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.