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 theAlertin the Bay, but never outside with her. I felt she would be a coffin for someone sooner or later.
Q.—Assuming theAlertstarted 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 theAlertthree 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 theAlertwas 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 inher 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 theAlertwould 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 theAlert, 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 dependsupon 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 steamerAlertever 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 theAlertwas 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 shouldhave 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 theAlert.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 theAlertwas 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, theAlertshould 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 theAlerttwo 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 theAlertdown, 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 theAlerthe had been out of work for some time. His wages as second engineer of theAlertwere £8 permonth. When he was in the employ of the Melbourne Harbour Trust as chief engineer of the dredgeLatrobe, 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.