The full court, in giving judgment on the appeal for a new trial, placed a good deal of weight on the fact of the Alert having passed successfully through the surveys made by the English and Victorian Marine authorities, and, further, the court was of opinion that the certificates given by these authorities were prima facie evidence that the vessel was in all respects not only perfectly sea-worthy, but proof also that the owners had done everything which the law required them to do. Had I sufficient time and space at my disposal, I could cite hundreds of cases showing clearly that these surveys and certificates are more theoretical than practical. Suffice it for the present that I, as briefly as possible, relate two instances of certificated examinations which came under my own personal observation thus:—
In 1863 I was an officer on board of a large ship called the Saldanha, which was chartered to carry sheep from Victoria to New Zealand. At Geelong we took 6000 sheep on board consigned to Port Chalmers. By way of parenthesis I may mention, what may read rather curious now-a-days, that we had ten shillings per head freight alone for every sheep we landed alive. On the passage down we lost 1000 of them; some died, but the major portion were killed by being trodden to death during the heavy lurches of the ship to leeward. We cast them overboard every day in such quantities that it would have been almost possible by means of the carcases to have tracked our ship’s way from Port Phillip to Port Chalmers! After discharging our living freight at the latter port, we sailed again for Melbourne in order to bring down another hatch, but, unfortunately, through the ship being “flying light”—she was like a balloon on the water—we got caught in a heavy squall and were driven ashore, in spite of letting go both anchors, on a sandy beach near the entrance to Port Chalmers Heads. By means of our boats we all landed safely and lived amongst Maoris for a few days until three steamers came to our assistance. By means of our united efforts, aided by a high spring tide, we got the ship off the beach and towed her back to Port Chalmers, where, with all due solemnity, an examination was held by Lloyd’s surveyors, and also by the insurance agents. The result of these, and other numerous surveys, was that the Saldanha was condemned as unsea-worthy, and sold by the insurance agents for a few hundred pounds to a company who desired to make a coal hulk of her. Accordingly she was “stripped to a gantlin” and used for such purpose.
And now for the sequel: Within eighteen months after the purchase, this ship—notwithstanding her condemnation by certificates—under the name of the Retriever was sent to Melbourne and put upon the patent slip at Williamstown for examination. After being on the slip for twenty-four hours, the first real examination, for there was neither dock or slip in those days at Port Chalmers, the ship was found all correct, certified accordingly and taken across to Sandridge Railway Pier, where she loaded a first class cargo of wool, hides, tallow, etc., consigned to the United Kingdom. For aught I know to the contrary, the Retriever, late Saldanha, is afloat doing duty yet!
The second instance occurred in 1871, when the S. S. Queen of the Thames was in Melbourne on her first and only voyage. She belonged to the then well-known firm of Davitt and Moore, and arrived here safe after what was, at that time, considered a remarkably quick passage of fifty-two days from London. Just a few days prior to the Queen of the Thames leaving here for England, attention was drawn to the fact that she had no “long boat,” and it was suggested that she should be compelled to carry one in the interest of sea-worthiness. Her commander, Captain McDonald, became quite indignant at the idea of “colonials” daring to interfere with the equipments of his ship. In those days there was no Marine Board composed of shipowners, but there were other means of looking after the interests of “those who go down to the sea in ships,” and consequently the captain was informed that unless he obtained the requisite boat, his ship would not be allowed to clear at the customs.
The following are extracts from a bitter letter of Captain McDonald’s which appeared in the Argus newspaper of February 20, 1871:—
“The Queen of the Thames and everything about her was planned and built with a special view to the Australian passenger and mail service, and the best skill and experience procurable in Great Britain were enlisted in her service.... Although the Board of Trade, Lloyds, the Emigration Commissioners of Great Britain, etc., passed the Queen with her life boats, and though she and they were highly complimented by all the authorities at home, still your Mr. Gossett is not satisfied with these arrangements. He has discovered the dreadful truth that she has no long boat, and he threatens that he will not allow her to leave the port until she is provided with one.... It seems hard that a non-professional Victorian official should have the power to dictate changes in the vessel’s arrangements, and enforce these changes under such a heavy penalty as the detention of the ship would imply.”
Mr. Gossett was, however, inexorable, although the captain pleaded that he was nearly ready for sea, and there was not time to get a boat built. At length the difficulty was got over by the Queen of the Thames getting the Lady Jocelyn’s long boat and the latter ship giving an order for a new one in its place. As may be imagined Captain McDonald, in anything but a good humour, quickly sailed for London. On the way there the ship got wrecked close to the Cape of Good Hope, and that very boat which the captain had so reluctantly taken with him was the principal means of saving all hands from a watery grave! I may just add that the Queen of the Thames was classed AA I at Lloyd’s, a much higher class than that of the Alert, and yet Mr. Gossett, I am glad to say, refused to recognise the certificate—although undoubtedly a high one—and had the courage to carry out what he believed to be a measure for the safety of all concerned.
During the progress of the arguments in the Kilpatrick v. Huddart, Parker and Co. appeal case, Mr. Justice Hood, in commenting on the rig of the Alert, said: “No doubt had there been another mast in the ship persons would have come forward and said that was the cause of the disaster.” While Chief Justice Madden, on the same subject, was of opinion that “the first thing a captain would do, if there was a second mast with a sail up, would probably be to strip it off like a shot.” With regard to both of these opinions, although I feel constrained to comment at length on them, I must, for the sake of brevity, content myself with the remark that the dictum or logic they contain “may do for the marines, but certainly won’t do for sailors.”
Furthermore, the Chief Justice said, “I think the man would be a wicked one who, knowing the unsea-worthy condition of a vessel, did not report it to the proper authorities.” Now, while all right-minded people will heartily agree regarding the healthy sentiment contained in the foregoing sentence, nevertheless it is well known that a good deal depends upon circumstances. There are positions wherein men can report defects in anything, and get praise—as they should—for so doing, and there are also positions wherein men, on shore, if they drew attention to defects, would be instantly “sacked” from their employment, and, if on board ship, would in all probability be sent to jail as wicked designing men! I will try to give an instance in point: About three weeks after the jury brought in a verdict in favour of Mrs. Kilpatrick, I interviewed a seaman on board of a steamer then lying in the Yarra at the Australian wharf. He made a statement which I took down in writing, and after reading same over to him, he, in my presence, declared it was true in every particular. Here it is, “I solemnly and sincerely declare that my name is ——.[2] I am an able seaman, and came out to Melbourne as such in the barque Alert. She was a long, narrow, and shallow vessel, built for a river steamer, but we brought her out under sail only. Her machinery was in position but her funnels were not; they were stowed below. In the first instance she sailed for Melbourne from Greenock, and after being a week at sea the crew refused to go any further in her. They all went aft and desired the captain to put the ship into the nearest port. Accordingly the Alert was taken in to St. Tudwell Roads, Cardigan Bay, Wales, where the crew were taken ashore, tried for refusing duty, and sent to jail for six weeks. At the earnest request of the men a surveyor was sent to examine the ship. He stated that the men had a just cause of complaint, and he pronounced the Alert to be unsea-worthy. The magistrates, on learning this, at once made an order releasing the men from confinement. A new crew was shipped, of whom I was one; but, owing to the name the vessel had got, and the extra risk to run, we demanded, and got, £3 15s. per month, the then highest wages out of the port for coasters. During a period of three weeks, fifteen attempts were made to get the Alert out of the Bay, and fifteen times she had to go back to her anchorage. The reason we could not get outside was because the wind was not fair and the ship would not stay. There was no room to wear her round, so there was nothing for it but go back. At last a slant was got, and we sailed for Melbourne. Prior to leaving St. Tudwell Roads the authorities on shore told us that although we had signed articles we need not go in the ship unless we liked, and Captain Webb, to encourage us, said he was going out himself as a passenger in her to Melbourne. At the last moment he changed his mind and did not come with us. Captain Munn was in command, and the Alert carried eight hands all told. She was very crank, or tender, and every night at sundown, fine or foul, the top-gallant sails were taken in and stowed. At no time during the passage out would the vessel stay. When we wanted to put her on the other tack we had always to wear her round. She was loaded with ballast and trimmed on a fairly even keel. The decks were never dry except during calms. Frequently a lot of water got into the saloon, and was got out by all hands bailing with buckets. In one breeze we had she shipped a sea which smashed in the skylight and carried away the wheel and binnacle. We were about five months coming out, and ran short of provisions on the way. I do not remember a window in front of the poop. If there was one it must have been covered over, for I never saw it or heard of it at any time. We never expected to reach Melbourne in her. She was a dangerous vessel, and not fit, in a breeze with a seaway, to either stay, wear, or run. I would not ship in her again under any circumstances. When in Queensland I read in the newspapers some account of the trial, and was sorry that I was not in Melbourne to give evidence as to what I knew of the Alert. And I make this solemn declaration, conscientiously believing the same to be true, and by virtue of the provisions of an Act of the Parliament of Victoria rendering persons making a false declaration punishable for wilful and corrupt perjury.” (Signed)