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.
“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.
“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.
“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 metthe 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 theAlertwas 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 theAlertwas built on the ordinary principles of shipbuilding. She was built at Glasgow by one of the most eminent firms in the world; was classed 90A1at 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 theAlertto 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 fromMelbourne 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 shipHesperus. 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 thenwas a heavy gale from the S. W., and that was a fair wind for me. We signalled to Cape Otway at 4.15P. 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 tenP. 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 thatnot 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 theAlertgot 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 theAlertwas 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. Wehave 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 steamerAlert?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.]