RECORD OF THE MOST IMPORTANT SHIPPING ***





  Transcriber’s Note
  Italic text displayed as: _italic_
  Bold text displayed as: =bold=




  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.

  “Go, little book, God send thee good passage,
  And specially let this be thy prayere
  Unto them all that thee will read or hear,
  Where thou art wrong, after their help to call,
  Thee to correct in any part or all.”

  CHAUCER.

         *       *       *       *       *

  LONDON

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




  PRINTED BY
  HAZELL, WATSON, AND VINEY, LD.,
  LONDON AND AYLESBURY.




CONTENTS.


                                                                  PAGE

  AMONG THE BILLOWS                                                 54

  APPLICATION FOR NEW TRIAL                                        218

  BATTLING WITH WAVES AND LAWYERS                                  199

  DISCOVERY OF PONTING                                              33

  DIVISION OF THE SPOIL                                            277

  FINAL BATTLE WITH THE LAWYERS                                    245

  GRATITUDE                                                         85

  HINTS ON SWIMMING                                                 82

  INTRODUCTORY                                                      17

  LANDING                                                           74

  MORNING                                                           70

  NEW TRIAL                                                        238

  NIGHT                                                             63

  PLAINTIFF’S CASE                                                  92

  SORRENTO                                                          27

  THE VOYAGE                                                        45

  THE DEFENCE                                                      143


ILLUSTRATIONS.

  AMONG THE BILLOWS                                                 62

  CAPE SCHANCK                                                      47

  LORD BRASSEY                                                      13

  CAPTAIN MATHIESON                                                 15

  OCEAN BEACH                                                       75

  PONTING AND “VICTOR HUGO”                                         81

  PONTING AND HIS FRIEND “VICTOR HUGO” IN 1899                     261

  RESCUE OF PONTING                                                 31

  SORRENTO                                                          25

  S.S. ALERT                                                        41

  S.S. ALERT BEFORE ALTERATIONS                                     89

  S.S. ALERT SINKING                                                55

  S.S. SUNBEAM                                                     237

  SUPREME COURT BUILDINGS                                          243

  TESTIMONIAL                                         _at End of Book_

  THE PANTRY WINDOW                                                151




  TO
  LORD BRASSEY,
  IN HIS TRIPLE CAPACITY OF LAWYER, MASTER-MARINER,
  AND MEMBER OF THE ROYAL COMMISSION
  ON UNSEAWORTHY SHIPS,
  THIS VOLUME IS RESPECTFULLY INSCRIBED BY
  THE AUTHOR.

[Illustration: LORD BRASSEY AS A MASTER-MARINER.]

[Illustration: THE LATE CAPTAIN MATHIESON,

S.S. _Alert_.]




[Illustration: Decoration]




Battling with the Waves.




CHAPTER I.

INTRODUCTORY.

    “Boldly I venture on a naval scene,
     Nor fear the critic’s frown or pedant’s spleen.”
                                            _Falconer._


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 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.

    We ask thee, insatiable Deep!
    How many lone ones weep
    For friends who lie buried in thee?
    Husbands, fathers, sons, brothers, all!
    Sunk ’neath thy heaving pall,
    Beautiful, treacherous, cruel Sea!
    In calms, thy smooth and placid breast
    Might lull a babe to rest,
    And ne’er disturb its peaceful sleep.
    In storms, thine awful mountain waves—
    Not cradles then, but graves—
    Swallow brave men. Oh! hungry Deep.

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 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
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!

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 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:—

  “Dear brother Bob,—

  We heartily congratulate you on your wonderful escape from the
  sad fate that befel your shipmates through the foundering of the
  _Alert_. You also have our sincere sympathy for the terrible ordeal
  and physical suffering you have passed through. At the same time I
  may tell you that all your relations here had five weeks’ mental
  suffering on your account. It came about thus—On Saturday, 30th
  December, 1893, I read in the “London Morning Post” a telegraphic
  report of the loss of the _Alert_, in which it stated there was
  only one survivor, but no name was given. Of course we all hoped
  that you were the survivor, and in order to ascertain this I
  went, on the 2nd of January, as soon as the office opened after
  the holidays, to Mr. James Huddart’s office, 22 Billiter street,
  London, but they could give me no information. They told me they
  would bring my request for information before Mr. Huddart, and that
  evening I got a letter from him stating that he would be glad to
  cable to his Melbourne branch if I wished, at my expense. I sent
  him, as desired, a cheque for £1 18s 8d, or 4s 10d per word for
  eight words—five words for the message and three for the answer.
  He deeply deplored the sad necessity there was for such a cable,
  but stated that he would send it on at once, and immediately
  communicate the result to me. Mr. Huddart got the reply from his
  Melbourne office on the 4th January, and then he forwarded a
  telegram to me as follows:— ‘Much regret to inform you, brother
  (R. Ponting) drowned in the _Alert_.’ Of course I had the sad
  duty of letting mother and father and all the other members of
  the family know the mournful news that had reached me. You, dear
  Bob, can imagine our feelings when we thus knew for certain that
  you were lost. We all purchased mourning clothes and wore them
  for five weeks, until, on 6th February last, we received a letter
  from Mr. James Huddart which filled us all with joy. This letter
  enclosed a cutting from a Geelong paper, stating that you had been
  saved and that you were the sole survivor. Mr. Huddart’s welcome
  communication also stated that owing to a strange error, on the
  part of his Melbourne branch, the word “drowned” had been cabled
  instead of “saved.” In reply I thanked Mr. Huddart for his kindness
  in sending the good news to us, but I did not further refer to
  the painful mistake they had made, although it had caused us such
  grief. I need scarcely tell you we are all truly thankful that God
  in his mercy, saved you from the dangers of the deep.”

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.

[Illustration: boats near shore]

[Illustration: SORRENTO.

From a Photo by the late J. DODD, lost with the S.S. ALERT.]




[Illustration: Decoration]




CHAPTER II.

SORRENTO AND ITS SURROUNDINGS.

    “That pale, that white fac’d shore,
    Whose foot spurns back the ocean’s roaring tides.”
                                          _Shakespeare._


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.
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
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 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.

    “Oh, brave white horses! you gather and gallop,
      The storm sprite loosens the gusty reins,
    Now the stoutest ship were the frailest shallop,
      In your hollow backs, or your high arched manes.”

[Illustration: ships near shore]

[Illustration: RESUSCITATION OF ROBERT PONTING.]




[Illustration: House near water]




CHAPTER III.

THE DISCOVERY AND RESUSCITATION OF ROBERT PONTING.

    “How lovely shines the liquid pearl,
      Which, trickling from the eye,
    Pours in a suffering brother’s wound
      The tear of sympathy.”

    “’Tis thine to aid the sinking frame,
      To raise the feeble hand.
    To bind the heart by anguish torn,
      With sweet affection’s band.”—_Anon._


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 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:—

    Oh Woman in our hours of ease,
    Uncertain, coy, and hard to please;
    When pain and sickness wring the brow.
    A ministering angel, thou!

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 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 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 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 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 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_.

    “Strange that the ocean should come and go
     With its daily and nightly ebb and flow.
     Should bear on its placid bosom at morn
     The bark that ere night will be tempest torn;
     Or cherish it all the way it must roam,
     To leave it a wreck within sight of home;
     To smile as the mariners’ toils are o’er,
     Then wash the dead to the cottage door,
     And gently ripple along the strand,
     To watch the widow behold him land.

     Strange that the wind should be left so free
     To play with a flower, or tear a tree;
     To range or ramble where’er it will,
     And as it lists, to be fierce or still;
     Above and around to breathe of life,
     Or to mingle the sea and sky in strife;
     Gently to whisper, with morning light,
     Yet to growl, like a fetter’d fiend, ere night;
     Or to love, and cherish, and bless, to-day
     What to-morrow it ruthlessly rends away.

     But stranger than all, that man should die
     When his plans are formed and his hopes are high.
     He walks forth a lord of the earth to-day,
     And the morrow beholds him part of its clay.
     He is born in sorrow, and cradled in pain,
     And from youth to age it is labour in vain;
     All that the length of his years can show
     Is that wealth is trouble, and wisdom woe;
     That he travels a path of care and strife
     Who drinks of the poisoned cup of life!

     Alas! if we murmur at things like these
     That reflection tells us are wise decrees;
     That the wind is not ever a gentle breath;
     That existence is only the step towards death;
     That the ocean wave is not always still;
     And that life is chequered with good and ill.
     If we know ’tis well that such change should be,
     What do we learn from the things we see?—
     That an erring and sinning child of dust
     Should not wonder nor murmur, but hope and trust.”—_Hall._

[Illustration: S.S. ALERT.

From a Photo by the late J. DODD, lost with the S.S. ALERT.]




[Illustration: Decoration]

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 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—

  Albert Mathieson, captain, age 35, married, no children; residence.
  St. Vincent-street, South Melbourne

  J. G. Hodges, chief officer, 32, married, no children; Yarraville.

  J. Mattison, second officer, 43, single; South Melbourne.

  J. Thompson, chief engineer, 48, single: South Melbourne.

  J. Kilpatrick, second engineer, 33, married; one child;
  Williamstown.

  J. Dodd, steward, 32, married, one child; Carlton.

  T. Thompson, A.B., 45, married, two children; South Melbourne.

  J. Williamson, A.B., 27, single; South Melbourne.

  J. Arthurson, A.B., 25, single; South Melbourne.

  J. Coutts, A.B., 42, married, three children; South Melbourne.

  W. Thompson, fireman, 30, single, Williamstown.

  D. McIvor, fireman, 28, single, Balaclava.

  J. Newton, saloon passenger, 29, single; Beechworth.

  W. Stewart, steerage passenger, 60, married, seven children;
  Collingwood.

  — Page, steerage passenger, Steiglitz.

SAVED—

  R. Ponting, cook, 30, married, no children; South Melbourne.




[Illustration: Sailing ship]




CHAPTER V.

THE VOYAGE.

    The hapless vessel can no longer steer.
    Free from the floods that burst in dread career
    O’er her trembling hull, she dips in each sea,
    And then she sinks! fill’d solely from the lee.
                                                  _Anon._


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 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 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, 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.

[Illustration: CAPE SCHANCK]

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 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
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 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, 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
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!

[Illustration: Sea creature]




[Illustration: Decoration]




CHAPTER VI.

AMONG THE BILLOWS.

    On the ocean’s troubled breast
    Toss’d incessant without rest,
    Now on raft and now on wave,
    Death and trouble round me rave.


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. 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 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_.

[Illustration: FOUNDERING OF THE S.S. ALERT, THREE MILES S.W. OF CAPE
SCHANCK. DECEMBER 28, 1893.]

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. 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 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.

[Illustration: ROBERT PONTING “AMONG THE BILLOWS” ON THE NIGHT OF
DECEMBER 28, 1893.]




[Illustration: Decoration]




CHAPTER VII

NIGHT.

    “Mirk and rainy is the nicht,
      No’ a star in a’ the carie;
    Lightnings gleam athwart the lift,
      And winds drive wi’ winter’s fury.”

    —_Tannah._


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
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 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 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 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
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 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?

[Illustration: boat near shore]




[Illustration: Decoration]




CHAPTER VIII.

MORNING.

    “See, the day begins to break,
     And the light shoots like a streak
     Of subtle fire. The wind blows cold,
     While the morning doth unfold,”—_Fletcher_


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 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 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 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!

[Illustration: two sailing ships]




[Illustration: Decoration]




CHAPTER IX.

THE LANDING.

    “I long to lay this painful head,
    And aching heart beneath the soil,
    To slumber in that dreamless bed
                      From all my toil.

    “Though long of winds and waves the sport,
    Condemned in wretchedness to roam.
    _Live_!—thou shalt reach a sheltering port,
                          A quiet home.”
                                 _Montgomery._


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 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.

[Illustration: SORRENTO OCEAN BEACH (from a Photo).

The White Cross indicates where Ponting landed. Showing Jubilee Point
in the distance.]

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 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 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 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.

[Illustration: Decoration]

[Illustration: R. PONTING AND MR. A. STANTON’S DOG “VICTOR HUGO.”

From a Photo taken after the Wreck.]




[Illustration: Decoration]




CHAPTER X.

HINTS ON SWIMMING.

    There is not an effect without a cause,
    Swimming is an outcome of nature’s laws.
    It is easy to learn to swim, and hence,
    The main requisition is confidence,
    Men cannot do it—at least so they say—
    Till they’ve been taught by those who know the way.
    How do brutes learn?—swim splendidly they can—
    Nature guides them, and nature teaches man,
    _Minus_ teaching, lower animals swim.
    The training they get is just “a throw in!”


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 saw him beat the surges under him,
    And ride upon their backs; he trod the water,
    Whose enmity he flung aside, and breasted
    The surge most swol’n that met him; his bold head
    ’Bove the contentious waves he kept, and oar’d
    Himself with his good arms in lusty stroke
                              To the shore.”

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
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.




[Illustration: Decoration]




CHAPTER XI.

GRATITUDE.

    “The bridegroom may forget the bride
    Was made his wedded wife yestreen
    The monarch may forget the crown
    That on his head an hour has been;
    The mother may forget her child
    That smiles sae sweetly on her knee;
    But I’ll remember thee, Glencairn,
    And a’ that thou hast done for me.”
                                _Burns._


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. 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—

    “With eye upraised, his master’s looks to scan,
    The joy, the solace, and the aid of man,
    The rich man’s guardian, and the poor man’s friend,
    The only creature faithful to the end.”


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:—

  “We find that when the _Alert_ left Metung, she was properly
  equipped in every respect, and apart from the manner in which
  she was laden, was in a good and sea-worthy condition. She was
  a suitable vessel, having regard to her build, for the trade in
  which she was engaged, as it was shown in evidence that she was
  classed for any trade. In view of the vessel’s construction and
  the manner in which laden on her last voyage—having on board only
  about forty four tons of cargo—the _Alert_ in the opinion of the
  Court, had not sufficient stability, and in view of the weather
  experienced, she had too much freeboard for the voyage she was on.
  Considering the trim of the vessel and the state of the weather, it
  would have been more prudent had the _Alert_ run into Western Port
  for shelter. In the opinion of the Court, the Master should have
  kept her head to sea when the vessel first commenced to take in
  lee water. There was not any neglect on the part of the lighthouse
  keeper at Cape Schanck, and existing regulations appear to have
  been carefully observed. The crew of the life-boat at Queenscliff
  appears to have been properly directed, and, in the opinion of the
  court, they did all that could have been done, having in view all
  the existing circumstances. A proper look-out was kept on board the
  pilot schooner on the cruising station. The reason the boats on the
  _Alert_ were not made use of would appear to be attributable to the
  fact that when the vessel heeled over, the forward boat could not
  be got at, and the after life-boat was washed away about the moment
  when the vessel foundered, and there is no evidence to show what
  became of it. There was a sufficient supply of proper life belts
  on board, and they were easily available. There is no evidence
  before the Court to show that the late Master, Alexander Mathieson,
  did not use every precaution in handling the vessel. There is no
  evidence to justify the Court in expressing an opinion as to the
  immediate cause of the foundering of the steamship _Alert_.”

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 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.

    Steam power is very well in its place,
    When water’s smooth and the ship’s in a race,
    But when sea’s rough and wind blowing a gale,
    There’s certainly greater safety in sail.




[Illustration: S.S. ALERT BEFORE ALTERATIONS.]




Battling with the Lawyers.

    “Let us consider the reason of the case; for nothing
     Is law that is not reason.”—_Sir John Powell._


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 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 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 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 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 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 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 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 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.

_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 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 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 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.




[Illustration: Steamship]




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 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 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 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.

_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.

_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, 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.

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 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 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 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 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 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 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 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 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 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.




[Illustration: Decoration]




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 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 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 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 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 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 _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 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 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 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 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 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.

_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 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 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.

[Illustration: Decoration]


FOOTNOTES:

[1] The “Rip” is the name applied by seamen to a very strong, nasty
current which runs immediately at the Heads entrance. With the wind
in and the tide out, or _vice versa_, a dangerous joggle of waves
arise.




[Illustration: Decoration]




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.

_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 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
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 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, 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 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.

[Illustration: Decoration]




[Illustration: Decoration]




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

    “Between two hawks, which flies the higher pitch?
     Between two dogs, which hath the deeper mouth?
     Between two horses, which doth bear him best?
     Between two girls, which hath the merriest eye?
     I have, perhaps, some shallow spirit of judgment;
     But in these nice, sharp quiblets of the law,
     Good faith, I am no wiser than a daw!”
                                        —_Shakespeare._


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 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 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 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 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 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.]




[Illustration: Decoration]




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 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.

[Illustration: THE PANTRY WINDOW.]

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 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 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 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 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
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.

_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 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 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 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
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 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.

[Illustration: Decoration]




[Illustration: Decoration]




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 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.

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 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.

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.

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 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 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 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. 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.

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: 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.

[Illustration: Decoration]




[Illustration: Decoration]




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.

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, 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 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
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 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 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 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?

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. 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
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 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 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.

[Illustration: Decoration]




[Illustration: Decoration]




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 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 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 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 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
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 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 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.

[Illustration: Decoration]




[Illustration: Decoration]




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 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.




[Illustration: Decoration]




Battling with Waves and Lawyers.

    I’ll no say men are villains a’;
        The real hardened wicked,
    Wha hae nae check but human law,
        Are to a few restricted;
    But, Oh! mankind are unco weak,
        And little to be trusted;
    If self the wavering balance shake,
        It’s rarely right adjusted.—_Burns._


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 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, 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 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!” 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 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, 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, 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:—

  Industries           Number Employed   Ten years loss  Annual Average
                                             of Life      Loss of Life

  Factory and Workshop
  Operatives                5,270,835          4,047            405
  Railway Servants            381,626          4,717            472
  Miners                      718,747         10,333          1,033
  Seamen                      188,391         21,241          2,172

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 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 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 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 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 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
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 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 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 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.

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
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 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 law is a sort of _hocus-pocus_ science that smiles in yer face
  while it picks yer pocket, and the glorious uncertainty of it is of
  mair use to the professors than the justice of it.”

  —_Macklin._

  “Law was made for property alone.”

  —_Macaulay._

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. 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, 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.

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 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.

MR. BOX: What is your Honour’s authority?

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

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

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

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

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

       *       *       *       *       *

The full court, in giving judgment on the appeal for a new trial,
placed a good deal of weight on the fact of the _Alert_ having passed
successfully through the surveys made by the English and Victorian
Marine authorities, and, further, the court was of opinion that the
certificates given by these authorities were _prima facie_ evidence
that the vessel was in all respects not only perfectly sea-worthy,
but proof also that the owners had done everything which the law
required them to do. Had I sufficient time and space at my disposal,
I could cite hundreds of cases showing clearly that these surveys
and certificates are more theoretical than practical. Suffice it for
the present that I, as briefly as possible, relate two instances
of certificated examinations which came under my own personal
observation thus:—

  In 1863 I was an officer on board of a large ship called the
  _Saldanha_, which was chartered to carry sheep from Victoria to
  New Zealand. At Geelong we took 6000 sheep on board consigned
  to Port Chalmers. By way of parenthesis I may mention, what may
  read rather curious now-a-days, that we had ten shillings per head
  freight alone for every sheep we landed alive. On the passage down
  we lost 1000 of them; some died, but the major portion were killed
  by being trodden to death during the heavy lurches of the ship to
  leeward. We cast them overboard every day in such quantities that
  it would have been almost possible by means of the carcases to
  have tracked our ship’s way from Port Phillip to Port Chalmers!
  After discharging our living freight at the latter port, we sailed
  again for Melbourne in order to bring down another hatch, but,
  unfortunately, through the ship being “flying light”—she was like
  a balloon on the water—we got caught in a heavy squall and were
  driven ashore, in spite of letting go both anchors, on a sandy
  beach near the entrance to Port Chalmers Heads. By means of our
  boats we all landed safely and lived amongst Maoris for a few days
  until three steamers came to our assistance. By means of our united
  efforts, aided by a high spring tide, we got the ship off the beach
  and towed her back to Port Chalmers, where, with all due solemnity,
  an examination was held by Lloyd’s surveyors, and also by the
  insurance agents. The result of these, and other numerous surveys,
  was that the _Saldanha_ was condemned as unsea-worthy, and sold
  by the insurance agents for a few hundred pounds to a company who
  desired to make a coal hulk of her. Accordingly she was “stripped
  to a gantlin” and used for such purpose.

  And now for the sequel: Within eighteen months after the purchase,
  this ship—notwithstanding her condemnation by certificates—under
  the name of the _Retriever_ was sent to Melbourne and put upon the
  patent slip at Williamstown for examination. After being on the
  slip for twenty-four hours, the first real examination, for there
  was neither dock or slip in those days at Port Chalmers, the ship
  was found all correct, certified accordingly and taken across to
  Sandridge Railway Pier, where she loaded a first class cargo of
  wool, hides, tallow, etc., consigned to the United Kingdom. For
  aught I know to the contrary, the _Retriever_, late _Saldanha_, is
  afloat doing duty yet!

  The second instance occurred in 1871, when the S. S. _Queen of the
  Thames_ was in Melbourne on her first and only voyage. She belonged
  to the then well-known firm of Davitt and Moore, and arrived here
  safe after what was, at that time, considered a remarkably quick
  passage of fifty-two days from London. Just a few days prior to
  the _Queen of the Thames_ leaving here for England, attention
  was drawn to the fact that she had no “long boat,” and it was
  suggested that she should be compelled to carry one in the interest
  of sea-worthiness. Her commander, Captain McDonald, became quite
  indignant at the idea of “colonials” daring to interfere with the
  equipments of his ship. In those days there was no Marine Board
  composed of shipowners, but there were other means of looking
  after the interests of “those who go down to the sea in ships,”
  and consequently the captain was informed that unless he obtained
  the requisite boat, his ship would not be allowed to clear at the
  customs.

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

  “The _Queen of the Thames_ and everything about her was planned
  and built with a special view to the Australian passenger and mail
  service, and the best skill and experience procurable in Great
  Britain were enlisted in her service.... Although the Board of
  Trade, Lloyds, the Emigration Commissioners of Great Britain, etc.,
  passed the _Queen_ with her life boats, and though she and they
  were highly complimented by all the authorities at home, still
  _your_ Mr. Gossett is not satisfied with these arrangements. He
  has discovered the dreadful truth that she has no long boat, and
  he threatens that he will not allow her to leave the port until
  she is provided with one.... It seems hard that a non-professional
  Victorian official should have the power to dictate changes in the
  vessel’s arrangements, and enforce these changes under such a heavy
  penalty as the detention of the ship would imply.”

Mr. Gossett was, however, inexorable, although the captain pleaded
that he was nearly ready for sea, and there was not time to get a
boat built. At length the difficulty was got over by the _Queen of
the Thames_ getting the _Lady Jocelyn’s_ long boat and the latter
ship giving an order for a new one in its place. As may be imagined
Captain McDonald, in anything but a good humour, quickly sailed for
London. On the way there the ship got wrecked close to the Cape of
Good Hope, and that very boat which the captain had so reluctantly
taken with him was the principal means of saving all hands from a
watery grave! I may just add that the _Queen of the Thames_ was
classed AA I at Lloyd’s, a much higher class than that of the
_Alert_, and yet Mr. Gossett, I am glad to say, refused to recognise
the certificate—although undoubtedly a high one—and had the courage
to carry out what he believed to be a measure for the safety of all
concerned.

During the progress of the arguments in the Kilpatrick v. Huddart,
Parker and Co. appeal case, Mr. Justice Hood, in commenting on the
rig of the _Alert_, said: “No doubt had there been another mast in
the ship persons would have come forward and said that was the cause
of the disaster.” While Chief Justice Madden, on the same subject,
was of opinion that “the first thing a captain would do, if there
was a second mast with a sail up, would probably be to strip it off
like a shot.” With regard to both of these opinions, although I feel
constrained to comment at length on them, I must, for the sake of
brevity, content myself with the remark that the dictum or logic they
contain “may do for the marines, but certainly won’t do for sailors.”

Furthermore, the Chief Justice said, “I think the man would be a
wicked one who, knowing the unsea-worthy condition of a vessel,
did not report it to the proper authorities.” Now, while all
right-minded people will heartily agree regarding the healthy
sentiment contained in the foregoing sentence, nevertheless it
is well known that a good deal depends upon circumstances. There
are positions wherein men can report defects in anything, and get
praise—as they should—for so doing, and there are also positions
wherein men, on shore, if they drew attention to defects, would be
instantly “sacked” from their employment, and, if on board ship,
would in all probability be sent to jail as wicked designing men! I
will try to give an instance in point: About three weeks after the
jury brought in a verdict in favour of Mrs. Kilpatrick, I interviewed
a seaman on board of a steamer then lying in the Yarra at the
Australian wharf. He made a statement which I took down in writing,
and after reading same over to him, he, in my presence, declared it
was true in every particular. Here it is, “I solemnly and sincerely
declare that my name is ——.[2] I am an able seaman, and came out to
Melbourne as such in the barque _Alert_. She was a long, narrow,
and shallow vessel, built for a river steamer, but we brought her
out under sail only. Her machinery was in position but her funnels
were not; they were stowed below. In the first instance she sailed
for Melbourne from Greenock, and after being a week at sea the crew
refused to go any further in her. They all went aft and desired
the captain to put the ship into the nearest port. Accordingly the
_Alert_ was taken in to St. Tudwell Roads, Cardigan Bay, Wales, where
the crew were taken ashore, tried for refusing duty, and sent to
jail for six weeks. At the earnest request of the men a surveyor was
sent to examine the ship. He stated that the men had a just cause
of complaint, and he pronounced the _Alert_ to be unsea-worthy. The
magistrates, on learning this, at once made an order releasing the
men from confinement. A new crew was shipped, of whom I was one; but,
owing to the name the vessel had got, and the extra risk to run,
we demanded, and got, £3 15s. per month, the then highest wages out
of the port for coasters. During a period of three weeks, fifteen
attempts were made to get the _Alert_ out of the Bay, and fifteen
times she had to go back to her anchorage. The reason we could not
get outside was because the wind was not fair and the ship would not
stay. There was no room to wear her round, so there was nothing for
it but go back. At last a slant was got, and we sailed for Melbourne.
Prior to leaving St. Tudwell Roads the authorities on shore told
us that although we had signed articles we need not go in the ship
unless we liked, and Captain Webb, to encourage us, said he was
going out himself as a passenger in her to Melbourne. At the last
moment he changed his mind and did not come with us. Captain Munn
was in command, and the _Alert_ carried eight hands all told. She
was very crank, or tender, and every night at sundown, fine or foul,
the top-gallant sails were taken in and stowed. At no time during
the passage out would the vessel stay. When we wanted to put her on
the other tack we had always to wear her round. She was loaded with
ballast and trimmed on a fairly even keel. The decks were never dry
except during calms. Frequently a lot of water got into the saloon,
and was got out by all hands bailing with buckets. In one breeze we
had she shipped a sea which smashed in the skylight and carried away
the wheel and binnacle. We were about five months coming out, and
ran short of provisions on the way. I do not remember a window in
front of the poop. If there was one it must have been covered over,
for I never saw it or heard of it at any time. We never expected to
reach Melbourne in her. She was a dangerous vessel, and not fit, in a
breeze with a seaway, to either stay, wear, or run. I would not ship
in her again under any circumstances. When in Queensland I read in
the newspapers some account of the trial, and was sorry that I was
not in Melbourne to give evidence as to what I knew of the _Alert_.
And I make this solemn declaration, conscientiously believing the
same to be true, and by virtue of the provisions of an Act of the
Parliament of Victoria rendering persons making a false declaration
punishable for wilful and corrupt perjury.” (Signed)

Declared at Melbourne this 19th day of March, 1895, before me, J. A.
Reid, J.P.

The following comments on the decision of the Full Court appeared in
the Sydney _Bulletin_, published June 1, 1895:—

“The Victorian Full Court lately granted a new trial in the _Alert_
case, with costs against the unfortunate woman who won a verdict some
few months ago. The _Alert_ foundered in a gale off Port Phillip
Heads, and all hands, save one, were drowned. Mrs. Kilpatrick, widow
of the second engineer, sued Huddart, Parker and Co., for damages,
alleging that they had not taken every reasonable means to ensure
the sea-worthiness of their vessel, her complaint being bracketed,
so to speak, with a suggestion that the said _Alert_, having little
margin of sea-worthiness to spare, stood always in need of special
precautions against accident. The case was tried by Judge Williams
and a jury of six, and Mrs. Kilpatrick was awarded £600 damages.
Judge Williams explained his view of the law concerning shipowners’
responsibility, and analysed the evidence, and did his best, no
doubt, to procure a fair, honest expression of intelligent opinion
from the jurymen. Messrs. Huddart, Parker and Co. availed themselves
of the Law of Appeal—which is the birthright of capital, and will
remain its birthright until the people arise and kick. The Full Court
set aside the verdict of Justice Williams’ jury. Widow Kilpatrick
asked for justice, and thought she had got it in the form of £600
damages. Had _she_ lost the case, she didn’t possess the money-power
to appeal—but this is, in legal eyes, an irrelevant detail. The Full
Court finds that the outcome of a long trial was not justice, nor
law, nor anything except costs. Justice Madden and his two colleagues
ruled that “the jury had never considered the case in its true legal
aspect.” Nobody knows the law, says the lawyers, nevertheless the
true aspect of the thing they can’t swear to is easily recognised.
This by the way. Perhaps the jurymen who gave damages to the
engineer’s widow were all wrong, according to the Act. If so, Judge
Williams, their adviser, should have told them that no vessel
certificated by the Marine Board, and floating comfortably on the
water, can be called unsea-worthy. The lack of proper fastenings to a
pantry window may be of grave consequence when the vessel gets on her
beam ends, “but this defect would not be obviously dangerous,” in the
ordinary way, and sea-worthiness is estimated in quite an ordinary
way, says the Full Court. Judge Williams, by this showing, should
have directed the jury to find for the defendant, but the Full Court
made no reference to him. Common-sense asks why Justice Williams
allowed an obviously absurd verdict to pass. And if he couldn’t
squelch it on the spot, why couldn’t he, seeing that one judge is, or
ought to be, as good as the rest of them? And if it wasn’t absurd—but
the list of questions that suggest themselves is appalling. The
answer is costs. An appeal to a higher court is an accusation of
injustice, or ignorance, or dense stupidity against the lower court.
The setting aside of a jury’s verdict, on the ground that they “never
considered the case in its true legal aspect” is an assertion that
the judge didn’t present it to them in a proper way. When the world
troubles to consider the legal aspect of these appeals, it will
suddenly observe that the law invites contempt, purely for the sake
of costs.”

I have a strong impression that our new Governor, Lord Brassey, when
he arrives and gets fairly into his new position, will be found to be
the right man in the right place. His Excellency is both a lawyer and
a seaman in his own person. He was educated at Oxford, and took his
M. A. degree there. In 1864 he was called to the bar, but he never
had any inclination to follow it up, for his natural bent was toward
the sea and shipping. He passed for, and holds, a Master-mariner’s
certificate. From 1880 to 1884 he was a Lord of the Admiralty, and
during the ensuing year filled the more important post of Secretary
to the Board. He was created a Peer in 1886, and since then has
served as a very useful member of the “Commission on unsea-worthy
ships.”

In order to show that Lord Brassey is not what seamen term “a fresh
water sailor,” it may be mentioned that from 1854 to 1893, inclusive,
he has sailed upwards of 228,680 knots, a distance which would
girth our entire globe nearly ten times! During the above period he
has, in his own vessels, been to Australia, Africa, Borneo, Canada,
India (east and west), Norway, Russia, Straits Settlements, United
States of America, etc., etc. In short, his Lordship has been—in
the homely language of the “Geordie” sailor when asked how much he
had travelled—“to Rooshayah, Prooshayah, Memel, and Shields, the
fower quarters o’ the globe ye noodle.” Having had such a remarkable
experience of sea and ships, it may be taken for granted that Captain
Lord Brassey is a pretty good judge of what constitutes safety—so
far as human knowledge can go—with regard to the shape and rig of
a vessel. He is very wealthy, and, if he desired, could have his
steam yacht full powered enough to be driven thirty knots an hour,
but his is not a policy of “speed and smash,” it is one of “sense
and security.” Hence the _Sunbeam_, in case of a breakdown of her
machinery, carries sail amounting to 9200 square yards of canvas.
Under steam alone she averages about ten knots an hour, but with a
spanking breeze, and all sail set, fifteen knots per hour are easily
got out of her.

[Illustration: THE S.S. SUNBEAM UNDER FULL SAIL.]

In a large port like Melbourne where important shipping cases are
often before the law courts, it is certainly a serious drawback that
there are so few lawyers who are possessed of nautical experience.
Of course many of our Victorian legal luminaries have been out
on yachting excursions, and perhaps now and then got wet both
_outside_ and _inside_, but this kind of experience, like the “little
learning,” is really worse, and therefore more “dangerous” than if
they knew nothing at all! Whenever I hear, or read of, one of these
would be “sea-lawyers” floundering through a shipping case, I am
always reminded of the story told of the seaman who was a witness in
an assault case. When Jack entered the witness-box, he was asked by
one or the lawyers whether he (Jack) appeared for the plaintiff or
the defendant. Jack replied that he did not understand the terms,
and therefore did not know whose side he was on. To this the lawyer
sarcastically remarked: “A pretty kind of a witness you are not to
know whether you are for the plaintiff or defendant.” As the case
proceeded Jack detailed that the scrimmage took place just “abaft the
binnacle.” “Where is that?” asked the lawyer, sharply. “Don’t you
know where it is?” queried Jack. “I do not,” replied the limb of the
law. With a broad grin on his face Jack interjected, “A pretty kind
of a lawyer you are not to know where abaft the binnacle is!”

The new trial, which had been ordered by the Full Court, commenced
on Wednesday, Oct. 23, 1895, before Mr. Justice Hodges and a fresh
jury of six. Mr. W. Williams and Mr. Meagher, instructed by Messrs.
Ebsworth and Wilson[3], appeared for the plaintiff (Mrs. Kilpatrick),
and Mr. Coldham with Mr. Schutt, instructed by Messrs. Malleson,
England, and Stewart, appeared for the defendant company. On both
sides fewer witnesses were examined than on the first trial, and the
evidence, so far as it went, was almost a repetition of that given in
the previous case with the exception that the position of the cargo
was more fully dealt with. At the close of the evidence on the fifth
day of the trial, both Mr. Coldham and Mr. Williams delivered very
able addresses to the jury. His Honour, Mr. Justice Hodges, then
summed up. He dealt with all the points of the case, and his charge
to the jury, in brief, amounted to this: “If they determined that
the _Alert_ was sea-worthy there would be an end to the matter, for
in that event they would at once give a verdict for the defendants.
On the other hand, it was for the jury to say whether reasonable
precautions were taken to ensure the sea-worthiness of the ship,
and if they found that such was not done, they would then consider
the measure of damages to be awarded to the plaintiff because of
such neglect. With regard to this neglect the defendants had a
strong answer seeing that they had Lloyd’s and the Marine Board’s
certificates of sea-worthiness, yet it might be that Lloyd’s and the
others were all wrong. If the jury found a verdict for the plaintiff,
then in assessing damages, they (the jury) were to remember that the
plaintiff would only be entitled to receive pecuniary compensation
for pecuniary loss; but the mother or the child could not be
compensated for the grief or pain they suffered. The jury were to
throw all sympathy out of the question, and deal with the matter as
one requiring simply cold justice to be dispensed.” After retiring
for about an hour the jury returned into court with a verdict for
the plaintiff. Damages £791, to be apportioned thus, £666 to Mrs.
Kilpatrick and £125 to the child.

I quote the following from the _Age_ newspaper of November 26, 1895:—

  “The S.S. _Ethiope_, which was placed in the Alfred Graving Dock,
  Williamstown, for the purpose of ascertaining the leakage in her
  hull, which occurred during her passage down the Bay on leaving for
  London with a full cargo of wool, was floated out yesterday and
  berthed at the railway pier, Williamstown, where she will receive
  on board the portion of her cargo that was landed prior to her
  entering the dock. Whilst in the dock a thorough examination was
  made of the vessel, and the cause of the leakage was discovered
  under the engine room. The bolts in several of the seams had
  started, and allowed sufficient water to inflow to cause the
  vessel’s return to port for examination and repairs. The repairs
  were speedily carried out, and on the reloading being completed
  Captain Miles feels confident that the cargo by the ship will
  arrive in London in time to catch the January wool sales. During
  the stay of the _Ethiope_ in dock her bottom was cleaned and coated
  with Rahjten’s anti-fouling composition. The _Ethiope_ will leave
  again for London during the week.”

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 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, 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 steamer _Ethiope_, having returned to port in a leaking
  condition, was detained for repairs, and was to be examined on
  November 30 before receiving the permission of the board’s engineer
  to proceed to sea. Captain Clark stated that he heard a rumour that
  since the vessel had left the dock she was leaking worse than ever.
  Mr. McLean, the board’s engineer, said there was no foundation for
  the report, and it arose from the fact that the water which was
  in the vessel ran aft as her trim was altered. He had given great
  attention to the pumps and bilges and was satisfied that she was
  now quite dry and watertight. His report was adopted.”

[Illustration: SUPREME COURT BUILDINGS, MELBOURNE.

Containing eight Halls of Justice.]

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
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:—

    “Sae I begun to scrawl, but whether
     In rhyme or prose, or baith thegither,
     Or some hotch-potch that’s rightly neither,
                   Let time mak proof.”

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:—

    “When wilt thou save the seamen,
      Great God of mercy—When?
     Not shipping kings, but seamen,
      Not property, but men!”

         AMEN.

[Illustration: Decoration]


FOOTNOTES:

[2] For obvious reasons the declarant’s name is kept back from
publication.

[3] It is but an act of “cold justice” to mention that Mr. Ebsworth,
in addition to being an able lawyer, is a practical seaman who has
passed through eight years’ experience, and holds a chief mate’s
certificate from the Board of Trade.




[Illustration: Decoration]




Final Battle with the Lawyers.

    “Law was design’d to keep a state in peace,
     To punish robbery, that wrong might cease;
     To be impregnable: a constant fort,
     To which the weak and injured might resort,
     But oft, perverted minds its force employ,
     Not to protect mankind, but to annoy;
     And, long as ammunition can be found,
     Its lightning flashes and its thunders sound.”
                                               _Crabbe._


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, 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 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 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 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 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 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 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
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 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 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.

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 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 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 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 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:—

    “Eye Nature’s walks, shoot folly as it flies,
     And catch the manners living as they rise;
     Laugh where we must, be candid where we can,
     But vindicate the ways of God to man.”


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 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.

[Illustration: PONTING AND “VICTOR HUGO” IN 1899.]

“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; 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):—

    “‘Equity’s an evil, but common law’s the devil.’
                   _Pandecta_, tom. ccix., p. xviii, _passim_.

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
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:—

    “‘Mister Hoteggs, in addressing the jury,
      Lashed himself into a terrible fury;
      Talked wildly concerning the funnel and mast,
      Till Mac—from the jury-box—spoke out at last.
      Cried he, “Your rubbish is getting much stronger,
      And I cannot hold my tongue any longer;
      I will sum up your speech, sir, just in a word:
      It is utter _nonsense_. Your talk is _absurd_.”
      Hoteggs looked glum, being quite taken aback.
      Thought he, “I must go on a different tack;
      This man is against me, that’s plain to be seen,
      But I know how to manage _him_—he is green.”
      Quick to act on the thought, Hoteggs _called_ out,
      “At Menzies’ Hotel I am going to shout;
      Mac, come on, bring your mates, and over a gill,
      I will make each one convinced against his will.”
      To Menzies’ they went, and, quite needless to say,
      Hoteggs, after that, had it all his own way.’

“‘MORAL FOR BARRISTERS.

    “‘If with a jury you have any bother,
      Just shift the case from one bar to the other;
      At the court bar your talk may do your side harm,
      The pub. bar’s the place, with a dram and a yarn;
      But be cautious and mind what you are about,
      Otherwise “Be sure your sin will find you out.”’”[4]

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., 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
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 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 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 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
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, 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 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, 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 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._

[Illustration: Decoration]


FOOTNOTES:

[4] Num. xxxii. 23.




[Illustration: Decoration]




The Division of the Spoil.

  “I am sure, if you go to law, you do not consider the appeals,
  degrees of jurisdiction, the intricate proceedings, the knaveries,
  the cravings of so many ravenous animals that will prey upon
  you, villainous harpies, promoters, tipstaves, and the like,
  none of which but will puff away the clearest right in the world
  for a bribe. On the other side, the proctor will side with your
  adversary, and sell your cause for ready money; your advocate shall
  be gained the same way, and shall not be found when your cause is
  to be heard. Law is a torment of all torments.”—_Otway._


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 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:—

    “There, take, says Justice, take ye each a shell;
     We thrive at Westminster on fools like you:
     ’Twas a fat oyster—live in peace—adieu!”

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 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 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:—

    “In a familiar style your thoughts convey,
     And write such things as, present, you would say.”

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!

[Illustration: Decoration]

_Printed by Hazell, Watson, & Viney, Ld., London and Aylesbury._

[Illustration: TESTIMONIAL

GIVEN TO MR. PONTING BY THE PEOPLE OF MELBOURNE AT THE THEATRE
ROYAL.]




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  Transcriber’s Notes

  pg 28 Changed: the beauties of that delighful spot
             to: the beauties of that delightful spot

  pg 29 Changed: Collins party where two men
             to: Collins party were two men

  pg 54 Changed: Death and trouble rouud me rave.
             to: Death and trouble round me rave.

  pg 168 Changed: What is your opinion should have been done
              to: What in your opinion should have been done

  pg 187 Changed: exactly one-twelth of the whole
              to: exactly one-twelfth of the whole