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.
