KILPATRICK v. HUDDART, PARKER & CO., LTD.
Eighth Day, Thursday, February 21, 1895.
Continuation of Mr. Smyth’s address to the jury.
He would ask the jury to say that the pantry window was not protected, and that it rendered the vessel unsea-worthy. He would also ask them to say that the defendants had not used all reasonable means to insure sea-worthiness, especially as the evidence of Captain Webb, one of the directors of the company, showed that he was thoroughly acquainted with the condition of that window. The cargo of forty-four tons of wattle bark and furniture, which theAlertcarried on the occasion when she foundered, was too high and too light to make her stable. When her trial trip to Tasmania was made, a fine day was selected, and she carried no cargo; but on the return journey, when the weather was rough, she carried seventy tons of oats, and that was very different to forty-four tons of light loading. Ponting, the cook, said it was the lightest cargo he ever saw in her, and that the light cargo was the subject of comment amongst the crew. He would further ask the juryto say that this light cargo, and the manner in which it was stowed, was another cause of unsea-worthiness in a vessel that sat so low astern, had such extreme dimensions, and that was intended for the Bay trade, and even in the Bay was a wet ship. The gratings over the stoke-hole being unprotected were a further cause of unsea-worthiness, and, as Ponting stated, the water entered the ship through them. He (Mr. Smyth) was perfectly satisfied to leave it to the jury that the plaintiff was entitled to compensation for the pecuniary loss she had suffered through losing her husband on this unsea-worthy ship.
Mr. Justice Williamssummed up the case to the jury. He said his charge might be made comparatively short, the evidence having been placed before them with very great fulness by the witnesses and learned counsel on both sides.
The plaintiff brought an action under an Act of Parliament, by which, providing the action were brought within a certain time, she was entitled to recover damages if the loss of her husband was caused by the neglect of the defendants. Her ground of action, shortly put, was that the death of her husband was caused by the negligence of the defendants. She said in effect that it was part of the contract of the defendants to take all reasonable means to provide that their ship should start on all voyages in a reasonably sea-worthy condition. Sea-worthy condition meant that the ship should be in a fit state to encounter all the perils of a sea voyage. Of course, if a vessel got into acyclone, a typhoon, or some terrible storm that overwhelmed her, the owners were not to be blamed for that. Such an occurrence would be due to what Mr. Purves had called “the act of God.” Speaking for himself he (His Honour) thought the Almighty got the credit, or the discredit, for many of these things of which it would be better to say that such occurrences were due to the destructive agencies of nature for which the owners were not responsible. He (His Honour) did not give the Almighty the credit for slaughtering the human creatures He had created right and left in this indiscriminate manner. The plaintiff, to support her cause of action, had first to prove that the ship was not sea-worthy, and then, to render the defendants liable, she would have to prove that the vessel was not sea-worthy by reason of some precaution not having been taken by The defendants which they should have taken. The defendants pleaded that they did take all reasonable means of making the vessel sea-worthy, and were not guilty of any neglect, and that, even if this were not so, the cause of the foundering was the improper navigation of the captain. If that were so, the owners were not responsible, because the ship did not founder through their fault, but through the fault of the captain. Owners were not responsible for the rash act of a captain at sea. This was important to bear in mind in this case, because the defendants endeavoured to show that the ship would have come through the gale all right if she had been properly handled by the captain. They said that if he had made things all right fore and aft, and had put the covers over the gratings, he would havecome through right enough. If the jury thought that the foundering of the vessel was contributed to by the negligence of the defendants, then their duty was to find a verdict for the plaintiff. They (the jury) had a difficult task to perform, because they had to decide between experts. Doubtless the jury knew something of the sea; probably they had all made long voyages, but what was their knowledge as compared with that of those who were bred up to the sea, whose nursery was the sea, and who could with a glance of the eye tell more than the best amateur sailor who ever lived?
The plaintiff through her witnesses attacked the general structure of theAlert, and said that the ship was unsafe to go on the high seas. It was contended that the vessel was designed and intended for the Bay service, that her engines were much more aft than they were generally placed in ocean-going steamers, and this much was generally admitted. It was said that this put the vessel down by the stern, and raised her bows. Certainly, if the bows were in the air greater play was given to the waves and the wind, and if the wind and weather were on the port-side, there would be great difficulty in bringing the ship up to the wind. The plaintiff brought a great body of evidence in support of that view; but on the other hand the defendants brought a great body of evidence to rebut it. Some very experienced witnesses had been called on both sides. Captain Bicknell, a coasting pilot of large experience, gave his evidence very well, and was most emphatic in condemning the ship as totally unfitted to go to sea; a mere “cockle boat” he called her. In addition toexpert evidence called to prove that the ship was sea-worthy, the defendants put in certain certificates, some from Lloyd’s in England, and some from the Marine Board here. These certificates in his (His Honour’s) opinion were not conclusive of sea-worthiness—he would reserve that point—but they were entitled to very great weight. The ship was built at Glasgow in 1877, and the greatest care seemed to have been taken in constructing her. She was surveyed by Lloyd’s, and certified as fit to carry perishable cargo to any part of the world. She came out here not with steam, but under sail, rigged as a barque. She ran in the Bay trade a long time. In the Bay, with a strong south-east wind blowing, there were occasionally fair seas to be encountered; but these were merely pigmy teapot seas as compared with those outside. Talk of waves! One might as well compare a millpond to the Bay as compare the Bay waves to those to be met with outside on the high seas. Whoever heard of a ship being wrecked by heavy seas in Hobson’s Bay? Anyone who had encountered “great guns” in rounding the Horn in a sailing ship, or who had seen the seas off the Cape of Good Hope, would not think of big seas being found in our Bay. Then there was the question of cargo. This was one of the plaintiff’s strongest points. Some witnesses said that it did not matter what cargo the ship had, she would have gone to the bottom all the same. The certificates did not touch this question. They were strong evidence that the vessel was sea-worthy, so far as structure and build were concerned, but did not touch the question of neglect on the part of the captainto put the ship in a sea-worthy condition before she started on her voyage. The plaintiff said that, having regard to the ship’s build and her tendency to be unstable by reason of her build, she should have been loaded and trimmed with the greatest care and caution, but defendants’ witnesses said the cargo did not make the slightest difference to her, so long as she was handled properly. A great deal had been said about the bunker lids, but there was no evidence to show that they got out of position, or that any water got through the bunker holes. This was a weak part of plaintiff’s case. As to the grating over the stoke-hole, the defendants averred that they had provided canvas to cover it, and it would be a hard thing to say that the defendants ever knew, or ought to have known, that the grating, unless protected by iron or wood, was such a danger as to render the ship unsea-worthy. The wooden awning had been condemned by some of the experts as unusual on a small ocean-going steamer. In the ordinary way, perhaps, such an awning would do no harm, but if the wind came to blow on the beam, the awning became a kind of fulcrum against which the wind pressed, and helped to heel the ship over. On the other hand, two of the witnesses for the defence had said that the effect of the awning would be contrary and would help to heave her stern up. Then there was the pantry window on which there had been such a tremendous onslaught. It was said that it was a source of danger to the ship, and supposing they (the jury) came to the conclusion that it rendered the vessel unsea-worthy, they would have to ask themselves thequestion, “Did that danger contribute to the foundering of the ship in this case?” They (the jury) must not only find that it was a source of danger, but they must also find that the defendants knew, or ought to have known, it was so, to the extent of making the ship unsea-worthy.
He (His Honour) regretted very much that the witness Ponting had been attacked by Mr. Purves. The unfortunate man was the sole survivor of the wreck, and had spent the whole of that tempestuous night on the sea, and had done nothing to deserve being spoken ill of. Ponting had given his evidence in a proper manner, and appeared to be a decent sort of man; certainly not the kind of being Mr. Purves sought to make out. Mr. Purves had also said that Ponting had been saved by an act of Providence, but he (His Honour) did not know why Providence should have shown any more consideration for Ponting than for anyone else on board the ship. The man was, providentially no doubt, saved by his own perseverance and tenacity. If Ponting’s story was true, undoubtedly the pantry window did give way and the water poured in. If the jury found that the captain neglected his duty, they would have to find a verdict for the defendants. On the other hand, if they found a verdict for the plaintiff with damages, they would have to say how much they would apportion to the widow and how much to the child.
In reply to His Honour the foreman of the jury said they would prefer to consider their verdict next day.
Mr. Mitchelldirected His Honour’s attention tothe fact that he had said in his summing up that the certificates had nothing to do with the loading, whereas, in giving the certificates, the surveyors did so on the assumption that the vessel might go to sea without cargo. If there was a condition as to cargo, it would be mentioned in the certificate. Mr. Mitchell also contended that the defendants would not be liable unless the captain loaded the vessel in a way that, in his opinion, would make her unsea-worthy.
His Honour: These both seem to be good points, and I will bring them before the jury to-morrow morning.