Battling with waves and lawyers

by Unknown

Mr. Box observed that this was a trial trip, and she took a man who volunteered to go. Once the Alert nearly got swamped in the Bay. The pantry window should have been passed by a shipwright surveyor, which Captain Deary was not.

The Attorney-General said that Captain Deary was described as a shipwright surveyor, but he was not qualified as such.

The Chief Justice: Is not that a ground for attacking the Government which put him there?

The Chief Justice gave the results of a calculation he had made, which showed that the cargo was below the water line.

Mr. Box: What is your Honour’s authority?

The Chief Justice: The authority which I started with is the twelfth proposition of Euclid’s first book. (Laughter.)

Mr. Williams submitted that the reasonable means to be taken to ensure the sea-worthiness of the vessel did not depend on the opinion of the owner or master, but on those of the jury.

The Chief Justice, in delivering judgment, said that this was an action brought by the personal representative of Mr. Kilpatrick to recover damages for the loss sustained by his being drowned by the foundering of a steamer, which the defendants called the Alert, in which the deceased was an engineer. The action was based on section 103 of the Marine Act. The vessel was built in 1877, and certified to be fit to carry goods to any part of the world. In 1891 she was fitted up here for sea traffic, and she received from the Marine Board of Victoria a certificate of her fitness for sea. She made several voyages to the Gippsland Lakes and Tasmania. In November, 1893, she was again repaired, and her certificate was renewed. On December 28, 1893, she left Bairnsdale with some bark and furniture. She fell in with a gale, and when the captain tried to put her head to the wind she fell off. It was said, as seemed probable, that being trimmed very low aft and very high forward, the wind caught her head and blew her off. Finally she fell over on her beam and foundered within a very short time. All her crew, unhappily, were drowned, except Mr. Ponting, her cook, who, after desperate and heroic efforts, escaped with life. Ponting, who was called for the plaintiff, said that a huge wave struck the vessel on the windward or port side, and she heeled over to her beam end, and did not rise again. Three waves dashed over while she lay so. The water entered in part through the starboard door of the saloon, and through a window which was in the saloon bulk-head used for the purpose of passing food from the galley to the pantry, which window was open. The door was then closed by the chief officer, and the window by the steward. From these and other facts the plaintiff said that the Alert was inherently unsea-worthy from detective design and construction, and was, at all events, rendered unsea-worthy by bad and imprudent arrangement of her cargo, and, therefore, that the defendants did not “take all reasonable means to send her to sea in a sea-worthy condition,” and so that they were liable for the loss of Mr. Kilpatrick’s life within the meaning of the Marine Act. That Act established a court of marine survey to inquire into the propriety and fitness of granting a certificate that any vessel was sea-worthy. This court might be warned or advised by anyone of any defect in the vessel sought to be certificated, and was constituted of persons specially qualified to deal with such questions. The plaintiff practically contended that the section was intended to ignore the certificate, which was in fact a formality which every vessel must possess if she was to go to sea, and disregarding the certificate as any evidence of the satisfaction of the law’s requirements, so as to relieve the owner of liability for injuries caused by the vessel’s unsea-worthiness. He did not concur in this view. The statute, in his opinion, aimed at assuring safety to the sea-going public, and that by the examination of qualified experts acting honestly, and by the application of sufficient tests the vessel should be certified a reasonably safe, sound and sea-worthy one. And then the section imposed on the owner the obligation that neither he nor his agents should lessen the sea-worthiness by improper loading or other interference with her safety or stability as certified. The plaintiff admitted that the section did not compel the owner to warrant the sea-worthiness of the vessel. If not, then the certificate, which in his Honour’s opinion was certainly not conclusive of sea-worthiness of the vessel to satisfy section 103, must nevertheless be an exceedingly important element in satisfying it, because it embodied the deliberate opinion of skilled men responsibly chosen. There are always men, pretty numerous too, who, not being in office themselves, were ever prepared to sneer at, and belittle those who were, but it could not be assumed that those in whose hands the lives of the public were placed were chosen without the requisite knowledge, caution and discretion. If this be assumed, then it must be assumed that the section contemplated all ship owners, and these must include persons who know nothing about ships, as to their construction or sea-going necessities. If such a person’s ship was certified by a board of experts appointed by the state to be sea-worthy, unless he were compelled to warrant her sea-worthiness, what more could he be expected to do? In his opinion the board’s certificate was intended to be conclusive when granted, unless there were some fraudulent concealment of defect. The plaintiff’s contention in concrete shape was that the fastenings of the pantry window were not sufficient, and that it was by means of this window that the saloon was flooded. This involved the question whether this window was so obviously unsafe that if it escaped the notice of the board, the owner or master should have seen and mended it. Again, it was argued that the gratings on the top of the engine house were an obvious source of danger, because it was not supplied with means to cover it securely, but all the evidence showed that this contrivance, which was seven feet above the deck, took in no water till the vessel were on her beam ends. The answer to all this seemed to be that a vessel that got on her beam ends was like a vessel that got on shore. It was a condition by no means to be ordinarily expected, and so to be reasonably provided against in anticipation. She might get up in one case as she might get off in the other, but the chances were ordinarily very strongly against her, and any of her equipment might prove insufficient under a stress, which it was never to be reasonably expected she would encounter. How she came to be on her beam ends no evidence had explained, except Mr. Ponting’s statement that a great wave struck her on the port side, and threw her right on her beam ends. Hence it was to be assumed that if Mr. Ponting (who from the earliest moment of the disaster was acting rationally, struggling for his life) observed accurately all that occurred, the steamer getting on her beam ends was to be accounted for by her having been knocked down as by the mere blow of a wave. The plaintiff argued that this itself was evidence that a vessel with so little stability or flotative power as to be capable of being so knocked down was not sea-worthy. The interpretation, however, which his Honour put on the statue assumed that a vessel might be in fact unsea-worthy, but if certified by the board to be sea-worthy no liability would, in the absence of the exceptions already stated, attach to the owner. The contention would then be that those who were presumably best qualified to know had determined that the Alert was sea-worthy, but through no fault of the owner they were mistaken. It was then contended for the plaintiff that whatever the Alert’s condition might have been, within the meaning of the certificate as to construction or equipment, she was loaded so improperly as to destroy any stability she might have possessed, and so imprudently as not to mitigate as far as might have been her constructive difficulty of getting up to the wind which helped to set her on her beam ends. The first of these contentions would, in his Honour’s opinion, if proved, destroy any protection which the board’s certificate gave the owner, because that certificate meant sea-worthiness as long as she was properly loaded. If cargo was put in the Alert in such a fashion that it made her top-heavy, or that it shifted from negligent stowage, that would account for all that happened in fact, and in law it would show that a sea-worthy boat under the certificate was made unsea-worthy by the owner’s agents. The evidence on this point, however, was absolutely inconclusive. It amounted to no more than that an unusually light cargo of bark and furniture went into the ship through her main hold. As to how or where it was stowed there was absolutely nothing to show. A verdict founded on what might be conjectured would be eminently unsatisfactory. But for this contention of the plaintiff his Honour would have thought that a verdict might have been entered at the trial for the defendants as a matter of law. This, however, was a matter of fact, which might be proved in favour of the plaintiff at another trial by other additional evidence. The argument that the cargo should have been stowed as far forward as possible was fallacious as attaching any liability to the defendants. It was not proved as a fact where it was stowed, and from anything that appeared in evidence it might have been stowed right forward. But apart from this the board’s certificate was that the Alert was sea-worthy without cargo. The plaintiff contended that the low freeboard aft was a prominent feature of unsea-worthiness. If then the forty-four tons of cargo as assumed were under the main hatch, that fact must have improved her trim, and putting it further forward would only have been one step better. It was no detriment, but an advantage, from the plaintiff’s point of view, to the ship’s sea-worthiness. He considered the verdict on the present evidence quite unsatisfactory and against the weight of it. He had not overlooked the rule relating to juries, which was sometimes considered to amount to this—that the court should not disturb even an absurd verdict as long as it was not insane. The latest view of the Privy Council in Aitken v. M’Meikan on this point was that which bound the court, and, though it laid down no rule of general application, it was decided on a ground applicable here. The evidence for the plaintiff ran in a different plane from that for the defendants, and regarding that fact and that the jury had never considered the case in its true legal aspect, he thought there must be a new trial. Verdict for plaintiff set aside, and new trial granted, with costs, the costs of the former trial to abide the event of the new trial.

Mr. Justice Hodges agreed that there should be a new trial. In the face of the evidence, the verdict, he considered, was one which reasonable men could not find. He desired to say nothing as to the extent to which the certificate of the Marine Board was conclusive as to the sea-worthiness of the vessel.

Mr. Justice Hood concurred, because he saw no evidence to justify a jury acting by reason and not by sympathy in finding that the defendants had not taken all reasonable care to make this ship sea-worthy. They had done all that the Act of Parliament required them to do. Competent men had examined their vessel, and these men had informed them that there was nothing wrong with her, and that she was perfectly fit to go to sea. As against that the plaintiff had proved nothing, but desired it to be laid down that, no matter what the owners of ships did, if an accident happened and a jury could be persuaded that the defendants were to blame, there was an end of it. In his opinion that would be legislating and not interpreting the Act of Parliament. It would be to say that shipowners were required to warrant the safety and sea-worthiness of their ships, and that was more than the law required them to do.