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.