Mr. Box referred to the evidence of Ponting as to a conversation with Mr. Hodges when he said the ship was too light.
Mr. Justice Hood: That does not mean that the cargo was improperly stowed, but that there was not enough of it. Did he stow it in such a way that he could go to the bottom if he had a chance?
Mr. Box said that if the cargo and window had no effect on the vessel, then why did she not right herself? The steamer never righted herself after she shipped the first sea.
Mr. Justice Hodges: The owner has to use all reasonable means to ensure the sea-worthiness of the vessel; that involves doing two things, viz., finding out what ought to be done, and, secondly, doing it.
Mr. Justice Hood: What do you say the owner ought to have done?
Mr. Box: See that the window catches were safe. If there is a manifestly dangerous opening, and the catches are merely little screws, then the owner has not taken all reasonable means. The owner takes the responsibility of a jury finding that he has not taken all reasonable means of ensuring the safety of the vessel. The issue is one which the jury has a right to determine. Suppose there were no question of a certificate, and it were a fight between the two of us, I would submit that we would be entitled to hold the verdict.
The Chief Justice remarked that in the case of a concealed defect known only to the owner, or a palpable defect, the certificate would amount to nothing, but in the case of a defect which was not observed, but which proved fatal, the owner should not be held liable.
The Chief Justice: One of the witnesses makes a very important observation, viz., that when once on her beam ends it was all over with the steamer, and if that were so it was not the pantry window did it.
Mr. Box: All that points to the vessel not being fit for outside service.
The Attorney-General reminded Mr. Box that the vessel had been to Tasmania.