KILPATRICK v. HUDDART, PARKER & CO., LTD.
Sixth Day, Tuesday, February 19, 1895.
Evidence for the Defendants.—(Continued.)
Hugh Bell McMeikan, examined by Mr. Mitchell, stated: I am master of the tug boatAlbatross. I have had experience at sea since 1850. I have been Master of all sorts of vessels. I knew theAlert, and have been on board of her often. So far as I saw she was all right. I saw her outside the Heads after she went into the Gippsland trade. She always behaved well so far as I saw. I have seen the pantry window often; it would not make the vessel unsea-worthy.
His Honour: We have heard that when this vessel got within two miles of the Schanck, she made an offing of about six miles. Supposing you had been on board of her then with a strong sea running from the S. E., and wind from the S. W., would you, before putting the ship away on her course to the Heads, have taken any precautions with regard to the window?A.—No, I don’t think I would. It had been there long before, and had not been found fault with. If I hadbeen in command of that ship, I would have given orders to the officers to see that everything was snug. I never heard in my life of a bunker lid coming off by the rolling of a vessel. I don’t see that the wooden awning or the forty-four tons of cargo had anything to do with the vessel’s sea-worthiness. She was sea-worthy enough to come up from Gippsland to where she did.
Cross-examined by Mr. Smyth: TheAlbatrossis supposed to go outside in any weather. Her length is one hundred and fifty feet, beam, inside paddle boxes, nineteen feet six inches, outside paddle boxes fifty feet, and depth eleven feet six inches. She sits on an even keel; but theAlertsat very much by the stern. I knew the late Captain Mathieson, and he was a skilful mariner. The master on board of his own steamer is the best judge of what to do; he knows his vessel. There was nothing to prevent Captain Mathieson from altering his course for the Heads. I don’t think theAlertwanted any cargo to make her stable. She would float without anything. If any steamers go to sea with bunker lids simply laid down by their own weight, that would to a certain extent be a cause of danger. I have a canvas awning on theAlbatross.
Lucy Edith Kilpatrick(the plaintiff) recalled by defendant’s counsel, in reply to Mr. Mitchell, said: I received some money from the fund that was subscribed. I am to get £100. I get it in weekly instalments.
To Mr. Smyth: The £100 I am to receive is not from Messrs. Huddart, Parker & Co., but from a fund subscribed by the public. I do not know the amount of insurance the owners of theAlertreceived.
William Wilson, examined by Mr. Purves, stated: I am the master of the steamerEagle, a tug boat. Her owners are Messrs. Huddart, Parker & Co., and I am in their employ. I have been master for nineteen years. I knew theAlert, and was in her for eight months in 1889. I remember the wreck of the shipHolyheadat Point Lonsdale, Port Phillip Heads. I was employed on theAlertat that wreck, for about three weeks altogether. I had an opportunity of judging the capacity of theAlertas a sea-boat. I say she was good. I did not see anything in my eight months’ experience of her that made me think she was a dangerous ship. I did not see any fault with her at all. I wish she had been mine.
Cross-examined by Mr. Box: We had pretty rough weather when working at theHolyhead. Other boats could not have done the work like theAlert. Nothing would stop her until she met a gale of wind. Of course in a gale of wind we could not get cargo out of theHolyhead. I had on one occasion one hundred and forty tons of cargo in theAlert. It made her sit differently in the water. It balanced her.
Louis John Daly Schutt, examined by Mr. Purves, stated: I am a Victorian sea pilot, and have been one about six years. Prior to that time I was in the employment of Huddart, Parker & Co. as captain and also as mate. I commanded theAlertabout four and a half years in the Geelong trade. During that time we had some heavy weather and seas for the Bay. I formed the opinion that she was a good little sea-boat. After I left her the engines were shifted. There was no great difference in her after the alterations. When I was inher there was a window under the break of the poop. The glass in it got broken. It was about a quarter inch thick. I put a new one in three eights of an inch thick. I maintain that it could not possibly be broken by a sea, unless the sea washed something against it. When I had charge of theAlertthe gratings were low down, afterwards they were built up to the top of the engine house. I believe the same bunker lids were on the ship when she went down as when I had her. They fastened down with keys, I am positive. Outside the Heads the seas are bigger than in the Bay. If I had the command offered me, I would have taken theAlertto sea. I had not the slightest doubt about her sea-worthiness.
Cross-examined by Mr. Smyth: I was in command of theAlertfrom 1884 to 1889. She was never out at sea while I was in her. I put the glass window in myself. One of the passengers who was the worse for liquor put his foot against the previous one and cracked it. I have had seas on board in the Bay, and the starboard alleyway full, but no water ever went below. In my time the engine room went right back to the front of the poop, and prevented water going from one side of the ship to the other. One of the new improvements made was that this casing was cut away and an after hold put in.
Q.—When theAlertfoundered, did the water getting into the saloon take her down stern first?A.—I say no. Supposing forty tons of water were in the cabin it would be pretty well full. I don’t see that it would take her down, owing to the watertight compartments.
Gilbert Moore, examined by Mr. Mitchell, stated: I am a master mariner in charge of the S.S.Excelsior, one of Huddart, Parker & Co’s steamers trading between Melbourne and Geelong. I knew theAlert, and was in command of her. For two or three winters I was trading with her to Geelong and back to Melbourne, and sometimes we had heavy weather. She behaved very well indeed. Sometimes in bad weather she would not behave very grand. In moderate, good, and fine weather she was beautiful. I went to Tasmania in her in February, 1893. I had no cargo going over, but coming back I had I daresay about seventy tons. We had fine weather going but a stiff breeze coming back. She behaved well and was a bit wet. I remember the pantry window; it did not affect the ship in any way. It was about eighteen inches above the deck. It was sufficiently secured to withstand the pressure of water. The bunker lids had slots and turned round, thus fixing them in. I saw that they were fastened. I can’t see how the wooden awning or the open grating would make the ship unsea-worthy. It is a matter of opinion. There was a tarpaulin to cover the grating if they liked to put it on.
Q.—What in your opinion should have been done with the vessel before changing her course for the Heads?A.—I would have put the engines dead slow. As a matter of course a man, in weather like she was in, should have seen that everything was secure. If I had to run the ship, I would keep the engines slow; and if I had a sail, I would set it. If the sea was too heavy and she would not come to the wind, I would let go a sea anchor.
Cross-examined by Mr. Smyth: I knew the late Captain Mathieson. He was a careful seaman, and a good ship master. He would be the best judge of what he ought to do. The grating was six feet wide, and fore and aft from eleven to thirteen inches.
Q.—Supposing Mr. Grant, the man who put the grating in, said it was twelve feet across and three feet six inches long?A.—I know differently; I never measured it, but I say it was not three feet long.
Q.—You looked very particularly before you went to Tasmania to see that the bunker lids were fastened with slots?A.—Yes, I did. I considered it necessary. They fitted properly and were caught with slots.
Q.—If you were the only witness out of thirty who said these lids did not fit in by their own weight, will you contradict them all?A.—Yes.
Q.—If Mr. Grant, who fitted them in, states that the lids secured themselves only by their own weight, do you contradict him?A.—Yes; I say what I know.
Q.—You swore at the Marine Board enquiry that you took theAlertto Tasmania as a trial trip?A.—I meant to say it was a severe trial to the ship.
Q.—We are told by witnesses that her freeboard aft was only about two feet?A.—That is wrong. She had double that. She never had less than four feet aft from the water’s edge to the deck. She used to draw ten feet six inches aft, and her depth of hold was nine feet six inches.
Q.—Then how could she get the freeboard?A.—Because she had a long heel aft.
Q.—Did you say to-day that it was according to theweather, and that in bad weather theAlertwould not behave very grand?A.—I don’t remember saying that, but if I did, it would be true of her, or any other ship.
Q.—When you were in theAlert, did she ever take water down into the engine room or stoke-hole?A.—It might be a few drops, or a bucketful, down through the gratings, or the doors.
Charles William McLeanwas recalled to explain that although there was a clause in theAlert’sriver and Bay certificate that she was not fit to ply outside the river and Bay, as defined by the Act, it did not mean that the vessel was unfit to go outside the Heads.
His Honour: That is a question for argument.
Mr. Smyth: I shall argue that the vessel was certified as unfit to go outside the Heads.
Mr. Purves: That is an absurd argument, because there was a subsequent declaration that she was fit to go outside.
His Honour: I think it is a question of construction. If the vessel was going to trade in the river and Bay, she got a certificate to that effect. If she were going to trade outside the Heads, she must have a certificate for outside. The one is not inconsistent with the other. That is the view I hold at present.
Carl Gustafson, examined by Mr. Purves, stated: I am a Russian Finn and an A.B. seaman in the employ of Huddart, Parker and Co. I am now forty-eight years of age, and have been at sea since I was nine years old. I was seaman on board theAlertfor four years, and was in her after she was altered and went to sea. I was not in her outside the Heads. Myexperience of her was in the Bay. In heavy weather I have seen the decks flooded, but never knew of any water going below, either through gratings or pantry window. From what I knew of theAlert, I would go anywhere in her. I thought her a good strong boat.
Cross-examined by Mr. Box: I remember theAlertin the Bay taking a very large quantity of water on board. The engines had to be slowed down because the seas came over. I can’t remember if the fires were nearly put out on that occasion. She was not in very much trouble. The pantry window was a round glass in a wooden frame. It had a wooden slide in front outside that covered it right over. I am in theExcelsiornow, but I an not mixing up her pantry window with theAlert’s. I never noticed how it was fastened inside. When I left theAlert, two years ago, I have been in theExcelsiorever since.
William King, examined by Mr. Purves, stated: I am chief engineer of theExcelsior. I am an engineer by profession, and have had sixteen years’ experience of shipping. I knew theAlert, and was chief engineer of her from 1890 to 1893 in the Bay trade, and also for six months after the engines were altered. During that time I went outside the Heads to Tasmania. On that voyage I considered she was perfectly sea-worthy. We had fine weather going, and very rough weather coming back. I was perfectly satisfied with the way she behaved. I never heard of, or saw, any water coming in through bunker holes or gratings while I was in her. I would go to sea in her any time and anywhere.
Cross-examined by Mr. Box: Engineers and seamenhave to take a good deal of risk sometimes. If one is out of employment it is not easy to get a billet. There was no risk in going in theAlert. We were sixteen hours coming from Tasmania. That was the only time I went outside in her. TheExcelsioris larger than theAlert. I have seen the latter shipping heavy water in the Bay. She had to go slow at times. The new engines lifted her about six inches higher in the stern.
John Legg, examined by Mr. Purves, stated: I am dockmaster in the employ of Mr. Duke, of Duke’s dock. By trade I am a shipwright, and have been employed by Mr. Duke for about thirty years. I have had theAlertin dock on many occasions. She was buoyant and able, in my opinion, for her size.
Cross-examined by Mr. Box: I have never designed a vessel myself. I have been to sea as master of sailing-vessels, not steamers. I don’t know anything about theAlert’sinside. She was not very deep, and was rather narrow in the beam. I would not call her a very tender vessel. I was on board of her before she was altered, but not after. I would call her a stable vessel for her size. There is no doubt that she was fitted for the Bay trade. As to going outside that all depends upon the weather. It would be a risky thing taking a vessel built from that model outside in all sorts of weather. I would go to sea in theAlertin ordinary weather.
James Trainor, examined by Mr. Purves, stated: I am a seaman, but at present I am a labourer. I was an A.B. on board theAlertand other ships for sixteen years. I went to Tasmania in theAlert. She went without cargo and came back with seventy tons of oats.She behaved like any other vessel of her size would do. I considered her as good as any other vessel.
Cross-examined by Mr. Box: I have been wrecked twice. It was my idea to go in theAlertto see how she would behave. I asked to go. I volunteered to go in her. I was Huddart, Parker’s man then.
Q.—I suppose there was great excitement in the office to see how she would go?A.—Yes. (Laughter.) I had heard great talk of theAlert. I was not astonished to get back safely in her.
Richard Gough, examined by Mr. Mitchell, stated: I am a shipwright surveyor, and have been working for about three years surveying ships for the Marine Board. I knew theAlert, and on two occasions made a survey of her for the river and Bay trade. The last survey I made was in April, 1893. I then made a declaration. I should say theAlertwas sea-worthy in every respect. The opening spoken of as the pantry window was about fourteen inches by twelve inches square. The glass was about half-an-inch thick, and was in a strong wooden frame. I don’t remember how it was fastened. It would not make the ship unsea-worthy in the slightest degree. The grating was a great height from the main deck, and if any water went down it would only be a splash. The bunker lids fitted into sockets. They rested by their own weight. Unless the ship were upside down no water could go through them. In my opinion the wooden awning did not make the ship unsea-worthy. When the alterations were being made I did not have before me the specification of what had to be done.
Cross-examined by Mr. Box: On one occasion after repairs were completed theAlerthad a permit to go to Tasmania, not a certificate. A certificate is for a year; a permit is only for the occasion. I gave a certificate to the engineer. There would be no examination of the vessel again on her return from Tasmania because she had a certificate for the river and Bay trade. We do not make a declaration to give a permit. I did not make a declaration that theAlertwas fit for the outside trade. Captain Deary was appointed shipwright surveyor, and he took my place. Captain Deary is not a shipwright, but I cannot help that. He was appointed, and is a shipwright surveyor by virtue of his office. A shipwright surveyor’s certificate should be given by a man skilled in shipwright surveying. I never measured the grating. When I surveyed theAlertfor the permit to go outside the Heads to Tasmania, she had not got a shutter in front of the window. I do not remember whether she had a shutter at any time I surveyed her. I signed a certificate about life-boats only for the river and Bay trade. I signed only the permit to go outside. TheAlertwas built for shallow water.
Re-examined by Mr. Mitchell: In my opinion theAlertwas a sea-worthy vessel fit to go to Tasmania. When Captain Deary made the declaration that she was fit for the outside trade, I was still a shipwright surveyor, but was receiving no pay from the Marine Board. I had ceased to be their officer through retrenchment. I believe theAlert’strip to Tasmania had something to do with clearing the Customs duty off her engines.
Samuel Johnson, examined by Mr. Mitchell, stated:I am assistant engineer and surveyor for the Marine Board. I have had two and a-half years’ experience in that capacity. I have had about five years’ experience at sea as third and chief engineer. I signed the declaration with Mr. McLean. Alongside the wharf I tested the vessel under steam to see to the safety valve. The test was satisfactory. Mr. McLean inspected everything else. I only saw the vessel in dock for about half an hour.
Cross-examined by Mr. Smyth: So far as the steam was concerned I made a thorough examination. I signed the declaration for that part of the survey which I did. I made no examination of the vessel’s hull. I daresay my examination took over an hour alongside the wharf, and on that I gave the certificate. So far as I was concerned that authorised theAlertto go to sea.