KILPATRICK v. HUDDART, PARKER & CO., LTD.
Seventh Day, Wednesday, February 20, 1895.
Evidence for the Defendants.—(Continued.)
Thomas Webb, examined by Mr. Purves, stated: I am a master mariner, and a member of the firm of Huddart, Parker & Co. I knew the S. S.Alert. She was built under my special superintendence at Glasgow. She was classed ninetyA1. I have had experience in the navigation and building of ships. When finished theAlertwas a sea-worthy ship. The pantry window was built in her during her construction. I was master of her for about twelve years, and my opinion was that she was a very fine sea-boat. The alteration of her engines gave her more lift aft, about five inches. During the twelve years I was in command, she ran every day whatever the weather was. I saw no indication in her of a danger of shipping seas. In my time no water went in at the pantry window, nor in the grating, which latter was four feet lower then than when she was lost. She was insured for £4,000. She stood in my ledger at that time at £13,000, and we were satisfied to stand the risk of £9,000.
Cross-examined by Mr. Smyth: The vessel cost about £12,000 at first, and we expended £7,000 on her here, putting in new machinery in 1893. On the voyage out from England she was insured for £12,000. She came out under sail, as a barque, with funnels down. She was then in charge of Captain Munn, who gave her the character of a splendid sea-boat. He told me that. He is dead now. At the time she was trading in the Bay I believe the insurance was less than £4,000. I was managing director of the Company. I am not so now. I am still a member of the firm and also a member of the Marine Board. During my twelve years’ command of theAlertin the Bay, I have seen her take some water on board. She did not quite fill the alleyways. She could not fill them as the water ran away through the port-holes and the scuppers. The pantry window was glass in my time. It was cracked by heat but not by water. I never gave instructions to Captain Mathieson to hurry up. I told him not to go so fast, and complained about too much coal being used. There might have been a time when she was in the Bay trade that she was not insured at all. She got Lloyd’s certificate in 1877 when she was built, and that was allowed to drop until 1893. We did not find it necessary to put her on Lloyd’s Register again in 1893; it was for our own convenience to put her back on it so as to give her a character again, in case we wanted to sell her. We paid the fees, £5 5s., for putting her back on Lloyd’s Register. My company subscribed £100 to the fund got up for theAlertsufferers. Ponting had some I believe. He got it through us. I don’t think Huddart,Parker & Co. paid him anything at all. There was £1,200 subscribed. Mrs. Kilpatrick got her portion of that. I don’t think Huddart, Parker & Co. gave her anything. Only one writ has been served on Huddart and Parker in addition to the present case. I believe the plaintiff in the other case is Mrs. Mathieson—the late captain’s wife. I consider we did our duty when my firm gave £100 to the relief fund, to which the public subscribed £1,100 more.
Alexander Wilson, examined by Mr. Purves, stated: I am engineer in charge of ports and harbours in the employment of the Victorian Government. I am by profession an engineer. I have no other qualification. I have had experience of the sea for seven years in the capacity of a marine engineer. I consider myself competent to give an opinion as to the sea-worthiness of ships. The steamerAlerthas been under my observation ever since she arrived here. Up to 1881 I surveyed her every six months. My opinion is that she was a good sea-worthy boat. I recollect a small pantry window she had in the poop. I don’t think it affected her sea-worthiness. I don’t think it would be possible for green seas to find their way down the grating on top of the stoke-hole. Ring bolts at each corner for the purpose of fastening a tarpaulin would be quite as efficient as cleats. The bunker lids rested in the ordinary way. I never knew of lids being washed off. I don’t think they made the ship unsea-worthy. Assuming that the wooden awning was made of right material, it would not affect the ship to any great extent. If she laid over it would rather have a tendency to raiseher again. Wood instead of canvas would not in the least make her unsea-worthy. There is a wooden one on theLady Loch, and she goes anywhere. The old steamerWesternhad a house on deck with a wooden awning. TheAlerthad watertight bulk-heads. She was divided into one, two, three, and four compartments when I knew her. These bulk-heads would prevent water going from one part to another. The ship in my opinion had sufficient stability.
Cross-examined by Mr. Smyth: I am not a shipwright, but I have designed seven ships. TheLady Lochis one. She does not carry her awning the whole length of the poop like theAlert. The length of theLady Lochis one hundred and seventy-five feet, beam twenty-five feet, and depth about twelve feet. She has only a small portion of awning aft. Her freeboard depends upon what she is carrying. I should say with nothing in her but coal and her machinery it would be about four feet. TheWesternwas not far different in dimensions to theAlert, but was a different class of vessel. TheWestern’slength was one hundred and eighty-three feet, beam, twenty-three feet, and depth, twelve feet six inches. I agree with Mr. McLean that an iron casement outside screwed down would be a good protection for the pantry window, but whether it was necessary is another thing. The water would not have got in if the window had been shut; and if the window was burst open, it would be a matter of five minutes to put it right. It could be barricaded from the outside. I would find my way there with a piece of timber and shove it up against the face of the window. As for the gratings, if green seascame down, the only thing the men could do would be to spread canvas and lash it over the gratings.
Q.—How long would it take with a vessel lying over on her beam ends, and heavy seas running, to get your canvas and lash it over?A.—You are putting almost an impossibility. I cannot imagine the ship getting into that position. It would take ten minutes to get the canvas—supposing the covers were at hand. All these vessels carry covers, but I would not swear that theAlertcarried covers.
Q.—Do you say that the bunker lids are always let in by their own weight?A.—I am not prepared to say positively whether I have seen any screw on like the lid of a four hundred gallon tank. I think some are that way. I am not positive how theAlert’swere.
Q.—Would not a canvas awning that you could take in be better than a wooden awning at sea?A.—It would be advantageous I think.
Q.—You told us that cleats were unnecessary, as ring bolts would do?A.—I am informed that there were ring bolts alongside the grating. I did not see them that I can remember. I am not a master mariner. I was not in command of a ship. I am not a seaman, mate, or captain. I am an engineer.
Clement Ernest Jarrett, examined by Mr. Purves, stated: I am manager of the Alliance Marine and General Insurance Coy. I remember the steamerAlert. She was insured in my office for £4,000, and valued at £6,000. I have known her ever since she came out. I employ experienced people, and I insured her after survey. I would have insured her for double theamount she was insured for, if required, without hesitation. I knew the vessel personally. I travelled in her outside the Heads, and formed the opinion that she was a very nice little vessel. I am not a seaman. I should not have the slightest hesitation in going out in her. In fact I had serious thoughts of going out in her on the trip on which she was lost.
Cross-examined by Mr. Smyth: £6,000 was the owners’ valuation. They valued her specially for insurance, not necessarily that that was her value. I accepted their valuation, and considered it too low. I insured her when she was in the Bay trade. She was insured for the same amount, and never less. She was insured for less before she had the new engines. £3,000, I believe, nothing less. I believe she was always insured.
James Alexander Mitchell, examined by Mr. Purves, stated: I am a licensed Port Phillip pilot, and have been such close on twelve years. Prior to that I was master of steamers and sailing vessels for eleven years. I knew theAlert, and remember the day she foundered, December 28, 1893. It was reported to me on that date. I was in charge on that day of the pilot schoonerRip. At about 4 o’clockP.M.I was cruising, as near as I could judge, from seven to eight miles outside Port Phillip Heads. We were cruising about in all directions. The weather was very thick. We never saw the land. All along the eastern shore as far as the Barwon the weather was thick. It was clearer to seawards and towards the west. It was blowing what we call a southerly gale. The sea was very rough andvery high. I cannot remember what the barometer was. It was heavy weather as a matter of fact. There was a cross sea from the south-east, and a swell from the south-west, and the two met and sent the water up. Our vessel was shipping a good deal of heavy spray. I have seen theAlertat a distance, when she was passing Williamstown going to Geelong.
Q.—After theAlertgot off the Schanck, about seven miles, with the wind and sea as they were, was it, in your opinion, a prudent thing to do to keep the ship away for the Heads?A.—I should say there would be danger in that manœuvre unless they—as sailors would say—watched a slant, or watched for a smooth, and then put her on her course. Before doing this, it would be only an ordinary precaution to make everything snug.
Q.—Your idea was that the heaviest weather was off the Schanck?A.—Yes, and off the Heads.
Cross-examined by Mr. Williams: We boarded some ships on that day (Dec. 28). There was no particular trouble in boarding them. The same care had to be exercised that day as in every other gale. As pilot in charge I do not think that I would have boarded a vessel between three and five that afternoon. I did not know Captain Mathieson personally. I cannot say whether he got a slant. I gave my opinion on a supposed case. For all I know he may have waited for a slant.
Q.—Assuming that there was a south-east gale blowing all day, and theAlertin it, in your opinion if things had not been snug on the ship would anything havehappened to her?A.—I should hardly have thought that in a gale of wind, blowing all day long, she would have got as far as the Schanck if things had not been snug. She would have been full of water before.
Q.—What sort of gale was it in the early part of the day?A.—It started with a fresh breeze in the early morning and gradually increased to a moderate gale from 10 o’clock till noon. After twelve it had some indication of getting finer and the barometer rose. Then the wind veered to the south-west and blew hard. A swell had been coming from the south-west all day long.
Re-examined by Mr. Purves: I should think a vessel, perhaps two or three miles from land in the daylight, would have managed to reach Western Port; but in my opinion it would have been a dangerous thing to try. We saw nothing at all all day long.
This concluded the evidence.
Mr. Purvessubmitted a point for the consideration of the judge: That the obtaining of certificates from the surveyors appointed by the Marine Act, and recognised under the Act, who surveyed the ship, and made the necessary declarations, was evidence of such a nature that in itself it was proof that the owners used all reasonable means to secure the sea-worthiness of the ship. His Honour would see the vast importance of this case to shipping companies. The conditions of the law were complied with in taking all reasonable precautions.
Mr. Justice Williams: You contend that the certificates of the surveyors authorised by the Act are conclusive evidence?
Mr. Purves: Yes; not merely evidence, but conclusive evidence. Unless it is shown that the certificates were obtained by fraud, they are actual proof of sea-worthiness.
Mr. Purves, in addressing the jury on behalf of the defendants, made a severe attack on the witness, Robert Ponting, and urged at great length that the evidence given by him was not to be relied on. He (Mr. Purves) did not think that Ponting had told wilful untruths, but had simply got up a theory of his own as to how the wreck occurred, and repeated it so often to himself that he believed it, and also endeavoured to make other people believe it. There was no credit due to Ponting in the matter at all. He did not save or try to save anybody but himself. Indeed, even that he did not do, for Providence alone had enabled him to reach the shore, while better men were allowed to go to the bottom. The jury had sat day by day patiently listening to all the details of this most important shipping case, and he (Mr. Purves) was sure they would see that it was a matter which should never have been brought into court at all. No one sympathised more than he (Mr. Purves) did with the unfortunate plaintiff, Mrs. Kilpatrick, who had undoubtedly lost her husband and breadwinner; but that was no reason why the innocent owners of theAlertshould be called upon to recoup anyone for loss sustained through an accident over which they (the owners) had not the slightest control. It should also be borne in mind that Messrs. Huddart, Parker and Co. had sustained a severe loss themselves by the sinking of the ship, which was one of their breadwinners.Notwithstanding the serious loss to the firm, they had liberally subscribed to the fund got up in relief of the sufferers. From first to last the owners had done all that men could do. When theAlertwas taken from the Bay trade to be put into the outside trade, she was surveyed by the most skilful men that could be found, and the owners expended £7,000 in effecting alterations to make her a most efficient ship. Not content with the local survey they had her re-classified at Lloyd’s. She proved herself a sea-worthy ship, even on the occasion of her last voyage, by running under adverse conditions from Wilson’s Promontory to Cape Schanck without shipping any water, and it was only when Captain Mathieson in a reckless moment altered her course to the Heads, in a tremendous sea and heavy weather, that she foundered. Any of the largest steamers would have foundered under similar circumstances. Unless it was proved that the defendants, as reasonable men, were not satisfied that the ship was sea-worthy, the plaintiff had no case whatever. Was there any evidence to show that theAlertwas unsea-worthy? He would ask the jury to say that the defendants were not in any way to blame, and that the disaster, which they all deplored, was an act of God. He desired to apologise to the jury for being unable to produce, notwithstanding his promise to do so, the person who, in addition to Ponting, actually witnessed the foundering of theAlertat sea. During the course of his remarks, Mr. Purves pointed out that a good deal had been said by the witnesses for the plaintiff about the fact of theAlertbeing rigged with only a foremast. Incontradiction to this theory of danger it was only necessary to draw the attention of the jury to the fact that the steamships of Her Majesty’s navy—the best ships in the world—had no masts at all! They were merely fitted with flag-poles for signalling purposes. Some of the most incredible stories had been told concerning the wreck of theAlert. For instance, the witness Ponting had said that “flames and smoke came out of the vessel’s funnel as she sank.” The thing was simply impossible. (Here Mr. Purves spoke with great emphasis and considerable warmth.) “Why hang it, gentlemen of the jury, the fires must have been out a considerable time before the ship went down!” The learned gentleman then concluded an impassioned appeal by drawing marked attention to the fact of the plaintiff, Mrs. Kilpatrick, having attended the court with her baby every day since the trial began, when she ought to have been at home attending to her household duties. He (Mr. Purves) could see no other object in her conduct than that she was desirous, through her presence, and that of her infant, of enlisting the sympathy of the jury. He was sure, however, that those gentlemen would not be misled, but would, in bringing in a verdict for the defendants, estimate her attendance in court at its true worth.
In addressing the jury, on behalf of the plaintiff, Mr. Smyth said that he was astonished at the unwarrantable manner in which his learned friend, Mr. Purves, had dragged Mrs. Kilpatrick’s name before the jury. In the beginning of the case he (Mr. Smyth) had called Mrs. Kilpatrick as a witness to testify as to her latehusband’s age, general habits, etc., and was then done with her. Since then his learned friend, Mr. Purves, had served her, through Messrs. Gaunson and Wallace, with a notice to appear on his behalf. Therefore, Mrs. Kilpatrick had attended day by day in response to Mr. Purves’s demand, and on that account only. She had no one to leave her infant with, and consequently was compelled to bring the child to court. Under these circumstances it was mean and contemptible for Mr. Purves to put the construction he did on the presence of the plaintiff in court. He (Mr. Smyth) would not make any remark concerning what his learned friend, Mr. Purves, said about Ponting, as the latter was perfectly able to defend himself. With regard to the statement made that the owners of theAlerthad acted liberally in relieving the sufferers, he (Mr. Smyth) failed to see where the liberality came in. What were the facts? £1,200 were raised by public subscription, toward which Messrs. Huddart, Parker contributed £100—exactly one-twelfth of the whole—but they did not aid Ponting, the only survivor from the wreck of their ship, to the extent of a single farthing!
In continuation, Mr. Smyth said that the obligation was imposed on the owners of ships not only to put them in a sea-worthy condition, but to keep them so during every voyage. The certificates were the permit to go to sea, but the owners to save themselves must then take all reasonable precautions that the ship was sent to sea in a sea-worthy condition, and through their agent, the captain, that she was kept in a sea-worthy condition during the progress of thevoyage. The certificates were not conclusive evidence of sea-worthiness, except as to the condition of the vessel at the time of survey. He contended that the evidence proved that at the time of the wreck there were such defects in the vessel as to make her unsea-worthy. She was built for the Bay trade, and was never fit to go outside.