pantry window, but did not pay much attention to it. Placed close to long, narrow alleyways that window would be dangerous unless properly constructed and secured. It should have been secured from the outside so that the pressure of water on the outside cover would have tightened it instead of forcing its way through. Water in the saloon of a vessel labouring in the sea would make her unmanageable. I saw the grating. There should have been an iron door on hinges over it, and over that a tarpaulin, because a tarpaulin in itself is not sufficient. Forty-four tons of cargo, composed of wattle bark and furniture, would have very little effect on the Alert. She was very tender and crank. Had that cargo been iron or ballast, it would have kept the ship out of difficulties, provided she had after canvas to keep her to the wind. In a case like hers you lose seaway, and you want after canvas to give the ship steering way. I saw the wooden awning. It would help to put the vessel down, and the wind would catch it and keep her down. It should have been made capable of being taken in in rough weather. A vessel lying over like the Alert did would no doubt take water in every opening. Her freeboard was about one foot eight inches, and that is very low. I have seen her with her gunwale almost level with the water. If the bunker lids were not properly secured, then they were dangerous. A vessel leaning over very much is likely to throw them off. Knocking about as she was, the water would hit against the lee cover and throw it off, and if there was any water on the deck, it would pour down below.
