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.
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.
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.
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 waterof 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, whichIdo 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, ofcourse, theAlert—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 shipHesperus—although his vessel was not within a hundred miles of where theAlertwas—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 theAlert’swreck.” 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 groginhim and a dry suit of the skipper’s clothesonhim—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 theAlertdown 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 theAlert, Mr. Schutt’s opinion would have been a correct one. Fortytons 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 theoutsideof 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 theMary 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.
TheMary Ellenwas 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:—
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. Surelythis 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 admitit 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 outevery dayin 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 onbehalf of the defendants, stated that “Ponting was not the only man who saw theAlertfounder. 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 didnotproduce this other “eye-witness.” If there was, or is, really another man besides Ponting who saw theAlertgo 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 theAlertwas received from the lips of Ponting, the sole survivor, as he lay on Sorrento Beach, the dayafterthe 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 theAlertfoundered, 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 theAlertwas 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 onlya 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 willneverbe 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. Purveshad 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 oneor 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—herregistered 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 isnotsuch 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 oftheir length! The latter are not worthy of being calledships, they are merelogsfrom 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 thepeople 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 shipEnterkin, 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 theEnterkinwas 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 theEnterkinmade 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, theGaboandtheBothwell 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 steamerGascogne, 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 theGascognehad 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. TheDaily Chronicle, an English newspaper, in commenting on the case, stated: “In steamship circles here the speculations concerning the whereabouts of theGascogneduring 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, buthuman 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, and1/32of 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 lessspecific gravity than water carried, little or no spare buoyancy would be required, but amaximumwould 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 termsstabilityandsteadinessare 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 wordmetacentre, 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 amomentumis 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 isthe 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 theAlert’sdisplacement, 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 ofhocus-pocusscience 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 law is a sort ofhocus-pocusscience 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 theAlertwould 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, theDespatchfor 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 theAlert’ssea-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. Boxsubmitted 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 Justicesaid 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. Boxreferred 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. Boxsaid 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 thevessel; 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 Justiceremarked 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-Generalreminded Mr. Box that the vessel had been to Tasmania.
Mr. Boxobserved that this was a trial trip, and she took a man who volunteered to go. Once theAlertnearly got swamped in the Bay. The pantry window should have been passed by a shipwright surveyor, which Captain Deary was not.
The Attorney-Generalsaid 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 Justicegave 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. Williamssubmitted 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 theAlert, 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 thewindow by the steward. From these and other facts the plaintiff said that theAlertwas 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 preparedto 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 theearliest 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 theAlertwas sea-worthy, but through no fault of the owner they were mistaken. It was then contended for the plaintiff that whatever theAlert’scondition 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 theAlertin 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 hisHonour 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 theAlertwas 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 Hodgesagreed 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 towhich the certificate of the Marine Board was conclusive as to the sea-worthiness of the vessel.
Mr. Justice Hoodconcurred, 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 theAlerthaving 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 wereprima facieevidence 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:—