Declared at Melbourne this 19th day of March, 1895, before me, J. A. Reid, J.P.
The following comments on the decision of the Full Court appeared in the Sydney Bulletin, published June 1, 1895:—
“The Victorian Full Court lately granted a new trial in the Alert case, with costs against the unfortunate woman who won a verdict some few months ago. The Alert foundered in a gale off Port Phillip Heads, and all hands, save one, were drowned. Mrs. Kilpatrick, widow of the second engineer, sued Huddart, Parker and Co., for damages, alleging that they had not taken every reasonable means to ensure the sea-worthiness of their vessel, her complaint being bracketed, so to speak, with a suggestion that the said Alert, having little margin of sea-worthiness to spare, stood always in need of special precautions against accident. The case was tried by Judge Williams and a jury of six, and Mrs. Kilpatrick was awarded £600 damages. Judge Williams explained his view of the law concerning shipowners’ responsibility, and analysed the evidence, and did his best, no doubt, to procure a fair, honest expression of intelligent opinion from the jurymen. Messrs. Huddart, Parker and Co. availed themselves of the Law of Appeal—which is the birthright of capital, and will remain its birthright until the people arise and kick. The Full Court set aside the verdict of Justice Williams’ jury. Widow Kilpatrick asked for justice, and thought she had got it in the form of £600 damages. Had she lost the case, she didn’t possess the money-power to appeal—but this is, in legal eyes, an irrelevant detail. The Full Court finds that the outcome of a long trial was not justice, nor law, nor anything except costs. Justice Madden and his two colleagues ruled that “the jury had never considered the case in its true legal aspect.” Nobody knows the law, says the lawyers, nevertheless the true aspect of the thing they can’t swear to is easily recognised. This by the way. Perhaps the jurymen who gave damages to the engineer’s widow were all wrong, according to the Act. If so, Judge Williams, their adviser, should have told them that no vessel certificated by the Marine Board, and floating comfortably on the water, can be called unsea-worthy. The lack of proper fastenings to a pantry window may be of grave consequence when the vessel gets on her beam ends, “but this defect would not be obviously dangerous,” in the ordinary way, and sea-worthiness is estimated in quite an ordinary way, says the Full Court. Judge Williams, by this showing, should have directed the jury to find for the defendant, but the Full Court made no reference to him. Common-sense asks why Justice Williams allowed an obviously absurd verdict to pass. And if he couldn’t squelch it on the spot, why couldn’t he, seeing that one judge is, or ought to be, as good as the rest of them? And if it wasn’t absurd—but the list of questions that suggest themselves is appalling. The answer is costs. An appeal to a higher court is an accusation of injustice, or ignorance, or dense stupidity against the lower court. The setting aside of a jury’s verdict, on the ground that they “never considered the case in its true legal aspect” is an assertion that the judge didn’t present it to them in a proper way. When the world troubles to consider the legal aspect of these appeals, it will suddenly observe that the law invites contempt, purely for the sake of costs.”
I have a strong impression that our new Governor, Lord Brassey, when he arrives and gets fairly into his new position, will be found to be the right man in the right place. His Excellency is both a lawyer and a seaman in his own person. He was educated at Oxford, and took his M. A. degree there. In 1864 he was called to the bar, but he never had any inclination to follow it up, for his natural bent was toward the sea and shipping. He passed for, and holds, a Master-mariner’s certificate. From 1880 to 1884 he was a Lord of the Admiralty, and during the ensuing year filled the more important post of Secretary to the Board. He was created a Peer in 1886, and since then has served as a very useful member of the “Commission on unsea-worthy ships.”
In order to show that Lord Brassey is not what seamen term “a fresh water sailor,” it may be mentioned that from 1854 to 1893, inclusive, he has sailed upwards of 228,680 knots, a distance which would girth our entire globe nearly ten times! During the above period he has, in his own vessels, been to Australia, Africa, Borneo, Canada, India (east and west), Norway, Russia, Straits Settlements, United States of America, etc., etc. In short, his Lordship has been—in the homely language of the “Geordie” sailor when asked how much he had travelled—“to Rooshayah, Prooshayah, Memel, and Shields, the fower quarters o’ the globe ye noodle.” Having had such a remarkable experience of sea and ships, it may be taken for granted that Captain Lord Brassey is a pretty good judge of what constitutes safety—so far as human knowledge can go—with regard to the shape and rig of a vessel. He is very wealthy, and, if he desired, could have his steam yacht full powered enough to be driven thirty knots an hour, but his is not a policy of “speed and smash,” it is one of “sense and security.” Hence the Sunbeam, in case of a breakdown of her machinery, carries sail amounting to 9200 square yards of canvas. Under steam alone she averages about ten knots an hour, but with a spanking breeze, and all sail set, fifteen knots per hour are easily got out of her.
THE S.S. SUNBEAM UNDER FULL SAIL.
In a large port like Melbourne where important shipping cases are often before the law courts, it is certainly a serious drawback that there are so few lawyers who are possessed of nautical experience. Of course many of our Victorian legal luminaries have been out on yachting excursions, and perhaps now and then got wet both outside and inside, but this kind of experience, like the “little learning,” is really worse, and therefore more “dangerous” than if they knew nothing at all! Whenever I hear, or read of, one of these would be “sea-lawyers” floundering through a shipping case, I am always reminded of the story told of the seaman who was a witness in an assault case. When Jack entered the witness-box, he was asked by one or the lawyers whether he (Jack) appeared for the plaintiff or the defendant. Jack replied that he did not understand the terms, and therefore did not know whose side he was on. To this the lawyer sarcastically remarked: “A pretty kind of a witness you are not to know whether you are for the plaintiff or defendant.” As the case proceeded Jack detailed that the scrimmage took place just “abaft the binnacle.” “Where is that?” asked the lawyer, sharply. “Don’t you know where it is?” queried Jack. “I do not,” replied the limb of the law. With a broad grin on his face Jack interjected, “A pretty kind of a lawyer you are not to know where abaft the binnacle is!”
The new trial, which had been ordered by the Full Court, commenced on Wednesday, Oct. 23, 1895, before Mr. Justice Hodges and a fresh jury of six. Mr. W. Williams and Mr. Meagher, instructed by Messrs. Ebsworth and Wilson[3], appeared for the plaintiff (Mrs. Kilpatrick), and Mr. Coldham with Mr. Schutt, instructed by Messrs. Malleson, England, and Stewart, appeared for the defendant company. On both sides fewer witnesses were examined than on the first trial, and the evidence, so far as it went, was almost a repetition of that given in the previous case with the exception that the position of the cargo was more fully dealt with. At the close of the evidence on the fifth day of the trial, both Mr. Coldham and Mr. Williams delivered very able addresses to the jury. His Honour, Mr. Justice Hodges, then summed up. He dealt with all the points of the case, and his charge to the jury, in brief, amounted to this: “If they determined that the Alert was sea-worthy there would be an end to the matter, for in that event they would at once give a verdict for the defendants. On the other hand, it was for the jury to say whether reasonable precautions were taken to ensure the sea-worthiness of the ship, and if they found that such was not done, they would then consider the measure of damages to be awarded to the plaintiff because of such neglect. With regard to this neglect the defendants had a strong answer seeing that they had Lloyd’s and the Marine Board’s certificates of sea-worthiness, yet it might be that Lloyd’s and the others were all wrong. If the jury found a verdict for the plaintiff, then in assessing damages, they (the jury) were to remember that the plaintiff would only be entitled to receive pecuniary compensation for pecuniary loss; but the mother or the child could not be compensated for the grief or pain they suffered. The jury were to throw all sympathy out of the question, and deal with the matter as one requiring simply cold justice to be dispensed.” After retiring for about an hour the jury returned into court with a verdict for the plaintiff. Damages £791, to be apportioned thus, £666 to Mrs. Kilpatrick and £125 to the child.
I quote the following from the Age newspaper of November 26, 1895:—