Battling with the Lawyers.
“Let us consider the reason of the case; for nothingIs law that is not reason.”—Sir John Powell.
“Let us consider the reason of the case; for nothingIs law that is not reason.”—Sir John Powell.
“Let us consider the reason of the case; for nothingIs law that is not reason.”—Sir John Powell.
“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 outof 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 steamerAlertin 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 aquestion 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. Smythin continuation said theAlertwas 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 andfiremen 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 theAlert’sdimensions. 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 theAlerthad 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 afterpart. 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 theAlertpretty 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.Despatchbefore I went to theAlert. TheAlerttemporarily took the place of theDespatchin 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 theDespatch. 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 theAlert. 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 inadvance of the bridge. TheAlerthad 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 thestoke-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 headingoff 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 notafterwards 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 theAlertwere. 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 theSchanck, 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 theAlert.
Q.—Had you in any ship?A.—Yes, in theDespatchon the coast.
Q.—That is the only ship you saw such heavy weather in?A.—I have been in dozens. I have been in theDespatchin 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 thepantry 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 theAlert? (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 thefunnel 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.