Mr. Smyth: All the plaintiff’s witnesses deposed that the vessel was not fit to go outside the Heads.
Chief Justice Madden: Is there evidence that 44 tons of cargo could not have been stowed without making the steamer unstable?
Mr. Smyth: We have the fact that 44 tons of light cargo were stowed on board.
Mr. Justice Hodges: Wattle bark loaded up to below the water-line would not make the vessel unstable.
Mr. Smyth: There is no evidence that it was below the water-line.
Mr. Justice Hodges: Nor any that it was above.
Mr. Smyth: The nature of the cargo was such that it would take space high up in the vessel, and thus render her unstable.
Mr. Box submitted that the owners were liable if the steamer was so loaded as to make her more top heavy than she ordinarily was. It was a case of taking a bay-trade vessel for coastal service, and the first gale she met with she went to the bottom. The only cargo on the ship was furniture and bark, which was piled right up to the deck. It was to be remembered that a very small thing would alter the trim of a ship. Another thing to be considered was that the action of the screw tended to lower the vessel aft.
The Chief Justice said that the evidence as to the manner in which the cargo was stowed left the matter very much in doubt. The lighter the cargo was the more naturally the vessel would sit. Was it fair to assume, in the absence of evidence, that the cargo was necessarily stowed in the worst possible way, the presumption ordinarily drawn being that men acted in the best possible way?
Mr. Justice Hood: Why should it be assumed that the chief officer did the work all wrong?