FOOTNOTES:
[1] The “Rip” is the name applied by seamen to a very strong, nasty current which runs immediately at the Heads entrance. With the wind in and the tide out, or vice versa, a dangerous joggle of waves arise.
KILPATRICK v. HUDDART, PARKER & CO., LTD.
Fourth Day, Thursday, February 14, 1895.
Evidence for the Plaintiff.—(Continued.)
Mr. Bicknell, cross-examined by Mr. Purves: Q.—Are you a pilot? A.—I am a coasting pilot and an exempt pilot for the ports of Adelaide, Melbourne, Newcastle, and all intermediate ports. I have commanded many vessels, steam and sail, in my time, and have a thorough knowledge of the Australian coast—none better. I have been on the Alert in the Bay, but never outside with her. I felt she would be a coffin for someone sooner or later.
Q.—Assuming the Alert started from Wilson’s Promontory with a south-easterly gale and a south-westerly sea, passes Cape Liptrap, and gets to within two miles of Cape Schanck, carrying, on the latter part of the journey, a trysail and a staysail, and shipping no water, would that be an indication to your mind that the vessel making that passage was sea-worthy? A.—It would not.
Q.—If Captain Mathieson was two miles off Cape Schanck, and if a south-easterly gale veered into a south-westerly one, was he a proper seaman to try and get an offing? A.—Yes, he was.
Q.—What is the most dangerous sea for a boat of small freeboard? A.—The most dangerous would be in the trough of the sea; when the lee side of it lifts over and falls on top of the ship in a mass.
Q.—Supposing I tell you that in the case of the Alert three tremendous seas coned over on top of her, would you say that was an uncommon occurrence? A.—Heavy seas generally run in threes—one, two, three,—and the third is generally the worst.
Q.—Would three tremendous seas one after the other have an appreciable effect on a sea-worthy ship? A.—No, I have often been in a ship with decks flooded. She would shake the water off her decks, and away she would go, as lively as ever. That is a good sea boat.
Q.—I presume you will admit that hundreds of sea-worthy ships have been overwhelmed by the waves? A.—Yes, some of the best ships that ever floated have gone to the bottom. In a heavy gale of wind a ship, even riding at anchor, often founders. She strains herself, and opens out forward.
Q.—Assuming that the Alert was passed in England by Lloyd’s surveyors, would that shake your opinion as to the sea-worthiness of the ship? A.—No, it would not.
Q.—No matter how good a ship, how admirably proportioned, how safely built, there may come a time in her history when stress of weather may cause her to founder? A.—Yes.
Q.—Did you ever see a steamer on her beam ends in your life? A.—I have seen them at an angle of 45 degrees, and we usually call that pretty near “beam ends.”
Re-examined by Mr. Box: A large quantity of water in the saloon of a vessel like the Alert would make her unmanageable. Her alleyways were about forty feet long on each side, and four feet wide. They would hold at least thirty or forty tons of water, and the saloon twenty or thirty tons more. A vessel shaped like the Alert, flooded with water on one side, would have very little chance of recovering. I have been down the Bay in her with the wind blowing strong. She heeled over to starboard when hauled up to the wind, and took a lot of water in the alleyways.
Mr. Justice Williams: Q.—We have heard a lot about these seas in the Bay. What is your opinion of them? A.—They are mere teapot waves compared with what we meet outside.
His Honour: Q.—Do the seas you meet in Bass Straits outside compare in size with the seas you meet round Cape Horn? A.—No, they do not, but they are more dangerous in the Straits, because they are short, quick, and fierce.
His Honour: Q.—Would you be surprised to hear that in going round Cape Horn a sea will sometimes come over the foreyard? A.—With a loaded vessel I would not be surprised at all. A good deal depends upon where you are. With the wind more to the southward there is not so much drift.
Neil McLaughlan, examined by Mr. Williams: I am a master mariner, and have been so for twenty-seven years. I have been a coasting pilot about fourteen years on the Australian coast. I knew the steamer Alert ever since she came out here. She sat in the water very low aft, and very light foreward. That was because she had very little bearings, and had heavy machinery aft. She was not adapted for going outside the Heads. Forty-four tons of cargo would not be enough to trim her for a sea voyage. Of course if it had been placed in the forehold, it would have made some difference in giving her a better grip of the water forward. Wattle bark and furniture would be all top weight. She was a very tender boat at the best. With another sail aft, the captain would have a much better chance of bringing the ship’s head up, and keeping it up. I remember the alleyways each side of the engine room. The effect of water getting in them would be to put the ship still further down aft, and the water was bound to force its way below somewhere. I have seen the gratings on top of the stoke-hole and engine. For going outside the Heads they should have been covered with wood or iron, and I would have put a tarpaulin over that again, with cleats to fasten it at bottom. The window in front of the poop was composed of glass with a wooden frame. When seas came on board, with the trim the Alert was in, the water would press against that window very heavily. It was very improper to have such a thing there at all, but, being there, it should have been properly guarded. A couple of pieces of iron should have been riveted on to the bulks-head, forming a slide for an iron cover plate to go up and down, and the whole secured with a screw bolt as well. The window opening inwards, as it did, increased the danger very much. It was a wrong thing to have a wooden fixed awning on the Alert. She would, in a breeze of wind on the beam, be thrown over to leeward by it. I noticed that the motion of her engines drew her stern down very much.
Cross-examined by Mr. Purves: I know Lloyd’s Register of British and Foreign Shipping. There are no better surveyors than those of Lloyd’s. Every ship I have commanded was registered by Lloyd’s. Still I say the Alert was not fit to go to sea. As a sea-going man of experience, I think my opinion of equal value with Lloyd’s system of underwriting. On account of her weight aft, her depth of hold, her breadth of beam, and her rig, the Alert should never have been sent to sea.
Q.—You object to the deck fittings? A.—I object to the way she was rigged. I mean the masts.
Q.—Your objection is that she had only one mast, and should have had two? A.—Yes, that is one objection.
Q.—Why should a steamer have any masts at all? A.—If anything occurred She could be navigated with sails.
Q.—She is perfectly able to be navigated round the world without any masts? A.—I never heard of a steamer without a mast. If the machinery goes well, and no emergency crops up, you could do without a mast.
Q.—If you were going to purchase a ship, and could not see her, what authority would you consult? A.—I would not purchase any ship unless I could see her myself.
Q.—Would not a tarpaulin over the grating, if cleated-battened or nailed down, keep out any sea? A.—No, the sea would burst it down between the bars like a bit of paper.
Q.—How many hours would it take to fill the ship, if seas were continually thrown in, unprotected by a tarpaulin? A.—It would take about half an hour. The water would also go down the ventilators if they were turned that way. I was last on board the Alert two trips before the accident occurred.
Re-examined by Mr. Williams: Ten or twelve tons of water would go through that cabin window in a minute. Half of fifty or sixty tons of water in the saloon would put the Alert down, and she would sink stern first.
Lucy Edith Kilpatrick, examined by Mr. Box, stated: I am the widow of John Kennedy Kilpatrick. I was married to him on June 4, 1891. There is one child by the marriage called Mary. She is now two years and five months old. My husband at the time of his death was twenty-nine years old. He held a chief engineer’s certificate. He enjoyed good health, and was a strong man, and always sober. Previous to joining the Alert he had been out of work for some time. His wages as second engineer of the Alert were £8 per month. When he was in the employ of the Melbourne Harbour Trust as chief engineer of the dredge Latrobe, his wages were £22 per month. Prior to that he was working on shore, and while in work he gave me on an average £3 per week for house-keeping expenses.
Cross-examined by Mr. Purves: During the time my husband was out of work he earned nothing at all.
James Graham, examined by Mr. Smyth, stated: I am an actuary. I have made a calculation of what a certain sum per week would be worth as an annuity. On the basis of £8 per month an annuity would cost £1,924 10s., and on the basis of £3 per week, or £13 per month, it would cost £2,978. That is in the case of a man aged twenty-nine, and assuming he was a good life.
Cross-examined by Mr. Purves: In making the calculation, I used the “H. M. Table” prepared by the Institute of Actuaries of Great Britain. I worked it out at 3½ per cent. rate of interest, and took the expectation of life, for a healthy man of twenty-nine years, at thirty-five years. I do not reckon it would be safe to calculate interest at five per cent. now-a-days. Therefore I averaged it at a price as a practical transaction which I would be prepared to carry out.
This closed the case for the plaintiff.
KILPATRICK v. HUDDART, PARKER & Co., LTD.
“Between two hawks, which flies the higher pitch?
Between two dogs, which hath the deeper mouth?
Between two horses, which doth bear him best?
Between two girls, which hath the merriest eye?
I have, perhaps, some shallow spirit of judgment;
But in these nice, sharp quiblets of the law,
Good faith, I am no wiser than a daw!”
—Shakespeare.
THE DEFENCE.
In addressing the jury on behalf of the defendants, Mr. Purees said: Under the Marine Act, owners of ships were bound to send their ships to sea in a sea-worthy condition, but that did not mean that the owner should guarantee to his servants that the ship would swim under all circumstances. The Act said nothing about the shape of the ship. The ship could be of any shape whatever, so long as she was passed by the proper authorities, and was reasonably sea-worthy in the opinion of the surveyors and those who sent her to sea. All the experience of the past in the matter of ships showed that when the Almighty brought His forces into play, the most perfect ship that ever was built met the time in her career when she was no longer sea-worthy. Noah’s ark, when it sailed—if ever it did sail—was built practically on similar lines to the ships of to-day. Some of the witnesses for the plaintiff admitted that the Alert was fitted for trading in the Bay. If that were so, why was she not suitable for outside work. Bad seas had to be encountered inside the Heads as well as outside. Evidence would be adduced that would show the Alert was built on the ordinary principles of shipbuilding. She was built at Glasgow by one of the most eminent firms in the world; was classed 90 A1 at Lloyd’s, and sent out here under sail as a three-masted schooner, or barque. She was employed for a time in the Geelong trade, and although some of the witnesses had said she was not fit even for the Bay, yet Lloyd’s surveyors had certified that she could go anywhere. When it was decided to put the Alert to outside work, she underwent a special survey, and she had various improvements made, including an alteration to her boilers and machinery. All precautions were taken to make the vessel sea-worthy, and the local surveyors gave her a certificate in November, 1893, classing her as fit to engage in what is called “the home trade,” which ordinarily meant coasting outside from Newcastle, N. S. W., on the one hand, to Adelaide, S. A., on the other hand, a coast line embracing a stretch of at least 1,200 miles. It would be proved by evidence that the alterations made gave the ship twenty per cent. more buoyancy aft. She had an efficient captain and a good crew; and before going in the Gippsland trade, she was sent a trial trip to Tasmania. She went from Melbourne to Tasmania without an ounce of cargo in her. She loaded up at the latter place and returned to Melbourne, proving all the way that she was fit to do the work she was intended for. Then she was put in the Port Albert trade, and carried cargoes varying from 10 to 150 tons. She sailed well on her last voyage, and never shipped any seas until her course was altered towards the Heads. Within a few minutes of doing so, she shipped three successive seas, which put her on her beam ends, and she never righted. Ponting, the cook, was not the only one living who saw this. There was another eye-witness whom he (Mr. Purves) would call to prove that he saw these seas overwhelm the ship. Nothing in the world could have saved the ship under the circumstances, and it was preposterous to talk of the wreck being due to pantry windows, open gratings, or anything of that sort. In his (Mr. Purves’s) opinion Captain Mathieson committed an error of judgment in heading his ship to port instead of keeping her out to sea. The owners had every confidence in the ship, as was indicated in the fact that she was fully insured.
EVIDENCE FOR THE DEFENDANTS.
John Horwood Barrett, examined by Mr. Purves, stated: I am a master mariner and captain of the ship Hesperus. She is a full rigged ship of 1800 tons. I remember the 28th December, 1893. On that morning my vessel was to the westward of Cape Otway. Speaking from memory, we were steering east making round the Otway for Melbourne. The weather then was a heavy gale from the S. W., and that was a fair wind for me. We signalled to Cape Otway at 4.15 P. M. on the 28th, and then continued our course for the Heads after getting the proper position. Our course would be about north-east, half north. I came along as far as Split Point, and then hove to because there was a heavy sea running from the S. W. I considered it prudent to come on, as far as the ship’s safety was concerned, but I did not think it was just to come on to the Heads and take a pilot out of the schooner in such a sea as that. Therefore, on account of the danger to which the pilots would be exposed, I hove the ship to at ten P. M. till two o’clock next morning. During all that time it was blowing a strong gale with heavy squalls.
Q.—I will ask you to come on board a little steamer one hundred and sixty-nine feet long, nineteen feet six inches beam, and nine feet six inches depth. She passes Wilson’s Promontory at nine in the morning, goes through the Straits and on to two miles off Cape Schanck, carrying with her a south-east gale and south-east sea, and does not ship any water. What is your opinion of her being sea-worthy? A.—I should think she was decidedly a sea-worthy vessel.
Q.—Approaching the Schanck her captain desires an offing, and takes the ship out to windward six miles. Meanwhile the wind veers round to S. W., and Captain Mathieson shifts his course and makes for the Heads. He carries with him probably the same sea he had before, and he is overwhelmed in ten minutes by several seas, and ultimately the vessel founders. Might that not happen to any ship? A.—Certainly; to any vessel if she happened to keep away under those conditions.
Cross-examined by Mr. Smyth: Q.—Supposing that when the Alert got her offing of six miles without taking any water on board, except spray—which you say was a sign of her being sea-worthy, and that there is no apprehension of danger of any kind on board—was there anything to prevent her then making a course for the Heads, remembering that she was a steamship with a competent master? A.—I consider that the sea I experienced—Mr. Smyth: I am not speaking of the sea you experienced. You were off Cape Otway, about sixty miles westward of the Heads, while the Alert was off Cape Schanck, twenty miles eastward of the Heads. You say the sea had increased so much that you would not risk a pilot.
Q.—Assuming that there was no danger, and the evidence here is that there was no apprehension of danger at that time when she got her offing, and being as you say a sea-worthy vessel, with, as we know, a skilful captain, was there any reason why the course should not be altered to the Heads? A.—I cannot answer anything on assumption. I want facts.
Q.—I have given you the facts. Was there anything to prevent the ship going for the Heads? A.—It is fair to assume that there must have been a big sea running.
Q.—It is fair to assume that you are endeavouring to play with me instead of giving me an answer. How many years’ experience have you had at sea? A.—Twenty-five years in command.
Mr. Smyth: I will state the case once more. We have evidence that at the time I speak of there was a south-easterly sea and wind. Sometimes it is blowing a light gale, at others a strong breeze. She makes her offing, taking no water in. She is as you say sea-worthy. In that state of things the wind veers round to the south-west. Whatever the state of the sea, the captain has no apprehension of danger. What was to prevent him altering her course? A.—The condition of the sea.
Q.—What was the condition of the sea? A.—A heavy sea running from the south-east. I assume that.
Q.—Is that assumption of yours based on what you ascertained? A.—No, on what you have just told me.
Q.—What would you have done under the circumstances? A.—I would have kept her out to sea the whole time.
Q.—Do you mean to say that the sea was so bad that pilots did not go on board of other ships that evening you were off Cape Otway. A.—I believe they did go on board other vessels.
Q.—As a fact you know that the pilots did go on board other boats? A.—Yes; I know they went on board the French mail boat.
Q.—And if you had gone on, they would have boarded you? A.—Yes; but I did not care to take a pilot on and send him back in a small boat.
His Honour: Q.—Did you know anything about the steamer Alert? A.—Nothing personally, except that I observed the sea, and it was so high that we could not see the pilot schooner within fifty yards of us.
[At this stage it was arranged that on account of the great heat of the weather the court would adjourn until Monday 18th instant.]
KILPATRICK v. HUDDART, PARKER & CO., LTD.
Fifth Day, Monday, February 18, 1895.
Evidence for the Defendants.—(Continued.)
William Francis Deary, examined by Mr. Purves, stated: I am inspector of shipping, and nautical surveyor to the Victorian Marine Board; also shipwright surveyor. I thoroughly understand the nature of a shipwright surveyor’s work. I went to sea in 1872, and I have had experience since that time in shipping. Apart from my official standing, I am a master mariner, and I have had the command of ships since 1883, until I took up my present position about five years ago. I knew the steamship Alert for ten or twelve years. In my official capacity I have known her nearly five years. During that time I had opportunities of surveying her, and I have surveyed her critically. I remember a change in her equipment being made when she went to take up the running of the S. S. Despatch in the Gippsland Lakes’ trade. Generally the changes made were in the nature of life buoys and life boats. I know her machinery was altered. Subsequently to those alterations I surveyed her on November 11, 1893, and gave a declaration upon which a certificate was issued. (Shipwright surveyor’s declaration concerning S. S. Alert, and dated November 4, 1893, was here handed in and marked as an exhibit.) I carefully examined the Alert on the date specified in my declaration, and in all respects the requirements of the Act were fulfilled. Having regard to the projected voyage, namely within the limits of the home trade, all apertures, and skylights, and places of that kind which would require protection were sufficiently protected. In my opinion the Alert was one of the most sea-worthy ships afloat. I knew her lines, her tonnage, and her dimensions. I knew Captain Mathieson, and always considered him a competent navigator. The vessel had a good crew. There was nothing omitted in the case of the Alert which was done in the case of any other steamers licensed by me.
THE PANTRY WINDOW.
Cross-examined by Mr. Smyth: Exhibit No. 10 now handed in is a certificate granted by the Marine Board, based on my declaration and that of Mr. McLean. He is engineering surveyor to the Marine Board, and has the machinery and the whole of the iron-work in his department. I have the whole of the wood-work and the deck-work. In my declaration two life-boats are described as being in good order on the Alert. If it is said there was only one life-boat and a dingy, then I say it is false. One boat was slung in the starboard davits on the foreside of the bridge, and the other on top of the engine room skylight. There was a difference in their size. One was twenty feet long, and the other fourteen feet. The fourteen-foot boat was not whale-boat form, and some people might call it a dingy. There was cork padding in both boats. The top of the skylight is a very fit place for a life-boat. It would not make the vessel top heavy. In a small ship like the Alert, it is hard to find a place to carry a boat, and you have to do the best you can. She had not two life-boats when in the Bay. They were not required in the Bay traffic. She had boats then but not life-boats. I was appointed shipwright surveyor when the retrenchment business began, nearly two years ago. I am not a shipwright. I did not want the assistance of a practical shipwright surveyor in the case of the Alert. I am perfectly practical enough to carry on that work. I know there is a rule to the effect that iron gratings over stoke-holes must be protected with iron plates fitted with hinges, or otherwise, in a manner satisfactory to Lloyd’s surveyors. On the Alert the protection consisted of canvas covers, which were kept ready on board for immediate use. They were not tarpaulins, but just ordinary canvas. I think they were brought out for me to see. There were no cleats to fasten them down, but they could easily be lashed down to ring bolts on the deck. The canvas might in time tear away from the grating—say in about three years. The wooden awning was put on a few years ago for the Bay trade.
Q.—How was the pantry window protected? A.—It could easily be protected.
Q.—That is not answering my question. How was the glass window protected? A.—The glass was the protection, and if necessary a piece of canvas could easily have been placed over it. The aperture was about sixteen inches by fourteen inches, and we did not think it was a source of danger, that is why it was not further protected. I was in the service of Huddart, Parker & Co. some years ago. I was second mate, mate and master in various of their vessels. I was appointed to the Marine Board in March, 1890, about five years after leaving Huddart, Parker & Co. I know Captain Webb. He was managing director of Huddart, Parker and Co. up to a short time ago. He is a member of the Marine Board. Mr. Ernest Parker of Huddart, Parker & Co. is also a member of the Marine Board. I never in my life designed a ship. A shipwright surveyor ought to have a knowledge of designing ships. I never had that knowledge. I knew the covers to the Alert’s coal bunkers. They were iron, kept on by their own weight. If necessity demanded it there was no trouble in putting four battens and a piece of canvas over them. When making my declaration I was perfectly satisfied that these bunker lids were quite sufficient held down by their own weight.
Re-examined by Mr. Purves: According to the evidence given, the Alert was kept away, and I say that before she was kept away all the places that required covering should have been seen to. Supposing there was a drop of water about the deck, there would have been no difficulty in making everything secure. The lids to the bunker holes would weigh about fifty to sixty pounds each.
Re-cross-examined by Mr. Smyth: The bunker lids were about ¾ of an inch in thickness. They might not have weighed more than forty to fifty pounds, and they may have been an inch thick for all I know.
Charles William McLean, examined by Mr. Purves, stated: I am engineering surveyor to the Marine Board of Victoria, and have occupied that position since the inception of the present Board, and previously I was under the Steam Navigation Board—ten years altogether. Prior to that I was assistant resident engineer to the Melbourne Harbour Trust. I have been as engineer on steamers trading here on the coast, and hold a certificate as first class sea-going engineer. I am a member of the Institute of Civil Engineers in London. I have been engaged in supervising and designing the actual construction of vessels. I knew the Alert, and saw her very frequently. I saw her in December, 1892, when the boilers were out. A change was then being made in her machinery. I made a thorough examination of the position of the old machinery, and also of the hull from stem to stern, both internal and external. I always considered her sea-worthy. She was much fuller below the water than she appeared to be above water. The water displaced by the vessel when loaded down—without any cargo, but with everything ready for sea—would weigh about 312 tons. Comparing that with the surplus buoyancy—which is the amount the water would weigh if all the spaces above water were filled—it was very good. The surplus buoyancy was about 400 tons, being rather more than the displacement. That means that there was a very fair amount of surplus buoyancy. I acted on behalf of the Marine Board in examining the Alert, and I gave a declaration to the secretary of that Board. The Alert was then plying in the Bay for a short time after. I next saw her between the 2nd and 4th November, 1893, when it was proposed to send her down to the Gippsland trade in place of the Despatch which had to be laid up to get new engines. The owners desired a home trade certificate for the Alert to go outside the Heads. The new machinery had been placed higher up than the old, and it was thought in doing that that every provision had been made for outside work. The new machinery did not alter the main freeboard at all, but raised the ship about five inches aft. I was perfectly satisfied that the engine room protection was quite the thing, the very best that was made, and as a result of the examination I gave the certificate. I remember the pantry window referred to. It was about two feet three inches above the level of the main deck. It was fastened by two ordinary bolts running into catches, and was quite safe.
His Honour: Q.—Do you say that under those circumstances that window would be as safe as a port? A.—I think so from the way it was made. I certainly think it was not as dangerous as a port, because the ports are always below the main deck. Nothing more than broken water could reach the pantry window.
To Mr. Purves.—I recollect the stoke-hole grating, it was eight feet wide from door to door, and about three feet six inches fore and aft. Nothing more than broken water could get in through that grating. An occasional sea would perhaps pass over, but no solid water would get in there until the vessel would be over on her beam ends. There would be no difficulty in putting canvas covers on. The bunker lids were of a very ordinary type. I never knew of one to lift off yet. I can name numbers of vessels that have the same lids as the Alert had. I don’t think there is anything in the suggestion that the wooden awning rendered the ship unfit to go to sea. When the awning is lying over at an angle of 45 degrees, the wind would get below it, and the vessel would be lifted up. Buoyancy would be the resulting tendency. In my opinion the Alert was a stable ship, and her stability was added to by the alterations to the engine room. Her machinery including everything would weigh about 105 tons. In addition, she had two ballast tanks, one of these right foreward in the fore peak would hold fifteen tons of water, and would be most suitable for anyone desiring to trim the ship. She was a long vessel, but her proportions were not unusually long. The declaration given under the Marine Act meant that she was right without cargo. We have always to assume they may go out without any cargo. Of course cargo improves the vessel’s stability, but we have always to look at the worst side.
Cross-examined by Mr. Smyth. I say the vessel was sufficiently stable for ocean-going purposes without any cargo at all. Included in the one hundred and five tons I spoke of, I allowed for coal twenty tons, water fifteen tons, weight of boiler thirteen tons, weight of engines twenty-six and a half tons, shafting six tons, and additions to engine room seven and a half tons. Then there were four tons of chain cable in her bottom. If both tanks were filled, they would hold twenty tons water ballast. I never was master of a vessel. I was at sea as engineer only, for about three years. I am accustomed to calculate the stability of ships, and that is why I am able to say this vessel was capable of going out on the ocean without any cargo. If a number of experienced men say that forty-four tons of cargo was not sufficient for the Alert, I would contradict them. Such men know nothing of stability. I gave evidence before the Marine Board enquiry, as I do to-day, that the boat was perfectly sea-worthy.
Q.—Do you remember that the Marine Court found, after you gave your evidence, that she was not sufficiently stable? A.—No, I do not remember that. (Mr. Purves here objected the Marine Court did not find that the Alert had not sufficient stability.)
Mr. Smyth to witness: This is what the court found. “In view of the vessel’s construction and the manner in which laden on her last voyage, having only about forty-four tons of cargo, the Alert, in the opinion of the court, had not sufficient stability.”
Q.—Will you now say that after you gave your evidence the Marine Court did not find she had insufficient stability? A.—I don’t know what they meant, but that was their finding I believe. Their finding may have been due to the cargo; if it was not of the kind to add stability, the vessel would be still more unstable with cargo than without. For all I know the cargo may have been built too high, or been all on one side. I am not prepared to say that the cargo was the cause of making the vessel unstable on this occasion. The alterations to the engines made her more stable than before. Portions of the new machinery did come higher above the deck than before the alterations, three feet perhaps. The difference in weight between the old machinery and the new would be about six tons. An iron plate outside the window would have made it strong as the bulk-head. I do not think it was one of my duties to see about the pantry window. It was not considered dangerous. I knew it was there, and took it into consideration when the vessel was getting overhauled in February, 1893. The certificate I gave then was for the Bay trade. When giving the certificate to go outside, in November, 1893, I don’t think I did consider on that particular occasion whether the window was safe or not. From memory I fix its height above the main deck at two feet six inches. It was like the window in the Excelsior. I have not passed the Excelsior as a sea-going vessel. She is a Bay trade boat, and will require a lot of alterations before I pass her for the sea. The Alert was thoroughly overhauled in February, 1893, and in November of the same year I simply surveyed her for giving a certificate to go outside.
Q.—How long were you over this November survey? A.—I don’t remember the time; I will say two hours.
Q.—Mr. Johnson signed the certificate with you. Was he with you at this survey? A.—No, he was not, but I knew what he did. He examined the vessel concerning her steam.
Q.—He was there to make this examination and to give that certificate, but he was not with you? A.—That is so; he was there at other times.
Q.—We have evidence that the water went down the gratings, and that in consequence the fires got low, and the men connected with the engines came up from below to put on their life-belts. Was that not on account of the water going down the stoke-hole? A.—The water was going somewhere. The doors must have been left open. It did not go down the gratings that I know of.
Q.—Assuming that the water went down the gratings, would that be an element of danger. A.—Yes, it would.
Q.—And there being no protection, you gave a certificate to go outside the Heads? A.—Yes; the grating of the S. S. Dawn is the same.
Q.—Has not the Dawn a very much larger freeboard? A.—I don’t know.
Q.—Do you know the dimensions of the Dawn? A.—Yes, she is one hundred and fifty-four feet long, twenty-four feet beam, and eighteen feet in depth. She is not the same class of vessel as the Alert.
Q.—Then why did you compare the two vessels? A.—I only referred to the gratings.
Re-examined by Mr. Mitchell: The new engines and boilers of the Alert were six or seven tons lighter than the previous ones, but the difference was made up to be nearly equal by additions to the vessel’s hull.
Q.—It was suggested that by the way you slummed this survey, you were responsible for the loss of the men at sea? A.—The survey was not slummed, and no blame was attached to me at all.
Q.—Your opinion is that the water must have got in through the doors and skylights being neglected? A.—Yes.
His Honour: Q.—Assume that before the ship was kept away, and all her gratings, skylights, doors, and pantry window covered and protected, do you think there would be any danger in putting the vessel away on her course for the Heads when she had a south-east sea and a south-west wind? A.—No; if all openings had been closed, she was comparatively safe.
His Honour: Q.—A number of the witnesses described the boat as being rather skittish and tender? A.—Boats like her require to be specially handled; but with everything properly fastened, I would have had no hesitation in going for the Heads, although I think it would have been better to have kept out to sea. She would have weathered it.
William Watson, examined by Mr. Purves, stated: I am a surveyor for Lloyd’s Registry of Shipping. The British Lloyd’s is an institution that has grown during the last sixty years. It is the biggest thing in the world. A vessel that is “A1” at Lloyd’s has a character that any man, who is interested in running risks, takes as a standard. The document now shown me is a certificate stating that the Alert was classed when first built “ninety A1,” fit to carry dry and perishable cargo to all parts of the world. Below is a maltese cross which indicates that she was built under special survey. (Mr. Box here objected that the certificate given when the vessel was built had nothing to do with the present case, and his Honour decided to admit the evidence subject to the objection). Witness continuing said, “ninety A1” is simply a distinction to show that it is not “one hundred A1” nor “eighty A1,” but still an “A1” ship. The meaning of “A1” is that the hull of vessel so classed is fit to carry dry and perishable cargo. I knew the Alert mentioned in Lloyd’s certificate, and remember the alterations made in her. I did not see her officially between July, 1893, and the date when she was lost (December, 1893). My opinion of her was that she was a good little ship. She was sea-worthy in every sense of the word, and was a very nice vessel.
Q.—What is a nice vessel—a plum cake is very nice but I would not like to go to sea on one.—? A.—A very smart craft I would call her. I have been to sea, but I am not a sailor.
Cross-examined by Mr. Box: I was in the employment of Lloyd’s in England, but not as surveyor. I was appointed surveyor, but did not continue in it. I am no authority as to what risks insurance companies will take. It is not a mere matter of premium. A risk is taken on the recommendation of surveyors. I am not in receipt of an annual salary from Lloyd’s, but I make surveys for them in Melbourne, and I get paid for my services by the owners of the ships in Melbourne whose vessels I recommend. I re-classified the Alert in July, 1893. She was then in the Bay trade. I don’t know how she came out to Victoria. I don’t remember when she was built. I never formed an opinion as to whether she was built for the Bay trade only. She was, in 1893 when I surveyed her, fit to go all over the world. I did not go to sea in her, but I would not have been afraid to do so. She was fit according to Lloyd’s rules, and that was enough for me. It is not a rule of Lloyd’s that the grating over the engine room and stoke-hole should be covered.
Q.—Is this a rule of Lloyd’s: “The engine room skylights are to be in all cases securely protected, the gratings over stoke-hole must also be protected with iron plates?” A.—That rule does not refer to the grating openings on top. There is no occasion to have any cover whatever to those gratings. There was no necessity to have any protection to the pantry window; I did not look upon it as dangerous. I don’t think there would be any special liability on the part of that window to burst in when the vessel was on her beam ends. It would not be a serious matter if it did burst in. I could put a cushion in and stop it. There was no danger in the grating, and none in the pantry window.
Re-examined by Mr. Purves: Apart from my position at Lloyd’s, I have built many thousands of tons of ships. My business was a shipbuilder, and when busy, I have built over 20,000 tons a year. The reclassification of the Alert brought her to her original status equal to a new ship just built. I am trusted with Lloyd’s business in Melbourne, and have a free hand. The amount of freeboard a ship has is no proof of her sea-worthiness.
Thomas Houston, examined by Mr. Mitchell, stated: I am a marine surveyor for this port. I have had over thirty years’ experience as ship master, mostly in sailing vessels. I have been in steamships, but not in command. I have been in Melbourne about nine years. I knew the Alert well, and have been frequently on board. I have been under her twice while she was in dock, not in a professional way, but as a contractor for painting. I have no reason to suppose for a moment that the vessel would be unsea-worthy. I have been a passenger in the Alert up and down to Geelong, and in a convivial sort of way I recollect the pantry window. I could not say its height above the main deck, but I think it was about half way up the front of the poop, and the latter was between three and four feet high. I don’t know how it was fastened. There was nothing about the window to make the ship unsea-worthy. Any practical man could make the window tight without bolts or anything else, so that it would not take a gallon of water in an hour. I have no knowledge of the height of the grating, but I am told it was seven feet above the main deck. I don’t see any necessity for cleats; it could be secured in various ways, so that no water would go down, and the bunker lids also could have been easily protected by placing a piece of canvas over them. I think the wooden awning would have assisted to bring the ship to the wind and keep her there. If the vessel was on her beam ends, the awning would in all probability tend to throw her over, but by that time she would be too far gone to recover herself, and hence it would make very little difference. The fact of having the wooden awning where it was would not make the ship unsea-worthy.
Cross-examined by Mr. Smyth: I have had a vessel pretty well over with her yard arms in the water. She came up again by throwing cargo overboard. There is nothing extraordinary in a vessel rolling over 45 degrees. There is nothing to prevent a ship from righting herself if she is sea-worthy. I have not the faintest idea what prevented the Alert from righting herself. I don’t think thirty or forty tons of water on board of her ought to affect her although she was low aft. Perhaps the pantry window would have been better if made in some other way than with glass; but I consider it of no importance. Anybody could have stopped it splendidly with a cushion. If there was a lot of water in the stoke-hole as well as the saloon, she might founder. I do not believe that water came through the grating. In sending a ship to sea extreme contingencies should be provided against. An open grating was not unsafe, but still it would be better covered. I am a contractor for painting ships for Huddart, Parker, and others.
In reply to His Honour the witness said: Cutting a small window would not weaken the bulk-head. I think it most likely I would have had an outside shutter to protect the window.
KILPATRICK v. HUDDART, PARKER & CO., LTD.
Sixth Day, Tuesday, February 19, 1895.
Evidence for the Defendants.—(Continued.)
Hugh Bell McMeikan, examined by Mr. Mitchell, stated: I am master of the tug boat Albatross. I have had experience at sea since 1850. I have been Master of all sorts of vessels. I knew the Alert, and have been on board of her often. So far as I saw she was all right. I saw her outside the Heads after she went into the Gippsland trade. She always behaved well so far as I saw. I have seen the pantry window often; it would not make the vessel unsea-worthy.
His Honour: We have heard that when this vessel got within two miles of the Schanck, she made an offing of about six miles. Supposing you had been on board of her then with a strong sea running from the S. E., and wind from the S. W., would you, before putting the ship away on her course to the Heads, have taken any precautions with regard to the window? A.—No, I don’t think I would. It had been there long before, and had not been found fault with. If I had been in command of that ship, I would have given orders to the officers to see that everything was snug. I never heard in my life of a bunker lid coming off by the rolling of a vessel. I don’t see that the wooden awning or the forty-four tons of cargo had anything to do with the vessel’s sea-worthiness. She was sea-worthy enough to come up from Gippsland to where she did.
Cross-examined by Mr. Smyth: The Albatross is supposed to go outside in any weather. Her length is one hundred and fifty feet, beam, inside paddle boxes, nineteen feet six inches, outside paddle boxes fifty feet, and depth eleven feet six inches. She sits on an even keel; but the Alert sat very much by the stern. I knew the late Captain Mathieson, and he was a skilful mariner. The master on board of his own steamer is the best judge of what to do; he knows his vessel. There was nothing to prevent Captain Mathieson from altering his course for the Heads. I don’t think the Alert wanted any cargo to make her stable. She would float without anything. If any steamers go to sea with bunker lids simply laid down by their own weight, that would to a certain extent be a cause of danger. I have a canvas awning on the Albatross.
Lucy Edith Kilpatrick (the plaintiff) recalled by defendant’s counsel, in reply to Mr. Mitchell, said: I received some money from the fund that was subscribed. I am to get £100. I get it in weekly instalments.
To Mr. Smyth: The £100 I am to receive is not from Messrs. Huddart, Parker & Co., but from a fund subscribed by the public. I do not know the amount of insurance the owners of the Alert received.
William Wilson, examined by Mr. Purves, stated: I am the master of the steamer Eagle, a tug boat. Her owners are Messrs. Huddart, Parker & Co., and I am in their employ. I have been master for nineteen years. I knew the Alert, and was in her for eight months in 1889. I remember the wreck of the ship Holyhead at Point Lonsdale, Port Phillip Heads. I was employed on the Alert at that wreck, for about three weeks altogether. I had an opportunity of judging the capacity of the Alert as a sea-boat. I say she was good. I did not see anything in my eight months’ experience of her that made me think she was a dangerous ship. I did not see any fault with her at all. I wish she had been mine.
Cross-examined by Mr. Box: We had pretty rough weather when working at the Holyhead. Other boats could not have done the work like the Alert. Nothing would stop her until she met a gale of wind. Of course in a gale of wind we could not get cargo out of the Holyhead. I had on one occasion one hundred and forty tons of cargo in the Alert. It made her sit differently in the water. It balanced her.
Louis John Daly Schutt, examined by Mr. Purves, stated: I am a Victorian sea pilot, and have been one about six years. Prior to that time I was in the employment of Huddart, Parker & Co. as captain and also as mate. I commanded the Alert about four and a half years in the Geelong trade. During that time we had some heavy weather and seas for the Bay. I formed the opinion that she was a good little sea-boat. After I left her the engines were shifted. There was no great difference in her after the alterations. When I was in her there was a window under the break of the poop. The glass in it got broken. It was about a quarter inch thick. I put a new one in three eights of an inch thick. I maintain that it could not possibly be broken by a sea, unless the sea washed something against it. When I had charge of the Alert the gratings were low down, afterwards they were built up to the top of the engine house. I believe the same bunker lids were on the ship when she went down as when I had her. They fastened down with keys, I am positive. Outside the Heads the seas are bigger than in the Bay. If I had the command offered me, I would have taken the Alert to sea. I had not the slightest doubt about her sea-worthiness.
Cross-examined by Mr. Smyth: I was in command of the Alert from 1884 to 1889. She was never out at sea while I was in her. I put the glass window in myself. One of the passengers who was the worse for liquor put his foot against the previous one and cracked it. I have had seas on board in the Bay, and the starboard alleyway full, but no water ever went below. In my time the engine room went right back to the front of the poop, and prevented water going from one side of the ship to the other. One of the new improvements made was that this casing was cut away and an after hold put in.
Q.—When the Alert foundered, did the water getting into the saloon take her down stern first? A.—I say no. Supposing forty tons of water were in the cabin it would be pretty well full. I don’t see that it would take her down, owing to the watertight compartments.
Gilbert Moore, examined by Mr. Mitchell, stated: I am a master mariner in charge of the S.S. Excelsior, one of Huddart, Parker & Co’s steamers trading between Melbourne and Geelong. I knew the Alert, and was in command of her. For two or three winters I was trading with her to Geelong and back to Melbourne, and sometimes we had heavy weather. She behaved very well indeed. Sometimes in bad weather she would not behave very grand. In moderate, good, and fine weather she was beautiful. I went to Tasmania in her in February, 1893. I had no cargo going over, but coming back I had I daresay about seventy tons. We had fine weather going but a stiff breeze coming back. She behaved well and was a bit wet. I remember the pantry window; it did not affect the ship in any way. It was about eighteen inches above the deck. It was sufficiently secured to withstand the pressure of water. The bunker lids had slots and turned round, thus fixing them in. I saw that they were fastened. I can’t see how the wooden awning or the open grating would make the ship unsea-worthy. It is a matter of opinion. There was a tarpaulin to cover the grating if they liked to put it on.
Q.—What in your opinion should have been done with the vessel before changing her course for the Heads? A.—I would have put the engines dead slow. As a matter of course a man, in weather like she was in, should have seen that everything was secure. If I had to run the ship, I would keep the engines slow; and if I had a sail, I would set it. If the sea was too heavy and she would not come to the wind, I would let go a sea anchor.
Cross-examined by Mr. Smyth: I knew the late Captain Mathieson. He was a careful seaman, and a good ship master. He would be the best judge of what he ought to do. The grating was six feet wide, and fore and aft from eleven to thirteen inches.
Q.—Supposing Mr. Grant, the man who put the grating in, said it was twelve feet across and three feet six inches long? A.—I know differently; I never measured it, but I say it was not three feet long.
Q.—You looked very particularly before you went to Tasmania to see that the bunker lids were fastened with slots? A.—Yes, I did. I considered it necessary. They fitted properly and were caught with slots.
Q.—If you were the only witness out of thirty who said these lids did not fit in by their own weight, will you contradict them all? A.—Yes.
Q.—If Mr. Grant, who fitted them in, states that the lids secured themselves only by their own weight, do you contradict him? A.—Yes; I say what I know.
Q.—You swore at the Marine Board enquiry that you took the Alert to Tasmania as a trial trip? A.—I meant to say it was a severe trial to the ship.
Q.—We are told by witnesses that her freeboard aft was only about two feet? A.—That is wrong. She had double that. She never had less than four feet aft from the water’s edge to the deck. She used to draw ten feet six inches aft, and her depth of hold was nine feet six inches.
Q.—Then how could she get the freeboard? A.—Because she had a long heel aft.
Q.—Did you say to-day that it was according to the weather, and that in bad weather the Alert would not behave very grand? A.—I don’t remember saying that, but if I did, it would be true of her, or any other ship.
Q.—When you were in the Alert, did she ever take water down into the engine room or stoke-hole? A.—It might be a few drops, or a bucketful, down through the gratings, or the doors.
Charles William McLean was recalled to explain that although there was a clause in the Alert’s river and Bay certificate that she was not fit to ply outside the river and Bay, as defined by the Act, it did not mean that the vessel was unfit to go outside the Heads.
His Honour: That is a question for argument.
Mr. Smyth: I shall argue that the vessel was certified as unfit to go outside the Heads.
Mr. Purves: That is an absurd argument, because there was a subsequent declaration that she was fit to go outside.
His Honour: I think it is a question of construction. If the vessel was going to trade in the river and Bay, she got a certificate to that effect. If she were going to trade outside the Heads, she must have a certificate for outside. The one is not inconsistent with the other. That is the view I hold at present.
Carl Gustafson, examined by Mr. Purves, stated: I am a Russian Finn and an A.B. seaman in the employ of Huddart, Parker and Co. I am now forty-eight years of age, and have been at sea since I was nine years old. I was seaman on board the Alert for four years, and was in her after she was altered and went to sea. I was not in her outside the Heads. My experience of her was in the Bay. In heavy weather I have seen the decks flooded, but never knew of any water going below, either through gratings or pantry window. From what I knew of the Alert, I would go anywhere in her. I thought her a good strong boat.
Cross-examined by Mr. Box: I remember the Alert in the Bay taking a very large quantity of water on board. The engines had to be slowed down because the seas came over. I can’t remember if the fires were nearly put out on that occasion. She was not in very much trouble. The pantry window was a round glass in a wooden frame. It had a wooden slide in front outside that covered it right over. I am in the Excelsior now, but I an not mixing up her pantry window with the Alert’s. I never noticed how it was fastened inside. When I left the Alert, two years ago, I have been in the Excelsior ever since.
William King, examined by Mr. Purves, stated: I am chief engineer of the Excelsior. I am an engineer by profession, and have had sixteen years’ experience of shipping. I knew the Alert, and was chief engineer of her from 1890 to 1893 in the Bay trade, and also for six months after the engines were altered. During that time I went outside the Heads to Tasmania. On that voyage I considered she was perfectly sea-worthy. We had fine weather going, and very rough weather coming back. I was perfectly satisfied with the way she behaved. I never heard of, or saw, any water coming in through bunker holes or gratings while I was in her. I would go to sea in her any time and anywhere.
Cross-examined by Mr. Box: Engineers and seamen have to take a good deal of risk sometimes. If one is out of employment it is not easy to get a billet. There was no risk in going in the Alert. We were sixteen hours coming from Tasmania. That was the only time I went outside in her. The Excelsior is larger than the Alert. I have seen the latter shipping heavy water in the Bay. She had to go slow at times. The new engines lifted her about six inches higher in the stern.
John Legg, examined by Mr. Purves, stated: I am dockmaster in the employ of Mr. Duke, of Duke’s dock. By trade I am a shipwright, and have been employed by Mr. Duke for about thirty years. I have had the Alert in dock on many occasions. She was buoyant and able, in my opinion, for her size.
Cross-examined by Mr. Box: I have never designed a vessel myself. I have been to sea as master of sailing-vessels, not steamers. I don’t know anything about the Alert’s inside. She was not very deep, and was rather narrow in the beam. I would not call her a very tender vessel. I was on board of her before she was altered, but not after. I would call her a stable vessel for her size. There is no doubt that she was fitted for the Bay trade. As to going outside that all depends upon the weather. It would be a risky thing taking a vessel built from that model outside in all sorts of weather. I would go to sea in the Alert in ordinary weather.
James Trainor, examined by Mr. Purves, stated: I am a seaman, but at present I am a labourer. I was an A.B. on board the Alert and other ships for sixteen years. I went to Tasmania in the Alert. She went without cargo and came back with seventy tons of oats. She behaved like any other vessel of her size would do. I considered her as good as any other vessel.
Cross-examined by Mr. Box: I have been wrecked twice. It was my idea to go in the Alert to see how she would behave. I asked to go. I volunteered to go in her. I was Huddart, Parker’s man then.
Q.—I suppose there was great excitement in the office to see how she would go? A.—Yes. (Laughter.) I had heard great talk of the Alert. I was not astonished to get back safely in her.
Richard Gough, examined by Mr. Mitchell, stated: I am a shipwright surveyor, and have been working for about three years surveying ships for the Marine Board. I knew the Alert, and on two occasions made a survey of her for the river and Bay trade. The last survey I made was in April, 1893. I then made a declaration. I should say the Alert was sea-worthy in every respect. The opening spoken of as the pantry window was about fourteen inches by twelve inches square. The glass was about half-an-inch thick, and was in a strong wooden frame. I don’t remember how it was fastened. It would not make the ship unsea-worthy in the slightest degree. The grating was a great height from the main deck, and if any water went down it would only be a splash. The bunker lids fitted into sockets. They rested by their own weight. Unless the ship were upside down no water could go through them. In my opinion the wooden awning did not make the ship unsea-worthy. When the alterations were being made I did not have before me the specification of what had to be done.
Cross-examined by Mr. Box: On one occasion after repairs were completed the Alert had a permit to go to Tasmania, not a certificate. A certificate is for a year; a permit is only for the occasion. I gave a certificate to the engineer. There would be no examination of the vessel again on her return from Tasmania because she had a certificate for the river and Bay trade. We do not make a declaration to give a permit. I did not make a declaration that the Alert was fit for the outside trade. Captain Deary was appointed shipwright surveyor, and he took my place. Captain Deary is not a shipwright, but I cannot help that. He was appointed, and is a shipwright surveyor by virtue of his office. A shipwright surveyor’s certificate should be given by a man skilled in shipwright surveying. I never measured the grating. When I surveyed the Alert for the permit to go outside the Heads to Tasmania, she had not got a shutter in front of the window. I do not remember whether she had a shutter at any time I surveyed her. I signed a certificate about life-boats only for the river and Bay trade. I signed only the permit to go outside. The Alert was built for shallow water.
Re-examined by Mr. Mitchell: In my opinion the Alert was a sea-worthy vessel fit to go to Tasmania. When Captain Deary made the declaration that she was fit for the outside trade, I was still a shipwright surveyor, but was receiving no pay from the Marine Board. I had ceased to be their officer through retrenchment. I believe the Alert’s trip to Tasmania had something to do with clearing the Customs duty off her engines.
Samuel Johnson, examined by Mr. Mitchell, stated: I am assistant engineer and surveyor for the Marine Board. I have had two and a-half years’ experience in that capacity. I have had about five years’ experience at sea as third and chief engineer. I signed the declaration with Mr. McLean. Alongside the wharf I tested the vessel under steam to see to the safety valve. The test was satisfactory. Mr. McLean inspected everything else. I only saw the vessel in dock for about half an hour.
Cross-examined by Mr. Smyth: So far as the steam was concerned I made a thorough examination. I signed the declaration for that part of the survey which I did. I made no examination of the vessel’s hull. I daresay my examination took over an hour alongside the wharf, and on that I gave the certificate. So far as I was concerned that authorised the Alert to go to sea.
KILPATRICK v. HUDDART, PARKER & CO., LTD.
Seventh Day, Wednesday, February 20, 1895.
Evidence for the Defendants.—(Continued.)
Thomas Webb, examined by Mr. Purves, stated: I am a master mariner, and a member of the firm of Huddart, Parker & Co. I knew the S. S. Alert. She was built under my special superintendence at Glasgow. She was classed ninety A1. I have had experience in the navigation and building of ships. When finished the Alert was a sea-worthy ship. The pantry window was built in her during her construction. I was master of her for about twelve years, and my opinion was that she was a very fine sea-boat. The alteration of her engines gave her more lift aft, about five inches. During the twelve years I was in command, she ran every day whatever the weather was. I saw no indication in her of a danger of shipping seas. In my time no water went in at the pantry window, nor in the grating, which latter was four feet lower then than when she was lost. She was insured for £4,000. She stood in my ledger at that time at £13,000, and we were satisfied to stand the risk of £9,000.
Cross-examined by Mr. Smyth: The vessel cost about £12,000 at first, and we expended £7,000 on her here, putting in new machinery in 1893. On the voyage out from England she was insured for £12,000. She came out under sail, as a barque, with funnels down. She was then in charge of Captain Munn, who gave her the character of a splendid sea-boat. He told me that. He is dead now. At the time she was trading in the Bay I believe the insurance was less than £4,000. I was managing director of the Company. I am not so now. I am still a member of the firm and also a member of the Marine Board. During my twelve years’ command of the Alert in the Bay, I have seen her take some water on board. She did not quite fill the alleyways. She could not fill them as the water ran away through the port-holes and the scuppers. The pantry window was glass in my time. It was cracked by heat but not by water. I never gave instructions to Captain Mathieson to hurry up. I told him not to go so fast, and complained about too much coal being used. There might have been a time when she was in the Bay trade that she was not insured at all. She got Lloyd’s certificate in 1877 when she was built, and that was allowed to drop until 1893. We did not find it necessary to put her on Lloyd’s Register again in 1893; it was for our own convenience to put her back on it so as to give her a character again, in case we wanted to sell her. We paid the fees, £5 5s., for putting her back on Lloyd’s Register. My company subscribed £100 to the fund got up for the Alert sufferers. Ponting had some I believe. He got it through us. I don’t think Huddart, Parker & Co. paid him anything at all. There was £1,200 subscribed. Mrs. Kilpatrick got her portion of that. I don’t think Huddart, Parker & Co. gave her anything. Only one writ has been served on Huddart and Parker in addition to the present case. I believe the plaintiff in the other case is Mrs. Mathieson—the late captain’s wife. I consider we did our duty when my firm gave £100 to the relief fund, to which the public subscribed £1,100 more.
Alexander Wilson, examined by Mr. Purves, stated: I am engineer in charge of ports and harbours in the employment of the Victorian Government. I am by profession an engineer. I have no other qualification. I have had experience of the sea for seven years in the capacity of a marine engineer. I consider myself competent to give an opinion as to the sea-worthiness of ships. The steamer Alert has been under my observation ever since she arrived here. Up to 1881 I surveyed her every six months. My opinion is that she was a good sea-worthy boat. I recollect a small pantry window she had in the poop. I don’t think it affected her sea-worthiness. I don’t think it would be possible for green seas to find their way down the grating on top of the stoke-hole. Ring bolts at each corner for the purpose of fastening a tarpaulin would be quite as efficient as cleats. The bunker lids rested in the ordinary way. I never knew of lids being washed off. I don’t think they made the ship unsea-worthy. Assuming that the wooden awning was made of right material, it would not affect the ship to any great extent. If she laid over it would rather have a tendency to raise her again. Wood instead of canvas would not in the least make her unsea-worthy. There is a wooden one on the Lady Loch, and she goes anywhere. The old steamer Western had a house on deck with a wooden awning. The Alert had watertight bulk-heads. She was divided into one, two, three, and four compartments when I knew her. These bulk-heads would prevent water going from one part to another. The ship in my opinion had sufficient stability.
Cross-examined by Mr. Smyth: I am not a shipwright, but I have designed seven ships. The Lady Loch is one. She does not carry her awning the whole length of the poop like the Alert. The length of the Lady Loch is one hundred and seventy-five feet, beam twenty-five feet, and depth about twelve feet. She has only a small portion of awning aft. Her freeboard depends upon what she is carrying. I should say with nothing in her but coal and her machinery it would be about four feet. The Western was not far different in dimensions to the Alert, but was a different class of vessel. The Western’s length was one hundred and eighty-three feet, beam, twenty-three feet, and depth, twelve feet six inches. I agree with Mr. McLean that an iron casement outside screwed down would be a good protection for the pantry window, but whether it was necessary is another thing. The water would not have got in if the window had been shut; and if the window was burst open, it would be a matter of five minutes to put it right. It could be barricaded from the outside. I would find my way there with a piece of timber and shove it up against the face of the window. As for the gratings, if green seas came down, the only thing the men could do would be to spread canvas and lash it over the gratings.
Q.—How long would it take with a vessel lying over on her beam ends, and heavy seas running, to get your canvas and lash it over? A.—You are putting almost an impossibility. I cannot imagine the ship getting into that position. It would take ten minutes to get the canvas—supposing the covers were at hand. All these vessels carry covers, but I would not swear that the Alert carried covers.
Q.—Do you say that the bunker lids are always let in by their own weight? A.—I am not prepared to say positively whether I have seen any screw on like the lid of a four hundred gallon tank. I think some are that way. I am not positive how the Alert’s were.
Q.—Would not a canvas awning that you could take in be better than a wooden awning at sea? A.—It would be advantageous I think.
Q.—You told us that cleats were unnecessary, as ring bolts would do? A.—I am informed that there were ring bolts alongside the grating. I did not see them that I can remember. I am not a master mariner. I was not in command of a ship. I am not a seaman, mate, or captain. I am an engineer.
Clement Ernest Jarrett, examined by Mr. Purves, stated: I am manager of the Alliance Marine and General Insurance Coy. I remember the steamer Alert. She was insured in my office for £4,000, and valued at £6,000. I have known her ever since she came out. I employ experienced people, and I insured her after survey. I would have insured her for double the amount she was insured for, if required, without hesitation. I knew the vessel personally. I travelled in her outside the Heads, and formed the opinion that she was a very nice little vessel. I am not a seaman. I should not have the slightest hesitation in going out in her. In fact I had serious thoughts of going out in her on the trip on which she was lost.
Cross-examined by Mr. Smyth: £6,000 was the owners’ valuation. They valued her specially for insurance, not necessarily that that was her value. I accepted their valuation, and considered it too low. I insured her when she was in the Bay trade. She was insured for the same amount, and never less. She was insured for less before she had the new engines. £3,000, I believe, nothing less. I believe she was always insured.
James Alexander Mitchell, examined by Mr. Purves, stated: I am a licensed Port Phillip pilot, and have been such close on twelve years. Prior to that I was master of steamers and sailing vessels for eleven years. I knew the Alert, and remember the day she foundered, December 28, 1893. It was reported to me on that date. I was in charge on that day of the pilot schooner Rip. At about 4 o’clock P.M. I was cruising, as near as I could judge, from seven to eight miles outside Port Phillip Heads. We were cruising about in all directions. The weather was very thick. We never saw the land. All along the eastern shore as far as the Barwon the weather was thick. It was clearer to seawards and towards the west. It was blowing what we call a southerly gale. The sea was very rough and very high. I cannot remember what the barometer was. It was heavy weather as a matter of fact. There was a cross sea from the south-east, and a swell from the south-west, and the two met and sent the water up. Our vessel was shipping a good deal of heavy spray. I have seen the Alert at a distance, when she was passing Williamstown going to Geelong.
Q.—After the Alert got off the Schanck, about seven miles, with the wind and sea as they were, was it, in your opinion, a prudent thing to do to keep the ship away for the Heads? A.—I should say there would be danger in that manœuvre unless they—as sailors would say—watched a slant, or watched for a smooth, and then put her on her course. Before doing this, it would be only an ordinary precaution to make everything snug.
Q.—Your idea was that the heaviest weather was off the Schanck? A.—Yes, and off the Heads.
Cross-examined by Mr. Williams: We boarded some ships on that day (Dec. 28). There was no particular trouble in boarding them. The same care had to be exercised that day as in every other gale. As pilot in charge I do not think that I would have boarded a vessel between three and five that afternoon. I did not know Captain Mathieson personally. I cannot say whether he got a slant. I gave my opinion on a supposed case. For all I know he may have waited for a slant.
Q.—Assuming that there was a south-east gale blowing all day, and the Alert in it, in your opinion if things had not been snug on the ship would anything have happened to her? A.—I should hardly have thought that in a gale of wind, blowing all day long, she would have got as far as the Schanck if things had not been snug. She would have been full of water before.
Q.—What sort of gale was it in the early part of the day? A.—It started with a fresh breeze in the early morning and gradually increased to a moderate gale from 10 o’clock till noon. After twelve it had some indication of getting finer and the barometer rose. Then the wind veered to the south-west and blew hard. A swell had been coming from the south-west all day long.
Re-examined by Mr. Purves: I should think a vessel, perhaps two or three miles from land in the daylight, would have managed to reach Western Port; but in my opinion it would have been a dangerous thing to try. We saw nothing at all all day long.
This concluded the evidence.
Mr. Purves submitted a point for the consideration of the judge: That the obtaining of certificates from the surveyors appointed by the Marine Act, and recognised under the Act, who surveyed the ship, and made the necessary declarations, was evidence of such a nature that in itself it was proof that the owners used all reasonable means to secure the sea-worthiness of the ship. His Honour would see the vast importance of this case to shipping companies. The conditions of the law were complied with in taking all reasonable precautions.
Mr. Justice Williams: You contend that the certificates of the surveyors authorised by the Act are conclusive evidence?
Mr. Purves: Yes; not merely evidence, but conclusive evidence. Unless it is shown that the certificates were obtained by fraud, they are actual proof of sea-worthiness.
Mr. Purves, in addressing the jury on behalf of the defendants, made a severe attack on the witness, Robert Ponting, and urged at great length that the evidence given by him was not to be relied on. He (Mr. Purves) did not think that Ponting had told wilful untruths, but had simply got up a theory of his own as to how the wreck occurred, and repeated it so often to himself that he believed it, and also endeavoured to make other people believe it. There was no credit due to Ponting in the matter at all. He did not save or try to save anybody but himself. Indeed, even that he did not do, for Providence alone had enabled him to reach the shore, while better men were allowed to go to the bottom. The jury had sat day by day patiently listening to all the details of this most important shipping case, and he (Mr. Purves) was sure they would see that it was a matter which should never have been brought into court at all. No one sympathised more than he (Mr. Purves) did with the unfortunate plaintiff, Mrs. Kilpatrick, who had undoubtedly lost her husband and breadwinner; but that was no reason why the innocent owners of the Alert should be called upon to recoup anyone for loss sustained through an accident over which they (the owners) had not the slightest control. It should also be borne in mind that Messrs. Huddart, Parker and Co. had sustained a severe loss themselves by the sinking of the ship, which was one of their breadwinners. Notwithstanding the serious loss to the firm, they had liberally subscribed to the fund got up in relief of the sufferers. From first to last the owners had done all that men could do. When the Alert was taken from the Bay trade to be put into the outside trade, she was surveyed by the most skilful men that could be found, and the owners expended £7,000 in effecting alterations to make her a most efficient ship. Not content with the local survey they had her re-classified at Lloyd’s. She proved herself a sea-worthy ship, even on the occasion of her last voyage, by running under adverse conditions from Wilson’s Promontory to Cape Schanck without shipping any water, and it was only when Captain Mathieson in a reckless moment altered her course to the Heads, in a tremendous sea and heavy weather, that she foundered. Any of the largest steamers would have foundered under similar circumstances. Unless it was proved that the defendants, as reasonable men, were not satisfied that the ship was sea-worthy, the plaintiff had no case whatever. Was there any evidence to show that the Alert was unsea-worthy? He would ask the jury to say that the defendants were not in any way to blame, and that the disaster, which they all deplored, was an act of God. He desired to apologise to the jury for being unable to produce, notwithstanding his promise to do so, the person who, in addition to Ponting, actually witnessed the foundering of the Alert at sea. During the course of his remarks, Mr. Purves pointed out that a good deal had been said by the witnesses for the plaintiff about the fact of the Alert being rigged with only a foremast. In contradiction to this theory of danger it was only necessary to draw the attention of the jury to the fact that the steamships of Her Majesty’s navy—the best ships in the world—had no masts at all! They were merely fitted with flag-poles for signalling purposes. Some of the most incredible stories had been told concerning the wreck of the Alert. For instance, the witness Ponting had said that “flames and smoke came out of the vessel’s funnel as she sank.” The thing was simply impossible. (Here Mr. Purves spoke with great emphasis and considerable warmth.) “Why hang it, gentlemen of the jury, the fires must have been out a considerable time before the ship went down!” The learned gentleman then concluded an impassioned appeal by drawing marked attention to the fact of the plaintiff, Mrs. Kilpatrick, having attended the court with her baby every day since the trial began, when she ought to have been at home attending to her household duties. He (Mr. Purves) could see no other object in her conduct than that she was desirous, through her presence, and that of her infant, of enlisting the sympathy of the jury. He was sure, however, that those gentlemen would not be misled, but would, in bringing in a verdict for the defendants, estimate her attendance in court at its true worth.
In addressing the jury, on behalf of the plaintiff, Mr. Smyth said that he was astonished at the unwarrantable manner in which his learned friend, Mr. Purves, had dragged Mrs. Kilpatrick’s name before the jury. In the beginning of the case he (Mr. Smyth) had called Mrs. Kilpatrick as a witness to testify as to her late husband’s age, general habits, etc., and was then done with her. Since then his learned friend, Mr. Purves, had served her, through Messrs. Gaunson and Wallace, with a notice to appear on his behalf. Therefore, Mrs. Kilpatrick had attended day by day in response to Mr. Purves’s demand, and on that account only. She had no one to leave her infant with, and consequently was compelled to bring the child to court. Under these circumstances it was mean and contemptible for Mr. Purves to put the construction he did on the presence of the plaintiff in court. He (Mr. Smyth) would not make any remark concerning what his learned friend, Mr. Purves, said about Ponting, as the latter was perfectly able to defend himself. With regard to the statement made that the owners of the Alert had acted liberally in relieving the sufferers, he (Mr. Smyth) failed to see where the liberality came in. What were the facts? £1,200 were raised by public subscription, toward which Messrs. Huddart, Parker contributed £100—exactly one-twelfth of the whole—but they did not aid Ponting, the only survivor from the wreck of their ship, to the extent of a single farthing!
In continuation, Mr. Smyth said that the obligation was imposed on the owners of ships not only to put them in a sea-worthy condition, but to keep them so during every voyage. The certificates were the permit to go to sea, but the owners to save themselves must then take all reasonable precautions that the ship was sent to sea in a sea-worthy condition, and through their agent, the captain, that she was kept in a sea-worthy condition during the progress of the voyage. The certificates were not conclusive evidence of sea-worthiness, except as to the condition of the vessel at the time of survey. He contended that the evidence proved that at the time of the wreck there were such defects in the vessel as to make her unsea-worthy. She was built for the Bay trade, and was never fit to go outside.
KILPATRICK v. HUDDART, PARKER & CO., LTD.
Eighth Day, Thursday, February 21, 1895.
Continuation of Mr. Smyth’s address to the jury.
He would ask the jury to say that the pantry window was not protected, and that it rendered the vessel unsea-worthy. He would also ask them to say that the defendants had not used all reasonable means to insure sea-worthiness, especially as the evidence of Captain Webb, one of the directors of the company, showed that he was thoroughly acquainted with the condition of that window. The cargo of forty-four tons of wattle bark and furniture, which the Alert carried on the occasion when she foundered, was too high and too light to make her stable. When her trial trip to Tasmania was made, a fine day was selected, and she carried no cargo; but on the return journey, when the weather was rough, she carried seventy tons of oats, and that was very different to forty-four tons of light loading. Ponting, the cook, said it was the lightest cargo he ever saw in her, and that the light cargo was the subject of comment amongst the crew. He would further ask the jury to say that this light cargo, and the manner in which it was stowed, was another cause of unsea-worthiness in a vessel that sat so low astern, had such extreme dimensions, and that was intended for the Bay trade, and even in the Bay was a wet ship. The gratings over the stoke-hole being unprotected were a further cause of unsea-worthiness, and, as Ponting stated, the water entered the ship through them. He (Mr. Smyth) was perfectly satisfied to leave it to the jury that the plaintiff was entitled to compensation for the pecuniary loss she had suffered through losing her husband on this unsea-worthy ship.
Mr. Justice Williams summed up the case to the jury. He said his charge might be made comparatively short, the evidence having been placed before them with very great fulness by the witnesses and learned counsel on both sides.
The plaintiff brought an action under an Act of Parliament, by which, providing the action were brought within a certain time, she was entitled to recover damages if the loss of her husband was caused by the neglect of the defendants. Her ground of action, shortly put, was that the death of her husband was caused by the negligence of the defendants. She said in effect that it was part of the contract of the defendants to take all reasonable means to provide that their ship should start on all voyages in a reasonably sea-worthy condition. Sea-worthy condition meant that the ship should be in a fit state to encounter all the perils of a sea voyage. Of course, if a vessel got into a cyclone, a typhoon, or some terrible storm that overwhelmed her, the owners were not to be blamed for that. Such an occurrence would be due to what Mr. Purves had called “the act of God.” Speaking for himself he (His Honour) thought the Almighty got the credit, or the discredit, for many of these things of which it would be better to say that such occurrences were due to the destructive agencies of nature for which the owners were not responsible. He (His Honour) did not give the Almighty the credit for slaughtering the human creatures He had created right and left in this indiscriminate manner. The plaintiff, to support her cause of action, had first to prove that the ship was not sea-worthy, and then, to render the defendants liable, she would have to prove that the vessel was not sea-worthy by reason of some precaution not having been taken by The defendants which they should have taken. The defendants pleaded that they did take all reasonable means of making the vessel sea-worthy, and were not guilty of any neglect, and that, even if this were not so, the cause of the foundering was the improper navigation of the captain. If that were so, the owners were not responsible, because the ship did not founder through their fault, but through the fault of the captain. Owners were not responsible for the rash act of a captain at sea. This was important to bear in mind in this case, because the defendants endeavoured to show that the ship would have come through the gale all right if she had been properly handled by the captain. They said that if he had made things all right fore and aft, and had put the covers over the gratings, he would have come through right enough. If the jury thought that the foundering of the vessel was contributed to by the negligence of the defendants, then their duty was to find a verdict for the plaintiff. They (the jury) had a difficult task to perform, because they had to decide between experts. Doubtless the jury knew something of the sea; probably they had all made long voyages, but what was their knowledge as compared with that of those who were bred up to the sea, whose nursery was the sea, and who could with a glance of the eye tell more than the best amateur sailor who ever lived?
The plaintiff through her witnesses attacked the general structure of the Alert, and said that the ship was unsafe to go on the high seas. It was contended that the vessel was designed and intended for the Bay service, that her engines were much more aft than they were generally placed in ocean-going steamers, and this much was generally admitted. It was said that this put the vessel down by the stern, and raised her bows. Certainly, if the bows were in the air greater play was given to the waves and the wind, and if the wind and weather were on the port-side, there would be great difficulty in bringing the ship up to the wind. The plaintiff brought a great body of evidence in support of that view; but on the other hand the defendants brought a great body of evidence to rebut it. Some very experienced witnesses had been called on both sides. Captain Bicknell, a coasting pilot of large experience, gave his evidence very well, and was most emphatic in condemning the ship as totally unfitted to go to sea; a mere “cockle boat” he called her. In addition to expert evidence called to prove that the ship was sea-worthy, the defendants put in certain certificates, some from Lloyd’s in England, and some from the Marine Board here. These certificates in his (His Honour’s) opinion were not conclusive of sea-worthiness—he would reserve that point—but they were entitled to very great weight. The ship was built at Glasgow in 1877, and the greatest care seemed to have been taken in constructing her. She was surveyed by Lloyd’s, and certified as fit to carry perishable cargo to any part of the world. She came out here not with steam, but under sail, rigged as a barque. She ran in the Bay trade a long time. In the Bay, with a strong south-east wind blowing, there were occasionally fair seas to be encountered; but these were merely pigmy teapot seas as compared with those outside. Talk of waves! One might as well compare a millpond to the Bay as compare the Bay waves to those to be met with outside on the high seas. Whoever heard of a ship being wrecked by heavy seas in Hobson’s Bay? Anyone who had encountered “great guns” in rounding the Horn in a sailing ship, or who had seen the seas off the Cape of Good Hope, would not think of big seas being found in our Bay. Then there was the question of cargo. This was one of the plaintiff’s strongest points. Some witnesses said that it did not matter what cargo the ship had, she would have gone to the bottom all the same. The certificates did not touch this question. They were strong evidence that the vessel was sea-worthy, so far as structure and build were concerned, but did not touch the question of neglect on the part of the captain to put the ship in a sea-worthy condition before she started on her voyage. The plaintiff said that, having regard to the ship’s build and her tendency to be unstable by reason of her build, she should have been loaded and trimmed with the greatest care and caution, but defendants’ witnesses said the cargo did not make the slightest difference to her, so long as she was handled properly. A great deal had been said about the bunker lids, but there was no evidence to show that they got out of position, or that any water got through the bunker holes. This was a weak part of plaintiff’s case. As to the grating over the stoke-hole, the defendants averred that they had provided canvas to cover it, and it would be a hard thing to say that the defendants ever knew, or ought to have known, that the grating, unless protected by iron or wood, was such a danger as to render the ship unsea-worthy. The wooden awning had been condemned by some of the experts as unusual on a small ocean-going steamer. In the ordinary way, perhaps, such an awning would do no harm, but if the wind came to blow on the beam, the awning became a kind of fulcrum against which the wind pressed, and helped to heel the ship over. On the other hand, two of the witnesses for the defence had said that the effect of the awning would be contrary and would help to heave her stern up. Then there was the pantry window on which there had been such a tremendous onslaught. It was said that it was a source of danger to the ship, and supposing they (the jury) came to the conclusion that it rendered the vessel unsea-worthy, they would have to ask themselves the question, “Did that danger contribute to the foundering of the ship in this case?” They (the jury) must not only find that it was a source of danger, but they must also find that the defendants knew, or ought to have known, it was so, to the extent of making the ship unsea-worthy.
He (His Honour) regretted very much that the witness Ponting had been attacked by Mr. Purves. The unfortunate man was the sole survivor of the wreck, and had spent the whole of that tempestuous night on the sea, and had done nothing to deserve being spoken ill of. Ponting had given his evidence in a proper manner, and appeared to be a decent sort of man; certainly not the kind of being Mr. Purves sought to make out. Mr. Purves had also said that Ponting had been saved by an act of Providence, but he (His Honour) did not know why Providence should have shown any more consideration for Ponting than for anyone else on board the ship. The man was, providentially no doubt, saved by his own perseverance and tenacity. If Ponting’s story was true, undoubtedly the pantry window did give way and the water poured in. If the jury found that the captain neglected his duty, they would have to find a verdict for the defendants. On the other hand, if they found a verdict for the plaintiff with damages, they would have to say how much they would apportion to the widow and how much to the child.
In reply to His Honour the foreman of the jury said they would prefer to consider their verdict next day.
Mr. Mitchell directed His Honour’s attention to the fact that he had said in his summing up that the certificates had nothing to do with the loading, whereas, in giving the certificates, the surveyors did so on the assumption that the vessel might go to sea without cargo. If there was a condition as to cargo, it would be mentioned in the certificate. Mr. Mitchell also contended that the defendants would not be liable unless the captain loaded the vessel in a way that, in his opinion, would make her unsea-worthy.
His Honour: These both seem to be good points, and I will bring them before the jury to-morrow morning.
KILPATRICK V. HUDDART, PARKER & CO., LTD.
Ninth Day, Friday, February 22, 1895.
His Honour, addressing the jury, said: Gentlemen, I told you yesterday, with respect to the charge that is made against the owners of the vessel, that you should disregard the certificate given when considering whether the vessel was loaded in such a way as to render her unsea-worthy. I don’t think I was quite right in saying that. I had forgotten that Mr. McLean, engineer surveyor to the Marine Board, told us that the certificate was for an unloaded ship. You cannot disregard that certificate altogether. Still you must bear this in mind, that though a vessel may, in the opinion of the Marine Board, be sea-worthy, the captain, or mate, may load her in such a way as to make her unsea-worthy. There is some evidence that the cargo put in her was built so high in the hold as to make her less stable than if it had been better stowed. I also told you that if the captain loaded the vessel in such a way as to render her unsea-worthy, the owners would be responsible. That is a little too bald. The owners are entitled to some protection in this respect, that is, unless the captain knew, or ought to have known, that the cargo was loaded in such a manner as to render her unsea-worthy. If he trims the ship in a way which he knows, or ought to know, will render the voyage risky and perilous, then the owners would be responsible. Gentlemen of the jury, you are to give your verdict for plaintiff, or defendants, but not your reasons. You may cause endless trouble if you do.
The foreman of the jury asked whether there was any evidence as to the ballast tanks being filled.
His Honour replied that the only shred of evidence on that point was that one of the tanks was stowed away in the forepeak.
The jury retired at a quarter past 10 A.M., and at a quarter past 6 P.M. returned into court with a verdict for the plaintiff for £600, allotting £500 to Mrs. Kilpatrick and £100 to the child.
Note.—The compiler of this book takes the present opportunity of publicly thanking Mr. J. Wallace (of Messrs. Gaunson and Wallace) for his kind courtesy in lending a copy of the shorthand notes taken at the trial. These notes—together with the compiler’s own personal observation in court—have enabled a clear, full, and authentic account of this most important shipping case to be now placed before the public.
