Battling with Waves
and Lawyers

THIRD EDITION. REVISED AND ENLARGED.

A GENUINE HISTORY OF PERILS OF THE DEEP,

AND

AN AUTHENTIC RECORD OF THE MOST IMPORTANT SHIPPING
CASE EVER DEALT WITH IN THE SUPREME
COURTS OF AUSTRALASIA.

COMPILED BY
J. ARBUCKLE REID

AUTHOR OF “THE AUSTRALIAN READER,” “SEAMEN AND SHIPWRECKS,” ETC.

“Truth is always strange; stranger than fiction.”

Byron.

LONDON

SIMPKIN, MARSHALL, HAMILTON, KENT & CO., LTD.

ILLUSTRATIONS.

[Pg 17]

Battling with the Waves.

A shipwreck, at all times and under any circumstances, is a lamentable occurrence, but it is peculiarly so in instances where out of a whole ship’s company only one solitary individual is left to tell the tale. So far as is known to the compiler of the present work there have been only two such shipwrecks in Australian waters. One was the wreck of the emigrant ship Dunbar near Sydney Heads, Port Jackson, on the 20th August, 1857, when a seaman named Johnson—who is still living and permanently employed by the New South Wales Government, as a lighthouse-keeper at Newcastle—was the sole survivor out of 121 persons.

The other was that of the steamer Alert, near Melbourne Heads, Port Phillip, Victoria, on the 28th of[Pg 18] December, 1893, and the relation of which forms the subject matter of these pages. The last named vessel had 16 persons on board and all, save one, perished either by drowning, or by being dashed to pieces against the cruel rocks. Disaster comes to us in all forms, but the stirring story told by Robert Ponting, the survivor from the Alert, partly lifts the veil and shows us how brave men can, and do, even under the most adverse circumstances, battle to the last against the mighty raging sea which finally engulphs them.

It might be fitly said in the language of the poet.

To do his duty and face death on the battlefield the soldier requires great courage, even although there he has only his fellow man—and the instruments created by him—to contend against. The seaman’s courage is, however, of a very different sort. In a storm he has to war with something infinitely more awe-inspiring than anything puny man can make! Hence, however sorrowful and heartrending the detail of suffering and death at sea, still we who read of such cannot but admire the indomitable pluck which characterises the conduct of mariners, even when they believe and feel that all hope has fled. Death is the[Pg 19] portion of all; yet, although we are aware it is inevitable, there is a something—call it what we will—that instinctively impels us to fight and struggle for existence. During this struggle there are some well authenticated instances wherein men seem to have passed through the very gates of death, and yet, by the mysterious workings of Divine providence, have been for a time brought back, so to speak, into the land of the living until some purpose or aim had been accomplished. A clear case of the latter sort came within the experience of the present writer, and he hopes that the relation of the incident here will not be considered out of place by his readers:—

We were coming from Quebec, Canada, bound to Milford, England, with a timber-laden ship called the Marmion. When about half way across the Atlantic the captain became very ill with something understood by us to be British cholera. He was confined to bed, but persisted, every day the sun was to be seen, in being carried up on deck to take observations at noon. We could all see he was dying, and though every attention was paid to him, we expected each day to be his last. Just three days before we sighted land our captain died apparently, and it being cold winter weather, we determined, if possible, to bring his body on for burial when we arrived in port. To our astonishment, some hours after we believed him dead, he suddenly revived, and asked for something to eat! He continued improving so much that one night about six o’clock, when we had just sighted Kinsale light, on the Irish coast, he, without any assistance, came up on deck, took the[Pg 20] bearings of the light, and altered the ship’s course. A heavy gale was blowing, and the weather as thick as a hedge; still the ship, under close reefed topsails, was kept running all night before the wind, the captain, meanwhile, against all persuasion, insisting upon remaining on the poop. At noon next day, when the ship was still rushing along in the midst of a thick fog which prevented any land from being seen, the captain said quietly to the man at the wheel: “If the ship has been steered properly since we saw Kinsale light, she will be in Milford Haven in about three hours’ time; if she hasn’t been steered properly, she will be God knows where.” Almost immediately after speaking to the helmsman the skipper muttered in a bitter tone, as if communing with himself: “Anyway, it won’t make much difference to me.” In two hours more the weather cleared a bit, the we saw the land very “close to,” and we were heading straight for St. Ann’s—an island which lies in the entrance to Milford—as an arrow from a bow. By three p. m. we were safe in port with the anchor down. In the flurry of letting the anchor go we, for the time being, forgot all about our captain’s condition, but on walking aft and going below, we found him lying on the sofa in the saloon, dead for certain, as it proved, this time! He was, physically, a weak man, but had a powerful will and a taciturn nature. The anxiety of getting the ship safe into port had no doubt kept him supernaturally alive. The anchor down, he felt his task was done; he had quietly gone below, and unseen, passed away beyond the cares and troubles incidental to human life!

[Pg 21]

The voyage of life is anything but plain sailing, and whether we like it or not—aye, whether our duty lies in the hut of the shepherd—in the palace of the prince—in the workshop—in the forest—in the camp—or on the ocean—we may expect to encounter some phase or other of that perpetual conflict with the material forces of the universe, or that scarcely less persistent conflict with the moral force of circumstances, which, together, make up so much of the tragedy of life, and after all, impart to it so much of its dignity. Knowing then that storms and trials have to be encountered it is clearly our duty, so far as we are able, to take every precaution to minimise disaster of every kind. Disasters, of course, will occur, both on sea and shore, even when everything has been done that thought and skill can suggest, but with regard to shipping matters can we say that, in the interests of life and property, all is done that could and should be? Without presuming here to enter into the cause, or causes, of the Alert going to the bottom, it is saddening to think that though the vessel went down in broad daylight, and not far from the shore, still the accident was not seen. It may be that even if it had been seen, nothing, owing to the state of the weather, could have been done to help the sixteen men who were left to buffet with the waves, but, nevertheless, it must have added another pang to the suffering of these men to see and know the land was “So near and yet so far.”

The incidents which occurred after the foundering of the Alert are so extraordinary that if they were not authenticated beyond a doubt, the recital of them[Pg 22] would at once be classed as a narrative from the prolific pen of a dealer in romance. Indeed, it might be fittingly said that the wonderful endurance displayed by the survivor, Robert Ponting, in battling with the waves for fifteen hours on what must have been to him a terribly long, and dreary night—his being cast upon the beach—his curious discovery and ultimate resuscitation—all partake of the miraculous!

Moreover, as if to make matters still more sensational, somebody conveyed the news to Ponting’s wife, at South Melbourne, that her husband was amongst the lost, and Messrs. Huddart, Parker, and Co., the owners of the Alert, also, on the 4th January, 1894—six days after the date of the wreck—sent a cablegram to London, stating that Ponting was drowned.

The following extract from a letter, lately received at Melbourne by Mr. Robert Ponting from his brother-in-law, Mr. Thomas Hutton, in London, clearly gives the particulars of this unaccountable blunder:—

It will be seen from the foregoing that Robert Ponting was placed in the unique position of being able to read of incidents which took place after his supposed death.

[Pg 26]

[Pg 27]

CHAPTER II.
SORRENTO AND ITS SURROUNDINGS.

In order to give those of our readers who have not visited Sorrento a clearer idea of the coast whereon the S.S. Alert was wrecked, it has been deemed necessary to give, by way of preliminary, a brief outline of the locality.

On the S.E. side of Port Phillip bay, about 40 miles south of Melbourne, lies the pretty little township of Sorrento. It has a population of some 300 persons, but during the summer months this number is largely increased as the neighborhood, principally owing to the enterprise of the Hon. George Coppin, M.L.C., is a favorite resort for pleasure seekers and picnic parties, who arrive, per train or steamboat, from Melbourne and suburbs. In addition to its notoriety as a bathing and health giving place, Sorrento possesses a historic interest which is at once instructive, amusing and contradictory.[Pg 28] Here it was that Colonel Collins, in October, 1803, landed, from the ships Calcutta and Ocean, 350 British convicts, with the intention of forming a permanent penal settlement in accordance with instructions received from the Imperial Government. After staying a few months, he, however, abandoned the locality as it was, to use his own words, “an inhospitable spot not fit for a white man to live in.”

In one sense it was providential that the Colonel condemned the place, otherwise the record of the origin of Victoria, as a colony, would not have been very edifying. One of the principal reasons given by Collins for deserting the settlement was “want of water,” but wells, dug by the members of the expedition, still exist to prove how easily water could have been obtained. Other proofs are not lacking to show that the gallant Colonel must have had other reasons than the ones he gave for taking his departure. For instance, Mrs. Hopley, wife of one of the officers of the expedition, according to Rusden’s “Discovery and Settlement of Port Phillip,” wrote to her friends in England, thus—“My pen is not able to describe half the beauties of that delightful spot. We were four months there. Much to my mortification, as well as loss, we were obliged to abandon the settlement through the whim and caprice of the lieutenant governor. Additional expense to the government and loss to individuals were incurred by removing to Van Dieman’s land. Port Phillip is my favorite and has my warmest wishes. During the time we were there (Sorrento), I never felt one ache, or pain, and I parted with the[Pg 29] place with more regret than I did my native land.” Further, one of the officers wrote—“It was one of the most healthy and enjoyable spots that it has been my good fortune to find in the course of my travels. Why it should have been abandoned is a mystery. Climate, prospect, and every natural advantage were in its favor, and water was to have been obtained in abundance if there had been any desire to have found it.” Amongst the members of the Collins party were two men who afterwards became famous though their stations in life were widely apart. One was William Buckley—a convict who made his escape and lived for 32 years amongst the native blacks as “the wild white man,”—and the other was the late Hon. John Pascoe Fawkner—then a boy in charge of his parents—who had an excellent claim to be considered the founder of Victoria, and was beyond all doubt the founder of the City of Melbourne. At the rear of Sorrento, across a narrow neck of land about a mile and a quarter wide, lies the Ocean Beach—or as landsmen love to call it, the “Back Beach,”—where the ever surging South Pacific rolls in its mighty waves on to a bleak and barren shore, which embraces a stretch of coast line extending from Cape Schanck to Port Phillip Heads, a distance of about 20 miles. The fore-shore, or rocky beach, is here flanked by a sort of amphitheatre of high cliffs, from whence a magnificent view seaward can be obtained, and, when a strong southerly wind is blowing, the commotion of the waters, as seen from this vantage ground, forms a remarkably imposing picture. Here one can gaze on what Tennyson[Pg 30] describes as “The long wash of Australasian Seas.” Now, with sullen roar, racing swiftly along, now leaping high over the outlying reefs, then dashing with irresistible force against the jutting rocks, and finally spending their fury by lashing themselves into a fringe, or belt, of creamy foam which extends as far as the eye can reach. If there be one place more than another to which the grand lines of Gordon, the Victorian poet, are appropriate, that place is Sorrento Ocean Beach.

[Pg 32]

[Pg 33]

CHAPTER III.
THE DISCOVERY AND RESUSCITATION OF ROBERT PONTING.

On Thursday, the 28th December, 1893, a large number of visitors were, as is usual at holiday times, down at Sorrento. All day a heavy gale of wind and rain had been blowing along the Victorian coast, and visitors were, of course, thereby prevented from enjoying themselves on the ocean beach. Next day, however, the weather was considerably finer, and the sun shone out, although a pretty stiff cool breeze was still coming in from the south, or seaward. Taking advantage of the gleams of sunshine and the receding[Pg 34] tide, four young ladies, namely—Miss L. Armstrong, of 397 Station-street, North Carlton; Miss E. Duggin, of St. Belades, Kasouka-road, Camberwell; Miss K. E. Davis, of 97 Webb-street, Fitzroy; and Miss M. Moorman, of 349 Smith-street, Fitzroy, were down strolling on the only bit of sandy beach there is below the cliffs, when suddenly they came across the body of a partially dressed man lying half-buried in the drifting sand. Although frightened at first, instead of running away screaming at the unwonted sight, as many of their sex at their age would have done, these brave girls, with a promptitude which reflects credit on their heads, as well as their hearts, quickly determined on their line of conduct, and added another proof of the truth of Scott’s opinion:—

The following account was given to the present writer by Miss Davis, one of the foregoing young ladies:—“We left ‘Lonsdale House’ directly after breakfast on Friday morning for Jubilee Point. We got down the cliff about half-past ten, intending to look for shells and seaweed. We had just reached the end of the railing, and were looking at some ‘natural aquariums,’ as they are called, when our attention was drawn to a man stretched on the sand to all appearance dead. Miss Moorman said, ‘I believe it’s a drunken man,’ but on looking closer we saw that he had a life-belt around him. We went near to him and noticed that his eyes were moving. Finding that he[Pg 35] was not dead, I knelt down and asked, ‘Are you ship wrecked, Mr.?’ After a minute or two he replied in a faint whisper, ‘Yes,’ and shortly afterwards he gasped out ‘Refreshments,’ then immediately swooned away. We then arranged that two of us should stay by the man, dead or alive, and the other two go at once to obtain help of some kind. We saw that the man’s life-belt was clogged with sand, and also his eyes, nose and ears. With some difficulty we undid the belt, and dipping our handkerchiefs in water we wiped the sand from his face. He then came to a little, and said he felt better, but all the time till assistance came, and even after, he kept swooning away, and each time he went off we thought he was dead. We put our cloaks over him, and sheltered him from the cold wind as much as we could with our parasols, till Messrs Ramsay and Stanton came and applied the treatment usual in cases of the apparently drowned. In our small way we gave all the aid in our power. The scene was one which none of us will fail to remember, and although we do not wish to be in such another incident, still we feel it did us good to be there, for we got an object lesson, and any of us know now how to treat a person rescued from the water.” The two young ladies who ran back for assistance luckily had not gone far when they met Mr. J. Douglas Ramsay, the well-known dentist, of Elsternwick. By a strange coincidence Mr. Ramsay had been in former years a medical officer on board several ships belonging to the “Loch” line, and hence he was just the very man required for the emergency. What took place[Pg 36] afterwards cannot be better told than in the graphic language of Mr. Ramsay himself, as given at the official enquiry, held a few hours after the discovery already related. In giving evidence Mr. Ramsay stated, “I, with my wife and her sister, Mrs. Whitelaw, went to the Ocean Beach by trap at about 10 a. m. this day (Friday, 29th December) and then walked on towards St. Paul’s, one of the highest points around. When we were within a few hundred yards of it I saw two ladies hurrying up. They came towards us and one said, ‘There is a shipwrecked sailor down there. Can you tell us where to get some stimulant?’ I replied ‘Thank God! we have some here in a flask.’ I ran down in the direction pointed out and found a man lying on the sand about seven yards from the water’s edge. He appeared to be dead. He was clad in black trousers and white shirt, stockings were on his feet, but no boots. I immediately tried if I could discover any signs of life, but could find no pulse, everything he had on was covered with sand, and his body was stiff and cold. I prized open his teeth, and poured some brandy down his throat and then commenced to work his arms to restore animation if possible. After 10 minutes I saw a few signs of life and then, assisted by my wife and the other ladies, I dragged him behind a rock for shelter from the cold wind which was blowing strong. I continued working at him for about half-an-hour and the whole of the ladies assisted me materially by rubbing, in turns, the man’s hands and arms. As soon as I saw it was likely that the man would be saved, I sent Mrs. Ramsay and her sister back[Pg 37] to get more assistance and they both cheerfully started on the journey. Meanwhile Mr. Austin Stanton, of Collins-street, Melbourne, in company with Miss Hill, came on the scene, and he at once took off his great coat, and spread it over the man’s body, while Miss Hill took off her jacket and wrapped it round his feet, which were very much bruised. Mr. Stanton had his large St. Bernard dog, “Victor Hugo,” with him, and as warmth was now the great thing necessary, Stanton got the docile animal to lie down and nestle up close to the man’s body. It was indeed a strange sight, and one which called up feelings which I will not readily forget, to see a huge dog, in faithful obedience to his master’s orders, lying close to an apparently dead man! One could almost imagine that the intelligent animal knew the effect its conduct would produce; be this as it may, the increased warmth soon became apparent. The man opened his eyes and drew a long breath. I at once gave him some more brandy, and a better color began to appear in his face. A few moments after, he suddenly exclaimed: ‘Where is my life-belt?’ I told him it was all right, having been taken off previously. He then said: ‘Could some one go round the beach? Some of my mates might be washed up.’ In answer to questions he said his name was Bob Ponting, that he had been cook on board the steamer Alert, and that she had foundered the previous day when about three miles off the coast. From the weak state our patient was in we dared not question him further, but some of us went along the beach, without, however, finding[Pg 38] or seeing any traces of his mates. About two hours from the time Ponting was found additional assistance came. Constable Nolan, of Sorrento, brought a party of men in a buggy. They also brought a stretcher, on which we placed the poor man, and between us we carried him up the cliffs and across to the buggy. It was no easy task, even with half a dozen willing hands, as the cliffs at this point are very steep, and after getting to the top the scrub is very thick and hard to walk through. We got Ponting into the buggy and brought him to Clark’s Mornington Hotel, Sorrento, where we arrived about 1.30 p. m. He is now receiving all care and attention. I fancy he will pull through with good nursing. Had he not been such a powerful man, he could not have stood the terrible exposure. It is a miracle that he is alive at all. He is a fine-looking man of about 30 years of age. He was only married three months ago, and was very anxious that a telegram should be sent to his wife. Of course we complied with his request as soon as possible.”

On arrival at the hotel Ponting was immediately attended to by Dr. Browning, the Government medical officer of the Quarantine Station, Point Nepean, and also by Drs. Mullen, Hutchinson and Cox, but in spite of all their skill the poor fellow showed unmistakable signs of collapsing. The life color, which had been coming back to his skin, now gradually disappeared, his body got cold and rigid and he relapsed into a complete state of coma, so much so that the medical gentlemen despaired of his case as utterly hopeless. However, after rubbing two bottles of brandy through[Pg 39] his skin, applying hot bricks to his feet, and rolling him in warm blankets, the doctors saw that their patient was likely to recover. As the wounds on Ponting’s body—caused by the nails in the raft on which he had floated—showed signs of engendering blood-poisoning, blisters were applied to the various places with good effect. Nearly all the forepart of Friday night he lay tossing in a delirious condition and talked wildly of the terrible experience of the preceding twenty-four hours. His wife was sent for, and aided by her careful nursing the doctors knew that their combined efforts were being crowned with success. Meantime search parties had been scouring the rocky coast and they succeeded in finding seven of the ill-fated ship’s company, but they were battered and bruised almost beyond recognition. The bodies were removed from the beach and laid in a row side by side in a shed at the rear of the Mornington Hotel, and on the following day (Saturday) Ponting, having recovered consciousness and improved considerably, was carried there for the purpose of identifying his dead comrades. It was an affecting scene, and a trying ordeal for Ponting in his weak state as one by one the bodies were uncovered to his gaze. No. 1 was J. Williamson, one of the sailors; No. 2 was Page, a steerage passenger; No. 3, D. McIvor, a fireman; No, 4, W. Thompson, also a fireman; No. 5, W. Stewart, the other steerage passenger; No. 6, J, Thompson, the chief engineer, and the seventh was Captain Mathieson, the commander of the Alert.

[Pg 40]

[Pg 42]

[Pg 43]

CHAPTER IV.
DESCRIPTION OF THE ALERT.

The following is a complete description of the S.S. Alert:—

Owners, Messrs Huddart, Parker and Co., Melbourne. She was an iron screw Steamer of 243 tons gross measurement, built at Port Glasgow, Scotland, in 1877. Her length was 169 feet. Breadth of beam, 19 feet 6 in., and depth of hold, 9 feet 8 inches, In other words, her length was nearly eighteen times her depth, and nearly nine times her width. She came out to Melbourne under sail, and rigged as a three masted Schooner.

From the time of her arrival here until the month prior to her loss, she had been trading inside Port Phillip Heads, from Melbourne to Geelong and vice versa. All the time she was engaged in the Geelong trade, and up till the period of her loss, she was rigged[Pg 44] with a foremast only, and hence she was not capable of carrying sail aft.

The cargo she had on board when she left Metung, (Gippsland Lakes) her last port of call, consisted of 25 tons wattle bark, 20 bags maize, 14 empty casks, 40 bales wool, 55 sheepskins, one box tools and 20 packages furniture. In all estimated about 44 tons.

With regard to her draught of water when on the fatal voyage, it is alleged that she was drawing 9 feet 6 inches aft, and 5 feet 9 inches forward.

Complete list of the persons on board the Alert at the time of the disaster.

Drowned—

Saved—

[Pg 45]

CHAPTER V.
THE VOYAGE.

The subjoined narrative is given, as nearly as possible, in the words of Robert Ponting, the sole survivor.

The S.S. Alert left Melbourne at mid-day on Saturday, December 23rd, 1893. Proceeding down Hobson’s Bay we called at Portsea and Queenscliff, and finally cleared through Port Phillip Heads at 5.30 p. m. We had moderately fine weather along the coast and rounded Wilson’s Promontory at 4 a. m. on Sunday. Four hours after, we reached Port Albert, lay there all day, discharged cargo early Monday morning (Christmas Day), and sailed at 7.30 a. m. for Gippsland Lakes. Had moderate sea and cloudy weather along the “90[Pg 46] mile beach” and got to Lakes entrance about 4 p. m. Proceeded up the lakes, called on the way at Metung and Paynesville, and arrived at Bairnsdale, our destination, at 8 p. m., in the midst of a heavy thunderstorm. Next day, Tuesday, being Boxing Day, no cargo was put out. On Wednesday, 27th, discharged all cargo and shipped a small quantity of wattlebark, wool and some cases of furniture, the latter belonging to Mr. Deasy, inspector of police. We sailed same day at 2 p. m. for Melbourne, having three passengers on board, one, Mr. J. Newton, in the saloon, and two in the fore-cabin, whose names I did not then know, but I have since ascertained their names were Stewart and Page. There were several other passengers expected but they did not turn up. On the way down the lakes, we called at Metung and shipped a little more wattlebark, making our cargo as I have since been informed, in all about 44 tons. Just before dark we passed out through the Lakes entrance. Outside we met with misty weather, a smooth sea and a light breeze from the south-west. At 2 o’clock on Thursday morning (28th), I was awakened by the stopping of the propellor—I slept in the stern sheets immediately over it—I went on deck to see what was the matter, and was informed that, owing to the thick weather, the red light on Cliffy Island could not be picked up. We lay “hove to” for nearly four hours, then, as the wind rose and lifted the fog we found we were well on our proper course. The ship was again kept on her way and we rounded Wilson’s Promontory a little before 7 a. m. Soon after, the wind chopped round from south west to [Pg 47]south-east, enabling us to set the trysail and staysail. We passed through between the islands all right and then fell in with a heavy rising S.W. swell and a choppy sea from S.E. This caused the vessel, being very light, to get very lively and take on board large quantities of heavy spray. At 8 a. m. the crew came for their breakfast, but the steward told me that no one in the after part of the ship wanted any breakfast. I was not surprised at this as I had often seen the Alert make things so lively that no one on board required anything to eat for the time being. I went forward to ask whether the two steerage passengers wanted breakfast, but they would not have any. About 11 a. m. when off Cape Liptrap, the sea was very much higher, but we did not give much heed to this as we had always found it a bit rougher when passing headlands. At noon the crew came along for their dinner and they brought their beds with them. They placed these on the engines to dry, grumbling very much as they did so that the ship was so dirty they could keep nothing dry either above or below. I told the men they might have their dinner in the galley, but after looking in they declined, remarking it was worse than the forecastle. Tea and toast was all they required aft for their midday meal. By 3 p. m. we were about two miles off Cape Schanck and the wind having gone round to S.W. again, blowing a steady gale, there was a heavy sea breaking just off the point. In order to avoid these breakers, Captain Mathieson altered the ship’s course and headed out seaward for a while, till the Schanck was given a wide berth, then the course was shaped for Port Phillip Heads,[Pg 48] The Alert now began to roll very much and take heavy lurches to leeward at the same time taking lots of water on board. A great many articles in the galley were thrown down and smashed or washed away. It was impossible for me to help this, although the steward said there would be a jolly row when we got into port over losing so many things.

At 4 p. m. the watch came from below but all hands remained on deck and went up on the poop as it was the driest part of the ship, and, but for the rain, fairly comfortable. The steward told me not to attempt to get any tea ready till we got inside, so I went below with him into the saloon. We had not been there many minutes till we heard a tremendous sea break on board on the lee side. It made the ship shiver like a leaf and listed her over to starboard so much that the two lamps hanging in the saloon were thrown violently up against the deck overhead and smashed to pieces. We ran up on deck to see what was the matter and found the lee side of the vessel full of water, the bulwarks amidships being clean out of sight. Two men were at the wheel and the Captain was on the bridge evidently trying to get the ship’s head up to the sea and wind. The next wave came right up on the lee side of the poop—where I was standing holding on to a stay—and washed me overboard, but I managed to grasp the poop railing and held on for bare life. Just as the chief mate, Mr. Hodges, was coming to my rescue another heavy roller threw me inboard again and dashed me up against the companion with such force that I thought for a time my legs were broken. I asked Mr. Hodges whether he[Pg 49] thought the ship was in danger. He replied, “No, I think she will come up to it,” meaning that when the vessel got her head to windward she would free herself from the water on deck. Meantime, Captain Mathieson had taken the wheel himself and sent the two men to join the others in taking in sail foreward. As soon as the canvas was taken off the ship another attempt was made to bring her up, but all efforts were useless. She would “come to” a little bit, then the sea and wind would sling her off again, like a gate swinging on its hinges. Each time she went off she seemed to become more helpless and dipped nearly her whole broadside into the hissing waters. The steward and I went down into the saloon and found the water about three feet deep on the starboard, or lee, side of the floor. Every roll the vessel took dashed the water over Mr. Newton where he lay. We assisted him up on deck and then tried to discover where the water was coming in. We found that the pantry window—which looked out on the starboard side of the main-deck—had been burst in by the pressure of water from the outside. We blocked the aperture up as well as we could and then went up on the poop. The Captain was still at the wheel and the men were foreward securing things about the deck in the best way they could. Captain Mathieson beckoned me and asked if there were any water below in the saloon. I told him there was and it was still rising. His countenance changed, but he made no reply. By the beating of the engines I could hear they were commencing to work more slowly, and the ship seemed as though she were becoming[Pg 50] entirely unmanageable. The chief engineer, Mr. Thompson, called out to Mr. Kilpatrick, the second engineer, who was on duty below, “Give it to her, Jack,”—meaning for him to keep the engines working as fast as he could. In answer to the steward’s question, “Is there no show to get the vessel head on?” Mr. Hodges said, “I am afraid she won’t come to. She is too light foreward and we have no sail aft to help her round. Everything is against her at present as it happens. There is that upper deck and the foreward boat, all on the starboard side. What with the big funnel and bridge, the life-boat on the engine-room skylights, the awning of wood instead of canvas and too little cargo, she’s all top and no bottom.” The ship now began to lie down almost steadily on her beam ends, the big seas dashing over her as if she were a half tide rock, and pouring down into the engine-room and stoke-hole. The second engineer, Mr. Kilpatrick, and W. Thompson, the fireman, came up and stated that there was too much water below for them to stay any longer. The Captain sang out from the bridge, where he had been standing exposed from early morning, “Call all hands aft, passengers and everybody.” As soon as we were mustered together he gave orders, “Now boys, get out the life-belts and put them on.” Matters now began to wear a serious aspect, and although there was no panic, everybody felt that a great change was at hand. The steward and I started throwing the life-belts from the racks underneath the awning and in a few minutes everybody had one on. Poor Mr. Newton, who seemed downhearted, asked “How do[Pg 51] you put this on?” By way of reply the steward fastened it properly round him at once, and also on the two steerage passengers. The next order given by the Captain, was, “Now then my lads, bear-a-hand and get the life-boat out.” The words were scarcely out of his mouth when the ship took a fearfully sudden lurch to starboard and away went the life-boat, chocks and all, clean over the ship’s side. Two lines that were fast to the boat kept it from washing away. The crew soon made the boat fast properly, and though she was half full of water, Mr. Hodges jumped into her and called out for all the spare life-belts to be thrown to him so that he might fasten them on to the boat’s thwarts while some of the sailors were keeping her clear of the ship’s side. He had got about six of them tied on when we saw a heavy sea coming and sang out to him, “Look out.” He leaped back to the ship just in time as in less than a minute the boat was either smashed to pieces or swamped; for we saw no more of her. Orders were then given to get the foreward boat ready but as the waves were breaking clean over it, nothing could be done. The ship now lay over so much that we could not stand on the deck. The Captain got over the bridge railing and stood on the end of the bridge, while the rest of us got on the outside of the weather (port) bulwarks. Though we were all crowded close together very little was said, each one kept looking at the big breakers, knowing that the time had come when each man would have to enter on a desperate struggle for life. Almost the only remark made was by one of the sailors, who said, “We can see the Schanck lighthouse,[Pg 52] quite plain, and no doubt the people there see us and will send help of some kind.” Prior to putting on the life-belt I took off all superfluous clothing, leaving nothing on but my white cap, shirt, trousers and socks. The steward followed my example but kept his boots on. All the others were fully dressed and a few of them had even their oilskins on beneath the life-belts. The seas now rolled relentlessly over us, each one holding on as best he could. The wooden awning was wrenched off its stanchions and swept away to leeward. Some one suggested that there would be more safety further foreword both from the sea and the propellor, as the latter was still slowly revolving, and a number of our crowd crept as far foreword as the bridge. I decided to keep aft as I was afraid the boiler would burst and blow us all into the air. Whilst standing alone, holding on to the rail opposite the saloon companion, a tremendous sea broke over the ship’s quarter and swept me fathoms away from the vessel. I swam some distance clear and then turned to see how my mates were getting on. They were all still clinging on to the weather bulwarks and from the way their faces were turned, I saw they were watching me. The ship for a little while looked as if she were going to uprighten then she began to sink slowly, stern first. I saw Captain Mathieson still holding on to the railing at the port end of the bridge. I think he must have told the men to jump into the sea, for I saw one after the other spring clear of the vessel, then, last of all, he jumped himself. The Alert’s bow then rose in the air till I could see many feet of her keel clear of the water. She hung in[Pg 53] that position for a minute or two as if she hesitated to sink. It flashed across my mind that as there was no water in the forehold, perhaps she was going to keep afloat after all. The hope raised by the thought, however, soon left me as the ship gave a sort of plunge and then gradually disappeared. Fire and steam burst up through the funnel just before the waters closed over it!

[Pg 54]

CHAPTER VI.
AMONG THE BILLOWS.

Owing to the manner in which the ship went down she created little or no suction. A slight swirl and wreckage—principally pieces of the awning, a few gratings and life-buoys—were all that denoted where our vessel had been. She sank about 4.30 p. m., and just then the thick weather cleared off a little so that when I rose on top of a wave I could see a considerable distance off. The shore was plainly visible and I judged we were about three miles S.W. of Cape Schanck. I saw that the whole fifteen of my companions had managed to get hold of some wreckage. The Captain, chief mate and two firemen were all grouped together on some pieces of weather-board, and the others were scattered in twos and threes, each on top of something. [Pg 57]My first fear was that the sharks would get hold of me, then it struck me that the water was too rough for them to attack any one. I could only see some single pieces of board near me, so I was puzzled for a bit as to how to steer for something larger. All of a sudden I saw a lot rise on the top of a big wave right ahead of me. I soon reached it and thought I was quite as well off as the rest of my mates. My raft consisted of eleven or twelve pieces of weather-board all nailed together on a crosspiece. I got on top, and then every single piece of plank that came near me I pulled on board, till I succeeded in piling them up high enough to keep me out of the water. The sixteen of us were at this time all floating nearly in a line. Two sailors and the steward were about thirty yards seaward of me, the captain, chief mate, and two firemen about 50 yards off landward, and the rest a little distance further inward still. A large number of Mullihawks collected and kept hovering above our heads. I had no sooner got my raft put together, to the best advantage, when a heavy sea came, and turned all clean over on top of me. The nails in the planks caught my clothes and pierced my skin so that I had great difficulty in clearing myself from underneath. When I succeeded in getting on top again I saw that all my mates to windward of me had also been washed off their wreckage, and a similar fate shortly after befel those to leeward. It almost seemed as if the same wave had capsized the lot of us one after the other. Everyone, however, succeeded in catching their planks and getting on them again. After the[Pg 58] capsize I found my raft in a very different condition to what it was previously. All the loose planks were gone and a number of the ones nailed to the crosspiece had also disappeared. All of my mates, when on top of their wreckage, knelt on the boards with their heads facing the shore, and held on in that position. The noise made by the wind and waves made it useless, at the distance I was off, for me to call to my companions, but I made signs, and tried to show them, by lying down flat on my raft, what I believed to be the surest way of holding and keeping on, with my head facing the seas.

As we drifted nearer the shore the seas got larger and more powerful still, so that in spite of all our precautions we could not retain our hold on the boards for any length of time. The frequent turning over of my raft knocked me sort of stupid every time I went under, and I have no doubt that the rest of my companions had similar experience. I reckon it must have been about 6 p. m. when I saw the steward washed away a great distance from the wreckage he had been on. After a long struggle he succeeded in getting back to his mates, but he evidently had completely exhausted himself in the effort, for he had hardly been a minute on the top of the boards till he fell from his kneeling position forward, with his head on the edge of the raft. He seemed to be smothering in the foam of the sea, so I shouted to his raft mates to hold his head up till I came to help him if I could. I knew poor Dodd was not strong, still I thought we might be able to keep him alive until the life-boat, or some other assistance, came from the shore.[Pg 59] I left my raft and swam towards him as quickly as I could, but before reaching him a big sea buried me. When I got to the surface again I saw the steward had been washed off the boards and was floating some distance away in a position that told me he was dead. It greatly grieved me to see that my most intimate companion was the first to go out of our number, and for the time being I felt unnerved enough almost to give up hope myself. Then I thought it useless brooding over the matter, and determined to struggle on while I had any strength left. For a while I swam towards the raft on which were the captain, the chief officer and the two firemen. As I got near I saw a large breaker turning them clean over. They had their feet to the sea, and as their raft capsized I saw the legs of the whole four in the air at the same time. Finding it out of my power to help them, and thinking that matters might be made worse by crowding too close together, I started back to my boards again. Quite exhausted I reached my raft. As I lay on it I began to think it was time the life-boat was in sight. I could see a good distance around, the shore being plainly visible, but no sign of any help coming. It could not have been more than 7 p. m., yet it seemed to me that I had been days, instead of hours, in the water. I noticed that all had got on their boards again. The different groups were all ranged round in a semi-circle, and all, except myself, heading shoreward. I had found, by bitter experience, that in heading shoreward I was more exhausted—when turned over, or washed off my raft by a sea—in getting back to my boards than when I faced[Pg 60] and headed the sea. At the same time, this method of going head first into the seas kept myself and my raft from drifting shoreward as quickly as the others. I did not mind this drawback, as my hope was strong that the life-boat would pick us all up before dark. Various currents now began to scatter our rafts in all directions. Both Coutts and Williamson (two of the sailors), drifted so close to me that I could speak to them. One after the other I asked how they were getting on. I got no reply and I could plainly see that they were so exhausted that they could not keep up the life struggle much longer. The boards to which Coutts held on were being carried seaward, while those belonging to Williamson were drifting in shore, towards the place where the four-masted ship Craigburn was wrecked. I reckoned we had all drifted some miles shoreward—from where the Alert had foundered—before the tide began to turn, and take our various rafts hither and thither. The seas, if possible, began to get bigger, and break irregularly in all directions around us. I caught sight of Mattison, the second officer, Thompson, the sailor, Kilpatrick, the second engineer, and Mr. Newton, the saloon passenger, all being carried by a current which I judged would take them round Cape Schanck whilst the rest of our number were going, some towards the shore, and some out seaward.

[Pg 62]

[Pg 63]

CHAPTER VII
NIGHT.

Darkness began to set in, and I soon lost sight of everybody and everything except the light on Cape Schanck. With the daylight fled my hope of a life-boat coming to our assistance. I had all along been under the impression that the sinking of our ship had been seen by the people in the lighthouse, and that it was only a question of time when help would come. I began to give way to despondency! While the daylight lasted I expected assistance, and my attention, when not struggling under water, was taken up watching my mates and the shore. Now night had come, and I felt as if I were left alone in the midst of the raging waters. Was it worth while trying to continue what seemed to be a hopeless struggle for life? I thought of my poor[Pg 64] wife, who, just then, would be expecting me home! I remembered, too, that Captain Mathieson—who knew my life was insured—had asked me, on the way from Melbourne to Port Albert, if I had made my will. When I told him “No,” he said, “You should have done so, as no one knows what may occur.” I gave little heed to his words at the time, but now they seemed to have all the meaning of a presentiment. Under the circumstances, thoughts like these were anything but cheering, but nevertheless I made up my mind that, while God gave me strength, I would battle on to the end. My raft, through being so frequently turned over, had got reduced to three boards and the crosspiece. At first I thought this was a misfortune, but I found that, being smaller, it was more easily managed, and less liable to be capsized. The wind began to be very cold, and a heavy shower of rain came on. As I lay on my boards, the raindrops felt to me like spots of ice as they fell upon my body. Strange as it may seem, I believe I must have perished with the cold, but the frequent washings off the raft, and my struggles in swimming to get on again, always kept my blood in circulation, and made me feel fairly warm. Meanwhile, the tide was slowly setting me down towards Cape Schanck, I saw the light burning brightly, and it seemed no great distance off. As I drew nearer and nearer, the breakers I got amongst were terribly heavy. From the peculiar thunder-like roar they made in rushing along, I could hear them coming in time to get ready for them. This I did by turning myself on the raft with my head and face seaward. These[Pg 65] tremendous waves generally ran in threes, one after the other in succession. The first would dash me off my boards and bury me in a half-senseless state under water; then by the time I got to the surface again, and had a breath or two, the second sea would be on me, repeating the burying process, so that I used to reckon the third would completely finish me. After recovering from these dashings my next great trouble was to find my boards. I was anxious to keep them, as they not only gave me a rest, but they also seemed to be kind of company for me. In the dark I could see them always a little distance off; as they shone on the water with a ring of phosphorus around them. I feel certain that if I had been unable to get on to my boards during the short intervals (about fifteen minutes) between these terrible breakers I would not have had sufficient strength left to resist them. I think it must have been about midnight when I was off the Schanck, but time seemed to be getting beyond my comprehension. I fancied that away back in the dim past I had seen, as in a dream, the Alert sink and leave us all to struggle each one for himself. Then, as I gradually remembered the event took place only a few hours before, the thoughts arose where were my mates and how many of them living. Were they, like myself, still battling for life, or had they all perished in the pitiless storm?

The gale seemed now at its height, and my heart sank within me as I reflected that assistance from the shore had become an impossibility. No boat could face and live in such a sea as now swept along with a force[Pg 66] at least double that of the time when the ship went down. How I longed for daylight! But would it ever come for me, or any of my companions? If to be rescued depended on endurance, then I felt sure the chief officer, Mr. Hodges, would be almost certain to hold out, for he was, far more than ordinary, a powerful man, and his action, up to the period of the vessel leaving us, showed he was clearly and collectedly helping everyone, and preparing for the worst. Whether the foregoing thoughts crowding in on me, caused me to be less watchful, or whether the continued strain on brain and muscle made me stupid and weak, I cannot say, but in the midst of my reflections I got caught in a sort of swirl, or whirlpool. I was rapidly turned round and round, then quickly, raft and all, sucked under water. Whilst below this time I felt, as my boards were wrenched away from my instinctive, but nerveless grasp, that all was over. Thanks, however, to my life-belt, more than my own exertions, I was thrown to the surface just as I was choking for want of air. Some minutes after, my boards came up a little distance off, and I managed with great difficulty to reach them and drag myself on top again. As I lay on my raft, resting and trying to collect my scattered senses, I turned my head shoreward, for a bit, to watch the Cape Schanck light. I had not been able, during the forepart of the night, to see the light continuously owing to the heavy showers of rain which had passed over. Now I began to realise that it seemed farther off than before. I was getting into comparatively smoother water, and this fact together with the receding light told me plainly[Pg 67] that the tide was carrying me seaward. While nearing the light it helped to revive my drooping spirits—not that I expected any help from it, for by this time I had abandoned all idea that the lighthouse people could assist—but still the sight of it, gleaming out like a “star of hope,” encouraged me to struggle on.

A new idea seized me. Instead of allowing myself to drift out to sea again, I would leave the raft and make a last desperate effort to swim for the shore. A little reflection, however, showed me the hopelessness of making the attempt. In the dark I could not see the smoothest place to steer for, and being weak, stiff, and sore, I felt that I would most likely be dashed to pieces amongst the rocks. Therefore, I decided to stick to my boards, so long as they stuck to me. My feet now began to trouble me very much, and their cold numbness seemed inclined to creep up my legs. I knew I had made a great mistake in taking off my boots. Had I kept them on they would not only have helped to keep my feet warm, but they would also have prevented my feet from being bruised, and battered against the boards, with the action of the water. Besides, I found by experience that whether in the water, or on the raft, my feet were too light, and needed weight to keep them down. My woollen socks—although I was kept continually pulling them up—were of great service in keeping some heat in, and, though it might have been fancy, my white cotton cap kept my head a bit warm. I think I must have drifted about ten miles past, or south-east of Cape Schanck, and was nearly out of sight of the light before the current began to set in again. The sea[Pg 68] had by this time moderated a good deal and I was enabled to keep longer resting on my boards. I tried all ways of reclining on the raft but I found it the safest plan to lie on my left side, thus I got a good grip of the crosspiece with my left hand and one of the boards with my right. In this position I had a chance to watch the heavy seas when they were going to break. I now began to get very cold, and every now and then was seized with cramp in both legs. The working of the life-belt caused my body, and also the inside of my arms, to get raw and sore. To make matters worse, I felt terribly thirsty at times, and a sort of drowsiness seemed to steal over me as if tempting me to go to sleep. I, however, fought against the latter feeling, for I had an inward conviction that if I once gave way to sleep I should never wake again. Meanwhile, I kept gradually nearing the Schanck light once more, but as no signs of daylight were yet visible, I began to fear it would never come for me. The pain in my neck through my head hanging over the life-belt, was getting almost unbearable. Now and then, when I got a chance, I propped my head up with my left hand while keeping the elbow resting on the boards. This gave me ease but I dared not do it so often as I wished for fear of being caught unawares and washed off the raft. All of a sudden I saw a light flashing away in the direction where I deemed Port Phillip Heads would be. My first thought was that it must be a search-light to find out our whereabouts. I kept anxiously watching, but as it did not again appear I came to the conclusion that it had been a flash-light from one of the pilot schooners a long way off, and the hope raised by it died[Pg 69] away as quickly as it came. Racked with thirst and pain, and under the impression that it was impossible for me to hold out much longer, my thoughts flew back over my past life. Matters long forgotten rose up swiftly in my memory, and the acts of my whole career seemed to pass in review before me. After the past came the questions of the present and the future. Must I go now, and was I fit to die?

[Pg 70]

CHAPTER VIII.
MORNING.

At length—and what a length—the day began to dawn, and with it came renewed hope that I might be rescued. As the welcome light crept slowly in I kept straining my eyes, when I got a chance on top of a sea, for some signs of my shipmates, but in no direction could I see the slightest trace. Had they been picked up? Had they reached the shore? or had they, unable to withstand the tossing and exposure during the fearful night, all been drowned? The sight of even one of them would have helped to revive my drooping spirits. Whilst it was dark night I clung to the thought that although I could not see my mates, still some of them might be near me. Now, however, I realised that I was alone amidst the seething waters. Then I[Pg 71] remembered that when darkness closed in on the previous day the majority of my companions were a good distance inshore of me, and it was just possible that they had got safely to land. This reflection helped me to make up my mind to struggle on while there was a bit of life left in me. A number of albatrosses now began to hover around, and two of them swooped down close to my head. I raised my arms as well as I could and thereby succeeded in frightening them away. Seeing me lying on the boards I dare say they thought I was dead! By the time daylight came thoroughly in I was able to see the land stretching along at no great distance off. I think it must have been about 5 a. m. when I found myself right abreast of the Schanck with a strong current sweeping round it and setting me towards the Heads. The tide, wind and sea all bore directly on my raft and seemed to be taking me rapidly nearer the shore.

Quite plainly I could see the Rotunda on St. Paul’s, and by all appearance I was being driven in a little to the westward of it. When lifted up by the seas, as I came nearer and nearer the shore, I saw what looked like a little bay with a belt, or patch, of sandy beach at the head of it. Whilst earnestly praying that I might be fortunate enough to be drawn into the bay, my heart went down again when I caught sight of the fearful breakers that were running across its entrance. These breakers lay directly in front of me, and I could see no way in, except by passing through them. Gathering my scattered senses together as well as I could, I took a fresh hold of my boards, and prepared for a last desperate[Pg 72] effort. As I got close to the broken waters I could hear their thundering roar, although they were still to leeward of my raft. After some minutes’ anxious suspense, I reached the dreaded breakers; then almost instantly my boards were ruthlessly snatched away, in spite of my best efforts to retain them. I felt myself being turned over and over like a rolling ball; at the same time I experienced, more than at any previous period, an awful sense of utter helplessness. The thick foam filled my mouth and nostrils so much that I felt all the sensations of suffocation, and believed my end had come. Just then another sea threw me clear of the foam and dashed me, face and knees downwards, on to some rocks which were sunk a little under water. Instinctively I threw out my arms, and thus prevented my face from striking the jutting stones, while the thickness of the life-belt kept the blows from my body. Dazed, and almost senseless as I was, I could see that the sandy patch was still a distance off, too far away for me to expect the incoming breaker to carry me there. My strength being gone, I felt it utterly useless to attempt to swim to the beach, and hence I came to the conclusion that if the next wave did not take me in, it would dash me against the rocks and knock out the little life I had left. Along, it came roaring, but being too weak and stupid to make ready for it, I was caught broadside on, lifted high above the rocks, and whirled away helpless as a log, right up on the sandy shore, As I rolled over and over on the sand the motion made my neck and head feel as if they were going to burst in pieces. Suddenly the rolling ceased, then I became[Pg 73] aware that the back-wash of the wave was taking me out again. In sheer desperation I clutched the sand, but my fingers, being numbed and nerveless, had no power of grasping. Then I dug my knuckles in as well as I could, but all to no purpose, out I kept going, as helpless as when I came in!

[Pg 74]

CHAPTER IX.
THE LANDING.

Just as I had given myself up for lost, providentially I was washed sideways against a jutting rock, and this enabled me to stem the recoiling water until it passed away. Although powerless to do anything I had sense enough left to know that unless I managed to get further inshore the back-wash of the next wave would certainly carry me off and finish me outright. I strove to get on my hands and knees, and with great difficulty succeeded in doing so. I crawled along, in what direction I knew not, for the sand in my eyes had made me partially blind, and my neck, which seemed to have given way altogether, rendered me incapable of holding my head up. Unable to creep another yard, I tumbled over on to the sand, and, while lying exhausted, the succeeding wave came up close [Pg 77]enough to touch my feet. I knew then that, instinctively I had been going in the right direction and was safe, so far, from the sea. After resting for a brief space, I again essayed the creeping, and painfully dragged myself over the sand and rocks towards a small cave in front, and at foot of the cliffs. The distance I had to go was only a few yards, but in the condition I was it seemed a mile to me. I think it must have been about 8 a. m. when I got inside the cave. My reason for going there was a sort of confused idea that I might get shelter from the cold wind which felt as if it were blowing right through my very bones. I crouched in a corner on top of some seaweed, but obtained no relief from the change, indeed, the cold seemed, if possible, worse than ever, and sharp shooting pains now and then darted over my whole body.

I endeavored to collect my wandering thoughts concerning the position I was now in. While on the water I had, at first, strong hope that assistance would come, then latterly, when nearing the shore, hope rose again that if I succeeded in getting to the beach I would soon be right. Now that I was on land, I was helpless to do anything for myself and there seemed no appearance of aid coming. Evidently the loss of our vessel was still unknown, otherwise there would have been somebody on the beach before this time looking for us. Where were my shipmates? Were they all drowned, or were some of them lying like myself on other parts of the shore? As these thoughts rushed through my mind I began to feel that I must abandon all hope of being rescued. Yet it seemed hard that I should be saved from the waves only to perish through weakness and exposure on the rocky[Pg 78] beach! One minute I prayed for help and the next I almost longed for death to come and end my troubles!

I had not been lying down for very long when I began to feel much easier. The extreme cold had departed and the twitching pain in my limbs had gradually abated; but, meanwhile, the thirsty craving came back, and my head got still more dull and leadenlike. I took these symptoms to mean that I was getting weaker, and slowly dying. The struggle for life had been a protracted one, but it could not be kept up much longer. I had striven hard to keep my spirits up and live, but God had willed that I must go! My poor wife would soon know the worst. The end of my troubles would be the beginning of hers. My life being insured, she would not be left altogether penniless, but still the news of my death would be a sad blow to her and our relations. God help her, and them! A burning sensation seemed to shoot through my head! A strange buzzing sound filled my ears, and then I lost all consciousness!

How long I lay in the cave, or whether in a swoon or sleeping, I cannot say, but when my senses returned I had a vivid impression that I had just awoke out of a fearful dream. The state of my body, and a glance at the rocks around, however, soon convinced me that the incidents of the past day and night were reality indeed. I now not only felt sore and numbed, but my whole body tingled with a peculiar sensation similar to that which a person feels when his leg, or foot, is said to be “asleep.” On looking outward, I fancied, in my half blind condition, that the sun was shining brightly on the sand, and I made up my mind, if possible, to get[Pg 79] out to the heat. After a number of ineffectual attempts, I managed to rise once more on hands and knees, and got outside, although, when on the way, I reeled over, like a drunken man, at least a dozen times. With my back on the sand, I lay head up hill towards the cliffs, but was not there long till I felt sorry I had left the cave, for the sun seemed to have no heat in it, and the sand, drifting with the strong wind, flew all over me. I knew I was too far gone to attempt to return to the cave, and thought my time had come at last!

Concerning the incidents which took place some time after my coming out of the cave on to the beach, the reader is already acquainted with them from the narrations given by others in the former portions of this book. Personally I have no clear recollection of these matters. Excepting during intervals of consciousness, all is blank to me up till Saturday morning, 30th December, when I found myself in bed at Clark’s hotel, Sorrento, surrounded with the best of comfort and attention. I distinctly remember hearing the voices of ladies coming nearer and nearer on the beach, and of my being ungracious enough to feel no joy at the sound. The thought uppermost in my mind then was “It’s all over. Too late, too late!”

I also remember speaking to the ladies and subsequently to some gentlemen. I saw too, as in a dream, a group of people and a dog, and wondered what they were all doing. During the five days I remained at Sorrento I received nothing but the greatest care and attention from everybody. Then I was removed to my own home at South Melbourne, where through starting[Pg 80] to walk too soon, my legs and feet got bad again and I was confined to bed for six weeks. I believe I will ultimately get all right, but up to present time of writing, I still feel, in nerves and muscles, the effects of the long exposure. Frequently at night I wake up suddenly, suffering from severe cramps and under the impression that I am on the raft at sea! This reminds me of a remark I overheard the other day in Melbourne that “the survivor of the Alert stuck to his raft because he could not swim.” No greater mistake could be made. I am a native of Tortworth, near Bristol, England, and when at school there was taught to swim by the clergyman of the parish. Afterwards I removed to Clevedon, in the Bristol Channel, where I practised daily, during summertime, swimming in the surf. Without reckoning myself an expert, I purpose in the next chapter to make a few remarks on this important subject.

[Pg 81]

[Pg 82]

CHAPTER X.
HINTS ON SWIMMING.

I have had a good deal of experience in the matter and my advice to any person swimming towards heavy seas is this—When a large wave is coming, don’t wait till it breaks on you, dive under it to save being struck and carried away. On the other hand, if swimming with the seas—that is, in the direction in which they are going—and a larger one than usual is coming along behind you, turn round, face it, and dive as in the former case. I don’t know whether Shakespeare could swim, or not, but in his play of “The Tempest” he describes exactly the mode of procedure in rough water, thus—

I am so convinced of the merits of swimming, that if I had the power I would make a law compelling everybody, male and female, to learn the art when young. Once learnt—like riding on horseback—it is an exercise having a method that can never be forgotten, even although years may elapse between the times of practice. It may be said that everyone is not called upon to swim, but no one knows how soon he, or she, may be placed in a position requiring the use of it, and the fact of being able to do something for oneself inspires confidence—the great thing needed—to a person in the water, whether there voluntarily, or by accident.

Nowadays, everyone knows by reading, that the human body will not sink in water—and especially salt water—unless the lungs are filled with it instead of air. Yet each one, except a swimmer, when fallen into the water, either does not believe in the truth of this natural law, or else gets so frightened as to forget all about it! No one can become a swimmer till he possesses thorough confidence in the power of the water to support him, and he can easily get this confidence by a little practical lesson:—Go down to the beach at Port Melbourne, or any other where having a sloping sandy beach, strip off your clothes, take a small white stone in one hand, wade out from the shore till the water rises as high as your waist. Then turn face shoreward[Pg 84] and throw the stone to the bottom, the water being clear you will see the stone plainly. Stoop down and try to pick it up. You will find the water, even against your inclination, prevents you from sinking to the stone, and if you want to get it, you must use active force by diving. To encourage you to dive, remember that you are in shallow water, and can put your feet to the ground at any moment you wish to stand upright. Having this practical knowledge, if a person unacquainted with swimming should happen, accidentally, to fall into the water, all he has to do when he comes to the surface—which he must do if he keeps his mouth shut and does not attempt to breathe while under—is to turn on his back, refrain from struggling and plunging, or raising his hands above his head. He can easily keep himself from turning over face downwards by putting his arms a little distance out from his sides, at the same time taking care that the hands are open and flatly in line with the surface of the water. In this position he can float in safety for hours, if the water be smooth, and call for assistance meanwhile. This method is very well in its way, but the better plan is to learn swimming, and then, under ordinary circumstances, a man can help himself confidently.

My story now draws to a close, but I feel that it would be the height of ingratitude for me to conclude without a few special words to my many benefactors.

[Pg 85]

CHAPTER XI.
GRATITUDE.

So far as ability and memory would permit I have given a plain unvarnished account of the incidents connected with the most trying time that I have ever experienced. Each day removes the date of the Alert disaster further off; still, in quiet moments, when I look back on the 28th and 29th of last December, I cannot prevent a saddening sensation from stealing over me.

Mingled with the feeling, however, comes the thought that I can never be grateful enough, firstly to God, and secondly to the many kind friends by whose assistance I was snatched from the grave! I will be unworthy of the life they recalled if ever I forget those who befriended me in my need, therefore, through the pages of this little book I take the opportunity of publicly conveying some token of my heartfelt gratitude to the Misses Armstrong, Davies, Duggin, Hill, Moorman, and the nurses, Miss Skelton and Mrs.[Pg 86] Keating, to Mrs. J. D. Ramsay and Mrs. Whitelaw, to Drs. Browning, Cox, Hutchinson, Hewlett, and Mullen, to the six gentlemen who carried me up the cliffs, namely, Constables Conroy and Nolan, Messrs. Knowles, J. D. Ramsay, J. F. Watts and W. D. Watts, also to Messrs. Clark, Cousins, Maillard, McWalter, Stanton, and others whose names have not been supplied to me. To each and all of the above ladies and gentlemen I owe a debt which I never can repay. Further, these friends have not only aided me as the “poor shipwrecked mariner,” but also, since the wreck, they have in various ways laid me under a load of obligation to them. There is still another friend whose kind services to me must be acknowledged, although it is not an easy task for me to convey my thanks to him. I allude to Mr. Austin Stanton’s St. Bernard dog, “Victor Hugo.” He, by the instructions of his owner, took an important part in the proceedings outside the cave on the Ocean Beach, and the very least that can be said of him is that he is a worthy descendant of the noble animal described in Crabbe’s lines—

CONCLUSION.

On the 2nd of February, 1894, the Melbourne Marine Court, consisting of Mr. J. A. Panton, Police Magistrate, Captain A. J. Roberts, and Mr. Douglas Elder, concluded their investigation into the circumstances surrounding the foundering of the Alert. The decision given was as follows:—

[Pg 87]

A perusal of the foregoing shows that, while almost everything else has been commented on, no mention, whatever, is made of the fact that the rig of the vessel did not permit of sail being set aft. In view of[Pg 88] the great length of the Alert—as compared with her depth—the above fact constituted, in the opinion of the compiler of this book, a very grave defect. Further, no vessel, whatever her length, or whether steamer or sailing ship, should be classed by the Government officials as fit to go outside Port Phillip Heads, unless she is rigged in a suitable manner to enable her to carry sail aft, as well as foreward. No doubt in these “hurry skurry” days the tendency of the time is to make steam machinery take the place of sail, but until man can control wind and waves, machinery can never wholly supersede canvas. The latter is not only required to steady a steamship in a seaway, but is indeed an actual necessity during emergencies brought about by either a breakdown of machinery, or stress of weather.

It is not so very long since a large steamer, the Age, was tossing about, for a week or so, in Bass’ Straits, as helpless as a log, because her machinery had met with a mishap, and she was unable to set canvas enough to keep her side down, let alone bring her into port!

Moreover, it may be added that there is scarcely a single sea-going steamer, which, at the present time, carries half the canvas she ought to. In the interests of life and property this is a matter that should be carefully seen to in future, and, if need be, enforced by legal enactment.

[Pg 89]

KILPATRICK v. HUDDART, PARKER & CO., LTD.

On Monday, the 11th February, 1895, in the First Civil Court, Melbourne, before his Honour, Sir Hartley Williams and a jury of six, an action was commenced in which the plaintiff, Mrs. Lucy Kilpatrick, widow of John Kennedy Kilpatrick, sued the defendants, Messrs. Huddart, Parker and Co., to recover £3000 damages for the loss of her husband.

Mr. C. A. Smyth, Mr. Box, and Mr. W. H. Williams (instructed by Messrs. Gaunson and Wallace) appeared for the plaintiff, and Mr. Purves Q. C. and Mr. Mitchell (instructed by Messrs. Malleson, England, and Stewart) for the defendants. Mr. Purves requested at the outset that all witnesses be ordered out[Pg 90] of court, and his Honour, Mr. Justice Williams, made the necessary order, except in the case of two experts whose evidences would not relate to the facts of the trial.

THE PLAINTIFF’S CASE.

Mr. Smyth, in opening the case, stated that the action was brought by the widow Mrs. Kilpatrick on behalf of herself and her infant daughter, born in September, 1892, to recover damages from the defendants on account of the loss of her husband; and the ground of the action was that he had lost his life through the conduct of the defendants in sending to sea, and keeping at sea, the steamer Alert in an unsea-worthy condition. At the time of his death, the deceased was engaged as second engineer on the ship. He was a young man in the prime of life, being only twenty-nine years of age, and held a certificate of a high class as first engineer, although he was employed in a subordinate capacity on the fatal voyage. He was also a man of strong and vigorous constitution. The action was based on the 103rd section of the Marine Act 1890, which was precisely the same as the section of the Imperial Act, under which many decisions had been given. These showed that the representatives of any person who had lost his life in an accident arising from the unsea-worthiness of a vessel, were entitled to recover damages. The jury would be told by a number of witnesses that the steamer, from a variety of causes, was utterly and entirely unfit for the sea-going trade at the time of the disaster. The unsea-worthiness was a[Pg 91] question of fact depending on the circumstances of the case, and would be decided by the jury under the direction of the judge.

Mr. Justice Williams: The cause of the action is that the defendants did not take reasonable precaution to ensure the sea-worthiness of the ship. You have not only to prove that she was unsea-worthy, but that she was so by some act of negligence on the part of the defendants.

Mr. Smyth in continuation said the Alert was a small steamship of 243 tons gross measurement, built at Glasgow about seventeen years ago. She was unduly long as compared with her beam, and particularly so as compared with her depth. The engines and boilers were all placed aft, and she was constructed as a river boat on very fine lines. The weight of her machinery was about 150 tons, and in consequence of having all this weight in the after part, she sat in the water with her bow up and her stern low down. Her engines were very powerful, and when she steamed fast the effect was to bring her stern down still deeper, and of course raise her bow still higher out of the water. Then at the aft part of the ship were the saloon and engine rooms; but the entrance doors to these, instead of opening outwards, opened inwards, so that in the event of pressure of water they would open instead of closing. In addition to these, there were doors, or lids, on each side of the vessel’s deck leading into the stoke-hole and coal bunkers. Further, there were gratings, or “fiddleys,” as they are often called, on each side for admitting light and ventilation to the engineers and[Pg 92] firemen below. In the opinion of experts, provision should have been made for covering these openings with tarpaulins, so as to prevent water from going below in heavy weather. There was also in the front of the poop a hole cut through the iron bulk-head, which was fitted with a square glass window in a wooden frame. This also opened inwards, and was used for the purpose of passing dishes of food into the pantry and saloon, when required, from the cook’s galley. Such an opening might be very well for river trade, but was a most improper thing in a small vessel sent out on the high seas. It was no wonder that the pressure of water burst this window in and caused the saloon to fill. Notwithstanding all these defects, more had to be mentioned. There was a large wooden awning which extended all over the poop, and constituted a highly dangerous article on board a vessel of the Alert’s dimensions. She had besides only about forty-four tons of cargo on board, and it was stowed away in the main hold, and none in the foreward part of the ship. Consequently, the vessel was out of all trim, and not in a fit state to go to sea. The state of the weather and the manner of her loading caused the ship to list to starboard, or leeward, and all the efforts of Captain Mathieson to get her head to windward failed entirely. This was principally due to the fact that the Alert had only one mast, and hence no sail could be set aft to help the ship’s head up. As a result of the way in which the vessel was loaded, she had little or no “freeboard” aft, while foreward she had a very large amount, hence the wind and waves had tremendous power on the bow as compared with the after[Pg 93] part. Experts would be called on behalf of the plaintiff, shipwrights, pilots, master-mariners, and others acquainted with navigation, who would testify to the jury that any of the matters which he (Mr. Smyth) had drawn attention to would be sufficient to make the vessel unsea-worthy. For these reasons he would ask the jury to award the plaintiff damages for the lamented death of Mr. Kilpatrick.

EVIDENCE FOR THE PLAINTIFF.

The first witness called was Robert Ponting, the sole survivor of the wreck. Under examination by Mr. Box, the witness stated: I know the Alert pretty well. I was on board of her in the capacity of cook. I was in Messrs. Huddart, Parker, and Co.’s employment. I was on the S. S. Despatch before I went to the Alert. The Alert temporarily took the place of the Despatch in order to get the latter repaired, and at the time of the wreck we were on the eighth trip, I believe, after taking the place of the Despatch. These trips were from Melbourne to Port Albert, and Bairnsdale, and the lakes, and back, not always calling at Port Albert on the way back. I have been at sea twelve years altogether.

I recollect going to Bairnsdale on this last trip of the Alert. We got to Bairnsdale on that trip on Christmas night, 1893. We did not discharge cargo next day, as it was a holiday—Boxing day. The vessel discharged on Wednesday, 27th December. I saw some cargo taken in on that day. It was put in the main hold. The main hold was abaft the mast and immediately in[Pg 94] advance of the bridge. The Alert had another hold forward of the mast, and also another one, but no cargo was placed in any hold except the main. The cargo consisted principally of wattle bark, sheepskins, and some furniture. We left Bairnsdale on Wednesday afternoon about two o’clock, and called at Metung, where we took in some more bark in bundles. This was also put in the main hold. So far as I know, we had no heavy cargo on board. During the previous seven trips we never brought so light a cargo. We passed through the Lake’s Entrance that night. Outside there was a calm sea, and not much wind. Sometime after getting out to sea, the weather became thick and foggy, and during the night the ship was hove to for about four hours until the fog lifted. A breeze sprang up from the S. E., and we steered for Wilson’s Promontory, and succeeded in passing it at about seven o’clock on Thursday morning. There was not much swell on until we got through the Straits. While the wind was S. E., the trysail and staysail were set. After passing the Promontory, the wind began to vary, but it was not blowing hard, although there was a rising swell from the S. W. When passing Cape Liptrap, the ship was very lively and knocking about a good deal. She shipped no water, only spray now and then. I was not always in the cook’s galley. I kept moving about, and could see how the vessel was sitting in the water. I could not say how much freeboard she had, but she was high out of the water foreward, and down aft. The ship had an awning aft. It was made of weather-board, and was a fixture. The grating on the top of the deck was to let air into the[Pg 95] stoke-hole. I never saw it covered over, and did not see any covering for it. The bunker holes were on deck. They were covered with iron tops, or lids. The entrances to the stoke-hole and engine room were on the port and starboard sides. There was a window in front of the poop on the starboard side. It was about sixteen inches square, a wooden frame with glass fitted in. It was large enough for an ordinary man to get through, and was used for passing food into the saloon. It opened into the pantry, and the pantry led to the saloon. When unfastened, it was made to fall down on its hinges horizontal inside the pantry, thus forming a sort of shelf on which dishes were placed. A small bracket underneath kept it in position as a shelf. When shut, the fastenings were two small brass bolts, one each side. These bolts were not so thick as my little finger, and when the window was closed they shot into catch holes at the sides of the wooden frame work. They fitted loosely, and when shutting the window we used to turn the bolts round to prevent them slipping out of their sockets. The window was constantly being used, and sometimes was left open on a fine day. I remember the ship getting to about two miles east of Cape Schanck, at three o’clock on Thursday afternoon (28th December). There was a heavy sea running off the Cape, but not so heavy as I have seen by a long way. The wind veered round to S. W., and the captain altered the ship’s course. By altering the course, the ship was kept close enough up to the wind to allow of the sail drawing to keep her steady. The crew came aft at eight bells (4. P. M.), while the ship was still heading[Pg 96] off the land. Shortly afterwards Captain Mathieson kept the ship away on her course for Port Phillip Heads. I suppose it would be about ten minutes after the ship was kept away that she shipped the first heavy sea on the lee side. All the doors leading into the galley and stoke-hole were closed on the port (the weather) side. I could not say whether at that time they were open on the starboard (the lee) side, but they were open all the time previously. She took the sea I have spoken of on board close by the engine room. It canted her over to starboard. The deck was right full up with the water, which ran all the way aft. The after part of the alleyway was under water up to the break of the poop. The pantry window would be about two feet above the level of the main deck. I could not say whether the water covered the window altogether, but it was sufficiently up against it to get in if it were open. This was the sea that swung the saloon lamps up against the ceiling and broke them. Sail was then taken off the ship, and her head brought up to windward, but she would be no sooner close up than the seas would knock her off into the trough again. The captain was at the wheel on the bridge at this time. Another sea came over the lee side and washed me overboard feet first. This sea sent a lot of water into the saloon, the sliding door of which was wide open. After I got washed on board again, I went below into the saloon and found the water rushing about there. The pantry window was then open, and the sea coming in. The steward and I succeeded in closing the window and refastening the bolts before we went on deck again. I did not[Pg 97] afterwards go below, but the chief mate, steward, and myself on looking down the companion saw that the water was still rising in the saloon. At this time the water on the main deck was up right over the pantry window, so that we could not see it at all. The steward said the window must have been carried away. I do not know what state the engine room and stoke-hole were in then; but shortly afterwards all the people connected with the motive power came on deck, saying they could not remain below on account of the water. I had a conversation with the chief officer concerning the condition of the ship and the weather. I got washed away some little time before the vessel foundered. She went down about half past four with her nose sticking up in the air. I am the only man that was saved out of her. After being nearly sixteen hours in the water, I was ultimately thrown ashore about ten miles from where the ship went down.

Cross-examined by Mr. Purves: Before I was wrecked, I did not know exactly what the dimensions of the Alert were. I saw the figures in the papers after the Marine Board enquiry. It is correct when I say this was the lightest cargo I had ever known on board the vessel. It was the general talk of everybody on board about the cargo being the smallest we ever had. I could not swear that the captain said so. The crew said it before we left the wharf at Bairnsdale, and they said it when they were putting their life-belts on before the ship went down.

Question.—You received certain moneys from a fund subscribed by the public? Answer.—Yes.

[Pg 98]

Q.—Do you know whether Messrs. Huddart, Parker and Co. contributed to that fund? A.—It was advertised in the newspapers that they contributed £100 to the fund, and from the £1200 subscribed by the public I received £25.

Q.—Did you have any bad weather on this particular voyage? A.—Not exceptionally bad.

Q.—Did you have a choppy sea,—mind I don’t mean a sea cook’s chops? (Laughter.) A.—Yes, we had some choppy seas.

Q.—Was it blowing a gale? A.—Not before we reached the Schanck.

Q.—Do you know how many miles you went from seven o’clock till four? A.—About nine or ten knots an hour.

Q.—At three o’clock you were two miles east of the Schanck? A.—Yes; and at four o’clock we were six or seven miles to windward of the Schanck.

Q.—You were going out to sea from two miles until the time you foundered? A.—No; we were making for the Heads when she went down.

Q.—How do you know when the vessel foundered? A.—When I got back to the ship, after being washed overboard the first time, I found on examining my pockets that the water had stopped my watch at five minutes past four, and I estimate that she sank about twenty minutes after that. (At counsel’s request the witness here handed the watch over, and its rusty works—together with the time its dial indicated—were evidently examined with much interest.)

Q.—Up to the time you were two miles east of the[Pg 99] Schanck, did the vessel ship any water. A.—Only spray. There was no heavy sea. The wind kept increasing as we went along. It was a fresh, but not a heavy gale.

Q.—If I call a witness who said it was a heavy gale, and that it was blowing a gale before you got to Cape Schanck, you will contradict him? A.—Yes.

Q.—The ship never was in any danger until her course was changed to the Heads? A.—None whatever.

Q.—Did the danger not commence when within two miles of the Schanck at the time the course was altered so as to head out seaward? A.—No; it was no danger that we would be frightened of.

Q.—Did the ship have the trysail on her when shaping for the Heads? A.—Yes.

Q.—Did she have it on her when the captain tried to bring her head to the wind? A.—No, they took it in.

Q.—Up to about a quarter of an hour after her course was shaped to the Heads, you never apprehended any danger? A.—I can’t swear to a few minutes.

Q.—Had you ever faced such weather as this before? A.—Not in the Alert.

Q.—Had you in any ship? A.—Yes, in the Despatch on the coast.

Q.—That is the only ship you saw such heavy weather in? A.—I have been in dozens. I have been in the Despatch in far heavier weather.

Q.—Up to the time the ship was headed out to sea, was there any water in the saloon at all? A.—No, not a drop.

Q.—Do you say that the water that went in at the[Pg 100] pantry window caused the ship to founder? A.—I say it helped to founder her.

Q.—Directly she was put on her course, she came on her beam ends and never righted herself. Was it not the shifting of her course that caused her to founder? A.—Not that I am aware of.

Q.—When she foundered, you were in the sea looking on? A.—Yes.

Q.—Does that picture correctly represent the sinking of the Alert? (Picture showing the vessel in the act of going down handed to witness.) A.—I don’t say correctly. It is something fair.

Q.—Do you call that a moderate gale which is depicted there? A.—I did not make that picture. I told them the ship went down stern first, and they drew it themselves.

Q.—In your previous evidence before the Marine Board you said, “The second sea that came washed me overboard and I clung to the rail, and the next sea took me on board again. The second sea washed me into the saloon, and the water dashed in the cabin door. The steward drew my attention to the water in the saloon.” What did you mean by that? A.—I never used those expressions. They are put down wrongly.

Q.—The statement was read over to you, and you signed it. Why did you not correct it? A.—I certainly would have done so if I had understood it when it was read over. I do not remember hearing it read. It may have been read, but I could not follow it.

Q.—Was the ship going ahead at the time she disappeared? A.—No, she was drifting in.

Q.—Did not the smoke and flame rush out of the[Pg 101] funnel before she foundered? A.—It rushed out when she was foundering.

Re-examined by Mr. C. A. Smyth: I have been suffering ever since the wreck, and was confined to bed in the first instance for about three months. When I was examined before the Marine Board was four or five weeks after the wreck. I was not recovered at that time, and had to take to my bed after that. I cannot say whether the statement I then made was read to me before I signed it. Some of the passages are not correct. My memory varies sometimes, but it is fairly good on the whole subject. I was in the saloon when the lamps were smashed, and there was no water in the place at that time. The lightness of the ship and the show of getting her round were matters of conversation amongst all of us.

His Honour Mr. Justice Williams: Q.—Supposing all the doors of the companion were shut, could the water get into the saloon in any way except through the pantry window? A.—That was the only way.

Re-cross-examined by Mr. Mitchell: Q.—Are you able to say whether water could get from the saloon to the engine room and back again? A.—There was a little round door over the shaft big enough for one man to get through. It would lead to the stern of the ship. I could not say whether it was open or shut.

Q.—When you saw the water rising in the saloon, could you see the condition of the lee companion doors? A.—All three of us—chief mate, steward, and myself—were standing in the port door at the time we saw the water rising. It was not safe then to go into the saloon.

[Pg 102]

KILPATRICK v. HUDDART, PARKER & CO., LTD.

Second Day, Tuesday, February 12, 1895.

Evidence for the Plaintiff.—(Continued.)

James Grant, examined by Mr. C. A. Smyth, stated: I am a shipwright, with about forty years’ experience in the business, and amongst shipping. I have a certificate for navigation as chief officer. I got it in 1875. I also passed my examination before the Steam Navigation Board as marine engineer. I have seen the S. S. Alert running up and down the Bay several times as a Bay trader. Some repairs were effected to her machinery in the year 1893, some months before she was lost. Messrs. Robinson Bros. had the contract for the job, and I was engaged as their ship carpenter to carry out the shipwrighting work. I was working on her two months altogether. Speaking of her generally, she had very fine lines. The model now shown me appears to be like her. There is no bearing here (pointing to bottom of model). To give her stability, the flat part should be carried further along. There is no bearing until the[Pg 103] bulging part touches the water, and it would have the effect of throwing her deep in the water aft. She was about 170 feet long, her breadth eighteen or nineteen feet, and her depth between nine and ten feet. In my opinion the Alert was very long for her beam and for her depth. According to the Alert’s certificate of register, she came out from England as a three masted schooner, or barque, under sail only. When I was making the alterations she had only one mast, a foremast, as shown in that model. The captain’s bridge went right across the ship, and there was a gangway going fore and aft on the starboard side, from the bridge to the poop. There was nothing on the port side at all. The stoke-hole would be about twelve feet in width athwart ships, and about five feet fore and aft. It was covered over with a grating composed of ¾-inch iron running fore and aft, and these bars were about two inches apart. There was no provision made for covering this grating with a tarpaulin by means of cleats. Nor was there any provision made for covering any of the skylights. There was nothing to prevent the water getting through either grating or skylights. If water went through either of these places, it would go into the engine room and stoke-hole. The height of the ship’s bulwarks above the main deck was four feet six inches. The breadth of the alleyways between the bulwarks and the side of the machinery casing would be about three feet at the narrowest part, and five feet further on. There was a port hole in the bulwarks opposite; but if the vessel shipped water while lying on her side, that port could not discharge inside water, and there was no provision for discharging water[Pg 104] in the alleyways except that port hole. I remember the window made for passing food to the saloon. I did not make it. Originally it must have been cut out of the iron. It was a glass window about 16 x 14 inches, with a wooden frame. I did not notice how it opened; but if it opened inwards it would be a source of danger if the vessel shipped much water aft. I remember the bunker holes for shipping the coal. I fixed them in. Each had a cast-iron frame sunk in the deck. The covers were about sixteen inches in diameter. They were flush with the deck, and were only held in their places by their own weight. In the case of a vessel dashing about heavily with water rolling inside, those covers might get knocked off, and the stoke-hole would be filled direct from the sea. If a lug were placed on the lower part of the cover, and a half-turn given, then it would stay on and prevent water going down. The Alert’s covers had no lugs. The weight of her boiler and engines would be about one hundred and fifty tons. The weight of the water in the boiler would be twenty-three to twenty-five tons. Taking into consideration the ship’s cargo, build and trim, I do not think she was fit for a sea voyage. If she had had an after mast with a sail on, it might have helped a bit when efforts were made to bring her to the wind; but as long as she was so light foreward she would be hard to bring up, if not impossible. The light cargo would affect her stability. She was not fit to stand a gale of wind. She was right enough for the Bay trade; but with my experience at sea, I say she was not safe, and I would not have gone to sea in her. She had very little freeboard aft and too[Pg 105] much foreward. I know the awning that was over her. It was wooden and permanently fixed. When the vessel was lying over, the wind would get under it and prevent her from righting herself. The proper awning at sea is canvas. In bad weather a vessel is better without any awning.

Cross-examined by Mr. Purves: Q.—You have described yourself as a chief officer? A.—Yes; I will show you my discharges if you like.

Mr. Purves: Oh, I don’t want to see them. What vessels were you chief officer of? A.—The S. S. Omeo, and also two sailing ships.

Q.—Did you examine the lines of the Alert? A.—Yes; I saw her out of the water in the dry dock in the River Yarra. In most good trust worthy ships’ bottoms there is a floor running a long way foreward and aft; but when working in the after hold of the Alert, the floor was so fine that one could not stand on it.

Q.—What height was the casing around the engine room and stoke-hole? A.—It was about seven feet above the deck of the vessel, and when the doors on each side are closed the only way water can get in is through the top.

Q.—Did you ever see a sea go as high as that? A.—I have seen a sea go over a ship’s foretopsail yard.

Q.—What ship was that? A.—The Royal Bride.

Mr. Purves: The Royal Bride, I presume, stood on her head to accomplish that remarkable feat. (Laughter.)

Q.—Seas that would go over the topsail yard would also go down the funnel? A.—I should say so. I have seen steamers at Greymouth with bags tied over the funnel.

[Pg 106]

Q.—Then the water would be just as likely to go down the Alert’s funnel as her grating? A.—No; it would not be just as likely that the sea would go down the funnel as the grating; but seas might come over the weather side, and a good deal go down the grating. I do not say sufficient would go down that way to sink the ship.

Q.—How many tons of water do you calculate the Alert would ship through the pantry window in the course of a minute? A.—Nearly twenty tons. It would depend a good deal on the height of the water outside. If the vessel were on her beam ends, and the window covered with water, enough would rush in to knock everything down.

Q.—Would the wooden awning help to bring the Alert’s head round in a gale? A.—By putting up a sail aft to the wind, you can always bring a vessel up. The wooden awning might have that effect, but in my opinion it would do more harm than good.

Q.—Suppose during a six hours’ gale, keeping a certain course, the Alert never shipped a sea, would you consider that a proof of her sea-worthiness? A.—Not altogether. The moment she altered her course she might ship a sea and go down. If I were on board, and found in a violent gale that by pursuing a certain course I was safe, I would not alter that course.

Q.—Supposing your alleyways were full of water, and the bunkers had the covers on, how could the water get the covers off? A.—It is very different with a vessel turning over and jumping. The sea would make you jump off your feet sometimes.

[Pg 107]

Q.—Have you seen the Excelsior steamer? A.—I have, but I have not travelled in her. She is fine in her lines, but she is only a river boat. No man with any experience would build a vessel like the Alert to go to sea.

Q.—How much cargo would it take to make the Alert sea-worthy? A.—It could not have been done anyhow. No amount of cargo would make her sea-worthy. She might be better in a gale if she were heavily laden. She should have had about 100 tons of cargo; it would put her more on an even keel. If the forty-four tons of cargo had been put in the forehold, a difference would have been made.

Q.—Which would make the more stable cargo, 100 tons of feather beds, or 100 tons of pig-iron? A.—They would both be the same weight, but the feather beds would be more lively than the pig-iron. (Loud laughter.) They would, however, be the very worst cargo a vessel could possibly take, for the one would be all too high, and the other all too low. There is a medium in everything.

Re-examined by Mr. Smyth: A vessel coming out here as a barque, or schooner, would have square, as well as fore and aft canvas, and would be in proper trim. She would not require water in her boiler, and when sailing the funnel would be unshipped and put down below. The Alert had two boilers, but when the alterations were made, one boiler as large as the previous two was put in. This boiler was in her when she was lost. It stood about four feet above the level of the main deck. The old boilers did not come above the deck. A light cargo would make the ship more lively,[Pg 108] and would affect her stability. She did not have enough. If the vessel were on her course standing out to seaward, and there was no apprehension of danger, there would be nothing to prevent me, as a seaman, from altering her course. It was good seamanship to make for the Heads. I knew the late Captain Mathieson. He was a first-rate seaman, understood his business, was sober and attentive, and quite fit for the position. The greater the head of water outside the pantry window, the greater the pressure, and the more quickly the water would be forced through.

Q.—We are told by Mr. Ponting that the vessel was lying over, and that the water was over the whole of that aperture, coming up to the break of the poop; and there is that body of water constantly coming in from the sea. That is as far as we can give you the pressure of the water outside. Can you make a calculation of the quantity of water that would go through that aperture per minute, and the weight of it? A.—Assuming the water is two feet higher than the aperture, I make it 2,820 gallons, and 28,200 lbs. in a minute. There are 2,240 lbs. to the ton, that would give between twelve and thirteen tons.

Q.—Supposing the water is only one foot above the aperture, what difference would it make? A.—It would be a third less, and that would be eight or ten tons. If the water were flush with the top of the aperture, the discharge through would be a little less than I have stated, and if fifty or sixty tons of water were down that aperture, a small sea would smother the vessel, and she would go right down stern first.

[Pg 109]

To His Honour.—If the forty-four tons of cargo had been placed further foreward, it certainly would have helped the ship a bit by giving her a more even trim.

James Scott Sutherland, examined by Mr. Williams, deposed: I am a shipwright, and have had experience of about fifty years. I knew the S. S. Alert for about seventeen years. I never worked on board of her until on the last occasion, when she got new engines, about two years ago. I was employed by Mr. Grant. My work was principally in the stoke-hole and engine room putting beams and flooring down there, and also in the cargo hold. I had an opportunity of judging her. In my opinion she was never intended for an ocean going vessel. I think she was altogether out of proportion by being too long for her depth and width, and too fine in her after section. She could scarcely have any freeboard according to her depth. If she were drawing nine feet six inches aft, and only had nine feet depth of hold, she could not have any freeboard. On the top of the boiler there was a skylight, and just at its after part were some gratings. These gratings led down to the stoke-hole. There was no protection for them that I saw. I lined the bunker holes on her deck. The rims where the lid fits in were let down flush with the deck; a grating went into the flange on the inside, and the lid went down on that again. From having passed over it, I say the whole was level with the deck. The vessel sat in the water with her bows up. If she shipped any water she could not help taking it into the alleyways. There were two little ports, one on each side of the bulwarks, to take the water away. There were none foreward[Pg 110] in front of the engine room. I did not notice the window in the poop. I do not consider the wooden awning much of a disadvantage, except that it would give her extra top weight when she was off an even keel. It would do for the Bay trade, but for encountering a heavy gale there should have been a canvas awning. I do not consider forty-four tons of wattle bark and furniture a sufficient cargo to put her on an even keel. She would not be in proper trim to go to sea.

Cross-examined by Mr. Mitchell: The awning would be about equal to the weight of a mast, and would make the vessel top heavy, otherwise it would make no appreciable difference. I was working inside, and anything I saw of the outside of the ship was from casually looking at her.

Andrew Michael McCann, examined by Mr. Smyth, stated: I am a shipwright, shipbuilder, and general contractor, and have had over thirty years’ experience as such. I have had about thirteen years’ experience at sea in sailing vessels and steamers. I have been ship’s carpenter, second mate, and chief mate. I was partner in the firm of Campbell, Sloss & McCann, and shareholder in Robison Bros. & Co. I knew the Alert since she arrived in the colony. She was engaged in the trade between Melbourne and Geelong, inside the Heads. During that time my firm did several jobs on various occasions to the vessel. I have made trips to Geelong in her as a passenger. She was a fast boat in the Bay. She was very low down aft, and carried her cargo foreward. I put that wooden awning on myself about ten years ago. It was intended as an awning. In a small[Pg 111] boat it would not be beneficial outside the Bay. I don’t think the tendency would be good in a boat of this kind. It would take the wind pressure and incline the vessel over and keep her there. Canvas is admitted to be the proper awning, so that it can be furled, and it should be furled when the wind increases. There is a difference in the dimensions of vessels. I know the length and depth and beam of the Alert approximately. From the model I know where the engines were placed. They were abaft the midship section, and would have a tendency to bring her down aft. I can only give an estimate that the engines, boiler, water, and coal would weigh about one hundred and forty tons. In ordinary fine weather, the Alert would be sea-worthy with forty-four tons of cargo. There is a likelihood of heavy weather at any time outside Port Phillip Heads. In consequence of the general construction, the small freeboard, and the want of aft canvas to assist in fetching her up in the wind, if necessary, I do not think the Alert was suitable for heavy weather at any time, and in my opinion she was never constructed or intended for sea voyages. The great number of times her length exceeds her beam and her depth makes her unsuitable for sea going purposes. She would make bad weather even in the ordinary weather got in the Straits outside. That means she would be a very wet ship in bad weather. She was very finely built, and was fine all round. A second mast would enable the helmsman, or master, to have more command over the ship. For the safety of the vessel more canvas would have been of great assistance, and the helm would have had more effective power. If she[Pg 112] had after sail, and they had taken the head sail off her, it would have had a tendency to fetch her up to the wind.

Q.—Assuming there was a grating over the stoke-hole unprotected, would that be a cause of danger? A.—Unless properly protected, it would be a serious cause of injury. It is the ordinary custom for all hatches to be protected by tarpaulins, cleated and battened down. It would be a reasonable and proper thing to make a provision for tarpaulins over that grating, and it should be compulsory to have such fastenings. I have not seen the window in the fore part of the poop, but if there was, it should have had a shutter outside on hinges capable of being fastened inside and out. It is customary on all new ships to have the bunker hole covers secured, and so they ought to be.

Cross-examined by Mr. Mitchell: I have been on the Alert I daresay one hundred times doing repairs to the ship. It was an improper thing not to be able to attach a cover to the grating. It would be a very heavy sea that would go over it from the weather side, but if the vessel were thrown on her beam ends, there is nothing to prevent it going in on the lee side. An angle of 45 degrees would be sufficient to throw her over enough to take in a lee sea that would cover it. It is not the throw over of the vessel alone, it is simultaneously the rise of the sea to leeward. I have no knowledge how far the ship did go over on this occasion, but I think there would not be much of a sea from the weather side. If she did take water in on the weather side, it would be principally forward of the bridge, and it would get to the lee side before getting to the grating. By 45 degrees I[Pg 113] mean the vessel has to go 45 degrees from the perpendicular. This is not an unusual angle for a ship to heel over; in my experience I have known them to heel over almost to a right angle.

His Honour,—I have known large steamers to roll over to a greater degree than an angle of 45.

Q.—By Mr. Mitchell: What is your idea as to how the Alert was lost? A.—The opinion I have formed is that they had a change of wind and a mixed sea; that the vessel began to labor and take in much water, which eventually took her down. On measuring the model of the Alert now shown in court, I find that the vessel’s length was eighteen times her depth and nine times her beam, approximately.

John McKenzie, examined by Mr. Smyth, said: I am a Marine Surveyor, and I have been a Master Mariner. I have had twenty-one years’ experience at sea, and have been thirteen years as captain to almost every part of the globe. Since the year 1870, I have been a Marine Surveyor. I have also had a good deal of experience in shipbuilding, and was for two years Shipwright Surveyor for the Underwriters’ Association. I knew the Alert, and first became acquainted with her thirteen years ago. I officially surveyed the vessel in one of the dry docks in Melbourne. I was then Surveyor to the Lloyd’s Associated. Captain Webb, now the managing Director of Huddart, Parker & Co., was in command of the ship at that time. I was seeing if she was in good condition and fit for risk for insurance. I did not see Captain Webb on that occasion. I found some rivets defective in the after keel of the vessel. They[Pg 114] were not done on that occasion. Captain Webb called at our office the day after, and wished to know if I would allow the vessel to run another six mouths before completing the repairs I had asked for. He told me she was only intended for the Geelong trade. I have been on board the Alert a good many times since. I remember when the last repairs to the engines were made. On several occasions I was there while they were going on. I saw the work being done. The alterations that were made would, in my opinion, not alter the trim of the ship. They were very powerful engines for such a small vessel. I have been on her several trips to Geelong. In those days she sat very much by the stern, and did not show much freeboard.

The effect of the engines going full speed had a tendency to pull her down aft fully a foot. The model on the table there was made from my instructions. It has the dimensions of the Alert, and it is only made from recollections of the vessel. I had no plans to guide me. It is, I believe, a very fair representation of the Alert. She had very fine lines both fore and aft, and thus her stability was reduced very considerably. I have calculated the weight of machinery, including shaft and propeller, as about 150 tons. That also includes the coal bunkers. With that weight in such a small vessel, it had the effect of putting her so far down in the water that she showed very little freeboard. It was too heavy for the vessel. She was not able to carry such a weight in that particular part of the ship, and it brought her down too much aft. Putting whatever cargo you like in her foreward, in my opinion she would not be fit for ocean[Pg 115] going under any circumstances. By the time you got the vessel sufficiently loaded foreward, she would be so deeply immersed that she would show very little freeboard from the midship section aft. Assuming she had nine feet six inches of water-line aft, and four feet six inches foreward, then she had about one foot nine inches freeboard aft, and eight feet of freeboard foreward. I heard it stated in evidence that there were forty-four tons of cargo on board on her last trip. With that amount of cargo, and placed in the position it was, from the nature of the cargo—it being of so light a description—it would take so much space in the hold that it would add to her instability. It would be stowed up to the deck, and would not lie far enough foreward in the vessel. In my opinion with all that weight aft, she was not fit for sea going at that time of the year. Southerly gales are more frequent and more heavy about Bass Straits in summer than in winter. From the extraordinary dimensions of the ship in the first place, and from her being so deeply immersed in the water aft, she was not sea-worthy. For the length to be eighteen times that of her depth is, I think, out of all proportion. There is not any hard and fast rule as to what a vessel’s dimensions should be, but in my opinion, according to Lloyd’s rule, the length should never exceed sixteen times the depth. I remember the grating. It was not safe to go to sea without some protection for it. It would have been only a necessary precaution to have had cleats and tarpaulins ready. I think that the whole of the casing round the engine room was unsafe. It left only the alleyways on each side to hold water. The two sides[Pg 116] would hold somewhere about fifty tons, and that quantity would be sufficient to put the ship out of sight. The sides of the vessel ought to have been carried up as high as the top of the casing, and the whole thing covered over with a deck. The entrances to the engine room and stoke-hole were dangerous. When the alleyways are full of water, it is bound to get through the doors of those places. I remember the window in front of the poop. It was a most improper thing to have, and was simply dangerous. In smooth water it was not so important, but it is necessary to secure every aperture to any vessel when she has to go outside the Heads. With such a window as it was, the Alert was not a sea going vessel, even if her bunker lids had been fastened, which they were not.

I heard the evidence of Mr. Ponting yesterday that the vessel encountered certain weather after passing Cape Schanck, and that she stood out to sea three or four miles. It was a right thing to do to give the land a good berth, and after getting a good offing there was nothing improper in Captain Mathieson making for the Heads. I knew Captain Mathieson by reputation. He was always considered to be a careful seaman. I heard of the efforts made to get the vessel’s head up to the wind, and that every time she was brought up she paid off. I should think that was on account of her being so light foreward. If she had had an after mast it would have had some effect, but under the circumstances I question if it would have had the desired effect. When the vessel was struck by the seas, she must have been struck on the port side and hurled over to such an extent[Pg 117] that the whole of the lee deck became flooded. The vessel was simply waterlogged, and could not steer. In all probability there was water in the engine room and stoke-hole which interfered with the fireman keeping up sufficient steam in order to get the proper amount of power. These things, combined with her light bow and the wind striking on it, would make the ship lie like a helpless log impossible to be steered. I saw the wooden awning on the Alert. It was very useful for passengers down the Bay, but for a small vessel like her going outside, it should not have been a fixture. The effect would be that when she came over on her beam ends, the wind would get underneath the awning and hold the ship down. If an awning were wanted, it ought to be of canvas, and not spread at all even in half a gale.

Cross-examined by Mr. Purves: I was not discharged from the Underwriters’ Association, but left their employment because I had finished my agreement with them. I am now in business for myself. I am a surveyor of shipping, and also teach navigation. I have the same authority to survey ships as any other surveyor. I have not got up this case. I made the model exhibited, and McKenzie the shipwright finished it. I have spoken to Captain Mathieson on several occasions. He did not carry a pilot on board. He was an exempt master and a skilful sailor. From Melbourne to Bairnsdale and back, would be about 530 miles, and the Alert would need about fifty tons of coal to do the round. She would burn twenty tons in twenty-four hours, and at the time she foundered, she would have burnt a good deal of her supply of coal. A[Pg 118] ton of water is about three feet by two feet in size. There would be a ton and three quarters in a 400 gallon tank. If both the alleyways were filled, they would hold about fifty tons of water, and the ship would go under. At the time the Alert was built, the bunker tops on a good many vessels were fitted in the same way as hers; but they are not allowed to be fitted in such a way now. I surveyed the Alert. I did not pass her for insurance. She was refused by the Underwriters. I will swear the Secretary informed me that she was not to be insured until she was passed. She was not passed by me. Glass ports are just as efficient to keep out the sea as an iron casing, because they are properly secured inside. A window like the Alert’s could be made perfectly secure, but in her case it was not. When I surveyed the ship I did not complain of the window. I would not object to it because the ship was only trading to Geelong. I know the S. S. Excelsior. She is not fit to go to sea. I would not pass her.

Henry William Byrant, examined by Mr. Smyth: I am a duly qualified medical practitioner residing at Williamstown. I knew John Kennedy Kilpatrick for four years. He never ailed in any way. I examined him once or twice, and found him perfectly sound and a very strong man. I would not make any statement as to how long he might have lived, but he would live as long as any healthy man might live. His age was twenty-eight to thirty.

[Pg 119]

KILPATRICK v. HUDDART, PARKER & CO., LTD

Third Day, February 13, 1895.

Evidence for the Plaintiff.—(Continued.)

William Matthews, examined by Mr. Smyth, stated: I am a ship and boat builder. I have had about thirty-seven years’ experience. I knew the Alert and travelled in her to Geelong a few times, but not outside the Heads. I see the model on the table. I think the Alert was finer aft than the model. Otherwise it fairly represents her. I think she had about two feet freeboard aft, and about eight or ten feet or more out of the water foreward. I know the weight of the engines which were in the aft part of the ship. I knew her hull very well. Having regard to her length, breadth, and depth, I do not think any sane man would send a ship like that outside the Heads. I have been in the Alert in the Bay, with a south-east wind, and she was nearly going down then. It was not a very heavy wind, but there was a nasty sea, and she nearly drowned the lot of us. The water came in aft over the lower part. There is no doubt that the gratings over the engine room and stoke-hole should[Pg 120] be secured. I would fasten them with tarpaulins, iron cleats, and wedges. I think a glass and wooden frame in the bulk-head of the saloon of a vessel like the Alert would be easily smashed. The glass would be a mere bagatelle against the water. It should not have been where it was in the front of the poop on a sea-going vessel like this one at any rate. I know the bunker holes. The covers should be screwed down and fastened below by a bar. They would not be secure by simply being fastened down by their own weight in a boat like that, rolling about as she did. I think if the vessel had had more cargo than the forty-four tons placed in her main hold, she would have been even worse than she was. That cargo was not right to go outside the Heads with, as the vessel, considering her length, was not fit to carry it. If the cargo had been stowed in the forehatch it would have put her more on even keel. It was a great mistake to place that wooden awning on the boat. If a gale of wind were blowing, the wind would get under the awning, and if the vessel were lying over, it would help her to go over further without doubt. It would keep her down when she was down. If the Alert had had another mast and sail on it, her head could have been brought up to the wind and sea. At all events it would help in doing that.

Cross-examined by Mr. Purves: I carry on business at Williamstown. I have built small vessels larger than the Alert, but never built a full rigged ship. It was some years ago that I was nearly drowned in the Alert. It was on the way to Geelong, when we were just the other side of Point Cook. The sea came in one side[Pg 121] and out the other. I cannot say the decks were full, but the after part of the boat was flooded particularly. I was not frightened, as I am used to that sort of thing. Of course if I had been washed overboard, I might have lost my life, but I did not think there was any great danger so long as I had something to hold on by. The water came over both aft and amidships. It came over the port side from the mast to the poop, heavy seas, quite enough to wash you overboard. The fires were not put out, but some water went down the bunker holes. One of the bunker lids I saw off myself. I don’t know how it came off. The sea did not go on the poop. At the time I speak of, the Alert had about eighteen inches freeboard. By freeboard I mean the distance from the water up to the level of the deck. It has nothing to do with the bulwarks. I still think that forty-four tons of cargo was too much for that vessel to go to sea with. Of course if it had been placed further foreward, it would have been better.

Q.—You appear to think that Captain Mathieson and his crew were a pack of lunatics to go outside with the Alert? A.—I don’t think I ever said so. I said no sane man would send such a ship outside the Heads.

Q.—That is pretty well the same thing. What would be the greatest risk you would have taken in the Alert. Albert Park Lagoon, or the upper Yarra? A.—She was more fit for the Lagoon if the water were deep enough. Even in the Upper Yarra she would not have been safe if she encountered the wash of a big steamer. (Laughter).

Q.—Where would you have put another mast? A.—I[Pg 122] would have put it just aft of the house on deck, and fitted it with a trysail and gaff. I am not prepared to say what size the sail should be.

William White, examined by Mr. Williams, said: I am a shipbuilder, and have been engaged as such for fifty years. I carried on business at Williamstown for forty years, during which time I built many ships. I knew the Alert. The whole weight of the engines being aft, she sat very low in the water. Her bow was up. Stability at sea is gained in two ways, first by breadth and shallowness, requiring very little ballast, or by being deep and narrow. I should say that the Alert required a good deal of ballast to make her stable. Forty-four tons of cargo in the main hatch would not give her sufficient stability. She would not be sea-worthy in my opinion with it. Forty-four tons in the forehold would help to lift her stern out of the water and put the bow down.

The Alert had only one mast. In trying to bring the ship to the wind, it would be almost impossible to do so on account of the height of the bow out of the water, and any sail that could be set would be so much foreward that it would be next to impossible to keep her end on to the sea. A sail aft would keep her bow to the wind. The best thing a ship can do in a gale of wind is to lie to. She had a wooden awning, and that would be a very great hindrance to the sea-worthiness of the ship. It was a very bad thing, because it would hold a great deal of wind, and could not be taken away. In the Bay wooden awnings are used, and it appears this vessel was allowed to go outside with one. It[Pg 123] would help to blow her over and keep her in that position. As to the pantry window, I did not see it, but I say it would be extremely dangerous placed where it is said to have been. Every sea that came on board would rush aft, and tend to break everything that was not sufficiently strong to resist its force. The set of the ship in the water, being so high foreward, would naturally throw the water aft, and it would rush aft of its own accord. The grating over the engine room and stoke-hole should have been covered with tarpaulins held in cleats and battened down.

Cross-examined by Mr. Mitchell: I last went to sea as a seaman about forty years ago. I was second officer and carpenter. I have not built any large ships, because there is nothing of that sort done here, but I have built vessels larger than the Alert, and better sea-boats. The Alert was very long and lean; if she had carried a main mast with sail, she might have been more safe.

Q.—Did you ever measure the Alert? A.—No.

Q.—Then how do you know she was long and lean when you never measured her? A.—In the same way that I know you are long and lean, though I never measured you. (Laughter.)

Q.—What in your opinion was the cause of the ship foundering? A.—I always understood that—(here Mr. Mitchell complained that the witness was going away from the subject.) Witness in a firm, determined tone said, You asked for my opinion, and I am going to give it to you, or I am going to give you nothing. (Laughter.) I always understood that the ship was blown round[Pg 124] broadside on, and was wallowing in the sea. She became unmanageable in the trough, and, being top-heavy, rolled over till she filled with water and sank.

John Murray Robertson, examined by Mr. Smyth, stated: I am an engineer, employed as second engineer on the P. S. Ozone. I have been about twenty-six years at sea, and I hold a chief engineer’s certificate. I know what the dimensions of the Alert were, and I know where her machinery was. It was placed aft. She had only one mast. The grating over the stoke-hole should have had a covering on it of iron, wood, or tarpaulin. In my opinion it is not right to have a window in the front of the poop in a sea-going vessel going outside the Heads. It should be blocked up with a door, or shutter opening outwards. If below the level of the bulwarks, it was not safe to have such an aperture in a vessel like the Alert. I knew the covers for the coal bunkers. They should have been fastened down. I think a second mast would have been an advantage to the Alert.

Cross-examined by Mr. Purves: The Ozone is a very fast boat, and we often have heavy weather going down the Bay. Sometimes we have a lot of water on the deck. Our bunker lids have something that fastens them down when they are turned round a bit. The Ozone could not jump them off, because they fit in a socket. I should think the Alert was a sea-worthy ship if she had been further at sea. It is often the case that a captain has to bring the head of his steamer to the wind and lay to; when that is done, we steam easy ahead just to keep steerage way on her. I presume the[Pg 125] Alert was sea-worthy when the Board of Trade gave her her certificate.

Re-examined by Mr. Smyth: I would not say the Alert was an ocean going vessel. I would call her a coasting steamer.

Occasionally there is worse weather near the land than out on the ocean. I did say there are means by which a man could batten down the window in the poop.

Q.—How would a man batten down on the iron frame-work? A.—In the iron I should put some small holes and put a plate over it. I would make the holes with a hammer and chisel. It would take half an hour.

Q.—Where would you get the iron plate? A.—It is a queer ship if there is not a bit of iron on board. Of course it would be better to have an iron door outside fastened on hinges.

Andrew Brown McKenzie, examined by Mr. Box, said: I am a shipwright, and have been about thirty-six years, more or less, in that business. I have been on board the Alert several times, and have known the vessel for a long time. She had very fine lines, and was very sharp foreward and aft. She had no bearings under her counter. Any time I saw her, she never had more than about eighteen inches of freeboard. To look at the vessel, she was like a snake in the grass. If the engines had been more amidships, she would have been a better vessel. The pantry window should not have been where it was; but being there, it should have been protected. I knew the engine room and stoke-hole. There ought to have been a tarpaulin on top of the[Pg 126] grating. The Alert was very long and narrow, and should have had another mast placed aft with sail on it to help if the engines got disabled. A wooden awning covered the ship’s poop, and, in my opinion, it should have been made of canvas, so that it could be taken in when blowing. The bunker lids should have been fastened in with a turn screw, the same as the lid of an iron tank.

Cross-examined by Mr. Mitchell: I have been eight years at sea. I am the plaintiff’s father, and was on board the Alert seeing my son-in-law just before the fatal voyage. I have built all sorts of ships in the old country, and have built vessels here for the Melbourne Shipping and Coal Company.

Q.—Do you seriously say that this ship, the Alert, was like a snake in the grass?. A.—Yes. That was my opinion of her. She was so long and low. I did not take particular notice of the pantry window, but if the brass bolts dropped out, the aperture could not be properly secured. I saw the grating on the stoke-hole. I say that a seaman could not with his hands have secured anything on that grating to prevent the water from coming in. In times of storm it is too late to think of these things. They ought to be provided for before a vessel leaves a port. As a rule it is the ship’s carpenter, who, under the instruction of the captain, sees to these matters, but the Alert had no carpenter.

William Malone, examined by Mr. Box, stated: I am a seaman, and belong to the steamer Dawn at present. I was engaged on the Alert last November twelve months. That was four weeks before she foundered. I have been off and on at sea during the[Pg 127] past twenty years, and was on the Alert when she went outside the Heads to Bairnsdale. I never thought her a trustworthy boat for going outside. I did not see any very bad weather in her. On one trip there was a stiff breeze, and she did not act very well. With a beam sea she shipped a lot of water. She took the most of the water on board amidships, and about the alleyways. This was between Cape Schanck and Port Phillip Heads, with a fresh, but not a heavy, breeze blowing. The Alert had no mast aft. A boat going outside should have an after mast in case they want to keep her head to wind in a heavy sea. There is no means of getting her head to wind without that. Her coal and engines were in the after part of the ship, and during my time she carried no carpenter. I was not discharged from the Alert. I had a word or two with the Captain, and luckily left her the voyage before she was lost.

Cross-examined by Mr. Mitchell; Q.—Did the Captain accuse you of being drunk while in the performance of your duty? A.—No, nothing of that kind. He could not do that, because I did not have any drink. Some ships will ship more water than others, but in an ordinary strong breeze a vessel should not take water on board. The water taken in by the Alert on the occasion I speak of ran out aft.

John Leith, examined by Mr. Smyth, stated: I am a master mariner. At the present time I am captain of the S. S. Maitland. She is engaged in the regular trade between Melbourne, Port Albert, and the Gippsland Lakes. I went to sea in 1857. I was master in 1871, and have been sailing out that way since 1880. Southerly[Pg 128] bursters come in that trade pretty nigh any time. Mr. Justice Williams: I wish to goodness you would bring one along now. (Laughter.) (Here it may be stated that during the time this trial was going on, a very hot northerly wind was blowing, making the court as warm as an oven.) The witness continuing, said: I know the Alert, and have been down the Bay a number of times in her as a passenger. She was always well down by the stern. She was long and narrow, with no great depth. She had one mast only, and the engines were well aft. She was not fit to be in a gale of wind, and gales do come along in Bass Straits.

Q.—Assuming that she had an iron grating open about twelve feet athwart and four feet fore and aft, was that a proper thing to leave unprotected in a sea-going vessel of that kind? A.—It was not in a vessel down by the heels as she was. In a gale of wind, or any heavy sea, everything would sweep over her, and fill the stoke-hole and engine room. In my opinion, provision ought to have been made for covering that grating before going outside. There ought to have been something over it, and a very good strong arrangement, such a thing as a skylight with flaps, that could have been opened and shut. A tarpaulin might stand a little time, but it would not stand many seas. I knew the alleyways between the bulwarks and the casing of the machinery. I also remember seeing the pantry window. It was open when I saw it in Hobson’s Bay, and they were passing food through it into the cabin. It was right enough for the Bay traffic, but for a sea-going vessel it should have been secured so that it would[Pg 129] stand the same weight of water as the bulk-head. The glass should have been protected the same as port holes are protected, with a cast iron port either inside or outside. I cannot bring myself to think that a piece of glass is sufficient protection against a heavy sea. The hole that was there was big enough to fill the saloon with water, and cripple the ship. I could not say how many tons would go through, but when water runs through a hole in a ship, it goes with a great rush. With only a piece of glass between her and filling the saloon, it is a dead certainty she would founder. I never saw a bunker-hole with a lid resting by its own weight. It should be dropped into notches. Forty-four tons of cargo was not sufficient ballast for the Alert. At the same time I should say that one ship acts differently to another. One could go empty, while another would require a lot of cargo. The vessel that would go empty would have more beam and a flatter floor, or bottom, than the Alert. Amidships was the best place for the cargo, but I don’t think the Alert had stability enough for a gale of wind even if she were fully loaded. I knew the late Captain Mathieson, and thoroughly agree with the statement that he was a skilful seaman and a good master of a vessel. If she had a second mast and canvas aft, the Alert would have kept to the wind, head on to the sea, with less pressure on the screw propeller. The wooden awning, when the vessel was laid down on the starboard side, would assist in keeping her over to leeward.

Cross-examined by Mr. Purves: The steamer I am in, the Maitland, is not flat. She is round, and is a[Pg 130] sea-worthy vessel. She can go to sea in any ordinary weather. We trade to the Lakes, the same trade in which the Alert was when she was lost.

Q.—The Maitland knows how to roll, does she not? A.—She does not.

Q.—Does she not belong to some bill-sticker? A.—No, unless you call the Commercial Bank by that name. There may be some bills sticking in there (Great laughter). I remember taking the Maitland down to the Heads on the afternoon the Alert was lost. I did not go outside because a strong ebb-tide was running. A gale rose with the ebb-tide, and made the “Rip”[1] dangerous. The wind was from the south-west, but it was not that I feared, it was the “Rip.” Had I been able to get the ship down to the Heads earlier, I would have gone on outside to sea. A south-west wind would not give smooth water under Point Lonsdale. The bunker lids of the Maitland have catches. They fit in notches like the top of an iron tank.

Q.—Supposing your gratings were open, and the ship taking water on board, what would you do? A.—We have none on the Maitland.

Q.—But if you had a grating, how long would it take you to put a spare jib over it? A.—The spare jib might be stowed away in the fore peak and not easily got at. It might take a lot of time to get a spare sail, and then it would not be fit for the purpose.

[Pg 131]

Q.—Would it not be prudent to make everything snug in a gale? A.—We always make everything snug before we leave port. We don’t wait for a gale to do that. The Alert was not a fit vessel for the trade she was engaged in. She was a ship never meant to go outside the Heads. She was not sea-worthy.

Q.—Did you have any night-caps last night, Captain? A.—No, I don’t like them.

Q.—How is that? A.—Ever since I was with you, I gave them up (Laughter).

Re-examined by Mr. Smyth: In my opinion there was nothing to prevent Captain Mathieson, as a skilful seaman, from making his course for the Heads. I reckon that he was as good a ship-master as any on the coast.

Mr. Justice Williams: Q.—Were you lying inside the Heads on the night of the Alert’s wreck? A.—I came to an anchor about nine o’clock that evening. I knew there would be a bad “Rip” on, and therefore did not go out.

His Honour: Q.—What was the weather like? A.—It was a fresh gale with fierce squalls and blinding rain. From three to four o’clock in the afternoon it blew hard at times, and then would lull off for a bit.

Thomas Bicknell, examined by Mr. Box: I am a master mariner. I have been coasting pilot in Australian and New Zealand waters for the last ten years, and have been in all sorts of vessels. I knew the Alert well for a great number of years. I have been often on board of her, and frequently a passenger in her to Geelong and back. I considered her a very[Pg 132] unsuitable boat even for the Geelong trade, or anywhere else in the Bay; for outside the Heads she was a perfect water trap. Her extreme length did not compare with her depth, and she had a very narrow beam. She was very fine, with no bearings, and not sufficient stability. Her engines and boilers were well aft, and gave her a lift in the bow, at the same time depressing her stern. I have seen the pantry window, but did not pay much attention to it. Placed close to long, narrow alleyways that window would be dangerous unless properly constructed and secured. It should have been secured from the outside so that the pressure of water on the outside cover would have tightened it instead of forcing its way through. Water in the saloon of a vessel labouring in the sea would make her unmanageable. I saw the grating. There should have been an iron door on hinges over it, and over that a tarpaulin, because a tarpaulin in itself is not sufficient. Forty-four tons of cargo, composed of wattle bark and furniture, would have very little effect on the Alert. She was very tender and crank. Had that cargo been iron or ballast, it would have kept the ship out of difficulties, provided she had after canvas to keep her to the wind. In a case like hers you lose seaway, and you want after canvas to give the ship steering way. I saw the wooden awning. It would help to put the vessel down, and the wind would catch it and keep her down. It should have been made capable of being taken in in rough weather. A vessel lying over like the Alert did would no doubt take water in every opening. Her freeboard was about one foot eight inches, and that is very[Pg 133] low. I have seen her with her gunwale almost level with the water. If the bunker lids were not properly secured, then they were dangerous. A vessel leaning over very much is likely to throw them off. Knocking about as she was, the water would hit against the lee cover and throw it off, and if there was any water on the deck, it would pour down below.

[Pg 134]

KILPATRICK v. HUDDART, PARKER & CO., LTD.

Fourth Day, Thursday, February 14, 1895.

Evidence for the Plaintiff.—(Continued.)

Mr. Bicknell, cross-examined by Mr. Purves: Q.—Are you a pilot? A.—I am a coasting pilot and an exempt pilot for the ports of Adelaide, Melbourne, Newcastle, and all intermediate ports. I have commanded many vessels, steam and sail, in my time, and have a thorough knowledge of the Australian coast—none better. I have been on the Alert in the Bay, but never outside with her. I felt she would be a coffin for someone sooner or later.

Q.—Assuming the Alert started from Wilson’s Promontory with a south-easterly gale and a south-westerly sea, passes Cape Liptrap, and gets to within two miles of Cape Schanck, carrying, on the latter part of the journey, a trysail and a staysail, and shipping no water, would that be an indication to your mind that the vessel making that passage was sea-worthy? A.—It would not.

[Pg 135]

Q.—If Captain Mathieson was two miles off Cape Schanck, and if a south-easterly gale veered into a south-westerly one, was he a proper seaman to try and get an offing? A.—Yes, he was.

Q.—What is the most dangerous sea for a boat of small freeboard? A.—The most dangerous would be in the trough of the sea; when the lee side of it lifts over and falls on top of the ship in a mass.

Q.—Supposing I tell you that in the case of the Alert three tremendous seas coned over on top of her, would you say that was an uncommon occurrence? A.—Heavy seas generally run in threes—one, two, three,—and the third is generally the worst.

Q.—Would three tremendous seas one after the other have an appreciable effect on a sea-worthy ship? A.—No, I have often been in a ship with decks flooded. She would shake the water off her decks, and away she would go, as lively as ever. That is a good sea boat.

Q.—I presume you will admit that hundreds of sea-worthy ships have been overwhelmed by the waves? A.—Yes, some of the best ships that ever floated have gone to the bottom. In a heavy gale of wind a ship, even riding at anchor, often founders. She strains herself, and opens out forward.

Q.—Assuming that the Alert was passed in England by Lloyd’s surveyors, would that shake your opinion as to the sea-worthiness of the ship? A.—No, it would not.

Q.—No matter how good a ship, how admirably proportioned, how safely built, there may come a time in[Pg 136] her history when stress of weather may cause her to founder? A.—Yes.

Q.—Did you ever see a steamer on her beam ends in your life? A.—I have seen them at an angle of 45 degrees, and we usually call that pretty near “beam ends.”

Re-examined by Mr. Box: A large quantity of water in the saloon of a vessel like the Alert would make her unmanageable. Her alleyways were about forty feet long on each side, and four feet wide. They would hold at least thirty or forty tons of water, and the saloon twenty or thirty tons more. A vessel shaped like the Alert, flooded with water on one side, would have very little chance of recovering. I have been down the Bay in her with the wind blowing strong. She heeled over to starboard when hauled up to the wind, and took a lot of water in the alleyways.

Mr. Justice Williams: Q.—We have heard a lot about these seas in the Bay. What is your opinion of them? A.—They are mere teapot waves compared with what we meet outside.

His Honour: Q.—Do the seas you meet in Bass Straits outside compare in size with the seas you meet round Cape Horn? A.—No, they do not, but they are more dangerous in the Straits, because they are short, quick, and fierce.

His Honour: Q.—Would you be surprised to hear that in going round Cape Horn a sea will sometimes come over the foreyard? A.—With a loaded vessel I would not be surprised at all. A good deal depends[Pg 137] upon where you are. With the wind more to the southward there is not so much drift.

Neil McLaughlan, examined by Mr. Williams: I am a master mariner, and have been so for twenty-seven years. I have been a coasting pilot about fourteen years on the Australian coast. I knew the steamer Alert ever since she came out here. She sat in the water very low aft, and very light foreward. That was because she had very little bearings, and had heavy machinery aft. She was not adapted for going outside the Heads. Forty-four tons of cargo would not be enough to trim her for a sea voyage. Of course if it had been placed in the forehold, it would have made some difference in giving her a better grip of the water forward. Wattle bark and furniture would be all top weight. She was a very tender boat at the best. With another sail aft, the captain would have a much better chance of bringing the ship’s head up, and keeping it up. I remember the alleyways each side of the engine room. The effect of water getting in them would be to put the ship still further down aft, and the water was bound to force its way below somewhere. I have seen the gratings on top of the stoke-hole and engine. For going outside the Heads they should have been covered with wood or iron, and I would have put a tarpaulin over that again, with cleats to fasten it at bottom. The window in front of the poop was composed of glass with a wooden frame. When seas came on board, with the trim the Alert was in, the water would press against that window very heavily. It was very improper to have such a thing there at all, but, being there, it should[Pg 138] have been properly guarded. A couple of pieces of iron should have been riveted on to the bulks-head, forming a slide for an iron cover plate to go up and down, and the whole secured with a screw bolt as well. The window opening inwards, as it did, increased the danger very much. It was a wrong thing to have a wooden fixed awning on the Alert. She would, in a breeze of wind on the beam, be thrown over to leeward by it. I noticed that the motion of her engines drew her stern down very much.

Cross-examined by Mr. Purves: I know Lloyd’s Register of British and Foreign Shipping. There are no better surveyors than those of Lloyd’s. Every ship I have commanded was registered by Lloyd’s. Still I say the Alert was not fit to go to sea. As a sea-going man of experience, I think my opinion of equal value with Lloyd’s system of underwriting. On account of her weight aft, her depth of hold, her breadth of beam, and her rig, the Alert should never have been sent to sea.

Q.—You object to the deck fittings? A.—I object to the way she was rigged. I mean the masts.

Q.—Your objection is that she had only one mast, and should have had two? A.—Yes, that is one objection.

Q.—Why should a steamer have any masts at all? A.—If anything occurred She could be navigated with sails.

Q.—She is perfectly able to be navigated round the world without any masts? A.—I never heard of a steamer without a mast. If the machinery goes well,[Pg 139] and no emergency crops up, you could do without a mast.

Q.—If you were going to purchase a ship, and could not see her, what authority would you consult? A.—I would not purchase any ship unless I could see her myself.

Q.—Would not a tarpaulin over the grating, if cleated-battened or nailed down, keep out any sea? A.—No, the sea would burst it down between the bars like a bit of paper.

Q.—How many hours would it take to fill the ship, if seas were continually thrown in, unprotected by a tarpaulin? A.—It would take about half an hour. The water would also go down the ventilators if they were turned that way. I was last on board the Alert two trips before the accident occurred.

Re-examined by Mr. Williams: Ten or twelve tons of water would go through that cabin window in a minute. Half of fifty or sixty tons of water in the saloon would put the Alert down, and she would sink stern first.

Lucy Edith Kilpatrick, examined by Mr. Box, stated: I am the widow of John Kennedy Kilpatrick. I was married to him on June 4, 1891. There is one child by the marriage called Mary. She is now two years and five months old. My husband at the time of his death was twenty-nine years old. He held a chief engineer’s certificate. He enjoyed good health, and was a strong man, and always sober. Previous to joining the Alert he had been out of work for some time. His wages as second engineer of the Alert were £8 per[Pg 140] month. When he was in the employ of the Melbourne Harbour Trust as chief engineer of the dredge Latrobe, his wages were £22 per month. Prior to that he was working on shore, and while in work he gave me on an average £3 per week for house-keeping expenses.

Cross-examined by Mr. Purves: During the time my husband was out of work he earned nothing at all.

James Graham, examined by Mr. Smyth, stated: I am an actuary. I have made a calculation of what a certain sum per week would be worth as an annuity. On the basis of £8 per month an annuity would cost £1,924 10s., and on the basis of £3 per week, or £13 per month, it would cost £2,978. That is in the case of a man aged twenty-nine, and assuming he was a good life.

Cross-examined by Mr. Purves: In making the calculation, I used the “H. M. Table” prepared by the Institute of Actuaries of Great Britain. I worked it out at 3½ per cent. rate of interest, and took the expectation of life, for a healthy man of twenty-nine years, at thirty-five years. I do not reckon it would be safe to calculate interest at five per cent. now-a-days. Therefore I averaged it at a price as a practical transaction which I would be prepared to carry out.

This closed the case for the plaintiff.

[Pg 141]

KILPATRICK v. HUDDART, PARKER & Co., LTD.

THE DEFENCE.

In addressing the jury on behalf of the defendants, Mr. Purees said: Under the Marine Act, owners of ships were bound to send their ships to sea in a sea-worthy condition, but that did not mean that the owner should guarantee to his servants that the ship would swim under all circumstances. The Act said nothing about the shape of the ship. The ship could be of any shape whatever, so long as she was passed by the proper authorities, and was reasonably sea-worthy in the opinion of the surveyors and those who sent her to sea. All the experience of the past in the matter of ships showed that when the Almighty brought His forces into play, the most perfect ship that ever was built met[Pg 142] the time in her career when she was no longer sea-worthy. Noah’s ark, when it sailed—if ever it did sail—was built practically on similar lines to the ships of to-day. Some of the witnesses for the plaintiff admitted that the Alert was fitted for trading in the Bay. If that were so, why was she not suitable for outside work. Bad seas had to be encountered inside the Heads as well as outside. Evidence would be adduced that would show the Alert was built on the ordinary principles of shipbuilding. She was built at Glasgow by one of the most eminent firms in the world; was classed 90 A1 at Lloyd’s, and sent out here under sail as a three-masted schooner, or barque. She was employed for a time in the Geelong trade, and although some of the witnesses had said she was not fit even for the Bay, yet Lloyd’s surveyors had certified that she could go anywhere. When it was decided to put the Alert to outside work, she underwent a special survey, and she had various improvements made, including an alteration to her boilers and machinery. All precautions were taken to make the vessel sea-worthy, and the local surveyors gave her a certificate in November, 1893, classing her as fit to engage in what is called “the home trade,” which ordinarily meant coasting outside from Newcastle, N. S. W., on the one hand, to Adelaide, S. A., on the other hand, a coast line embracing a stretch of at least 1,200 miles. It would be proved by evidence that the alterations made gave the ship twenty per cent. more buoyancy aft. She had an efficient captain and a good crew; and before going in the Gippsland trade, she was sent a trial trip to Tasmania. She went from[Pg 143] Melbourne to Tasmania without an ounce of cargo in her. She loaded up at the latter place and returned to Melbourne, proving all the way that she was fit to do the work she was intended for. Then she was put in the Port Albert trade, and carried cargoes varying from 10 to 150 tons. She sailed well on her last voyage, and never shipped any seas until her course was altered towards the Heads. Within a few minutes of doing so, she shipped three successive seas, which put her on her beam ends, and she never righted. Ponting, the cook, was not the only one living who saw this. There was another eye-witness whom he (Mr. Purves) would call to prove that he saw these seas overwhelm the ship. Nothing in the world could have saved the ship under the circumstances, and it was preposterous to talk of the wreck being due to pantry windows, open gratings, or anything of that sort. In his (Mr. Purves’s) opinion Captain Mathieson committed an error of judgment in heading his ship to port instead of keeping her out to sea. The owners had every confidence in the ship, as was indicated in the fact that she was fully insured.

EVIDENCE FOR THE DEFENDANTS.

John Horwood Barrett, examined by Mr. Purves, stated: I am a master mariner and captain of the ship Hesperus. She is a full rigged ship of 1800 tons. I remember the 28th December, 1893. On that morning my vessel was to the westward of Cape Otway. Speaking from memory, we were steering east making round the Otway for Melbourne. The weather then[Pg 144] was a heavy gale from the S. W., and that was a fair wind for me. We signalled to Cape Otway at 4.15 P. M. on the 28th, and then continued our course for the Heads after getting the proper position. Our course would be about north-east, half north. I came along as far as Split Point, and then hove to because there was a heavy sea running from the S. W. I considered it prudent to come on, as far as the ship’s safety was concerned, but I did not think it was just to come on to the Heads and take a pilot out of the schooner in such a sea as that. Therefore, on account of the danger to which the pilots would be exposed, I hove the ship to at ten P. M. till two o’clock next morning. During all that time it was blowing a strong gale with heavy squalls.

Q.—I will ask you to come on board a little steamer one hundred and sixty-nine feet long, nineteen feet six inches beam, and nine feet six inches depth. She passes Wilson’s Promontory at nine in the morning, goes through the Straits and on to two miles off Cape Schanck, carrying with her a south-east gale and south-east sea, and does not ship any water. What is your opinion of her being sea-worthy? A.—I should think she was decidedly a sea-worthy vessel.

Q.—Approaching the Schanck her captain desires an offing, and takes the ship out to windward six miles. Meanwhile the wind veers round to S. W., and Captain Mathieson shifts his course and makes for the Heads. He carries with him probably the same sea he had before, and he is overwhelmed in ten minutes by several seas, and ultimately the vessel founders. Might that[Pg 145] not happen to any ship? A.—Certainly; to any vessel if she happened to keep away under those conditions.

Cross-examined by Mr. Smyth: Q.—Supposing that when the Alert got her offing of six miles without taking any water on board, except spray—which you say was a sign of her being sea-worthy, and that there is no apprehension of danger of any kind on board—was there anything to prevent her then making a course for the Heads, remembering that she was a steamship with a competent master? A.—I consider that the sea I experienced—Mr. Smyth: I am not speaking of the sea you experienced. You were off Cape Otway, about sixty miles westward of the Heads, while the Alert was off Cape Schanck, twenty miles eastward of the Heads. You say the sea had increased so much that you would not risk a pilot.

Q.—Assuming that there was no danger, and the evidence here is that there was no apprehension of danger at that time when she got her offing, and being as you say a sea-worthy vessel, with, as we know, a skilful captain, was there any reason why the course should not be altered to the Heads? A.—I cannot answer anything on assumption. I want facts.

Q.—I have given you the facts. Was there anything to prevent the ship going for the Heads? A.—It is fair to assume that there must have been a big sea running.

Q.—It is fair to assume that you are endeavouring to play with me instead of giving me an answer. How many years’ experience have you had at sea? A.—Twenty-five years in command.

Mr. Smyth: I will state the case once more. We[Pg 146] have evidence that at the time I speak of there was a south-easterly sea and wind. Sometimes it is blowing a light gale, at others a strong breeze. She makes her offing, taking no water in. She is as you say sea-worthy. In that state of things the wind veers round to the south-west. Whatever the state of the sea, the captain has no apprehension of danger. What was to prevent him altering her course? A.—The condition of the sea.

Q.—What was the condition of the sea? A.—A heavy sea running from the south-east. I assume that.

Q.—Is that assumption of yours based on what you ascertained? A.—No, on what you have just told me.

Q.—What would you have done under the circumstances? A.—I would have kept her out to sea the whole time.

Q.—Do you mean to say that the sea was so bad that pilots did not go on board of other ships that evening you were off Cape Otway. A.—I believe they did go on board other vessels.

Q.—As a fact you know that the pilots did go on board other boats? A.—Yes; I know they went on board the French mail boat.

Q.—And if you had gone on, they would have boarded you? A.—Yes; but I did not care to take a pilot on and send him back in a small boat.

His Honour: Q.—Did you know anything about the steamer Alert? A.—Nothing personally, except that I observed the sea, and it was so high that we could not see the pilot schooner within fifty yards of us.

[At this stage it was arranged that on account of the great heat of the weather the court would adjourn until Monday 18th instant.]

[Pg 147]

KILPATRICK v. HUDDART, PARKER & CO., LTD.

Fifth Day, Monday, February 18, 1895.

Evidence for the Defendants.—(Continued.)

William Francis Deary, examined by Mr. Purves, stated: I am inspector of shipping, and nautical surveyor to the Victorian Marine Board; also shipwright surveyor. I thoroughly understand the nature of a shipwright surveyor’s work. I went to sea in 1872, and I have had experience since that time in shipping. Apart from my official standing, I am a master mariner, and I have had the command of ships since 1883, until I took up my present position about five years ago. I knew the steamship Alert for ten or twelve years. In my official capacity I have known her nearly five years. During that time I had opportunities of surveying her, and I have surveyed her critically. I remember a change in her equipment being made when she went to take up the running of the S. S. Despatch in the Gippsland Lakes’ trade. Generally the changes made were in the nature of life buoys and life boats. I know her[Pg 148] machinery was altered. Subsequently to those alterations I surveyed her on November 11, 1893, and gave a declaration upon which a certificate was issued. (Shipwright surveyor’s declaration concerning S. S. Alert, and dated November 4, 1893, was here handed in and marked as an exhibit.) I carefully examined the Alert on the date specified in my declaration, and in all respects the requirements of the Act were fulfilled. Having regard to the projected voyage, namely within the limits of the home trade, all apertures, and skylights, and places of that kind which would require protection were sufficiently protected. In my opinion the Alert was one of the most sea-worthy ships afloat. I knew her lines, her tonnage, and her dimensions. I knew Captain Mathieson, and always considered him a competent navigator. The vessel had a good crew. There was nothing omitted in the case of the Alert which was done in the case of any other steamers licensed by me.

Cross-examined by Mr. Smyth: Exhibit No. 10 now handed in is a certificate granted by the Marine Board, based on my declaration and that of Mr. McLean. He is engineering surveyor to the Marine Board, and has the machinery and the whole of the iron-work in his department. I have the whole of the wood-work and the deck-work. In my declaration two life-boats are described as being in good order on the Alert. If it is said there was only one life-boat and a dingy, then I say it is false. One boat was slung in the starboard davits on the foreside of the bridge, and the other on top of the engine room skylight. There was a difference in their size. One was twenty feet long, and the other fourteen feet. The fourteen-foot boat was not whale-boat form, and some people might call it a dingy. There was cork padding in both boats. The top of the skylight is a very fit place for a life-boat. It would not make the vessel top heavy. In a small ship like the Alert, it is hard to find a place to carry a boat, and you have to do the best you can. She had not two life-boats when in the Bay. They were not required in the Bay traffic. She had boats then but not life-boats. I was appointed shipwright surveyor when the retrenchment business began, nearly two years ago. I am not a shipwright. I did not want the assistance of a practical shipwright surveyor in the case of the Alert. I am perfectly practical enough to carry on that work. I know there is a rule to the effect that iron gratings over stoke-holes must be protected with iron plates fitted with hinges, or otherwise, in a manner satisfactory to Lloyd’s surveyors. On the Alert the protection consisted of canvas covers, which were kept ready on board for immediate use. They were not tarpaulins, but just ordinary canvas. I think they were brought out for me to see. There were no cleats to fasten them down, but they could easily be lashed down to ring bolts on the deck. The canvas might in time tear away from the grating—say in about three years. The wooden awning was put on a few years ago for the Bay trade.

Q.—How was the pantry window protected? A.—It could easily be protected.

Q.—That is not answering my question. How was the glass window protected? A.—The glass was the protection, and if necessary a piece of canvas could easily have been placed over it. The aperture was about sixteen inches by fourteen inches, and we did not think it was a source of danger, that is why it was not further protected. I was in the service of Huddart, Parker & Co. some years ago. I was second mate, mate and master in various of their vessels. I was appointed to the Marine Board in March, 1890, about five years after leaving Huddart, Parker & Co. I know Captain Webb. He was managing director of Huddart, Parker and Co. up to a short time ago. He is a member of the Marine Board. Mr. Ernest Parker of Huddart, Parker & Co. is also a member of the Marine Board. I never in my life designed a ship. A shipwright surveyor ought to have a knowledge of designing ships. I never had that knowledge. I knew the covers to the Alert’s coal bunkers. They were iron, kept on by their own weight. If necessity demanded it there was no trouble in putting four battens and a piece of canvas over them. When making my declaration I was perfectly satisfied that these bunker lids were quite sufficient held down by their own weight.

Re-examined by Mr. Purves: According to the evidence given, the Alert was kept away, and I say that before she was kept away all the places that required covering should have been seen to. Supposing there was a drop of water about the deck, there would have been no difficulty in making everything secure. The lids to the bunker holes would weigh about fifty to sixty pounds each.

Re-cross-examined by Mr. Smyth: The bunker lids[Pg 151] were about ¾ of an inch in thickness. They might not have weighed more than forty to fifty pounds, and they may have been an inch thick for all I know.

Charles William McLean, examined by Mr. Purves, stated: I am engineering surveyor to the Marine Board of Victoria, and have occupied that position since the inception of the present Board, and previously I was under the Steam Navigation Board—ten years altogether. Prior to that I was assistant resident engineer to the Melbourne Harbour Trust. I have been as engineer on steamers trading here on the coast, and hold a certificate as first class sea-going engineer. I am a member of the Institute of Civil Engineers in London. I have been engaged in supervising and designing the actual construction of vessels. I knew the Alert, and saw her very frequently. I saw her in December, 1892, when the boilers were out. A change was then being made in her machinery. I made a thorough examination of the position of the old machinery, and also of the hull from stem to stern, both internal and external. I always considered her sea-worthy. She was much fuller below the water than she appeared to be above water. The water displaced by the vessel when loaded down—without any cargo, but with everything ready for sea—would weigh about 312 tons. Comparing that with the surplus buoyancy—which is the amount the water would weigh if all the spaces above water were filled—it was very good. The surplus buoyancy was about 400 tons, being rather more than the displacement. That means that there was a very fair amount of surplus buoyancy. I acted[Pg 152] on behalf of the Marine Board in examining the Alert, and I gave a declaration to the secretary of that Board. The Alert was then plying in the Bay for a short time after. I next saw her between the 2nd and 4th November, 1893, when it was proposed to send her down to the Gippsland trade in place of the Despatch which had to be laid up to get new engines. The owners desired a home trade certificate for the Alert to go outside the Heads. The new machinery had been placed higher up than the old, and it was thought in doing that that every provision had been made for outside work. The new machinery did not alter the main freeboard at all, but raised the ship about five inches aft. I was perfectly satisfied that the engine room protection was quite the thing, the very best that was made, and as a result of the examination I gave the certificate. I remember the pantry window referred to. It was about two feet three inches above the level of the main deck. It was fastened by two ordinary bolts running into catches, and was quite safe.

His Honour: Q.—Do you say that under those circumstances that window would be as safe as a port? A.—I think so from the way it was made. I certainly think it was not as dangerous as a port, because the ports are always below the main deck. Nothing more than broken water could reach the pantry window.

To Mr. Purves.—I recollect the stoke-hole grating, it was eight feet wide from door to door, and about three feet six inches fore and aft. Nothing more than broken water could get in through that grating. An occasional sea would perhaps pass over, but no solid water would[Pg 153] get in there until the vessel would be over on her beam ends. There would be no difficulty in putting canvas covers on. The bunker lids were of a very ordinary type. I never knew of one to lift off yet. I can name numbers of vessels that have the same lids as the Alert had. I don’t think there is anything in the suggestion that the wooden awning rendered the ship unfit to go to sea. When the awning is lying over at an angle of 45 degrees, the wind would get below it, and the vessel would be lifted up. Buoyancy would be the resulting tendency. In my opinion the Alert was a stable ship, and her stability was added to by the alterations to the engine room. Her machinery including everything would weigh about 105 tons. In addition, she had two ballast tanks, one of these right foreward in the fore peak would hold fifteen tons of water, and would be most suitable for anyone desiring to trim the ship. She was a long vessel, but her proportions were not unusually long. The declaration given under the Marine Act meant that she was right without cargo. We have always to assume they may go out without any cargo. Of course cargo improves the vessel’s stability, but we have always to look at the worst side.

Cross-examined by Mr. Smyth. I say the vessel was sufficiently stable for ocean-going purposes without any cargo at all. Included in the one hundred and five tons I spoke of, I allowed for coal twenty tons, water fifteen tons, weight of boiler thirteen tons, weight of engines twenty-six and a half tons, shafting six tons, and additions to engine room seven and a half tons. Then there were four tons of chain cable in her bottom. If both[Pg 154] tanks were filled, they would hold twenty tons water ballast. I never was master of a vessel. I was at sea as engineer only, for about three years. I am accustomed to calculate the stability of ships, and that is why I am able to say this vessel was capable of going out on the ocean without any cargo. If a number of experienced men say that forty-four tons of cargo was not sufficient for the Alert, I would contradict them. Such men know nothing of stability. I gave evidence before the Marine Board enquiry, as I do to-day, that the boat was perfectly sea-worthy.

Q.—Do you remember that the Marine Court found, after you gave your evidence, that she was not sufficiently stable? A.—No, I do not remember that. (Mr. Purves here objected the Marine Court did not find that the Alert had not sufficient stability.)

Mr. Smyth to witness: This is what the court found. “In view of the vessel’s construction and the manner in which laden on her last voyage, having only about forty-four tons of cargo, the Alert, in the opinion of the court, had not sufficient stability.”

Q.—Will you now say that after you gave your evidence the Marine Court did not find she had insufficient stability? A.—I don’t know what they meant, but that was their finding I believe. Their finding may have been due to the cargo; if it was not of the kind to add stability, the vessel would be still more unstable with cargo than without. For all I know the cargo may have been built too high, or been all on one side. I am not prepared to say that the cargo was the cause of making the vessel unstable on this occasion. The[Pg 155] alterations to the engines made her more stable than before. Portions of the new machinery did come higher above the deck than before the alterations, three feet perhaps. The difference in weight between the old machinery and the new would be about six tons. An iron plate outside the window would have made it strong as the bulk-head. I do not think it was one of my duties to see about the pantry window. It was not considered dangerous. I knew it was there, and took it into consideration when the vessel was getting overhauled in February, 1893. The certificate I gave then was for the Bay trade. When giving the certificate to go outside, in November, 1893, I don’t think I did consider on that particular occasion whether the window was safe or not. From memory I fix its height above the main deck at two feet six inches. It was like the window in the Excelsior. I have not passed the Excelsior as a sea-going vessel. She is a Bay trade boat, and will require a lot of alterations before I pass her for the sea. The Alert was thoroughly overhauled in February, 1893, and in November of the same year I simply surveyed her for giving a certificate to go outside.

Q.—How long were you over this November survey? A.—I don’t remember the time; I will say two hours.

Q.—Mr. Johnson signed the certificate with you. Was he with you at this survey? A.—No, he was not, but I knew what he did. He examined the vessel concerning her steam.

Q.—He was there to make this examination and to give that certificate, but he was not with you? A.—That is so; he was there at other times.

[Pg 156]

Q.—We have evidence that the water went down the gratings, and that in consequence the fires got low, and the men connected with the engines came up from below to put on their life-belts. Was that not on account of the water going down the stoke-hole? A.—The water was going somewhere. The doors must have been left open. It did not go down the gratings that I know of.

Q.—Assuming that the water went down the gratings, would that be an element of danger. A.—Yes, it would.

Q.—And there being no protection, you gave a certificate to go outside the Heads? A.—Yes; the grating of the S. S. Dawn is the same.

Q.—Has not the Dawn a very much larger freeboard? A.—I don’t know.

Q.—Do you know the dimensions of the Dawn? A.—Yes, she is one hundred and fifty-four feet long, twenty-four feet beam, and eighteen feet in depth. She is not the same class of vessel as the Alert.

Q.—Then why did you compare the two vessels? A.—I only referred to the gratings.

Re-examined by Mr. Mitchell: The new engines and boilers of the Alert were six or seven tons lighter than the previous ones, but the difference was made up to be nearly equal by additions to the vessel’s hull.

Q.—It was suggested that by the way you slummed this survey, you were responsible for the loss of the men at sea? A.—The survey was not slummed, and no blame was attached to me at all.

Q.—Your opinion is that the water must have got in[Pg 157] through the doors and skylights being neglected? A.—Yes.

His Honour: Q.—Assume that before the ship was kept away, and all her gratings, skylights, doors, and pantry window covered and protected, do you think there would be any danger in putting the vessel away on her course for the Heads when she had a south-east sea and a south-west wind? A.—No; if all openings had been closed, she was comparatively safe.

His Honour: Q.—A number of the witnesses described the boat as being rather skittish and tender? A.—Boats like her require to be specially handled; but with everything properly fastened, I would have had no hesitation in going for the Heads, although I think it would have been better to have kept out to sea. She would have weathered it.

William Watson, examined by Mr. Purves, stated: I am a surveyor for Lloyd’s Registry of Shipping. The British Lloyd’s is an institution that has grown during the last sixty years. It is the biggest thing in the world. A vessel that is “A1” at Lloyd’s has a character that any man, who is interested in running risks, takes as a standard. The document now shown me is a certificate stating that the Alert was classed when first built “ninety A1,” fit to carry dry and perishable cargo to all parts of the world. Below is a maltese cross which indicates that she was built under special survey. (Mr. Box here objected that the certificate given when the vessel was built had nothing to do with the present case, and his Honour decided to admit the evidence subject to the objection). Witness[Pg 158] continuing said, “ninety A1” is simply a distinction to show that it is not “one hundred A1” nor “eighty A1,” but still an “A1” ship. The meaning of “A1” is that the hull of vessel so classed is fit to carry dry and perishable cargo. I knew the Alert mentioned in Lloyd’s certificate, and remember the alterations made in her. I did not see her officially between July, 1893, and the date when she was lost (December, 1893). My opinion of her was that she was a good little ship. She was sea-worthy in every sense of the word, and was a very nice vessel.

Q.—What is a nice vessel—a plum cake is very nice but I would not like to go to sea on one.—? A.—A very smart craft I would call her. I have been to sea, but I am not a sailor.

Cross-examined by Mr. Box: I was in the employment of Lloyd’s in England, but not as surveyor. I was appointed surveyor, but did not continue in it. I am no authority as to what risks insurance companies will take. It is not a mere matter of premium. A risk is taken on the recommendation of surveyors. I am not in receipt of an annual salary from Lloyd’s, but I make surveys for them in Melbourne, and I get paid for my services by the owners of the ships in Melbourne whose vessels I recommend. I re-classified the Alert in July, 1893. She was then in the Bay trade. I don’t know how she came out to Victoria. I don’t remember when she was built. I never formed an opinion as to whether she was built for the Bay trade only. She was, in 1893 when I surveyed her, fit to go all over the world. I did not go to sea in her, but I would not have been afraid to do[Pg 159] so. She was fit according to Lloyd’s rules, and that was enough for me. It is not a rule of Lloyd’s that the grating over the engine room and stoke-hole should be covered.

Q.—Is this a rule of Lloyd’s: “The engine room skylights are to be in all cases securely protected, the gratings over stoke-hole must also be protected with iron plates?” A.—That rule does not refer to the grating openings on top. There is no occasion to have any cover whatever to those gratings. There was no necessity to have any protection to the pantry window; I did not look upon it as dangerous. I don’t think there would be any special liability on the part of that window to burst in when the vessel was on her beam ends. It would not be a serious matter if it did burst in. I could put a cushion in and stop it. There was no danger in the grating, and none in the pantry window.

Re-examined by Mr. Purves: Apart from my position at Lloyd’s, I have built many thousands of tons of ships. My business was a shipbuilder, and when busy, I have built over 20,000 tons a year. The reclassification of the Alert brought her to her original status equal to a new ship just built. I am trusted with Lloyd’s business in Melbourne, and have a free hand. The amount of freeboard a ship has is no proof of her sea-worthiness.

Thomas Houston, examined by Mr. Mitchell, stated: I am a marine surveyor for this port. I have had over thirty years’ experience as ship master, mostly in sailing vessels. I have been in steamships, but not in command. I have been in Melbourne about nine years. I[Pg 160] knew the Alert well, and have been frequently on board. I have been under her twice while she was in dock, not in a professional way, but as a contractor for painting. I have no reason to suppose for a moment that the vessel would be unsea-worthy. I have been a passenger in the Alert up and down to Geelong, and in a convivial sort of way I recollect the pantry window. I could not say its height above the main deck, but I think it was about half way up the front of the poop, and the latter was between three and four feet high. I don’t know how it was fastened. There was nothing about the window to make the ship unsea-worthy. Any practical man could make the window tight without bolts or anything else, so that it would not take a gallon of water in an hour. I have no knowledge of the height of the grating, but I am told it was seven feet above the main deck. I don’t see any necessity for cleats; it could be secured in various ways, so that no water would go down, and the bunker lids also could have been easily protected by placing a piece of canvas over them. I think the wooden awning would have assisted to bring the ship to the wind and keep her there. If the vessel was on her beam ends, the awning would in all probability tend to throw her over, but by that time she would be too far gone to recover herself, and hence it would make very little difference. The fact of having the wooden awning where it was would not make the ship unsea-worthy.

Cross-examined by Mr. Smyth: I have had a vessel pretty well over with her yard arms in the water. She came up again by throwing cargo overboard. There is[Pg 161] nothing extraordinary in a vessel rolling over 45 degrees. There is nothing to prevent a ship from righting herself if she is sea-worthy. I have not the faintest idea what prevented the Alert from righting herself. I don’t think thirty or forty tons of water on board of her ought to affect her although she was low aft. Perhaps the pantry window would have been better if made in some other way than with glass; but I consider it of no importance. Anybody could have stopped it splendidly with a cushion. If there was a lot of water in the stoke-hole as well as the saloon, she might founder. I do not believe that water came through the grating. In sending a ship to sea extreme contingencies should be provided against. An open grating was not unsafe, but still it would be better covered. I am a contractor for painting ships for Huddart, Parker, and others.

In reply to His Honour the witness said: Cutting a small window would not weaken the bulk-head. I think it most likely I would have had an outside shutter to protect the window.

[Pg 162]

KILPATRICK v. HUDDART, PARKER & CO., LTD.

Sixth Day, Tuesday, February 19, 1895.

Evidence for the Defendants.—(Continued.)

Hugh Bell McMeikan, examined by Mr. Mitchell, stated: I am master of the tug boat Albatross. I have had experience at sea since 1850. I have been Master of all sorts of vessels. I knew the Alert, and have been on board of her often. So far as I saw she was all right. I saw her outside the Heads after she went into the Gippsland trade. She always behaved well so far as I saw. I have seen the pantry window often; it would not make the vessel unsea-worthy.

His Honour: We have heard that when this vessel got within two miles of the Schanck, she made an offing of about six miles. Supposing you had been on board of her then with a strong sea running from the S. E., and wind from the S. W., would you, before putting the ship away on her course to the Heads, have taken any precautions with regard to the window? A.—No, I don’t think I would. It had been there long before, and had not been found fault with. If I had[Pg 163] been in command of that ship, I would have given orders to the officers to see that everything was snug. I never heard in my life of a bunker lid coming off by the rolling of a vessel. I don’t see that the wooden awning or the forty-four tons of cargo had anything to do with the vessel’s sea-worthiness. She was sea-worthy enough to come up from Gippsland to where she did.

Cross-examined by Mr. Smyth: The Albatross is supposed to go outside in any weather. Her length is one hundred and fifty feet, beam, inside paddle boxes, nineteen feet six inches, outside paddle boxes fifty feet, and depth eleven feet six inches. She sits on an even keel; but the Alert sat very much by the stern. I knew the late Captain Mathieson, and he was a skilful mariner. The master on board of his own steamer is the best judge of what to do; he knows his vessel. There was nothing to prevent Captain Mathieson from altering his course for the Heads. I don’t think the Alert wanted any cargo to make her stable. She would float without anything. If any steamers go to sea with bunker lids simply laid down by their own weight, that would to a certain extent be a cause of danger. I have a canvas awning on the Albatross.

Lucy Edith Kilpatrick (the plaintiff) recalled by defendant’s counsel, in reply to Mr. Mitchell, said: I received some money from the fund that was subscribed. I am to get £100. I get it in weekly instalments.

To Mr. Smyth: The £100 I am to receive is not from Messrs. Huddart, Parker & Co., but from a fund subscribed by the public. I do not know the amount of insurance the owners of the Alert received.

[Pg 164]

William Wilson, examined by Mr. Purves, stated: I am the master of the steamer Eagle, a tug boat. Her owners are Messrs. Huddart, Parker & Co., and I am in their employ. I have been master for nineteen years. I knew the Alert, and was in her for eight months in 1889. I remember the wreck of the ship Holyhead at Point Lonsdale, Port Phillip Heads. I was employed on the Alert at that wreck, for about three weeks altogether. I had an opportunity of judging the capacity of the Alert as a sea-boat. I say she was good. I did not see anything in my eight months’ experience of her that made me think she was a dangerous ship. I did not see any fault with her at all. I wish she had been mine.

Cross-examined by Mr. Box: We had pretty rough weather when working at the Holyhead. Other boats could not have done the work like the Alert. Nothing would stop her until she met a gale of wind. Of course in a gale of wind we could not get cargo out of the Holyhead. I had on one occasion one hundred and forty tons of cargo in the Alert. It made her sit differently in the water. It balanced her.

Louis John Daly Schutt, examined by Mr. Purves, stated: I am a Victorian sea pilot, and have been one about six years. Prior to that time I was in the employment of Huddart, Parker & Co. as captain and also as mate. I commanded the Alert about four and a half years in the Geelong trade. During that time we had some heavy weather and seas for the Bay. I formed the opinion that she was a good little sea-boat. After I left her the engines were shifted. There was no great difference in her after the alterations. When I was in[Pg 165] her there was a window under the break of the poop. The glass in it got broken. It was about a quarter inch thick. I put a new one in three eights of an inch thick. I maintain that it could not possibly be broken by a sea, unless the sea washed something against it. When I had charge of the Alert the gratings were low down, afterwards they were built up to the top of the engine house. I believe the same bunker lids were on the ship when she went down as when I had her. They fastened down with keys, I am positive. Outside the Heads the seas are bigger than in the Bay. If I had the command offered me, I would have taken the Alert to sea. I had not the slightest doubt about her sea-worthiness.

Cross-examined by Mr. Smyth: I was in command of the Alert from 1884 to 1889. She was never out at sea while I was in her. I put the glass window in myself. One of the passengers who was the worse for liquor put his foot against the previous one and cracked it. I have had seas on board in the Bay, and the starboard alleyway full, but no water ever went below. In my time the engine room went right back to the front of the poop, and prevented water going from one side of the ship to the other. One of the new improvements made was that this casing was cut away and an after hold put in.

Q.—When the Alert foundered, did the water getting into the saloon take her down stern first? A.—I say no. Supposing forty tons of water were in the cabin it would be pretty well full. I don’t see that it would take her down, owing to the watertight compartments.

[Pg 166]

Gilbert Moore, examined by Mr. Mitchell, stated: I am a master mariner in charge of the S.S. Excelsior, one of Huddart, Parker & Co’s steamers trading between Melbourne and Geelong. I knew the Alert, and was in command of her. For two or three winters I was trading with her to Geelong and back to Melbourne, and sometimes we had heavy weather. She behaved very well indeed. Sometimes in bad weather she would not behave very grand. In moderate, good, and fine weather she was beautiful. I went to Tasmania in her in February, 1893. I had no cargo going over, but coming back I had I daresay about seventy tons. We had fine weather going but a stiff breeze coming back. She behaved well and was a bit wet. I remember the pantry window; it did not affect the ship in any way. It was about eighteen inches above the deck. It was sufficiently secured to withstand the pressure of water. The bunker lids had slots and turned round, thus fixing them in. I saw that they were fastened. I can’t see how the wooden awning or the open grating would make the ship unsea-worthy. It is a matter of opinion. There was a tarpaulin to cover the grating if they liked to put it on.

Q.—What in your opinion should have been done with the vessel before changing her course for the Heads? A.—I would have put the engines dead slow. As a matter of course a man, in weather like she was in, should have seen that everything was secure. If I had to run the ship, I would keep the engines slow; and if I had a sail, I would set it. If the sea was too heavy and she would not come to the wind, I would let go a sea anchor.

[Pg 167]

Cross-examined by Mr. Smyth: I knew the late Captain Mathieson. He was a careful seaman, and a good ship master. He would be the best judge of what he ought to do. The grating was six feet wide, and fore and aft from eleven to thirteen inches.

Q.—Supposing Mr. Grant, the man who put the grating in, said it was twelve feet across and three feet six inches long? A.—I know differently; I never measured it, but I say it was not three feet long.

Q.—You looked very particularly before you went to Tasmania to see that the bunker lids were fastened with slots? A.—Yes, I did. I considered it necessary. They fitted properly and were caught with slots.

Q.—If you were the only witness out of thirty who said these lids did not fit in by their own weight, will you contradict them all? A.—Yes.

Q.—If Mr. Grant, who fitted them in, states that the lids secured themselves only by their own weight, do you contradict him? A.—Yes; I say what I know.

Q.—You swore at the Marine Board enquiry that you took the Alert to Tasmania as a trial trip? A.—I meant to say it was a severe trial to the ship.

Q.—We are told by witnesses that her freeboard aft was only about two feet? A.—That is wrong. She had double that. She never had less than four feet aft from the water’s edge to the deck. She used to draw ten feet six inches aft, and her depth of hold was nine feet six inches.

Q.—Then how could she get the freeboard? A.—Because she had a long heel aft.

Q.—Did you say to-day that it was according to the[Pg 168] weather, and that in bad weather the Alert would not behave very grand? A.—I don’t remember saying that, but if I did, it would be true of her, or any other ship.

Q.—When you were in the Alert, did she ever take water down into the engine room or stoke-hole? A.—It might be a few drops, or a bucketful, down through the gratings, or the doors.

Charles William McLean was recalled to explain that although there was a clause in the Alert’s river and Bay certificate that she was not fit to ply outside the river and Bay, as defined by the Act, it did not mean that the vessel was unfit to go outside the Heads.

His Honour: That is a question for argument.

Mr. Smyth: I shall argue that the vessel was certified as unfit to go outside the Heads.

Mr. Purves: That is an absurd argument, because there was a subsequent declaration that she was fit to go outside.

His Honour: I think it is a question of construction. If the vessel was going to trade in the river and Bay, she got a certificate to that effect. If she were going to trade outside the Heads, she must have a certificate for outside. The one is not inconsistent with the other. That is the view I hold at present.

Carl Gustafson, examined by Mr. Purves, stated: I am a Russian Finn and an A.B. seaman in the employ of Huddart, Parker and Co. I am now forty-eight years of age, and have been at sea since I was nine years old. I was seaman on board the Alert for four years, and was in her after she was altered and went to sea. I was not in her outside the Heads. My[Pg 169] experience of her was in the Bay. In heavy weather I have seen the decks flooded, but never knew of any water going below, either through gratings or pantry window. From what I knew of the Alert, I would go anywhere in her. I thought her a good strong boat.

Cross-examined by Mr. Box: I remember the Alert in the Bay taking a very large quantity of water on board. The engines had to be slowed down because the seas came over. I can’t remember if the fires were nearly put out on that occasion. She was not in very much trouble. The pantry window was a round glass in a wooden frame. It had a wooden slide in front outside that covered it right over. I am in the Excelsior now, but I an not mixing up her pantry window with the Alert’s. I never noticed how it was fastened inside. When I left the Alert, two years ago, I have been in the Excelsior ever since.

William King, examined by Mr. Purves, stated: I am chief engineer of the Excelsior. I am an engineer by profession, and have had sixteen years’ experience of shipping. I knew the Alert, and was chief engineer of her from 1890 to 1893 in the Bay trade, and also for six months after the engines were altered. During that time I went outside the Heads to Tasmania. On that voyage I considered she was perfectly sea-worthy. We had fine weather going, and very rough weather coming back. I was perfectly satisfied with the way she behaved. I never heard of, or saw, any water coming in through bunker holes or gratings while I was in her. I would go to sea in her any time and anywhere.

Cross-examined by Mr. Box: Engineers and seamen[Pg 170] have to take a good deal of risk sometimes. If one is out of employment it is not easy to get a billet. There was no risk in going in the Alert. We were sixteen hours coming from Tasmania. That was the only time I went outside in her. The Excelsior is larger than the Alert. I have seen the latter shipping heavy water in the Bay. She had to go slow at times. The new engines lifted her about six inches higher in the stern.

John Legg, examined by Mr. Purves, stated: I am dockmaster in the employ of Mr. Duke, of Duke’s dock. By trade I am a shipwright, and have been employed by Mr. Duke for about thirty years. I have had the Alert in dock on many occasions. She was buoyant and able, in my opinion, for her size.

Cross-examined by Mr. Box: I have never designed a vessel myself. I have been to sea as master of sailing-vessels, not steamers. I don’t know anything about the Alert’s inside. She was not very deep, and was rather narrow in the beam. I would not call her a very tender vessel. I was on board of her before she was altered, but not after. I would call her a stable vessel for her size. There is no doubt that she was fitted for the Bay trade. As to going outside that all depends upon the weather. It would be a risky thing taking a vessel built from that model outside in all sorts of weather. I would go to sea in the Alert in ordinary weather.

James Trainor, examined by Mr. Purves, stated: I am a seaman, but at present I am a labourer. I was an A.B. on board the Alert and other ships for sixteen years. I went to Tasmania in the Alert. She went without cargo and came back with seventy tons of oats.[Pg 171] She behaved like any other vessel of her size would do. I considered her as good as any other vessel.

Cross-examined by Mr. Box: I have been wrecked twice. It was my idea to go in the Alert to see how she would behave. I asked to go. I volunteered to go in her. I was Huddart, Parker’s man then.

Q.—I suppose there was great excitement in the office to see how she would go? A.—Yes. (Laughter.) I had heard great talk of the Alert. I was not astonished to get back safely in her.

Richard Gough, examined by Mr. Mitchell, stated: I am a shipwright surveyor, and have been working for about three years surveying ships for the Marine Board. I knew the Alert, and on two occasions made a survey of her for the river and Bay trade. The last survey I made was in April, 1893. I then made a declaration. I should say the Alert was sea-worthy in every respect. The opening spoken of as the pantry window was about fourteen inches by twelve inches square. The glass was about half-an-inch thick, and was in a strong wooden frame. I don’t remember how it was fastened. It would not make the ship unsea-worthy in the slightest degree. The grating was a great height from the main deck, and if any water went down it would only be a splash. The bunker lids fitted into sockets. They rested by their own weight. Unless the ship were upside down no water could go through them. In my opinion the wooden awning did not make the ship unsea-worthy. When the alterations were being made I did not have before me the specification of what had to be done.

[Pg 172]

Cross-examined by Mr. Box: On one occasion after repairs were completed the Alert had a permit to go to Tasmania, not a certificate. A certificate is for a year; a permit is only for the occasion. I gave a certificate to the engineer. There would be no examination of the vessel again on her return from Tasmania because she had a certificate for the river and Bay trade. We do not make a declaration to give a permit. I did not make a declaration that the Alert was fit for the outside trade. Captain Deary was appointed shipwright surveyor, and he took my place. Captain Deary is not a shipwright, but I cannot help that. He was appointed, and is a shipwright surveyor by virtue of his office. A shipwright surveyor’s certificate should be given by a man skilled in shipwright surveying. I never measured the grating. When I surveyed the Alert for the permit to go outside the Heads to Tasmania, she had not got a shutter in front of the window. I do not remember whether she had a shutter at any time I surveyed her. I signed a certificate about life-boats only for the river and Bay trade. I signed only the permit to go outside. The Alert was built for shallow water.

Re-examined by Mr. Mitchell: In my opinion the Alert was a sea-worthy vessel fit to go to Tasmania. When Captain Deary made the declaration that she was fit for the outside trade, I was still a shipwright surveyor, but was receiving no pay from the Marine Board. I had ceased to be their officer through retrenchment. I believe the Alert’s trip to Tasmania had something to do with clearing the Customs duty off her engines.

Samuel Johnson, examined by Mr. Mitchell, stated:[Pg 173] I am assistant engineer and surveyor for the Marine Board. I have had two and a-half years’ experience in that capacity. I have had about five years’ experience at sea as third and chief engineer. I signed the declaration with Mr. McLean. Alongside the wharf I tested the vessel under steam to see to the safety valve. The test was satisfactory. Mr. McLean inspected everything else. I only saw the vessel in dock for about half an hour.

Cross-examined by Mr. Smyth: So far as the steam was concerned I made a thorough examination. I signed the declaration for that part of the survey which I did. I made no examination of the vessel’s hull. I daresay my examination took over an hour alongside the wharf, and on that I gave the certificate. So far as I was concerned that authorised the Alert to go to sea.

[Pg 174]

KILPATRICK v. HUDDART, PARKER & CO., LTD.

Seventh Day, Wednesday, February 20, 1895.

Evidence for the Defendants.—(Continued.)

Thomas Webb, examined by Mr. Purves, stated: I am a master mariner, and a member of the firm of Huddart, Parker & Co. I knew the S. S. Alert. She was built under my special superintendence at Glasgow. She was classed ninety A1. I have had experience in the navigation and building of ships. When finished the Alert was a sea-worthy ship. The pantry window was built in her during her construction. I was master of her for about twelve years, and my opinion was that she was a very fine sea-boat. The alteration of her engines gave her more lift aft, about five inches. During the twelve years I was in command, she ran every day whatever the weather was. I saw no indication in her of a danger of shipping seas. In my time no water went in at the pantry window, nor in the grating, which latter was four feet lower then than when she was lost. She was insured for £4,000. She stood in my ledger at that time at £13,000, and we were satisfied to stand the risk of £9,000.

[Pg 175]

Cross-examined by Mr. Smyth: The vessel cost about £12,000 at first, and we expended £7,000 on her here, putting in new machinery in 1893. On the voyage out from England she was insured for £12,000. She came out under sail, as a barque, with funnels down. She was then in charge of Captain Munn, who gave her the character of a splendid sea-boat. He told me that. He is dead now. At the time she was trading in the Bay I believe the insurance was less than £4,000. I was managing director of the Company. I am not so now. I am still a member of the firm and also a member of the Marine Board. During my twelve years’ command of the Alert in the Bay, I have seen her take some water on board. She did not quite fill the alleyways. She could not fill them as the water ran away through the port-holes and the scuppers. The pantry window was glass in my time. It was cracked by heat but not by water. I never gave instructions to Captain Mathieson to hurry up. I told him not to go so fast, and complained about too much coal being used. There might have been a time when she was in the Bay trade that she was not insured at all. She got Lloyd’s certificate in 1877 when she was built, and that was allowed to drop until 1893. We did not find it necessary to put her on Lloyd’s Register again in 1893; it was for our own convenience to put her back on it so as to give her a character again, in case we wanted to sell her. We paid the fees, £5 5s., for putting her back on Lloyd’s Register. My company subscribed £100 to the fund got up for the Alert sufferers. Ponting had some I believe. He got it through us. I don’t think Huddart,[Pg 176] Parker & Co. paid him anything at all. There was £1,200 subscribed. Mrs. Kilpatrick got her portion of that. I don’t think Huddart, Parker & Co. gave her anything. Only one writ has been served on Huddart and Parker in addition to the present case. I believe the plaintiff in the other case is Mrs. Mathieson—the late captain’s wife. I consider we did our duty when my firm gave £100 to the relief fund, to which the public subscribed £1,100 more.

Alexander Wilson, examined by Mr. Purves, stated: I am engineer in charge of ports and harbours in the employment of the Victorian Government. I am by profession an engineer. I have no other qualification. I have had experience of the sea for seven years in the capacity of a marine engineer. I consider myself competent to give an opinion as to the sea-worthiness of ships. The steamer Alert has been under my observation ever since she arrived here. Up to 1881 I surveyed her every six months. My opinion is that she was a good sea-worthy boat. I recollect a small pantry window she had in the poop. I don’t think it affected her sea-worthiness. I don’t think it would be possible for green seas to find their way down the grating on top of the stoke-hole. Ring bolts at each corner for the purpose of fastening a tarpaulin would be quite as efficient as cleats. The bunker lids rested in the ordinary way. I never knew of lids being washed off. I don’t think they made the ship unsea-worthy. Assuming that the wooden awning was made of right material, it would not affect the ship to any great extent. If she laid over it would rather have a tendency to raise[Pg 177] her again. Wood instead of canvas would not in the least make her unsea-worthy. There is a wooden one on the Lady Loch, and she goes anywhere. The old steamer Western had a house on deck with a wooden awning. The Alert had watertight bulk-heads. She was divided into one, two, three, and four compartments when I knew her. These bulk-heads would prevent water going from one part to another. The ship in my opinion had sufficient stability.

Cross-examined by Mr. Smyth: I am not a shipwright, but I have designed seven ships. The Lady Loch is one. She does not carry her awning the whole length of the poop like the Alert. The length of the Lady Loch is one hundred and seventy-five feet, beam twenty-five feet, and depth about twelve feet. She has only a small portion of awning aft. Her freeboard depends upon what she is carrying. I should say with nothing in her but coal and her machinery it would be about four feet. The Western was not far different in dimensions to the Alert, but was a different class of vessel. The Western’s length was one hundred and eighty-three feet, beam, twenty-three feet, and depth, twelve feet six inches. I agree with Mr. McLean that an iron casement outside screwed down would be a good protection for the pantry window, but whether it was necessary is another thing. The water would not have got in if the window had been shut; and if the window was burst open, it would be a matter of five minutes to put it right. It could be barricaded from the outside. I would find my way there with a piece of timber and shove it up against the face of the window. As for the gratings, if green seas[Pg 178] came down, the only thing the men could do would be to spread canvas and lash it over the gratings.

Q.—How long would it take with a vessel lying over on her beam ends, and heavy seas running, to get your canvas and lash it over? A.—You are putting almost an impossibility. I cannot imagine the ship getting into that position. It would take ten minutes to get the canvas—supposing the covers were at hand. All these vessels carry covers, but I would not swear that the Alert carried covers.

Q.—Do you say that the bunker lids are always let in by their own weight? A.—I am not prepared to say positively whether I have seen any screw on like the lid of a four hundred gallon tank. I think some are that way. I am not positive how the Alert’s were.

Q.—Would not a canvas awning that you could take in be better than a wooden awning at sea? A.—It would be advantageous I think.

Q.—You told us that cleats were unnecessary, as ring bolts would do? A.—I am informed that there were ring bolts alongside the grating. I did not see them that I can remember. I am not a master mariner. I was not in command of a ship. I am not a seaman, mate, or captain. I am an engineer.

Clement Ernest Jarrett, examined by Mr. Purves, stated: I am manager of the Alliance Marine and General Insurance Coy. I remember the steamer Alert. She was insured in my office for £4,000, and valued at £6,000. I have known her ever since she came out. I employ experienced people, and I insured her after survey. I would have insured her for double the[Pg 179] amount she was insured for, if required, without hesitation. I knew the vessel personally. I travelled in her outside the Heads, and formed the opinion that she was a very nice little vessel. I am not a seaman. I should not have the slightest hesitation in going out in her. In fact I had serious thoughts of going out in her on the trip on which she was lost.

Cross-examined by Mr. Smyth: £6,000 was the owners’ valuation. They valued her specially for insurance, not necessarily that that was her value. I accepted their valuation, and considered it too low. I insured her when she was in the Bay trade. She was insured for the same amount, and never less. She was insured for less before she had the new engines. £3,000, I believe, nothing less. I believe she was always insured.

James Alexander Mitchell, examined by Mr. Purves, stated: I am a licensed Port Phillip pilot, and have been such close on twelve years. Prior to that I was master of steamers and sailing vessels for eleven years. I knew the Alert, and remember the day she foundered, December 28, 1893. It was reported to me on that date. I was in charge on that day of the pilot schooner Rip. At about 4 o’clock P.M. I was cruising, as near as I could judge, from seven to eight miles outside Port Phillip Heads. We were cruising about in all directions. The weather was very thick. We never saw the land. All along the eastern shore as far as the Barwon the weather was thick. It was clearer to seawards and towards the west. It was blowing what we call a southerly gale. The sea was very rough and[Pg 180] very high. I cannot remember what the barometer was. It was heavy weather as a matter of fact. There was a cross sea from the south-east, and a swell from the south-west, and the two met and sent the water up. Our vessel was shipping a good deal of heavy spray. I have seen the Alert at a distance, when she was passing Williamstown going to Geelong.

Q.—After the Alert got off the Schanck, about seven miles, with the wind and sea as they were, was it, in your opinion, a prudent thing to do to keep the ship away for the Heads? A.—I should say there would be danger in that manœuvre unless they—as sailors would say—watched a slant, or watched for a smooth, and then put her on her course. Before doing this, it would be only an ordinary precaution to make everything snug.

Q.—Your idea was that the heaviest weather was off the Schanck? A.—Yes, and off the Heads.

Cross-examined by Mr. Williams: We boarded some ships on that day (Dec. 28). There was no particular trouble in boarding them. The same care had to be exercised that day as in every other gale. As pilot in charge I do not think that I would have boarded a vessel between three and five that afternoon. I did not know Captain Mathieson personally. I cannot say whether he got a slant. I gave my opinion on a supposed case. For all I know he may have waited for a slant.

Q.—Assuming that there was a south-east gale blowing all day, and the Alert in it, in your opinion if things had not been snug on the ship would anything have[Pg 181] happened to her? A.—I should hardly have thought that in a gale of wind, blowing all day long, she would have got as far as the Schanck if things had not been snug. She would have been full of water before.

Q.—What sort of gale was it in the early part of the day? A.—It started with a fresh breeze in the early morning and gradually increased to a moderate gale from 10 o’clock till noon. After twelve it had some indication of getting finer and the barometer rose. Then the wind veered to the south-west and blew hard. A swell had been coming from the south-west all day long.

Re-examined by Mr. Purves: I should think a vessel, perhaps two or three miles from land in the daylight, would have managed to reach Western Port; but in my opinion it would have been a dangerous thing to try. We saw nothing at all all day long.

This concluded the evidence.

Mr. Purves submitted a point for the consideration of the judge: That the obtaining of certificates from the surveyors appointed by the Marine Act, and recognised under the Act, who surveyed the ship, and made the necessary declarations, was evidence of such a nature that in itself it was proof that the owners used all reasonable means to secure the sea-worthiness of the ship. His Honour would see the vast importance of this case to shipping companies. The conditions of the law were complied with in taking all reasonable precautions.

Mr. Justice Williams: You contend that the certificates of the surveyors authorised by the Act are conclusive evidence?

[Pg 182]

Mr. Purves: Yes; not merely evidence, but conclusive evidence. Unless it is shown that the certificates were obtained by fraud, they are actual proof of sea-worthiness.

Mr. Purves, in addressing the jury on behalf of the defendants, made a severe attack on the witness, Robert Ponting, and urged at great length that the evidence given by him was not to be relied on. He (Mr. Purves) did not think that Ponting had told wilful untruths, but had simply got up a theory of his own as to how the wreck occurred, and repeated it so often to himself that he believed it, and also endeavoured to make other people believe it. There was no credit due to Ponting in the matter at all. He did not save or try to save anybody but himself. Indeed, even that he did not do, for Providence alone had enabled him to reach the shore, while better men were allowed to go to the bottom. The jury had sat day by day patiently listening to all the details of this most important shipping case, and he (Mr. Purves) was sure they would see that it was a matter which should never have been brought into court at all. No one sympathised more than he (Mr. Purves) did with the unfortunate plaintiff, Mrs. Kilpatrick, who had undoubtedly lost her husband and breadwinner; but that was no reason why the innocent owners of the Alert should be called upon to recoup anyone for loss sustained through an accident over which they (the owners) had not the slightest control. It should also be borne in mind that Messrs. Huddart, Parker and Co. had sustained a severe loss themselves by the sinking of the ship, which was one of their breadwinners.[Pg 183] Notwithstanding the serious loss to the firm, they had liberally subscribed to the fund got up in relief of the sufferers. From first to last the owners had done all that men could do. When the Alert was taken from the Bay trade to be put into the outside trade, she was surveyed by the most skilful men that could be found, and the owners expended £7,000 in effecting alterations to make her a most efficient ship. Not content with the local survey they had her re-classified at Lloyd’s. She proved herself a sea-worthy ship, even on the occasion of her last voyage, by running under adverse conditions from Wilson’s Promontory to Cape Schanck without shipping any water, and it was only when Captain Mathieson in a reckless moment altered her course to the Heads, in a tremendous sea and heavy weather, that she foundered. Any of the largest steamers would have foundered under similar circumstances. Unless it was proved that the defendants, as reasonable men, were not satisfied that the ship was sea-worthy, the plaintiff had no case whatever. Was there any evidence to show that the Alert was unsea-worthy? He would ask the jury to say that the defendants were not in any way to blame, and that the disaster, which they all deplored, was an act of God. He desired to apologise to the jury for being unable to produce, notwithstanding his promise to do so, the person who, in addition to Ponting, actually witnessed the foundering of the Alert at sea. During the course of his remarks, Mr. Purves pointed out that a good deal had been said by the witnesses for the plaintiff about the fact of the Alert being rigged with only a foremast. In[Pg 184] contradiction to this theory of danger it was only necessary to draw the attention of the jury to the fact that the steamships of Her Majesty’s navy—the best ships in the world—had no masts at all! They were merely fitted with flag-poles for signalling purposes. Some of the most incredible stories had been told concerning the wreck of the Alert. For instance, the witness Ponting had said that “flames and smoke came out of the vessel’s funnel as she sank.” The thing was simply impossible. (Here Mr. Purves spoke with great emphasis and considerable warmth.) “Why hang it, gentlemen of the jury, the fires must have been out a considerable time before the ship went down!” The learned gentleman then concluded an impassioned appeal by drawing marked attention to the fact of the plaintiff, Mrs. Kilpatrick, having attended the court with her baby every day since the trial began, when she ought to have been at home attending to her household duties. He (Mr. Purves) could see no other object in her conduct than that she was desirous, through her presence, and that of her infant, of enlisting the sympathy of the jury. He was sure, however, that those gentlemen would not be misled, but would, in bringing in a verdict for the defendants, estimate her attendance in court at its true worth.

In addressing the jury, on behalf of the plaintiff, Mr. Smyth said that he was astonished at the unwarrantable manner in which his learned friend, Mr. Purves, had dragged Mrs. Kilpatrick’s name before the jury. In the beginning of the case he (Mr. Smyth) had called Mrs. Kilpatrick as a witness to testify as to her late[Pg 185] husband’s age, general habits, etc., and was then done with her. Since then his learned friend, Mr. Purves, had served her, through Messrs. Gaunson and Wallace, with a notice to appear on his behalf. Therefore, Mrs. Kilpatrick had attended day by day in response to Mr. Purves’s demand, and on that account only. She had no one to leave her infant with, and consequently was compelled to bring the child to court. Under these circumstances it was mean and contemptible for Mr. Purves to put the construction he did on the presence of the plaintiff in court. He (Mr. Smyth) would not make any remark concerning what his learned friend, Mr. Purves, said about Ponting, as the latter was perfectly able to defend himself. With regard to the statement made that the owners of the Alert had acted liberally in relieving the sufferers, he (Mr. Smyth) failed to see where the liberality came in. What were the facts? £1,200 were raised by public subscription, toward which Messrs. Huddart, Parker contributed £100—exactly one-twelfth of the whole—but they did not aid Ponting, the only survivor from the wreck of their ship, to the extent of a single farthing!

In continuation, Mr. Smyth said that the obligation was imposed on the owners of ships not only to put them in a sea-worthy condition, but to keep them so during every voyage. The certificates were the permit to go to sea, but the owners to save themselves must then take all reasonable precautions that the ship was sent to sea in a sea-worthy condition, and through their agent, the captain, that she was kept in a sea-worthy condition during the progress of the[Pg 186] voyage. The certificates were not conclusive evidence of sea-worthiness, except as to the condition of the vessel at the time of survey. He contended that the evidence proved that at the time of the wreck there were such defects in the vessel as to make her unsea-worthy. She was built for the Bay trade, and was never fit to go outside.

[Pg 187]

KILPATRICK v. HUDDART, PARKER & CO., LTD.

Eighth Day, Thursday, February 21, 1895.

Continuation of Mr. Smyth’s address to the jury.

He would ask the jury to say that the pantry window was not protected, and that it rendered the vessel unsea-worthy. He would also ask them to say that the defendants had not used all reasonable means to insure sea-worthiness, especially as the evidence of Captain Webb, one of the directors of the company, showed that he was thoroughly acquainted with the condition of that window. The cargo of forty-four tons of wattle bark and furniture, which the Alert carried on the occasion when she foundered, was too high and too light to make her stable. When her trial trip to Tasmania was made, a fine day was selected, and she carried no cargo; but on the return journey, when the weather was rough, she carried seventy tons of oats, and that was very different to forty-four tons of light loading. Ponting, the cook, said it was the lightest cargo he ever saw in her, and that the light cargo was the subject of comment amongst the crew. He would further ask the jury[Pg 188] to say that this light cargo, and the manner in which it was stowed, was another cause of unsea-worthiness in a vessel that sat so low astern, had such extreme dimensions, and that was intended for the Bay trade, and even in the Bay was a wet ship. The gratings over the stoke-hole being unprotected were a further cause of unsea-worthiness, and, as Ponting stated, the water entered the ship through them. He (Mr. Smyth) was perfectly satisfied to leave it to the jury that the plaintiff was entitled to compensation for the pecuniary loss she had suffered through losing her husband on this unsea-worthy ship.

Mr. Justice Williams summed up the case to the jury. He said his charge might be made comparatively short, the evidence having been placed before them with very great fulness by the witnesses and learned counsel on both sides.

The plaintiff brought an action under an Act of Parliament, by which, providing the action were brought within a certain time, she was entitled to recover damages if the loss of her husband was caused by the neglect of the defendants. Her ground of action, shortly put, was that the death of her husband was caused by the negligence of the defendants. She said in effect that it was part of the contract of the defendants to take all reasonable means to provide that their ship should start on all voyages in a reasonably sea-worthy condition. Sea-worthy condition meant that the ship should be in a fit state to encounter all the perils of a sea voyage. Of course, if a vessel got into a[Pg 189] cyclone, a typhoon, or some terrible storm that overwhelmed her, the owners were not to be blamed for that. Such an occurrence would be due to what Mr. Purves had called “the act of God.” Speaking for himself he (His Honour) thought the Almighty got the credit, or the discredit, for many of these things of which it would be better to say that such occurrences were due to the destructive agencies of nature for which the owners were not responsible. He (His Honour) did not give the Almighty the credit for slaughtering the human creatures He had created right and left in this indiscriminate manner. The plaintiff, to support her cause of action, had first to prove that the ship was not sea-worthy, and then, to render the defendants liable, she would have to prove that the vessel was not sea-worthy by reason of some precaution not having been taken by The defendants which they should have taken. The defendants pleaded that they did take all reasonable means of making the vessel sea-worthy, and were not guilty of any neglect, and that, even if this were not so, the cause of the foundering was the improper navigation of the captain. If that were so, the owners were not responsible, because the ship did not founder through their fault, but through the fault of the captain. Owners were not responsible for the rash act of a captain at sea. This was important to bear in mind in this case, because the defendants endeavoured to show that the ship would have come through the gale all right if she had been properly handled by the captain. They said that if he had made things all right fore and aft, and had put the covers over the gratings, he would have[Pg 190] come through right enough. If the jury thought that the foundering of the vessel was contributed to by the negligence of the defendants, then their duty was to find a verdict for the plaintiff. They (the jury) had a difficult task to perform, because they had to decide between experts. Doubtless the jury knew something of the sea; probably they had all made long voyages, but what was their knowledge as compared with that of those who were bred up to the sea, whose nursery was the sea, and who could with a glance of the eye tell more than the best amateur sailor who ever lived?

The plaintiff through her witnesses attacked the general structure of the Alert, and said that the ship was unsafe to go on the high seas. It was contended that the vessel was designed and intended for the Bay service, that her engines were much more aft than they were generally placed in ocean-going steamers, and this much was generally admitted. It was said that this put the vessel down by the stern, and raised her bows. Certainly, if the bows were in the air greater play was given to the waves and the wind, and if the wind and weather were on the port-side, there would be great difficulty in bringing the ship up to the wind. The plaintiff brought a great body of evidence in support of that view; but on the other hand the defendants brought a great body of evidence to rebut it. Some very experienced witnesses had been called on both sides. Captain Bicknell, a coasting pilot of large experience, gave his evidence very well, and was most emphatic in condemning the ship as totally unfitted to go to sea; a mere “cockle boat” he called her. In addition to[Pg 191] expert evidence called to prove that the ship was sea-worthy, the defendants put in certain certificates, some from Lloyd’s in England, and some from the Marine Board here. These certificates in his (His Honour’s) opinion were not conclusive of sea-worthiness—he would reserve that point—but they were entitled to very great weight. The ship was built at Glasgow in 1877, and the greatest care seemed to have been taken in constructing her. She was surveyed by Lloyd’s, and certified as fit to carry perishable cargo to any part of the world. She came out here not with steam, but under sail, rigged as a barque. She ran in the Bay trade a long time. In the Bay, with a strong south-east wind blowing, there were occasionally fair seas to be encountered; but these were merely pigmy teapot seas as compared with those outside. Talk of waves! One might as well compare a millpond to the Bay as compare the Bay waves to those to be met with outside on the high seas. Whoever heard of a ship being wrecked by heavy seas in Hobson’s Bay? Anyone who had encountered “great guns” in rounding the Horn in a sailing ship, or who had seen the seas off the Cape of Good Hope, would not think of big seas being found in our Bay. Then there was the question of cargo. This was one of the plaintiff’s strongest points. Some witnesses said that it did not matter what cargo the ship had, she would have gone to the bottom all the same. The certificates did not touch this question. They were strong evidence that the vessel was sea-worthy, so far as structure and build were concerned, but did not touch the question of neglect on the part of the captain[Pg 192] to put the ship in a sea-worthy condition before she started on her voyage. The plaintiff said that, having regard to the ship’s build and her tendency to be unstable by reason of her build, she should have been loaded and trimmed with the greatest care and caution, but defendants’ witnesses said the cargo did not make the slightest difference to her, so long as she was handled properly. A great deal had been said about the bunker lids, but there was no evidence to show that they got out of position, or that any water got through the bunker holes. This was a weak part of plaintiff’s case. As to the grating over the stoke-hole, the defendants averred that they had provided canvas to cover it, and it would be a hard thing to say that the defendants ever knew, or ought to have known, that the grating, unless protected by iron or wood, was such a danger as to render the ship unsea-worthy. The wooden awning had been condemned by some of the experts as unusual on a small ocean-going steamer. In the ordinary way, perhaps, such an awning would do no harm, but if the wind came to blow on the beam, the awning became a kind of fulcrum against which the wind pressed, and helped to heel the ship over. On the other hand, two of the witnesses for the defence had said that the effect of the awning would be contrary and would help to heave her stern up. Then there was the pantry window on which there had been such a tremendous onslaught. It was said that it was a source of danger to the ship, and supposing they (the jury) came to the conclusion that it rendered the vessel unsea-worthy, they would have to ask themselves the[Pg 193] question, “Did that danger contribute to the foundering of the ship in this case?” They (the jury) must not only find that it was a source of danger, but they must also find that the defendants knew, or ought to have known, it was so, to the extent of making the ship unsea-worthy.

He (His Honour) regretted very much that the witness Ponting had been attacked by Mr. Purves. The unfortunate man was the sole survivor of the wreck, and had spent the whole of that tempestuous night on the sea, and had done nothing to deserve being spoken ill of. Ponting had given his evidence in a proper manner, and appeared to be a decent sort of man; certainly not the kind of being Mr. Purves sought to make out. Mr. Purves had also said that Ponting had been saved by an act of Providence, but he (His Honour) did not know why Providence should have shown any more consideration for Ponting than for anyone else on board the ship. The man was, providentially no doubt, saved by his own perseverance and tenacity. If Ponting’s story was true, undoubtedly the pantry window did give way and the water poured in. If the jury found that the captain neglected his duty, they would have to find a verdict for the defendants. On the other hand, if they found a verdict for the plaintiff with damages, they would have to say how much they would apportion to the widow and how much to the child.

In reply to His Honour the foreman of the jury said they would prefer to consider their verdict next day.

Mr. Mitchell directed His Honour’s attention to[Pg 194] the fact that he had said in his summing up that the certificates had nothing to do with the loading, whereas, in giving the certificates, the surveyors did so on the assumption that the vessel might go to sea without cargo. If there was a condition as to cargo, it would be mentioned in the certificate. Mr. Mitchell also contended that the defendants would not be liable unless the captain loaded the vessel in a way that, in his opinion, would make her unsea-worthy.

His Honour: These both seem to be good points, and I will bring them before the jury to-morrow morning.

[Pg 195]

KILPATRICK V. HUDDART, PARKER & CO., LTD.

Ninth Day, Friday, February 22, 1895.

His Honour, addressing the jury, said: Gentlemen, I told you yesterday, with respect to the charge that is made against the owners of the vessel, that you should disregard the certificate given when considering whether the vessel was loaded in such a way as to render her unsea-worthy. I don’t think I was quite right in saying that. I had forgotten that Mr. McLean, engineer surveyor to the Marine Board, told us that the certificate was for an unloaded ship. You cannot disregard that certificate altogether. Still you must bear this in mind, that though a vessel may, in the opinion of the Marine Board, be sea-worthy, the captain, or mate, may load her in such a way as to make her unsea-worthy. There is some evidence that the cargo put in her was built so high in the hold as to make her less stable than if it had been better stowed. I also told you that if the captain loaded the vessel in such a way as to render her unsea-worthy, the owners would be responsible. That is a little too bald. The owners are[Pg 196] entitled to some protection in this respect, that is, unless the captain knew, or ought to have known, that the cargo was loaded in such a manner as to render her unsea-worthy. If he trims the ship in a way which he knows, or ought to know, will render the voyage risky and perilous, then the owners would be responsible. Gentlemen of the jury, you are to give your verdict for plaintiff, or defendants, but not your reasons. You may cause endless trouble if you do.

The foreman of the jury asked whether there was any evidence as to the ballast tanks being filled.

His Honour replied that the only shred of evidence on that point was that one of the tanks was stowed away in the forepeak.

The jury retired at a quarter past 10 A.M., and at a quarter past 6 P.M. returned into court with a verdict for the plaintiff for £600, allotting £500 to Mrs. Kilpatrick and £100 to the child.

Note.—The compiler of this book takes the present opportunity of publicly thanking Mr. J. Wallace (of Messrs. Gaunson and Wallace) for his kind courtesy in lending a copy of the shorthand notes taken at the trial. These notes—together with the compiler’s own personal observation in court—have enabled a clear, full, and authentic account of this most important shipping case to be now placed before the public.

[Pg 197]

Battling with Waves and Lawyers.

Kilpatrick v. Huddart, Parker and Co. being the first trial of its sort that ever took place in Victoria, much more than ordinary interest was taken in the proceedings. Each day during its progress the court was crowded by people, principally nautical, who apparently gave the case their closest attention. Considering that the eminent Counsel engaged on each side were called upon to use and listen to technical phrases, which they could not possibly know much about, they got on remarkably well, and talked glibly of “port and starboard,” “weather and lee bulwarks,” “scupper holes,” “garboard streaks,” etc. Personally, I spent a good many hours listening to the different opinions given by the various witnesses as they passed through the water[Pg 198] of examination and the fire of cross-examination. Being myself an “old salt” I was amused, if not enlightened, at the familiar jargon, and it did not require a very great stretch of imagination for me to fancy that I was for the nonce back once more amongst the “toilers of the sea.”

At the same time I must confess that I was a good deal astonished at many of the opinions given out from the witness box. These opinions—while strictly upholding the truth of the old adage, “Many men, many minds”—were no doubt well meant, and even if some of them were a little ridiculous, I daresay the various witnesses spoke “according to their lights.” If not considered audacity on my part, I would like to draw attention to a number of these “notions.” For instance, one witness on being asked how he would have blocked the pantry window during the time the water was pouring through it, replied that he would have got “a hammer and chisel and cut a few holes in the iron bulks-head, through which, by means of bolts, he would have fastened an iron plate, making all secure in half an hour.” To have done a job like that when the ship was lying alongside the wharf would have been, in my estimation, a very smart half hour’s work, but to do it when the ship was wallowing in the sea, now rolling to windward, and now on her beam ends, and the decks full of raging water, was simply an utter impossibility. Admitting, which I do not, that the plate could have been put on in half an hour, the ship would have been down before the job was finished! Ergo. It is much easier to do a perilous job in a witness box than have nerve enough to do it on a sinking ship!

Another witness for the defendants said he would have fastened a piece of canvas over the window; while a third, fourth, and fifth stated they would have stopped the water from getting in by means of “a cushion” “a pillow,” or “a bit of anything.” Just so; and this is how these men of imaginary fertile resources throw slush on the memory of Captain Mathieson—as able and tried a seaman as ever walked a plank—as if he,[Pg 199] and those with him, had not done all that men could do under the circumstances. Again, two of the defendants’ witnesses—neither of them a sailor by the way—were of opinion that “by the wind getting underneath the wooden awning when the ship was lying over, it would have a lifting tendency, and, like a sail, would buoy the vessel up.” For the benefit of landsmen, or of those whose knowledge of nautical affairs is only superficial, I may here state that if a main trysail had been set on the ship, it would have had a lifting tendency, because the wind, after striking flatly against the sail, must escape somewhere, and there being considerably more room for escape at the upper part of the sail than at the lower, the wind consequently goes upward, i. e. Above the gaff the wind has boundless space to fly to; while beneath the boom the exit space is confined to the small area between the boom and the ship’s deck. Anyone who has ever been half way out on a ship’s gaff—as I have been many a time—when a trysail was set could not fail to feel the wind blowing him up from below, and pretty strongly too. On the other hand, a ship lying over with a big wooden awning on her poop, the wind, being abeam, would enter on the upper or weather side, and must rush through to leeward or downward, thus having a powerfully depressing effect upon the ship. Further, if the awning happened to be choked to leeward by the sea, the depressing tendency would thereby be rendered all the more acute, by reason of the wind not being able to get out. Even a schoolboy, if he gave the subject the slightest reflection, would be convinced that in this case, as in every other, the wind must follow the dictates of nature, instead of being guided by the theories of non-practical men. Another witness for the defence—who also is not a sailor—averred that “the amount of freeboard a ship has is no proof of her sea-worthiness.” This is true in a sense, for different ships require to be loaded, or trimmed, in different ways. I have been in ships that were at their best when trimmed a few inches by the head, but I never saw, or heard of, a long, small ship—except, of[Pg 200] course, the Alert—that was considered in good trim to go to sea with a freeboard aft of only a few inches, and nearly the whole of her out of the water foreward! I don’t say that it is impossible for a vessel in the last named condition to be sea-worthy, but I do say that I would have to be out at sea with her a few times in a breeze of wind before I believed it. While dealing with weather, I may as well point out that Captain Barrett of the ship Hesperus—although his vessel was not within a hundred miles of where the Alert was—said in his evidence that “it was so bad that he did not think it just to take a pilot for his ship on account of the danger to which he (the pilot) would be exposed in boarding on the afternoon of the Alert’s wreck.” Good, kind, considerate man! he is just the sort of captain I should like to sail with. Then Pilot Mitchell also stated that “the weather was so bad between three and five on the afternoon of 28th December, 1893, that he did not think he would have boarded any ship at that time.” However, just as there are different ways of trimming ships, so there are different ways of getting a pilot on board. As a case in point, I remember on one voyage we were bound to Queenstown (Cork) for orders. While we were still out of sight of land—it being at least a hundred miles off—a pilot boat bore down on us one morning in answer to our signal. A gale of wind was blowing, and a very heavy sea running at the time, so much so that if the “hooker” (a name given to Queenstown pilot boats) had come alongside of us she would have been instantly swamped. To have attempted to lower a small boat, either from our ship or the “hooker,” would have been utter madness, as no boat could have lived in such a sea. After bringing the “hooker” near enough to make a bargain, by word of mouth, as to the cost of taking us into port, one of the pilots sung out for us to heave a deep sea leadline on board of the “hooker.” Our best leadsman threw, after three or four attempts, the line amongst the pilots, and then one of them made the line fast around his waist and jumped overboard, his mates at the same time calling out to us, “Haul away boys!”[Pg 201] Whilst the process of hauling in was going on, we would catch a glimpse of our pilot now on the crest of a wave, floating “like a cork,” and then he would disappear altogether in the trough of the sea. A few minutes sufficed to drag him on board, and his first exclamation as he jumped upon our deck was, “It’s hurdy weather, me boys.” Within a quarter of an hour after coming on board, behold our pilot—with a stiff glass of grog in him and a dry suit of the skipper’s clothes on him—walking the poop and conning the ship as if he had been on board of her for a month! We were safe in the “Cove of Cork” next day, and the entire cost of the job was, as per agreement, £10.

The incident I have just related took place in the month of December, so it will be easily understood that the pilot’s voluntary bath was not a very warm one. Do our Victorian pilots go so far in search of ships, and do they ever board them in the Cork fashion? I trow not. The two systems of pilotage are very different. Here, pilotage is compulsory; that is, the ship must pay for a pilot whether she takes one or not. There, if you don’t take a pilot, you are not required to pay for one. I may be wrong, but I often think that if the Cork system were in vogue here, our pilots would go further to sea in search of ships, and as a natural sequence there would be fewer wrecks strewn along our coast. When I use the term “Cork system,” I refer solely to the voluntary plan and the practice of going over a wider radius in search of ships. The jumping overboard process I don’t advocate, although emergencies may rise sometimes to make even that necessary.

Turning back to the opinions given at the trial, I cannot help taking notice of what Pilot Schutt said in answer to the question as to whether the water getting into the saloon had taken the Alert down stern first? His reply was, “I say no. Supposing forty tons of water were in the saloon, I don’t see that it would take her down, owing to her watertight compartments.” If the saloon had been in the forepart of the Alert, Mr. Schutt’s opinion would have been a correct one. Forty[Pg 202] tons of anything in the other end of the ship would have made a wonderful difference, for the ship would have been more on an even keel, and would have had a better hold of the water with her forefoot. But forty tons placed in the stern of a small vessel, already overladen aft, would certainly sink her even if there were no other causes.

Another witness gave it as his opinion that “beam ends was almost an impossibility. He could not imagine a ship in such a position.” This is simply a landsman’s way of putting it because he gets it into his head that a ship has to be over to an angle of 90 degrees before she is beam ended. Seamen, however, think and say that a ship is on her beam ends when she lies down on her side till her deck assumes an angle of 45 or 50 degrees, and certainly that position is “beam ends” enough to satisfy the most fastidious man on board. When a ship is in the position I have described, it is much more easy to crawl about on the outside of the weather bulwarks, than to crawl about the ship’s deck.

By way of giving a clearer idea of “beam ends,” I may here relate a bit of my own experience. On one occasion I was in a splendid ship called the Mary Ellen, bound from the Clyde to Demerara. By the time we had been a week at sea, we were about 100 miles outside of Cape Clear, on the Irish Coast, and then got caught in a very heavy gale of head wind. For three days we lay hove to under the close reefed main topsail—a position in which some ships will ride comparatively dry, and skim the waves like a seagull—but for some reason or other our ship made what in nautical parlance is termed “very bad weather of it.” Strange as it may seem to landsmen, it is nevertheless true that ships are like men; you have to be acquainted with them for a considerable time, under all sorts of circumstances, before you get to know their good qualities and their bad ones. Experience alone can make you familiar with their little tricks, or ways, and then you are in a position to deal with them accordingly.

The Mary Ellen was a new ship, on her first voyage,[Pg 203] and seeing that she was behaving badly, the captain, after consultation with his officers, determined to try if the ship would ride easier under the lee clew of the main topsail, or “goose wing” as it is sometimes called. When everything was ready to execute the movement, I ran aloft to the maintop, in order to see and keep all the necessary gear running clear. However, before the weather sheet was half hauled up, the ship fell off until she was beam on to the sea and wind. The skipper at once called out, “Get that sheet home again as soon as you can, but meantime look out, men, and hold on for your lives.” On glancing up to windward, I saw a tremendous sea coming down broad on the ship’s beam, its angry looking crest seemed on a level with where I stood in the main top. Along it came, and struck the ship with such force that she heeled clean over, so much so that as I looked down I saw nothing underneath me out of the water except the ship’s weather topside from the bilge to the top-gallant rail. She was literally buried under water, the weight of which caused her to tremble so, that I felt the very mast I was on shiver like a leaf. My first thought was that the ship would never rise, then, as I saw she was making an effort to get up and free herself, it flashed across my mind that if she ever came to the surface again, I would be the only soul left on board! Slowly the good ship began to uprighten, and as she did so I saw here and there beneath me, heads, legs and arms of my shipmates darting out of the water like fish when they are plentiful in a pond.

As soon as she rose we placed a tarpaulin in the mizzen rigging, sheeted the topsail home again, and got the ship up to the wind once more. If another such sea had come along before we got things put right, it would have been a case with the ship and all of us. As it was two men were swept overboard; the lee bulwarks were gone from the poop to the cathead; boats, galley, and almost everything about the decks had disappeared as if they never had been! Two days afterward the gale eased off, and we ran back to Queenstown,[Pg 204] discharged the cargo, and docked the ship for repairs before starting again on our voyage.

In order to show the enormous loss of life amongst seamen in comparison with other trades, or callings, Mr. J. H. Wilson, a member of the House of Commons, has compiled a table from statistics contained in the “Report on the work of the Labour Department of the Board of Trade” and issued on November 28, 1894.

Mr. Wilson’s table embraces a period of ten years, 1883-4 to 1893-4, and is as follows:—

Further, Mr. Wilson estimates that one seventh of the lives lost amongst seamen is due to causes which could not easily be prevented, and that the remainder—18,206 for ten years, or 1862 annually—are lost through preventable causes such as under-manning, incompetent seamen, insufficient stability, want of proper shifting boards, over insurance, reckless navigation, superficial surveying and over loading. The foregoing list, be it remembered, is not ancient history, but is made up to date, so to speak, and during a time when the “Plimsol Shipping Act” was supposed to be in full swing!

It is a common saying that, owing to the great improvements made in connection with modern shipping, the mortality amongst seamen is considerably less now than it was in former years, but the stern logic of facts shows that instead of this being the case, the loss of life is increasing at a fearful rate. On looking back a bit I find, from a perusal of the “British Wreck Register,” that during the thirty years preceding Mr. Wilson’s table (namely 1853 to 1883) there were 21,651 seamen lost by shipwreck, or an average of 721 annually. In other words, the annual loss during the past ten years—1883 to 1893—has been three times as great as the annual loss during the previous thirty years. Surely[Pg 205] this is a startling piece of information, and one well calculated to make a person ask, Is this state of matters due to modern improvements, or is it in spite of them? Speaking as one who has had many years’ experience as a seaman, I have no hesitation in saying that six out of every ten disasters which overtake ships are caused by the foolish practice of hurrying vessels out of port in an unfit condition. Many a time have I seen, and been in, ships sent away from Melbourne and elsewhere with hundreds of tons of cargo on deck. In some instances this cargo was intended to remain on deck, and in others it had to be put below after the ship got to sea. Indeed, in one notable case a royal mail steamer actually took with her, from Melbourne, a number of stevedores men, or lumpers, for the express purpose of stowing the cargo whilst the vessel was on her way to Adelaide. Every now and then the community is startled with the account of some appalling shipping disaster, and, as a rule, the credit of such is given to the Creator by announcing them as “acts of Providence.” In sober truth they are mostly “acts of improvidence,” the blame resting solely with foolish, short-sighted man. A large steamer will come into port to-day, discharge and load cargo all night, and sail next morning on a fresh voyage. “Despatch in port” this is called, but too often it means “danger at sea,” and the sooner ships are compelled to be worked reasonably in port, and out of it, the better it will be for all concerned. While dealing with the “despatch in port” business, I may as well mention another reprehensible practice in connection with it. All, or nearly all, of the steamers trading on the Australian coast are so timed that they sail from the various ports on Fridays and Saturdays, consequently the ships are ploughing the seas on Sundays and earning money for the various shipowners, while they (the owners) good, Christian men no doubt, are quietly sitting, or kneeling, in their pews at church! This system entirely deprives Jack of his day of rest, for it is well-known “there is no Sunday in seven fathoms water.” I admit[Pg 206] it would seem hard to make a law preventing coasting steamers from sailing unless there was reasonable prospect of reaching their destination before Sunday, but it surely is quite as hard on seamen to carry out the practice which prevails at present. I can call it nothing but one of the worst forms of “sweating,” for it “sweats” the ship, the machinery, and the men, and though it seems a money-making plan it tells its own tale, on all three, in the end.

Here in Melbourne we are accustomed to receive homilies from pulpit and press concerning the wickedness of causing railway, tram, and other employès to work on Sunday, but whoever heard of anyone speaking, or writing, on behalf of the seamen engaged in the coasting steamers? As Burns said, “Evil is wrought by want of thought as well as want of heart,” and shore folk, if they think about the subject at all, imagine, when they stroll down among the wharves on Sunday, that because they see no work going on, therefore no Sunday labour is being done! I don’t, for even a moment, say that Melbourne shipowners are any worse than those of any other port, for I have reason to know that almost everywhere Sunday work is winked at. I got what I may term an “eye-opener” when a boy on my first voyage to sea. During the Crimean war, the ship I was in took coals out from Scotland to Constantinople for the Turkish Government. We discharged cargo at the government dockyard, in the Bosphorus, by means of gangs of convicts—who, by the way, were chained in pairs, each two being connected by a ten foot chain which was shackled round one’s right ankle, and the other’s left—working every day, except Friday, which is the Turkish sabbath. On that day our own ship’s crew carried on the discharging, and consequently our cargo was being put out every day in the week without cessation. This system, doubtless, suited our owner’s pocket, and yet allowed those belonging to each religion, Christian and Mahometan, to have their Sunday off!

Mr. Purves, the learned Q. C., in his address on[Pg 207] behalf of the defendants, stated that “Ponting was not the only man who saw the Alert founder. There was another eye-witness whom he (Mr. Purves) would produce to tell the court that he saw the ship overwhelmed with three tremendous seas.” It is almost needless to say that Mr. Purves did not produce this other “eye-witness.” If there was, or is, really another man besides Ponting who saw the Alert go down, why in the name of humanity did he not report the occurrence at the time? Had he done so a number of valuable lives might have been saved, or at least steps might have been taken in the direction of making efforts to save them. The very first intimation, or knowledge, of the wreck of the Alert was received from the lips of Ponting, the sole survivor, as he lay on Sorrento Beach, the day after the ship had gone down, and if any human being on the shore witnessed the accident without drawing public attention to it at the time, I think he, or she, richly deserves to be indicted for manslaughter! True it is that Pilot Mitchell, in his evidence, stated that he “remembered the day the Alert foundered, December 28, 1893, and that the occurrence was reported to him on that date;” but nevertheless I would rather believe that the shorthand writer made a mistake—or the witness himself made a slip of the tongue—than that he (Pilot Mitchell) really meant what he is credited with saying.

A good deal of stress was laid by Mr. Purves on the fact that the Alert was insured, this in itself being, as he said, “a proof of sea-worthiness.” I, however,—who ought to know at least quite as much about ships as Mr. Purves—contend that the fact of a vessel being insured is no more proof of sea-worthiness than the fact of one being uninsured would be proof of her unsea-worthiness. Indeed, many of the finest ships afloat are not insured at all, while some of the worst “coffin” ships that ever left a port are insured “up to the mast-head,” so to speak! This position of affairs need not cause the slightest wonder, for insuring a ship is not like insuring a man. The latter must die, and it is only[Pg 208] a question of time when the insurance company must pay over the money. On the other hand, there is no “must” concerning the fate of a ship. The chances are great that she will be lost, but they are quite as great that she will never be lost. Thousands of ships on which insurance premiums have been paid for years live to be old hulks, and finally get broken up without any responsibility on the part of insurance companies, and thousands of ships go to the bottom, some of them sent there by force of circumstances, and others by man’s cupidity, or stupidity!

Mr. Purves had firmer ground to stand on when he stated that “the Act said nothing about the shape of a ship.” This is true, but I think the day is not far distant when those in authority will pass an act interfering with both the shape and the rig of ships. The terribly increasing loss of life and property at sea is forcing both of these important points into prominence. No further back than February 19, 1895, Mr. Tankerville Chamberlayne, M.P.,—from his place in the House of Commons—asked the President of the Board of Trade “to consider the advisability of recommending, or compelling, shipbuilders to construct steamers with overhanging or raking stems as formerly, inasmuch as in the event of a collision the damage sustained from a vessel so constructed is almost always confined to those parts above the water-line, whereas, with the present ram shaped bows, a ship run into is almost certain to sink.”

While on the subject of collisions I may as well mention that I was lately present at a practical exhibition of an invention which if adopted by shipowners would, I am convinced, reduce the loss of life and property, through collision or leakage, to a minimum. The apparatus is the simplest and most effective I have ever seen. It consists of a double sheet of canvas—the length and width of which to be regulated by the size of the ship carrying it—interlined with strong wooden battens. In the event of a collision, this “apron” (as it is called) has only to be carried by one[Pg 209] or two men, from its place on deck, the upper end made fast to the bulwark above the fracture, and the rest pitched overboard. This done in less than ten seconds the apron will unroll right down,—as far as the keel if necessary—completely cover the hole, make it watertight, and allow permanent repairs to be made from within while the ship proceeds on her voyage to a port! The rapidity and certainty with which the apron flies to the aperture is like magic, and must be seen to be believed by those who do not understand that it simply follows a natural law in being drawn by the suction of the inrushing water. The inventor and patentee, Mr. James Holmes, the Auckland shipbuilder, is now resident in Melbourne, where (as also in Sydney and New Zealand) he has given a number of practical tests in the presence, and with the entire approval, of the highest engineering and nautical authorities. The apron is inexpensive, and should be added by all our Marine Boards to the life saving apparatus which all ships are compelled to carry.

Another source of danger which tends to make ships unsea-worthy is the system of building vessels now-a-days with “well decks.” The proper name for these in my estimation is “ill decks.” “Well decks” are not only weak points in a ship from a structural point of view, but in addition are positively dangerous, inasmuch as they are open to take in, and retain, water. As nobody likes these decks, neither designer, builder, commander, or seaman, it may be asked why ships are built with them? The explanation is simply this: Every ship on entering or clearing out of a port has to pay pilotage, towage, harbour, wharf, and other dues. These dues are, as a rule, calculated on the registered tonnage of the vessel at so much per ton,—in some cases even the number of hands on board is dependent on the tonnage—and where a “well deck” occurs in a ship, being open space, it is not calculated as carrying space in reckoning the ship’s tonnage. Hence two ships might really be of the same size, but if one of them had a “well deck”—or two or three as some ships have—her[Pg 210] registered tonnage would be considerably less than the other vessel whose upper deck was flush fore and aft. At first sight this might seem a very slight difference, not worth mentioning, but when it comes to be remembered that every time a ship goes into a port the allowance, or shortage, for her “well decks” is saved by the owner, and as ships are in and out of port a good many times in the course of their career, the saving soon runs up to a considerable sum of money.

Some of the witnesses examined at the trial stated that there was “no hard and fast rule with regard to the length, breadth, and depth of ships.” While agreeing as to the truth of this statement, I may add that, in my opinion, it is a great pity there is not such a rule to go by so that shipowners could not get a sea-going ship built just whatever shape they pleased. Difference of opinion there may be—and perhaps must be—concerning the exact proportions of a sea-worthy ship; but there can be no difference of opinion regarding certain natural laws; for instance, a pyramid won’t stand upon its apex, and hence ships built on what I may call the “rule of thumb” principle are more apt to be wrong than right. Independently of loading and rig, the longer a ship is, the less her ability to keep out of the trough of the sea; her depth is the measure of her strength to resist a vertical strain, and her breadth of beam is the measure of her strength to stand a side blow. When iron steamers were first built they were constructed about five times as long as they were broad, and about seven times as long as their depth. These were considered safe proportions, but a genius arose who discovered—after studying the twelfth proposition of Euclid’s first book no doubt—that without any other alteration than adding two and a-half breadths to a steamship’s length, she could carry just double the quantity of cargo, while the working expense of the ship was not much increased. This, therefore, is the real reason why steamships are frequently built with their length ten times their width and sixteen times their depth. A few are even worse than this, their depth being only an eighteenth part of[Pg 211] their length! The latter are not worthy of being called ships, they are mere logs from a sea-going point of view! This much may, however, be said, that, in spite of the bad shape of a ship, a great deal, by means of loading and rig, can be done to help a “lame” vessel to behave herself. At the same time the reverse is also true that the best shaped ship ever built can be “crippled” by loading and rig. Any seaman reading this will thoroughly understand what I mean; but as this book is written for both “sea and shore” readers, perhaps, for the benefit of the latter class, I had better explain the apparent paradox, thus: Take a ship, the best and most sea-worthy ever built, load her with a dead cargo, say pig-iron, as much as she can safely carry, stow it fore and aft in the hold as low down as possible, that is, on the ship’s floor or “skin.” Send her to sea, and when she gets into heavy weather she will be so “stiff” that she will strain herself, and shake the masts out of her. On the other hand take a similar ship, put the iron cargo in the tween-decks, that is, the upper hold, and she will be so tender, or “crank,” that in a moderately heavy sea she will roll over and founder. The reasons are simply these: In the instance of the first ship the centre of gravity of the cargo would be too far below the centre of the ship’s displacement, and hence when a wave struck the vessel’s side she would, after heeling over, recover her perpendicular so suddenly that a severe jerk would be the result. The other ship, having the centre of gravity of the cargo too high, would roll too easily and would be so slow in starting to recover herself that her decks would be flooded from the lee side, and if there were places where the water could go below, no human aid or skill could keep her afloat, unless she could at once be brought up head to wind and sea. The latter movement would, of course, be an impossibility in the case of a sailing ship—or a steamer with weakened power—so rigged that she could not set after canvas. Anything beyond smooth water and a light breeze will put a “lame” ship in peril at sea, and little or nothing can be done by the[Pg 212] people on board to help her; but a good, sea-worthy ship, even in very bad weather, may give time for skill and courage to do much. As an instance in point I have much pleasure in relating the following incident:—

In 1890 the ship Enterkin, commanded by Captain James Logan, who, by the way, was a schoolboy with me, and in after years we were both together “before the mast,” was on her passage from England to Melbourne with 2,500 tons of steel rails for the Victorian Government. The ship had got nearly as far along as Cape Leuwin when she experienced a heavy gale which, through bad stowage in port, shifted the cargo and threw the vessel on her beam ends. After some trouble the Enterkin was put round on the other tack, but this did no good for the cargo shifted again, and the ship lay down just as bad on her other side. She was then put away before the wind, and whilst running along in her crippled state Captain Logan, with great presence of mind, caused all the wooden upper spars to be sent down from aloft. These spars, top-gallant and royal masts with their respective yards, were, together with all the spare ones on deck, sawn into short chunks. Watching chances between the rolls these chunks were thrown down the hatchways amongst the rails, and thus the cargo was wedged up enough to enable the ship to run back to Mauritius, where the rails were re-stowed and the Enterkin made all “atanto” again. Afterwards she brought her cargo safely to Melbourne, and loaded up for England. When she reached there the insurance agents were so well pleased at the captain’s conduct that they forwarded a cheque for £300 as a slight token of appreciation. This sum, I may add, Captain Logan divided amongst all hands, from the smallest boy upward, as he considered all were entitled to share as well as himself.

Since writing the former portion, or first edition, of this book, fresh proof has been supplied of the danger incurred by allowing steamships to go to sea, without being sufficiently provided with spars and sails. In February last two of our own coasters, the Gabo and[Pg 213] the Bothwell Castle, broke down at sea, and for days were drifting about unable to make a port. Fortunately it was fine weather, and they both succeeded in getting assistance to tow them in. The steamer Gascogne, which left Havre for New York on January 26 last, had a much more trying time of it. On the third day after leaving port her machinery broke down. It was patched and she went on her way for two days more when a second and more serious break took place. This was also patched up, but in less than twelve hours a third stoppage took place. The engineers worked night and day for ninety-six hours, meanwhile the great ship was wallowing in the heavy sea, and drifting hundreds of miles out of her course. The passengers were battened down below, and all hope was abandoned, as the Gascogne had got far from the track of ships. Finally the engines were started again, and the vessel steamed slowly on, arriving at New York after a fearful passage, which took seventeen days from port to port. The Daily Chronicle, an English newspaper, in commenting on the case, stated: “In steamship circles here the speculations concerning the whereabouts of the Gascogne during the period of anxiety are looked upon as the beginning of a new departure. This feeling applies especially to a scheme for the immediate organisation of ocean-search parties, and the reserve of Government, or other ships at hand to perform this duty. The ports of the world will thus be able to mobilise a flying squadron in the interests of humanity.” This is what I call a mad scheme, very much like sending the blind to look for the blind. The better plan is to either compel steamers to be fitted with twin screws or carry enough sail to give them at least steerage way. Prevention is better than cure in this as in every other matter. The annual marine commerce of the British empire is estimated by competent authorities to amount to £970,000,000. Of this one-seventh (or £138,571,428) belongs to the self-governing colonies. Surely the interests involved in these immense sums demand that all possible means should be used to avoid casualties of every description.

[Pg 214]

The following remarks I quote from the “British Nautical Magazine,” a journal which certainly cannot be accused of pandering to the views of seamen: “In considering the safety of ships, we should not look to their efficiency in fine, or even moderately rough weather, but they should have a fair margin to meet any contingency. Indeed, the whole subject is one which has a right to be judged alone by a very high standard, as its issues are not ordinary commercial ones, but human lives. The question of the freeboard of ships is at once one of the most important, and one of the most complex subjects connected with naval architecture. It is only just to those who have to encounter the dangers of the sea that the vessel in which they sail shall not be loaded beyond the limit of safety, and, on the other hand, the gain of the owner upon his investment may depend upon that limit being reached. There have been, so far, only three principal proposals for fixing the load-line. First, a certain proportion of the depth of hold, three inches to the foot being about the average, i. e., the ship should have a freeboard at least about one-fourth of her depth of hold. Second, one-eighth of the beam is the minimum freeboard for ships whose length is not more than five times their breadth, and ¹/₃₂ of the beam should further be added to the freeboard for each additional breadth—beyond the five times—in the length of the ship, Third, the actual buoyancy of every ship should be calculated, and a percentage of the whole (say 30 per cent.) kept above the load-line, as reserve, or surplus buoyancy. In calculating the buoyancy of a ship, the measurements should be from the underneath side of the cargo deck—add to this the capacity of watertight erections above the deck—and thus the whole cubic content is ascertained. Allowing thirty-five cubic feet to the ton (since a ton of sea-water occupies about thirty-five cubic feet of space) the total capacity of the ship is arrived at, and 30 per cent. of the whole amount should be kept above water as spare buoyancy in an ordinary ship loaded with a general cargo. Were a cargo of less[Pg 215] specific gravity than water carried, little or no spare buoyancy would be required, but a maximum would be needed in the case of a heavy cargo where there is necessarily much empty space capable of being rapidly filled by water in the event of a leak. Freeboard has a good deal to do with the stability of a ship, and there is, probably, no department of science of which so many false notions are current, and none in which the terms employed have been so often misunderstood and misapplied. The terms stability and steadiness are popularly looked upon as synonymous, although they really have, in connection with this subject, widely different meanings, so diverse, indeed, that the presence of one in excess implies a want of the other. The word metacentre, too, has proved a stumbling-block to many people, and it is a very common error to suppose that it is the point about which the ship rolls. So far from this being the case, that a ship really does not roll about any fixed axis whatever, it is only in scientific language that she can be said to roll about an axis at all, the axis being an instantaneous one, that is, one which is constantly changing. In the case of ships whose cargoes are badly stowed, so that as the ship rolls the cargo shifts, stability, or righting force, is largely diminished, and there is thus little or no tendency to return to the upright, the ship rolling, as it were, lifelessly about at the mercy of the waves. Water-logged ships afford another illustration of the same state of things, but in these cases the evil is aggravated, as the water moves so freely that a momentum is acquired which holds the ship back even when the waves have a tendency to restore her to the upright. We are not in a position to estimate the proportion of losses at sea which are caused by bad stowage; it is, without doubt, considerable, and when we remember how comparatively small a difference in the disposition of the cargo will affect the behaviour of the ship at sea, we are inclined to think that as many losses may be put down to this cause as to overloading. We must not be understood now to refer to loose, imperfect stowage, though that is[Pg 216] the cause of great evil, but to improper disposition of the weight. This can only be remedied by the more general diffusion and appreciation of scientific knowledge; ignorance and carelessness, not greed, are the chief causes of mischief in these cases. So far as the question of stability is concerned, steamers require less freeboard than sailing ships; strong ships less than weak ones, and it is even possible to have a prescribed freeboard, according to rule, and yet such conditions of stowage that the ship would be safer if immersed deeper.”

One of the witnesses for the defence stated that the Alert’s displacement, with everything on board except cargo, was 312 tons, and that her surplus buoyancy was 400 tons. Assuming this statement as correct, then by adding 44 tons—the weight of the cargo said to have been on board during the fatal voyage—I find the total displacement to have been 356 tons. This leaves the surplus buoyancy to be exactly 100 per cent. or half of the whole. If this were really the case, and in addition the ship trimmed heavily by the stern, need there be any wonder why, when the ship rolled her lee bulwarks under water, she was unable to rise to an upright position?

APPLICATION FOR A NEW TRIAL.

The hearing of Messrs. Huddart, Parker and Co.’s appeal commenced on Wednesday, May 8, 1895, in the Supreme Court, Melbourne, before the full court consisting of Chief Justice Madden, Mr. Justice Hodges, and Mr. Justice Hood. The Attorney-General (Mr. Isaacs), Mr. Purves, and Mr. Coldham (instructed by Messrs. Malleson, England, and Stewart) appeared for the defendants in support of the application, and Mr. C.[Pg 217] A. Smyth, Mr. Box, and Mr. Williams, for the plaintiff to oppose it.

Mr. Isaacs, at great length, read over portions of the evidence given before Mr. Justice Williams during the previous trial, and concluded by strongly urging that a new trial should be granted on the grounds, first of misdirection by the judge; and second, of the jury’s verdict being given against the weight of evidence.

Mr. Smyth, Mr. Box, and Mr. Williams, also at great length, read over portions of the evidence, and contended that the judge’s direction to the jury was a fair one, and the jury’s verdict a just one which should not be disturbed.

During the course of arguing the various items, the Chief Justice pointed out that “the effect of a second mast on the Alert would have been to weigh the stern of the vessel down still more than it was down.”

Mr. Smyth: It would have assisted in getting the vessel up to the wind.

Chief Justice Madden: I cannot see how much better off the vessel would be had there been another mast, except that with a sail on it, perhaps the steamer might have been steadied.

Mr. Justice Hood: No doubt had there been another mast, persons would have come forward and said that was the cause of the disaster.

Chief Justice Madden: When persons are in misfortune, generous people come forward and find ingenious reasons. The first thing a captain would do, if there were a second mast with a sail up, would probably be to strip it off like a shot.

Mr. Smyth: Many of the numerous experts were of opinion that a sail aft would have been not only useful, but actually necessary.

Chief Justice Madden: These witnesses wished, in a generous impulse, to make the best argument they could. The generous impulses which were usually exhibited were attachable in an enlarged degree to sailors. I think the man would be a wicked one who,[Pg 218] knowing the unsea-worthy condition of a vessel, did not report it to the proper authorities.

Mr. Justice Hood: What do you say that the owners ought to have done that they did not do?

Mr. Smyth: The Act says the owner is to take all reasonable means to ensure the sea-worthiness of the vessel.

Mr. Justice Hodges: What would be reasonable means?

Mr. Smyth: One reasonable thing would be to see that there was protection for the pantry window.

Mr. Justice Hood: Take some other steamer, the Despatch for instance. What should the owners do to find out whether she was sea-worthy?

Mr. Smyth: I cannot say exactly. They run the risk.

Mr. Justice Hodges: They run the risk of being considered unreasonable whatever they do.

Mr. Smyth: In addition to the question of the Alert’s sea-worthiness there was the condition of the cargo.

Mr. Justice Hood: But the certificate is that she is fit to go to sea without any cargo.

Mr. Smyth: Nevertheless judgment should be exercised in loading the ship so that she would occupy a proper position in the water.

Mr. Justice Hood: If your contention is correct, the certificate should state that the vessel was sea-worthy so long as she was loaded in a particular way. Was there any witness who said that, assuming the vessel was sea-worthy, the loading rendered her unfit for sea?

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.

[Pg 219]

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?

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[Pg 220] 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.

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.

[Pg 221]

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[Pg 222] 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[Pg 223] 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[Pg 224] 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[Pg 225] 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[Pg 226] 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.

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:—

The following are extracts from a bitter letter of Captain McDonald’s which appeared in the Argus newspaper of February 20, 1871:—

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[Pg 230] 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,[Pg 231] 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[Pg 232] the provisions of an Act of the Parliament of Victoria rendering persons making a false declaration punishable for wilful and corrupt perjury.” (Signed)

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[Pg 233] 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[Pg 234] 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.

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 [Pg 236]“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[Pg 237] 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:—

And hereby hangs a tale. Here it is: In the matter of the survey of the S.S. Ethiope “I, Robert Barclay, chief engineer of the S.S. Ethiope, solemnly and sincerely declare that we sailed from Melbourne on Sunday, November 17, 1895, bound to London with a cargo of wool and preserved meats. During the passage down Hobson’s Bay my attention was drawn to the fact that there was a leak somewhere in the ship, and by measurement I ascertained there were five feet of water in the bilges. I reported the matter to the captain; then we rigged the pumps and put on the donkey engines to work them. As the state of affairs looked serious, the ship was brought to an anchor inside the Heads on Sunday afternoon. We kept the pumps going all night and next day (Monday), until they became choked with coal-dust. I then advised Captain Miles to return to Melbourne, and have the ship docked and examined. He, the captain, at first was under the impression that it was only the water ballast tank that was leaking, and he demurred to go back with the ship. I was so convinced that the ship was leaking that I told the captain that I declined to risk the men’s lives, and my own, in going to sea before the ship was surveyed. Captain Miles told me that if there was nothing the matter with her, I would have to be responsible for detaining the ship. I undertook the responsibility, and the vessel was accordingly brought back to Williamstown on Tuesday, Nov. 19, 1895. After discharging a portion of the cargo into lighters, the ship was taken into the Graving Dock on Thursday, Nov. 21. One of Lloyd’s surveyors, Mr. Watson (and others, I believe), examined the ship, and reported to the captain, and through him to me, that there was nothing the matter with the vessel, and insinuated that the whole affair was simply a scheme to get the ship’s bottom cleaned, in order to make a[Pg 239] quicker passage, at the expense of the underwriters. It was further stated that I would have to pay all the expense of the survey and delay; that I was an incompetent man, and in all probability my certificate would be taken from me. Being ill and weak—through exposure in the water while previously trying to find the leak when the ship was down the Bay—I was confined to my bed by order of Dr. McLean of Williamstown, who was tending on me. When the survey report and comments were given to me, they did not help to make me feel any better; but ill as I was, I determined that I would search for the leak myself. On Monday morning, Nov. 25, the ship being then painted over and ready to be taken out of dock, I went under the ship’s bottom with a table-knife, and had not searched many minutes until I discovered—about ten feet distant from the place where I suspected the leak—an opening where the plates overlap each other. I inserted the knife, and found that only the handle stopped the blade from going in further. I ran on deck, and came back with a long piece of tin, this I inserted in the seam with the result that it went clear in to a depth of eight inches. Still keeping the tin inserted, I found I could carry it along the edge of the plate for a distance of eighteen inches. I then went and brought Captain Miles down to see for himself. He said he felt very glad that I had discovered the cause of the leak, and desired me to leave the knife and tin sticking in the aperture until he telephoned for the surveyors to come from Melbourne. On being sent for Mr. Watson did not come, but Mr. McLean, the Marine Board Surveyor, came down to Williamstown, and on his arrival he at once acknowledged that the whole mystery had been solved. He thanked me for pointing the matter out, and stated that everything would have to be done to make the ship sea-worthy before she was allowed to proceed to sea.

During the past nineteen years I have been engineer on board some of the largest steamers afloat, and have also superintended the building of a number of these ships, and it is not pleasant, after my experience,[Pg 240] to have my competency questioned in the offensive manner in which it has been. The above statement is, to the best of my belief and knowledge, true in every particular. And I make this solemn declaration, conscientiously believing the same to be true, and by virtue of the provisions of an Act of Parliament of Victoria rendering persons making a false declaration punishable for wilful and corrupt perjury.” Robert Barclay, Chief Engineer. Taken at Williamstown this 29th day of November, 1895, before me, J. A. Reid, J.P.

As a sequel to the foregoing it may not be out of place to give the subjoined extract from the proceedings of the Marine Board, as reported in the Argus of November 30, 1895:—

The Ethiope’s case requires no comment from me. It speaks volumes for itself! And now my self-imposed task is done; and in bidding good-bye to the readers of this little book, I may state that in writing it I have endeavoured to effect a twofold object. Firstly, to aid Robert Ponting, the Alert survivor, in earning a living, and, secondly, to aid in drawing public attention to what I believe to be important matters, affecting not only the safety of ships, but the lives of men. If I succeed in either of these objects, I shall feel that my labour—which to me has been a pleasure—has been put forth [Pg 242]in a good cause. My long experience at, and connection with, the sea have given me at least some little warrant for dealing with subjects relating to seamen and shipping; but whether the ideas I have given expression to will please or not I cannot tell. Under the impression that some good might be done—to use the language of Burns:—

Seamen are not saints by any means, but if there be one class of men beyond another who should, in the exercise of their calling, have things made for them as safe and as comfortable as possible, surely it is those “who go down to the sea in ships.” I use the term “seamen” in its broadest sense, including “skipper” and all, for I am not altogether a believer in the witticism of the Irishman who said, “There’s but one good billet on board of a ship and, be japers, the captain always takes it.” The latter’s position is a responsible one, and his duty, where rightly performed, is by far the most important of any. Various circumstances have caused this book to remain “on the stocks” for a considerable time, and now that I launch it out on the great sea of Public Opinion, I cannot give it a better “send-off” than by heartily re-echoing the prayer of the poet:—

[Pg 243]

Final Battle with the Lawyers.

When I wrote the word “Amen” on the last page of the second edition of this book, I believed that my task had come to an end. Fate, however, has decreed otherwise; and in view of surrounding circumstances it is absolutely necessary that this (the third) edition should be considerably enlarged. Moreover, to have kept silent with regard to the after-transactions—which hinge on the events already related—would have been, in my estimation, a sort of moral cowardice, displaying a lack of duty to my readers, and also to myself as a faithful chronicler. Having given the above brief remarks by way of preliminary, I now proceed to relate the incidents in the order in which they took place.

Mr. Robert Ponting sued Messrs. Huddart, Parker & Co., shipowners, for £500 as damages for loss of health and property caused by, as alleged, the sinking of the S.S. Alert through unsea-worthiness; and on July 26,[Pg 244] 1896, law proceedings were commenced in the County Court, Melbourne, before Judge Chomley and a jury of four. Mr. J. Ebsworth, solicitor, conducted the case for the plaintiff, and Messrs. Coldham and Schutt, barristers (instructed by Messrs. Malleson, England & Stewart, solicitors), acted on behalf of the defendants. The trial lasted four or five days, and the evidence on both sides was almost a repetition of that given in the two previous trials of “Kilpatrick v. Huddart, Parker & Co.” At the close of the case on Monday, August 3, the jury brought in a verdict in favour of defendants, and accordingly judgment (with costs) was entered against Ponting. In all probability the case would have ended here but for a singular circumstance which ultimately completely altered the position of affairs. It came about thus: I (the present writer) took a good deal of interest in the case and attended the court daily. During the address of Mr. Coldham to the jury—on the Friday prior to the conclusion of the trial—I heard one of the jurymen (McGregor) call out to Mr. Coldham these words, “Your argument is absurd.” I know not whether the judge heard the remark. I only know that he did not rebuke the juryman. After adjourning the case till the ensuing Monday the Court rose, and as I passed out of one of the Little Bourke Street entrances I heard Mr. Coldham remark to Mr. Stewart, as they left the doorway, “I promised to meet him (or them) at Menzies’.” No attention was paid by me to what I deemed a casual remark until a few minutes afterwards, when an acquaintance said to me, “If you want to see Huddart Parker’s barrister and solicitor talking to the jury, just go into the bar of Menzies’ Hotel.”

Though believing my friend had made a mistake, I, out of curiosity, went into Menzies’ bar, and there saw, sure enough, Messrs. Coldham and Stewart and three of the jurymen (including McGregor) drinking, smoking, and talking together in the most friendly manner, so far as appearances went. The matter seemed so incredible that I, on reflection, deemed it best to go and bring in some person, as a witness, to the bar. Accordingly I went out, and happening to meet Mr. Ebsworth (solicitor for Ponting) on the street, I[Pg 245] succeeded in getting him, somewhat reluctantly, to go with me to the bar. It is almost needless to add that, the moment the five gentlemen saw Mr. Ebsworth, they did not wait for a ceremonious introduction; but, on the contrary, took a hasty departure at once. Immediately after their disappearance I asked Mr. Ebsworth, “What are you going to do about this affair?” “Oh,” he replied. “I can do nothing. Mr. Coldham is at the top of the profession; I am only, so to speak, a new beginner, and it would be against professional etiquette for me to take any notice of these people having a drink together.” To this I rejoined, “And so, rather than break through ‘professional etiquette,’ you would stand by and see your client, Ponting, suffer an injustice. If this be the view you take of what I call a serious matter, I may as well tell you what I will do. In the event of this jury bringing in a verdict in favour of the defendants, and of your drawing no attention to what you, as well as myself, have seen, I will, in the public press, expose the whole affair, including the conversation I have had with you on the subject.” This had the desired effect; and when the jury brought in their verdict against Ponting—as before related—Mr. Ebsworth ventured to draw the Judge’s attention to the hotel bar proceedings. Judge Chomley, however, “pooh-poohed” the incident, and remarked that “in all probability the gentlemen concerned had met by chance in a public bar, and were only taking a friendly glass together.” Nevertheless, he added that if affidavits were brought to him showing that serious wrong had been done, he, the Judge, would consider the matter, and give a decision at a future time. Affidavits were taken by myself and others detailing the whole of the circumstances, and these sworn statements were considered by Judge Chomley about six weeks after the trial; but he saw nothing serious in them, and finally refused to grant a new trial. Notice of appeal to the Supreme Court was at once given by Mr. Ebsworth; but, notwithstanding this notice, a demand for costs was served on Ponting, and because it was returned unsatisfied, the defendants’ lawyers applied for, and obtained, an order nisi to make Ponting compulsorily insolvent. Mr. Justice Hood, however, refused to[Pg 246] make the order absolute until after the appeal case had been heard.

Matters remained in this state of suspension till March 3, 1897, when the hearing of the case commenced. The following is an abridged report, culled from the columns of the Melbourne Age of March 4 and 6:—

LAWYERS AND JURORS—THE PONTING APPEAL CASE.

Conduct of Counsel and Solicitor
“Highly Indiscreet and Imprudent.”
Majority of the Court favour a New Trial.

The Full Court, consisting of Mr. Justice Williams, Mr. Justice Holroyd, and Mr. Justice A’Beckett, yesterday commenced the hearing of an appeal by the plaintiff in the suit of Ponting v. Huddart, Parker & Co., Limited, against a decision by Judge Chomley refusing to grant a new trial of the action. The first ground of the appeal was that the jury, or some of them, did not act fairly and impartially; but were biassed or influenced by reason of the fact that they, or the majority of them, had had conversations with defendants’ senior counsel, Mr. W. T. Coldham, and the defendants’ solicitor, Mr. Gordon R. Stewart, with reference to the action and the matters in dispute therein. That three of the said jury were for a period of at least fifteen minutes drinking and smoking with defendants’ senior counsel and solicitor at the bar of Menzies’ Hotel, and conversing with them with reference to this action, such interview having been made by arrangement and appointment. That a written communication passed between one of the jury (McGregor) and Mr. Coldham, and the contents thereof were discussed at the Law Courts, and afterwards at Menzies’ Hotel, such communication having reference to a point in connection with the action, as to which McGregor had from the jury-box expressed himself as being unfavourable to defendant. That the learned Judge exercised a wrong discretion in refusing to grant a new trial on[Pg 247] facts as detailed and set forth in the several affidavits filed in support of and in opposition to the summons. The other ground on which the appeal was based was that certain documents were improperly admitted as evidence at the trial.

Mr. Leon, instructed by Messrs. Ebsworth & Wilson, appeared for the appellant plaintiff; and Mr. Box, Mr. Coldham, and Mr. Schutt, instructed by Messrs. Malleson, England & Stewart, for the respondent defendant. It will be remembered that in July last Ponting, the sole survivor of the wreck of the Alert, brought an action against the owners of the vessel, Messrs. Huddart, Parker & Co., Limited, to recover damages for injuries sustained by him as the result of the disaster. The case was tried before Judge Chomley and a jury of four, and resulted in a verdict for defendants. On August 20 last plaintiff applied for a new trial on grounds similar to those of the present appeal, but his summons was dismissed with costs.

Mr. Leon, in support of the first ground of appeal, read the affidavits that were used at the application for a new trial made to Judge Chomley, full particulars of which have already been published. The effect of the affidavits made on behalf of the plaintiff was that on July 31, while Mr. Ebsworth, in the course of his address to the jury, paused for a moment to look at some documents before him, Mr. Coldham came into court, leant on the railing of the steps leading to the jury-box, and smiled and winked at the jury. Mr. Mitchell, one of the jurors, gave him a significant glance, and smiled in return. Immediately after the Court adjournment, at 4 o’clock, and while the case was still part heard, Mr. Coldham was heard to say to Mr. G. R. Stewart, “I have promised to meet them at Menzies’ Hotel,” and about the same time was seen to run, with his wig and gown on, towards Goldsbrough’s Lane. He called out to a juryman, Mr. McGregor, “Don’t go away, McGregor, I want to see you. I will meet you at Menzies’.” About 4.20 p. m. the foreman, Mr. Hopkins, and Messrs. Mitchell and McGregor, two other jurors, were seen standing before the bar at Menzies’ Hotel with Messrs. Coldham and Stewart, talking earnestly and drinking and smoking. It[Pg 248] was also said that as the jurymen left the box on the afternoon in question, one of them (McGregor) handed Mr. Coldham a written communication. In answer to these allegations affidavits were filed denying that Mr. Coldham told Mr. Stewart that he had “promised to meet them,” or that he had said anything to that effect. While standing at the barristers’ table immediately after the adjournment, Mr. Coldham was handed a piece of blotting-paper, on which was a sketch and figures relating to the Alert’s funnel, concerning which the juryman McGregor had spoken in the box while the case was proceeding. He ran after McGregor to give it to him back, and on meeting him accidentally at Menzies’ handed it to him, saying, “Here is your beautiful production.” He, with Mr. Stewart, then accepted McGregor’s invitation to have a drink. Nothing whatever was said about the case, and the allegation that counsel winked at the jury was false, and a grotesque invention.

Mr. Box said the whole point of this matter was whether there was any pre-arranged meeting at Menzies’. His client said there was no pre-arrangement, and that the meeting was purely accidental. Who cared twopence about a glass of wine?

Mr. Justice Williams: I would say it was very imprudent, to say the least of it, of counsel and solicitor, to go drinking with three of the jury during the hearing of the case.

Mr. Box: Whether they had a drink or not, it was not by pre-arrangement. Mr. Coldham swears that he made no such statement as that alleged relative to a promise to meet any of the jurymen.

Mr. Leon said he did not care whether there was a conflict of evidence on that point or not. He did not rely on that. In his opinion Mr. Coldham supported Mr. Reid’s statement, because he said in his affidavit that he called out to McGregor that he wanted to see him. The main feature of this affair was the agreement of all the deponents, and the admission by Mr. Coldham and Mr. Stewart that they were drinking with three jurymen in the bar of an hotel before the case had been concluded. He had not got to prove that there was actual impropriety, but there could[Pg 249] be no doubt about the principle that even the appearance of wrong-doing must not be shown in the administration of justice. In the first place, it was a gross impropriety on the part of these three jurymen to drink and smoke and converse in a public bar with counsel and solicitor for one of the parties in a case being heard by them. It was very improper for counsel and solicitor to be seen with members of the jury in a public bar in the presence of people who knew that litigation was going on, and that the judges of the facts in that litigation and the advocates for one of the parties to that litigation were “hobnobbing” together. He had no hesitation in saying it was most indiscreet and improper, and if there was the appearance of impropriety in connection with the case the trial must be void. The public must feel satisfied and rest content in their minds that not even the shadow of suspicion could be cast on the administration of justice. That principle had been laid down by the Court, and such being so, this occurrence was such an impropriety as would vitiate the proceedings. It was admitted that the juryman McGregor was a friend of Mr. Coldham’s, and had passed him a paper relating to the case.

Mr. Box: In open court.

Mr. Leon did not care whether it was in open court or not. It was a most improper thing to do. Communications had no right to be passed between the judge of the facts of the case and the advocates of one of the parties in the case. Nothing of that kind could be tolerated, because people would say, and be justified in saying, there was a very fine understanding between defendants’ counsel in the case and that juryman; that they seemed to be on excellent terms with each other. To allow such a thing to pass would be intolerable, and bring the administration of justice into contempt, The principle for which he contended had been laid down by Mr. Justice Hood in a considered judgment.

Mr. Schutt said that before the Court proceeded to deliver judgment on the first ground of appeal, he would like it to consider a point of law raised as a defence at the trial of the action in the lower Court, but not then argued, as the jury found in defendants’ favour. He believed the[Pg 250] point was absolutely fatal to plaintiff’s case, and even if the Court were of opinion that a new trial should be granted, it would be useless in the face of this point to order a new trial to go on.

Mr. Justice Williams said the Court would deliver judgment, and the point could be argued after.

Mr. Justice A’Beckett said he had the misfortune to differ from his learned brothers as to the course which should be taken with regard to this appeal. The ground on which he thought a new trial should not be ordered, was that beyond all question it would inflict a great hardship on the defendants, who had succeeded in the action, and who were in no way to blame for the indiscretion which had occurred. He thought the duty of the Court in dealing with litigation between the parties was to do justice between the plaintiff and defendants, and not to make an order subjecting to injustice one of those parties in vindication of a principle, unless it was absolutely necessary that they should proceed to that vindication; nor should they make it for the mere purpose of marking strongly their disapproval of that which had occurred. Viewing the case in that aspect, it appeared to be that they were not called upon to vindicate any principle, or to express their disapprobation of what had occurred (disapprobation that both sides admitted must be expressed), in a way which would produce the very serious results that would follow the granting of a new trial. What occurred was done openly, and, as Judge Chomley had said, it was the very last mode of approaching a jury improperly that any man in his sober senses—in his “glass of wine” senses—would attempt. The evidence did not show that there was the slightest attempt made to influence the jury, and when it was known what really occurred, he did not think the conduct would convey to a rational mind any cause for suspicion. The drinking of this glass of wine at the invitation of one of the jurymen was a matter which people might observe upon. They might say it did not look well to see counsel treated by that juryman. He thought that observation would be quite right; it was conduct which the Court would not sanction or countenance, and if the Court had called upon those engaged in this matter for an[Pg 251] explanation, it would express its disapprobation and make them pay. But he did not think they should go beyond that, particularly as the judge who tried the case thought it was not a matter in which it would be right to order a new trial. Being convinced that the jury were not influenced, and that the fact that counsel and solicitor had accepted sixpennyworth of hospitality from one of the jurymen would not induce anyone to suppose they would be influenced, he thought this new trial should not be granted. The impropriety, such as it was, did not require such an expression of disapprobation by this Court as would be expressed by granting a new trial.

Mr. Justice Williams thought there should be a new trial. It was said that they should not grant a new trial, because their so doing would be a hardship upon the defendant. That such was not an objection to the granting of a new trial was decided by authority. In the case of Costa v. Merest (3 B. and B., 272), some one, a stranger to both the parties, circulated in the Court handbills reflecting on the plaintiff’s character. Defendant was absolutely innocent of any connection with the distribution of these handbills, and the Court that heard the application for a new trial assumed that the jury had not been unduly influenced. But, taking the defendant’s statement as true, the Court made the rule absolute for a new trial. If any case would be a hardship on a defendant he thought that would have been. There was a defendant entirely innocent, yet because it might be alleged with reasonable suspicion or belief that the administration of justice had been influenced by the distribution of the handbills, the Court on that ground granted a new trial. In this case, so far as the question of hardship was concerned—with which he thought they had nothing to do—the defendant was not so entirely innocent. The parties to litigation lost their personality in their counsel and solicitor, and the persons who did these acts which gave rise to reasonable suspicion in the minds of plaintiff and others who witnessed them, were the defendants’ own counsel and legal adviser. Therefore, in the circumstances, he did not think the argument of hardship applied. Then it was said the learned Judge of the County Court had[Pg 252] already decided the matter of this application; that in the exercise of his discretion he refused a new trial. In his opinion, however, the learned Judge had not dealt with the application on the grounds upon which it now came before the Court on appeal. He had apparently gone on the aspect of what was the intention of the defendants’ solicitor and counsel, whether they were actuated by any corrupt motive, and whether the jury were in point of fact influenced by what they did. Those were the grounds on which Judge Chomley dealt with the case; and, speaking for himself, he did not differ from the view taken by the learned Judge on that aspect. The principle upon which the Court should exercise its discretionary power in granting a new trial on an application of this kind was, that if from the acts of the jury or the legal advisers of one of the parties in connection with the jury, there were reasonable grounds for suspicion that the administration of justice was being improperly influenced, the Court should, in order to preserve the administration of justice from that stain or taint, grant a new trial. It appeared to have been established on authority that where acts had been committed such as to give reasonable ground for suspicion, in the minds of the litigating party and his advisers or the public, that there had been an attempt to bias and influence the proper administration of justice, the Court, for the purpose of placing the administration of justice as far as possible above reasonable suspicion, would grant a new trial. Another case had been cited (Hughes v. Budds, 4 Jurist, p. 156), where some of the jury managed to get out of their room on more than one occasion while considering their verdict, and two of them went to an hotel, where they were seen drinking beer and eating bread and cheese in the company of the plaintiff’s attorney. The Court there held that these were acts of impropriety on the part of the jury sufficient to awaken a reasonable suspicion that the administration of justice had been tampered with. In the Victorian Court the same principle seemed to be observed, according to decisions by Mr. Justice Hood and the Chief Justice. He accepted every word of Mr. Coldham’s affidavit, and from the undisputed facts it was apparent that he knew the juryman (McGregor) before. This was all the more reason[Pg 253] why he should have kept him at arm’s length. It appeared that McGregor handed Mr. Coldham a piece of paper just as the Court had adjourned. That fact alone would be calculated to excite suspicion. The learned counsel thoughtlessly and indiscreetly took this piece of paper, and looked at it, when his proper course would have been to hand it back at once, and say to the juryman, “You must not communicate with me.” This piece of paper contained, in the shape of a drawing, the juryman’s views on the construction of a portion of the vessel. That was an improper act. Mr. Coldham ran out into the street, and called out that it was of no use to him. Getting as a response “That’s all right,” he shouted out that he intended to take it down to him. Learned counsel could not remember whether he said “at Menzies’ Hotel,” but what was present in his mind was that he would bring it to the Menzies’. Therefore, he must have known the juryman was going there. He did meet the juryman there, and together with the defendants’ solicitor had a drink with him after handing the paper back. Such conduct on the part of both the counsel and the solicitor was highly indiscreet and highly imprudent, or, as Mr. Box admitted, “heedlessly indiscreet.” Coming back to the principle he had enunciated, what would these undisputed facts give rise to in the minds of the plaintiff and the public generally? They would naturally give rise to the suspicion that plaintiff’s case, so far as the administration of justice was concerned, was not receiving fair play. He would go further and say that the facts would reasonably give rise to the suspicion that there was some underhand work going on which was calculated to influence the jury in favour of the defendant. Upon that ground, and acting on the principle he had referred to, he thought there should be a new trial, and in coming to that conclusion he did not think it was in the slightest degree contrary to that on which Judge Chomley relied. Upon these grounds, and the principle he had named, and with the view of keeping the administration of justice free from reasonable suspicion or taint, he thought this Court was acting wisely, if he might say so, in following authorities, both ancient and modern, and saying that there should be a new trial.

[Pg 254]

Mr. Justice Holroyd said he concurred with his learned brother, Williams. He considered Mr. Coldham’s affidavit, on the very face of it, bore the stamp of truth; but he felt that he was absolutely constrained, by authority, to arrive at the same conclusion as his brother, Williams. He would be directly contravening English decisions, and decisions of this Court, if he were to decide otherwise. No doubt it was a great hardship to the defendant that he should lose the fruits of his victory because of an indiscretion upon the part of jurymen or his counsel or solicitor. At the same time that was a necessary condition of the relationship which existed between counsel and solicitor and client. Some people, not familiar with the great caution that both bench and bar, he believed, exercised in maintaining the pure administration of justice, might fancy that the Court in coming to this decision suspected some foul play. Speaking for himself—the other members of the Bench had spoken for themselves—he suspected none, but he cordially agreed that the administration of justice must be free from suspicion. Therefore he concurred in the judgment pronounced by his brother, Williams.

Mr. Leon: Then your Honour will make an order allowing the appeal, with costs?

Mr. Justice Williams: Before doing so we will hear what Mr. Schutt’s law point is.

Mr. Leon said he was not instructed as to the point, and the Court, therefore, adjourned the case until Thursday next, the understanding being that subject to the point of law involved a new trial should be ordered.

The Menzies’ Hotel incident, as a matter of course, created a good deal of stir in the Melbourne Press. It is impossible in these pages to give all the comments; but the following well-argued article front the leading columns of The Age of March 10, 1897, is worth quoting:—

“‘A highly indiscreet and highly imprudent act’ on the part of Mr. Coldham, the barrister, has involved Messrs. Huddart, Parker. & Co., and Mr. Ponting, in pretty stiff law costs. So says Mr. Justice Williams; and Mr. Justice Holroyd adds his verdict that this is ‘a necessary condition[Pg 255] of the relationship between counsel and client.’ If counsel blunder clients necessarily suffer, while the advocates may reap advantages from their own mistakes. This is one of the delightful aspects of the administration of the law, as distinguished from every other kind of profession. The ship captain who commits a ‘highly indiscreet and highly imprudent act’ runs the risk of being disrated for his rashness or carelessness. The surgeon who carves his patient like a butcher may be sued for improper and unskilful treatment, and if unsuccessful in his defence loses cash and credit at the same time. The carpenter or plumber who builds unskilfully must repair the damages of his default. But the lawyer who gives unsound advice, or conducts his case with imprudence and indiscretion, may simply shunt the consequences on to his client, and is as merry as before.

“Mr. Coldham’s case necessarily raises the question of what ought to be a lawyer’s responsibility in the management of his client’s concerns. Mr. Ponting, the sole survivor from the wreck of the Alert, sued the owners of that steamer for damages. The case was tried in the County Court before a judge and jury. Mr. Coldham acted as counsel for the defendant shipowners. One of the jury, a man named McGregor, was a personal acquaintance of the barrister. During the progress of the trial, according to one set of affidavits, certain winks and nods and smiles and by-play were indulged in between counsel and this juryman. Mr. Coldham denies the winking part of the business. However, there is something that he does not deny. This juryman of his acquaintance handed to him during the trial a private paper connected with the case, and subsequently he met his friend at an hotel bar, and had some drink and talk with him. This almost inevitably gave rise to the suspicion that the jury had been improperly influenced. A new trial was applied for, principally on that ground; and though Judge Chomley refused to grant it, and sustained the jury’s verdict, the Full Court judges have done otherwise, on the ground of the ‘highly indiscreet and highly improper’ conduct of Mr. Coldham.

“To the man of law the interest that centres in this case[Pg 256] will be the grounds on which the judges differed from each other. To the ordinary citizen it will rather lie in the fact that the verdict of the Court mulcts the client for the lapse of the lawyer. Mr. Justice Chomley refused to disturb the jury’s verdict on the ground that, though Mr. Coldham’s conduct had been wrong, it had not corruptly influenced the jury’s minds. Mr. A’Beckett held the same opinion. Mr. Coldham, he holds, had done an exceedingly foolish act in hobnobbing with jurymen in an hotel bar during the progress of the trial. He said ‘it was conduct which the Court would not sanction or countenance; and if the Court had called upon those engaged in this matter, it would express its disapprobation and make them pay.’ But as the conduct in question was not corrupt, he refused to inflict the hardship of a new trial on Messrs. Huddart, Parker & Co. That is one view of the case. Justices Williams and Holroyd take quite another. They hold that Mr. Coldham’s acts gave rise to reasonable suspicions in the minds of onlookers. They no more say that the barrister acted corruptly than do the other judges, but they are clear that his conduct was such that any reasonable man might have entertained from it a suspicion of corruption. Mr. Justice Williams says that it was apparent that he knew the juryman (McGregor) before. This was all the more reason why he should have kept him at arm’s length. It appeared that McGregor handed Mr. Coldham a piece of paper just as the Court had adjourned. That fact alone would be calculated to excite suspicion. The learned counsel thoughtlessly and indiscreetly took this piece of paper, and looked at it, when his proper course would have been to hand it back at once, and say to the juryman, “You must not communicate with me.” This piece of paper contained, in the shape of a drawing, the juryman’s views on the construction of a portion of the vessel. That was an improper act. Mr. Coldham ran out into the street, and called out that it was of no use to him. Getting as a response “That’s all right,” he shouted out that he intended to take it down to him. Learned counsel could not remember whether he said “at Menzies’ Hotel,” but what was present in his mind was that he would bring it to[Pg 257] Menzies’. Therefore, he must have known the juryman was going there. He did meet the juryman there, and together with the defendants’ solicitor had a drink with him after handing the paper back. Such conduct on the part of both the counsel and the solicitor was highly indiscreet and highly imprudent, or, as Mr. Box admitted, “heedlessly indiscreet.”

“On these grounds Justices Williams and Holroyd have upset the jury’s verdict, and granted a new trial. There were other reasons alleged, and there may possibly have been other reasons in the minds of the judges. The Ponting trial is almost precisely on the same lines as three or four previous trials arising out of the same wreck. The widow of a drowned sailor named Kilpatrick sued the owners of the Alert, and got a verdict in two separate actions, on the ground of the vessel’s unsea-worthiness. On an appeal to the Full Court she was again successful, and the action was then carried to the Privy Council, where it now remains. Ponting’s case came before a County Court jury, and was dismissed. This might possibly have supplied an additional ground for suspicion that the jury had been improperly influenced. That suspicion may be ever so ill-founded; but there it was, and there it is. Mr. Coldham’s imprudence caused a miscarriage of justice, and a wrong to both the parties to the trial. The point of immediate interest to the litigating public is as to whether in a case like this the innocent client ought to pay, and the inculpated practitioner escape. Clearly, says Mr. Justice A’Beckett, the Court has power in cases like this ‘to make the lawyer pay.’ And we know this from the action of the Chief Justice on June 28, 1894, when he dismissed a jury in a part-heard case because Mr. Field Barrett, solicitor, had been seen speaking to one of the jurymen. The Chief Justice said that if he discovered the expenses of the Crown in the suit he would order Mr. Barrett to pay them. The excuse put forward that Mr. Barrett was a personal friend of one of the jury was declared by the Chief Justice to be an additional reason for ‘keeping him at arm’s length.’ Mr. Coldham could not have been ignorant of this case nor of the strict rule[Pg 258] from which it had its rise. He therefore offended with open eyes against one of the canons of justice. The argument arising out of this act ought to have a strictly impersonal, and not a personal, bearing. It is that when an officer of the Court commits an improper and unprofessional act which entails cost on the public at large as well as on the litigants in the trial, he should be the chief sufferer, and not go scathless whilst others carry the burdens of his culpability. It is all very well to be tender of Mr. Coldham’s feelings; but the ordinary ethics of daily life demand that every wrong-doer ought as far as possible to bear the penalty of his own wrong, and it seems something like an outrage on equity if a lawyer is to be permitted to commit ‘improper’ acts against the dignity and sacredness of justice, and then lightly throw the penalty on others.”

Notwithstanding the seriousness of the “Bar” episode, there was a good deal of the comic element involved in it, and therefore the journal (quoted below), which is edited and conducted by and for barristers, evidently for once at least, carried out Pope’s advice:—

JURISPRUDENCE IN MELBOURNE.

Concerning the fact of the barrister and the solicitor for the defendants having been seen drinking in an hotel bar with the jurymen during the progress of a County Court case, the following comments appeared as a leading article in The Australian Law Times of March 20, 1897:—

“A Question of Propriety.

“Ponting v. Huddart, Parker & Company.

“When Ponting, the plaintiff, escaped from his watery grave when the S.S. Alert foundered so suddenly, and was [Pg 261]cast upon the back beach at Sorrento, he, no doubt, thought himself a fortunate man. Most solitary survivors from wrecks would so think themselves, and would settle down to a quiet life. Not so Ponting. He started to voyage on a sea hitherto unknown to him—bestrewn with far more wreckage than sweeps to and fro in the cross seas that wash our southern coast. Ponting went to law and sued his owners for damages. Now, law in the Supreme Court is not always without its risks, but law in the County Court and before a jury is never without its perils. We all know the result—verdict for the defendants. Of course, in a case of this kind there was the inevitable new trial application, and that unsuccessful, the still less inevitable (to use the phrase) appeal. And all because the counsel for the defendants was observed, after winking at the jury—in itself a venial offence—to go across to Menzies’ Hotel during an adjournment and have a ‘glass of wine’—that is the euphemism for whisky and soda—with the gentlemen, or some of the gentlemen, of the jury.

“The counsel in question was, undoubtedly, very foolish to do so. Counsel remarked, in arguing the point for the respondents, that he was ‘heedlessly indiscreet’; instead of being, we presume, merely indiscreet, or, at worst, indiscreet with a certain amount of discretion; or, as it might be put, he should have gone to Menzies’, being discreetly thirsty, and have drunk at discretion by himself; i. e., failing the proximity of some fellow-counsel, whom he might have invited to drink with him, or failing such counsel accepting such invitation—two eventualities as uncommon in Melbourne as our old friend Fearne’s ‘Contingent Remainders’ are in the Mallee.

“Instead, therefore, of going ‘hatting,’ or indulging in a ‘Johnny Woodser,’ anglicé drinking by himself, he, heedlessly indiscreet, or heedless and indiscreet—as one with a keen scent for good English would prefer—hobnobs with the jury. He should have known better. That is to say, he knew better and should have acted better—but did not. In the first place, the jury was probably a common jury; or, if a special jury, they were probably still more common, with whom no eminent counsel should foregather;[Pg 262] because special juries generally consist of publicans, ex-publicans, or retired gaol-warders, or a proportion of each; worthy citizens, doubtless, good fathers, good husbands, and so forth, who paying so much rates per annum for their ‘bits of property’ are thereby and therefore pre-eminently qualified by law, reason, and common sense to decide in a jiffy all those subtle points of tort or contract in which ordinary bodies, from the Full Court to the Privy Council, find so many difficulties.

“The jury having given in their verdict in favour of the defendants, the majority of the Full Court have decided that this drinking business was a good ground of appeal. Now, although, as a rule, what everybody says must be untrue, we are inclined to agree with the majority in this case, and to disagree with the minority, consisting of A’Beckett, J. That learned Judge said ‘he had the misfortune to differ from his learned brothers as to the course which should be taken with regard to the appeal.... What occurred was done openly, and it was the very last mode of approaching a jury improperly, that any man in his “sober glass of wine” senses would attempt. They might say it did not look well to see counsel treated by jurymen.... Being convinced that the jury were not influenced, and that the fact that counsel and solicitor had accepted a sixpennyworth of hospitality from one of the jurymen would not induce anyone to suppose that they would be influenced, he thought this new trial should not be granted.’

“That is all very well, but Mr. Justice A’Beckett seldom practised on the common-law side of the Court, and, as Ulpian says (we translate):—

And although jurymen are sworn to give their verdict according to the evidence, and, as a rule, observe their oath so sworn on a tenpenny Bible, yet evidence seen through the medium of a tumbler full of grog with, it may be, a little lemon and sugar in it, and in company with an advocate for one of the parties only, becomes a somewhat[Pg 263] lop-sided affair. Hospitality is a most excellent, and we fear, in these times of depression, too rare a practice, and we should be the last to say anything to discourage it; but when administered in sixpennyworths by jurymen to counsel—of one of the parties only—during the progress of a case, and before a bar counter, it is, to say the least, somewhat out of place.

“It is to be observed also that the majority of the Court uttered no obiter dicta in their judgment. They read out no homily on the evils of drink, as they might well have done in view of the numerous young gentlemen just called to the bar, and who in the dearth of law may easily fall into evil ways; and they carefully avoided asking for such further and better particulars of the stimulants used by counsel and jury as might have given a huge and cheap advertisement to some particular brands. So far so good. Justice now takes breath. The ill-fated Alert is still lapped in the sounding depths. Ponting, the plaintiff, has succeeded on his point; at the bar of Menzies the glasses are still a-clink, and the P. and O. Steam Navigation Company is building a new steamer of 12,000 tons to carry the papers in the appeal case home to the Privy Council.

“On the same subject Mr. J. Arbuckle Reid—who was an eye-witness of the entire transaction—gives his version thus:—

[Pg 264]

“‘Moral for Barristers.

Finding that the Full Court decision was against them, Messrs. Huddart, Parker & Co.’s lawyers changed their tactics. With the object of quashing the whole proceedings, they raised the point that the Alert was not a British ship within the meaning of the Merchant Shipping Act. This point was fully recognised on March 24, 1897, before the same Supreme Court Judges who decided the appeal case. Mr. Schutt (barrister) appeared for Huddart, Parker & Co., and Mr. W. H. Williams (barrister) appeared for Ponting. As the matter debated is of great importance to all concerned in shipping interests, it has been deemed advisable to adhere to the authentic verbatim reports of the proceedings as given in the Herald newspaper, March 24, 1897, and the Argus Law Reports of May 11th, 1897, hereto annexed:—

“What is a British Ship?

Schutt for the respondents.—The plaintiff brings his action under sect. 103 of the Marine Act 1890. That section comes within Part VI. of the Act, and therefore has to be read with sect. 98, which says that the provision of that Part “shall apply to all British ships registered or being at any place within Victoria and to no others.” Thus, although sect. 103 only uses the word “ship,” it can only apply to a “British ship.” The Imperial Act, 39 and 40 Vict., c. 80, sect. 5, corresponds to our sect. 103; but this question could not arise in England, because there is no equivalent to sect. 98 in the Imperial legislation. We have, however, to refer to the Imperial legislation to find out what is a “British ship”; and we find that, by sects. 18 and 19 of the Merchant Shipping Act 1854, 17 & 18 Vict.,[Pg 265] c. 104, which two sections it is submitted are to be read together, a British ship must be owned by a British owner, and must be registered. By sect. 17 of the same Act, Part II. of the Act, under which sects. 18 and 19 are, is to apply to the whole of the British dominions. Again, if any alteration of the ship be made, re-registration is required by sect. 84 et seq., which, if not done by sect. 87, the ship shall not be deemed duly registered, and shall no longer be recognised as a British ship. In this case the Alert, when originally registered, had three masts. The number of her masts was subsequently altered, but she was never re-registered; she is, therefore, not now a British ship, and the plaintiff has no cause of action. [W. H. Williams referred to Chartered Mercantile Bank of India, London and China v. Netherlands India Steam Navigation Co., 10 Q. B. D. 521; 52 L. J. Q. B. 220, per Brett, L. J., as to the meaning of “British ship.”] That case is distinguishable, the question there being whether a certain rule of the Admiralty Court as to the equal liability of the two ships should apply, and, accordingly, whether Dutch or English law was applicable. The ships were there held to be English because owned by English owners, although registered in Holland. The question was not whether they were British ships within the meaning of the Merchant Shipping Acts. He referred also to Leary v. Lloyd, 3 E. & E. 178; R. v. Clark, 5 V. L. R (L.) 440; 17 and 18 Vict., c. 104, sects. 106, 547.

W. H. Williams for the appellant.—Our local Parliament has put its own meaning on the words “British ship” in sect. 98. The Marine Act 1890 says nothing about recognition or non-recognition, according to whether a ship is registered or not. A British ship means a ship owned by British people. Registration has nothing to do with the British character of the ship. The case in 10 Q. B. D., and Lord Esher’s observations there, are exactly in point here. In addition, it does not lie in the mouth of the defendants to now take advantage of their own wrong. They have continued to sail in and out of port for years, and in their answers to interrogatories they admit that their ship was a British ship, and that they were the registered[Pg 266] owners. To allow the defendants to raise this point now would be against public policy. The alteration to the Alert had, according to the Act, to be made under the supervision of the Marine Board. Yearly certificates have been granted by that Board to her for the last sixteen years, and during that time she has been continuously travelling under the British flag. Her owners thus are estopped from saying she is not a British ship. In addition, the alteration effected was not a very material one; it did not alter her identity.

Mr. Schutt argued in support of the view that the vessel was not registered as a British Ship.

Mr. Justice Holroyd: Suppose, on the consideration of this statute of ours, your view is correct, can you possibly take advantage of it? You, as owners, have for years enjoyed all the privileges possessed by the owners of a duly registered British ship, and you have availed yourselves of them over and over again. You have sailed from port to port, and obtained your clearance papers in that character. Can you now turn round and say that the vessel was not duly registered?

Mr. Schutt: It seems to me that you are assuming that there was evidence that we did enjoy those privileges, whereas there is not the slightest evidence that we ever did fly the British flag.

Mr. Justice Holroyd: You got your clearance papers from port to port.

Mr. Schutt: There is no evidence that we did get them.

Mr. Justice Holroyd: How did she get out?

Mr. Schutt: There is nothing to show that we went out.

Mr. Justice Williams observed that if a new trial were allowed, the evidence would doubtless be forthcoming.

Mr. Schutt submitted that, as against Ponting, the defendants were perfectly entitled to raise the defence.

Mr. Justice Holroyd: Why? Because he nearly lost his life?

Mr. Schutt: No; because no representation was made to him that the vessel was a British ship.

Mr. Justice Holroyd: It is contrary to public policy that you should be allowed to say such a thing. I don’t care a straw what Ponting knew. Here you have taken[Pg 267] advantage of the privileges afforded by the Imperial Legislature to our colony for years, to obtain certain advantages which would not otherwise have been conceded. You have sailed out and come into port under false pretences, and now you ask to escape from the liability imposed on you by the Act of our Parliament, on the ground that the vessel was never duly registered at all. It seems to me that is directly contrary to public policy, and a fraud on the statutes.

Mr. Schutt: It is not a fraud; no one knew it.

Mr. Justice Holroyd: It fortunate for you no one did know it, or you would have been fined £100 over and over again.

Mr. Justice Williams said that, although the Court had ordered a new trial on one ground, it had been urged that the new trial would be fruitless, as it could not be shown that the vessel was a British ship. It was said that the vessel was not a British ship unless owned by British subjects, and registered in the manner prescribed by the Merchant Shipping Act. The point had been ably argued by Mr. Schutt, and with great ingenuity; but he (his Honour) could not agree with him.

Mr. Schutt in reply.—The answer to interrogatories referred to stated as a matter of fact what was really a question of law, which the defendants were not bound to know. There was also no obligation on the defendants to re-register, and therefore they should not be estopped from raising this defence. They might be liable to certain penalties. A leading text-book says that a British ship means a ship which is registered and owned by British owners: Maude and Pollock on Merchant Shipping (3rd ed.), pp. 1, 2.

The following authorities were also referred to during argument:—Bell v. Bank of London, 28 L.J. Ex. 116; Union Bank of London v. Lenanton, 3 C. P. D. 243.

Williams, J.—This is an application for a new trial. The Court has already delivered judgment upon a point which we need not further refer to, ordering that a new trial should take place upon the ground there dealt with. But now Mr. Schutt, counsel for the defendants, says that there is an objection which would be a fatal objection to the[Pg 268] plaintiff’s case, that it is an objection which could not possibly be got over, and that the Court ought not to send a case for a new trial when the trial would be futile. The Court saw the force of that contention of Mr. Schutt, and so we have heard arguments on that point. Now, that point was this—that this action was an action brought under sect. 109 of our Marine Act, 1890, and that that section only applies to the case of a British ship, and that therefore the plaintiff, before he could bring his action upon the implied contract created by sect. 103, must show that the Alert, the ship in question, was a British ship. So far Mr. Schutt’s contention appears to be correct, because sect. 98 of the same Act says, “The provisions contained in this part of this Act”—i. e., the part dealing with the safety of ships and prevention of accidents, in which sect. 103 is included—“shall (except where it is otherwise specially provided) apply to all British ships registered or being at any place within Victoria, and to no others.” Therefore it is perfectly clear, so far, that sect. 103 only applies to British ships. Well then, Mr. Schutt further contended that a ship could not be a British ship unless it was owned by British subjects, and unless it was registered in the manner provided by the Merchant Shipping Act, 1854, 17 and 18 Vict., c. 104. Now, there is no doubt that those provisions of the Merchant Shipping Act, 1854, as to registration, and as to what constitutes a British ship, apply to this colony, because sect. 17 says, “The second part of this Act shall apply to the whole of Her Majesty’s dominions.” Now it is upon that point that Mr. Schutt seems to have based his contention—namely, that to constitute the Alert a British ship, it must be proved not only that she belongs to British subjects, but that she was registered as required by the Merchant Shipping Act, 1854. He certainly argued the point very ably, and displayed great ingenuity in his argument, but, unfortunately, I cannot agree with him on that point. Sect. 18 of the same Act provides that “no ship shall be deemed to be a British ship, unless she belongs wholly to owners of the following description, that is to say,” and then the subsections proceed to give the description of the persons to whom she may belong—viz., natural-born[Pg 269] British subjects, persons made denizens by letters of denization, or naturalised by or pursuant to any Act of the Imperial Legislature, or by or pursuant to any Act or Ordinance of the proper Legislative authority in any British possession, and bodies corporate established under, subject to the laws of, and having their principal place of business in the United Kingdom or some British possession. Well, that section, if it stood alone, says that a ship shall not be a British ship unless it belongs to owners of a certain description, and if so, it would follow by implication that she was a British ship. Sect. 19 then goes on to say, “Every British ship must be registered in manner hereinafter mentioned,” with certain exceptions. It assumes there that the ship is a British ship. It is not “every ship claiming to be a British ship,” or “seeking to be a British ship,” but it is “every British ship must be registered in the manner hereinafter mentioned, except”—and then it goes on to provide for the exceptions to registration, and then having done that, it goes on to say “and no ship hereby required to be registered shall, unless registered, be recognised as a British ship.” It is upon those words that Mr. Schutt so strongly relies. Now, I desire to draw attention to the marked difference of language. Sect. 18 says, “no ship shall be deemed to be a British ship, unless she belongs wholly to owners” of a certain description, while sect. 19 has “no ship required to be registered shall, unless registered, be recognised as a British ship,” and then it goes on to say in that section, “and no officer of customs shall grant a clearance or transire to any ship hereby required to be registered for the purpose of enabling her to proceed to sea as a British ship, unless the master of such ship, upon being required so to do, produces to him such certificate of registry as is hereinafter mentioned; and if such ship attempts to proceed to sea as a British ship without a clearance or transire, such officer may detain such ship until such certificate is produced to him.” I think, in the first place, that sect. 19 recognises the fact that a ship may be a British ship without registration; but then it says if you are a British ship you must also be registered, and, if not, certain consequences will follow, some of which are enumerated, one being that she shall not[Pg 270] be recognised as a British ship. What is the meaning of “shall not be recognised” is given by sect. 106, which says “whenever”—apparently equivalent to “wherever”—“it is declared by this Act that a ship belonging to any person or body corporate qualified according to this Act to be owners of British ships shall not be recognised as a British ship, such ship shall not be entitled to any benefits, privileges, advantages, or protection, usually enjoyed by British ships, and shall not be entitled to use the British flag or assume the British national character; but, so far as regards the payment of dues, the liability to pains and penalties, and the punishment of offences committed on board such ship or by any persons belonging to her, such ship shall be dealt with in the same manner in all respects as if she were a recognised British ship.” Well now, I think—I am taking an extreme case that the ship has never been registered at all, I am not giving my judgment on the view that she was registered and then partially altered, I am taking a bald case of a ship not being registered at all—that the effect of the consequences is pointed out by sect. 106. These are the consequences: namely, that she shall not be entitled to any benefits, privileges, advantages, or protection, usually enjoyed by British ships, and shall not be entitled to use the British flag or assume the British national character, and that because she has not been registered she loses those advantages, and though she loses them there shall be still attached to her all the pains and penalties and punishments for offences as a recognised British ship. I see that is the view taken by a learned writer on shipping—MacLachlan on Merchant Shipping (4th ed.), at p. 96—and it appears to me, though it was not necessary for his judgment, that Brett, L.J., in the Chartered Mercantile Bank of India, London and China v. The Netherlands India Steam Navigation Co., Ltd., 10 Q. B. D. 521, takes exactly the same view. It is true that he speaks of a contract outside of the statute, but he is speaking of the statute. He said that it was contended that the ship was not a British ship, and was a Dutch ship because registered in Holland; but he says he does not think the contention has any foundation at all. If the ship is owned by a British subject, that makes it a British ship,[Pg 271] and the flying of a flag and the registration, wherever made, are not material. The question is, who is she owned by? The fact that she is not registered deprives her of advantages, and leaves her open to pains and penalties. On that ground alone I am prepared to overrule this point, because this ship, the Alert, was owned by British subjects, and that being so, I feel tolerably clear that she was a British ship, and a British ship within the meaning of sect. 103. I think it absolutely immaterial whether she was registered or not. That is the main ground for my judgment.

There are other grounds which it is difficult for the defendants to get over. For the purpose of saving expense, an interrogatory was delivered to the defendants asking, “Were you at the date of the accident the registered owners of the Alert?” and the defendants on their oaths said “Yes, we were”; and in addition to that there is no doubt about the fact that for years since the alteration of her three masts to one, the Alert has been going in and out of port and enjoying every advantage as if she were a British ship; and now at a very late stage, and for the purpose of defeating an action, they say we were not. But I do not base my judgment so much on that ground as on the main ground. I think the new trial should take place.

Justice Holroyd: I concur that there should be a new trial. I do not differ, I think, in any respect from the judgment that has been delivered, although I entertained some doubt as to a portion of it, on which my brother Williams has mainly relied. I have doubted whether sects. 18 and 19 of the Merchant Shipping Act, 1854 should not be read together as containing a definition of what should be regarded as a British ship, and whether so reading those two sections, the true construction of them was not that a British ship meant a ship belonging to any of the persons described in sect. 18, and registered under the provision of sect. 19. My doubt, however, is not sufficiently strong to induce me to differ from the judgment just delivered. I think that judgment is supported by a reference to the previous Acts relating to registration, particularly the Act 8 and 9 Vict., c. 88, to which I have just directed my attention. It is called, “An Act for the Encouragement[Pg 272] of British Shipping and Navigation,” and it speaks of the conditions which are to attach to a British registered ship, and draws clearly a distinction between a “British registered ship” and a “British ship.” I think that throws some light upon, and gives support to, the judgment of my brother Williams. But, in my opinion, it is too late for the defendants now to turn round and set up this ground at all. For years past the defendants have represented themselves as the owners of a duly registered British ship. They have, by so doing, up to this time avoided payment of the penalties prescribed by sect. 53 of the Act for not informing the registrar that the ship had ceased to be effectually registered, and, of course, they avoided it if the argument maintained by Mr. Schutt is correct. I think still it would be contrary to public policy to allow them to come now and declare that during these years they were not the owners of a duly registered British ship. There is a case which I think supports the view I am taking. It is Tabram v. Freeman, 2 Cr. & M. 451. In that case an attorney, to whom an insolvent was indebted, and who held a cognovit as a security for the debt, and who was employed by the insolvent to prepare his schedule, and acted as his attorney in procuring his discharge, agreed with the insolvent to omit the debt out of the schedule, and that the cognovit should be suspended until after the discharge, and then revived. The insolvent obtained his discharge, and the attorney two years afterwards entered up judgment on the cognovit, and issued execution. The Court, on motion, set aside the judgment and execution, and upon the ground as stated by Gurney, B., at p. 455, that “the plaintiff was the attorney employed by the insolvent, and must be held responsible for the preparation of the schedule. How can he, who prepared the schedule falsely, take advantage of it? It is an act of oppression on the debtor, and a fraud on the law, on the Act, and on the creditors.” The principle of that decision is precisely the same as the principle on which I rely in this case.

Justice A’Beckett: I wish only to add a few words to say that I think that, without the answer to the interrogatory, and without considering the conduct of the defendants,[Pg 273] it cannot be said, on the construction of the statutes, that the Alert does not come within the meaning of sect. 103, and that her owners do not come within the liability imposed by that section; and in approaching the subject, I think we have first to consider that the Marine Act 1890 is a Victorian statute, and we have to ascertain what was the meaning of that Victorian statute in saying in sect. 98 that the provisions contained in Part VI. of the Act “shall ... apply to all British ships registered or being at any place within Victoria and to no others.” We must find a meaning for these words, and of course may refer to the English Act for the purpose of interpreting them. One thing required is that the ship shall be a British ship registered in Victoria. Primarily, those words would mean a ship of British nationality. The Alert was a British ship so far as nationality is concerned, and she was at the time of her wreck registered de facto; but Mr. Schutt says that, by reason of a defect in her registration, we are not to regard her as duly registered, and that consequently she has ceased to be a British ship. It seems to me, having regard to what Part VI. deals with—viz., “The Safety and Prevention of Accidents,” that, when a particular obligation is cast upon the owner of a registered ship, it would be an altogether unwarrantable construction of that section to read it as equivalent to “duly registered,” in such a way as to allow an owner to escape its provisions by omitting to do something which the English Act required to make a valid registration. He could not, by his own default, put himself in a position to say that he was not registered, by altering his ship after registration and neglecting to register that alteration. I think, having regard to the object of this legislation, that a registration de facto is sufficient to bring a ship within the provisions of sect. 98. If the Alert was within the section, the only question is whether her owner would be subject to the consequences of not being recognised as the owner of a British ship. What are those consequences? They are defined in sect. 106 of the Merchant Shipping Act 1854, and, as my brother Williams has pointed out, there is nothing in that section to alter the civil liability imposed on the owner[Pg 274] by sect. 103 of the Marine Act 1890. I therefore think, on the words of the Act alone, that the defendants have no case on the point raised.

Justice Williams: This appeal will be allowed, with costs, and there will have to be a new trial before a Judge of this Court.

Appeal allowed. New trial ordered before a Judge of the Supreme Court.

[Pg 275]

The Division of the Spoil.

It should be mentioned that, although Mrs. Kilpatrick obtained verdicts in both trials (the first jury awarding her £600, and the second one awarding her £791, with costs in each case), still the money was not paid over. The necessary financial security was lodged by Messrs. Huddart, Parker & Co. in the Supreme Court, Melbourne, and steps taken to have the matter sent to England for decision there by the Privy Council. The hotel bar business, however, had meanwhile given a new turn to the legal kaleidoscope, and the defendants’ lawyers were placed in a pretty awkward position; for they had to face the expenses and risk of a new trial, or compromise the matter in some way. They wisely, no doubt, chose the latter course; and through a neutral friend of theirs I was communicated with, and requested to interview Mrs. Kilpatrick and Mr. Ponting for the purpose of ascertaining how much—or rather, how little—money they would take to settle matters, and stop all law proceedings. Why I was sent for I know not, seeing that I was opposed from the outset to law proceedings[Pg 276] on the part of Mrs. Kilpatrick and Mr. Ponting too! Suffice it here to say that I did interview them both, and paved the way for the final settlement, which took place on May 20, 1897. Where the money came from is hard to say, but it is generally believed that Messrs. Huddart, Parker & Co. paid in the case of Mrs. Kilpatrick, and their lawyers paid in the case of Mr. Ponting. In dividing the “spoil,” the winning lawyers must have had a merry scramble, for they carried off more than two-thirds of the whole! The poet, Pope, was not very far wrong when he said, or wrote:—

A little light is thrown on the subject by the following extract from the columns of the Melbourne Herald of June 1, 1897:—

THE “ALERT” LITIGATION.

About the Settlement. The Cost of Law.
The Plaintiff’s Explanations.

On last Saturday week we announced that the actions arising out of the loss of the steamer Alert, near Cape Schanck, some years ago, had at length been settled. The plaintiffs were Mr. Robert Ponting, sole survivor of the wreck, and Mrs. Kilpatrick, widow of one of the engineers. The terms of the settlement were stated to be the payment of sums of £400 to Mrs. Kilpatrick, and £135 to Mr. Ponting, “clear of all legal expenses.” We now find that, though this statement was technically correct, it did not correctly set out the exact result to the plaintiffs. Mr. Ponting writes to us as follows:—

“Sir,—In your issue of last Saturday (May 22nd) there appears a statement setting forth that, when the settlement of the above cases took place, Mrs. Kilpatrick received £400 and Mr. R. Ponting £135, clear of legal expenses.’ This is not correct, and I hope you will kindly grant me space enough to put the real facts of the case before the[Pg 277] public. During the process of my law case I paid over to my solicitor and others the sum of £75. This amount, deducted from £135, leaves me with a balance of £60, out of which I am called upon to pay various sums to witnesses left unpaid by the lawyers. With regard to Mrs. Kilpatrick—who, I believe, paid in to her solicitors upwards of £200—she is left with the balance of less than £200, and, like myself, is called upon to pay various witnesses out of it. When we were asked our terms of settlement, Mrs. Kilpatrick and I agreed—and signed documents to that effect—that we would accept £400 and £135 respectively, clear of all legal expenses. Summed up, the whole affair stands thus:—Defendants’ solicitors paid over to ours £1335. This, added to the sum £275, paid in by us (Mrs. Kilpatrick and myself), makes up a total of £1610. Out of the latter amount £535 were paid back to us, and the balance, £1075, went amongst the lawyers. I am not grumbling at the distribution. On the contrary, I feel grateful for the assistance rendered to me. At the same time I think it only fair that, in the eyes of the public, I should not be credited with more money than I really got.

“I am, etc.,
“ROBERT PONTING.

“Barry Street, Carlton,
“May 29th, 1897.”

On inquiry at the office of Mr. Ebsworth, solicitor, who acted for Mr. Ponting throughout the protracted litigation, and for Mrs. Kilpatrick during the recent portion of it, we learn that the figures, as stated by Mr. Ponting, are, approximately correct. It is true that during the course of the proceedings Mr. Ponting had to find about £75 to meet current cost, and that Mrs. Kilpatrick was, during the three years’ litigation, called upon to pay about £200. These sums may be taken as representing the difference in costs between solicitors and client and the taxed costs; and considering the protracted nature of the proceedings, the sums mentioned will be considered very reasonable in the present state of the rules of the Supreme Court regarding costs. That the lawyers received £1075 will not be[Pg 278] regarded as surprising, when it is remembered that there were several trials and appeals, extending over three years; and that there were numerous witnesses to be paid out of that sum, in addition to the witnesses’ fees remaining to be paid when the settlement took place. Counsel’s fees would also swallow up a considerable amount. Taken altogether, the case is one that well illustrates the present cost of litigation, and might be advantageously taken into consideration as an object-lesson by the Law Commission when it enters upon its investigations.

And now this strange, eventful history must be brought to a close. I have endeavoured, from first to last, to adhere to proved facts, irrespective of the opinions of friends or foes. Life is, after all, a mixture of sweets and sours, and we have to take these as they come in the shape of praise or blame, as the case may be. No matter what line of writing a man may adopt, it is quite impossible for him to please everybody. This being so, the proper plan, in my estimation, is to carry out Ovid’s advice:—

I began this book by relating Ponting’s wonderful escape from the waves, and I finish it with his, quite as wonderful, escape from the lawyers!

My sincerest wish for him is that he may never again be called upon to battle with either of them.

Farewell!

Printed by Hazell, Watson, & Viney, Ld., London and Aylesbury.

[Pg 279]

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