Chapter XIII: Conclusion (1)

On the 2nd of February, 1894, the Melbourne Marine Court, consisting of Mr. J. A. Panton, Police Magistrate, Captain A. J. Roberts, and Mr. Douglas Elder, concluded their investigation into the circumstances surrounding the foundering of the _Alert_. The decision given was as follows:—

“We find that when the _Alert_ left Metung, she was properly
equipped in every respect, and apart from the manner in which
she was laden, was in a good and sea-worthy condition. She was
a suitable vessel, having regard to her build, for the trade in
which she was engaged, as it was shown in evidence that she was
classed for any trade. In view of the vessel’s construction and
the manner in which laden on her last voyage—having on board only
about forty four tons of cargo—the _Alert_ in the opinion of the
Court, had not sufficient stability, and in view of the weather
experienced, she had too much freeboard for the voyage she was on.
Considering the trim of the vessel and the state of the weather, it
would have been more prudent had the _Alert_ run into Western Port
for shelter. In the opinion of the Court, the Master should have
kept her head to sea when the vessel first commenced to take in
lee water. There was not any neglect on the part of the lighthouse
keeper at Cape Schanck, and existing regulations appear to have
been carefully observed. The crew of the life-boat at Queenscliff
appears to have been properly directed, and, in the opinion of the
court, they did all that could have been done, having in view all
the existing circumstances. A proper look-out was kept on board the
pilot schooner on the cruising station. The reason the boats on the
_Alert_ were not made use of would appear to be attributable to the
fact that when the vessel heeled over, the forward boat could not
be got at, and the after life-boat was washed away about the moment
when the vessel foundered, and there is no evidence to show what
became of it. There was a sufficient supply of proper life belts
on board, and they were easily available. There is no evidence
before the Court to show that the late Master, Alexander Mathieson,
did not use every precaution in handling the vessel. There is no
evidence to justify the Court in expressing an opinion as to the
immediate cause of the foundering of the steamship _Alert_.”

A perusal of the foregoing shows that, while almost everything else has been commented on, no mention, whatever, is made of the fact that the rig of the vessel did not permit of sail being set aft. In view of the great length of the _Alert_—as compared with her depth—the above fact constituted, in the opinion of the compiler of this book, a very grave defect. Further, no vessel, whatever her length, or whether steamer or sailing ship, should be classed by the Government officials as fit to go outside Port Phillip Heads, unless she is rigged in a suitable manner to enable her to carry sail aft, as well as foreward. No doubt in these “hurry skurry” days the tendency of the time is to make steam machinery take the place of sail, but until man can control wind and waves, machinery can never wholly supersede canvas. The latter is not only required to steady a steamship in a seaway, but is indeed an actual necessity during emergencies brought about by either a breakdown of machinery, or stress of weather.

It is not so very long since a large steamer, the _Age_, was tossing about, for a week or so, in Bass’ Straits, as helpless as a log, because her machinery had met with a mishap, and she was unable to set canvas enough to keep her side down, let alone bring her into port!

Moreover, it may be added that there is scarcely a single sea-going steamer, which, at the present time, carries _half_ the canvas she ought to. In the interests of life and property this is a matter that should be carefully seen to in future, and, if need be, enforced by legal enactment.

Steam power is very well in its place,
When water’s smooth and the ship’s in a race,
But when sea’s rough and wind blowing a gale,
There’s certainly greater safety in sail.

Battling with the Lawyers.

“Let us consider the reason of the case; for nothing
Is law that is not reason.”—_Sir John Powell._

KILPATRICK v. HUDDART, PARKER & CO., LTD.

On Monday, the 11th February, 1895, in the First Civil Court, Melbourne, before his Honour, Sir Hartley Williams and a jury of six, an action was commenced in which the plaintiff, Mrs. Lucy Kilpatrick, widow of John Kennedy Kilpatrick, sued the defendants, Messrs. Huddart, Parker and Co., to recover £3000 damages for the loss of her husband.

Mr. C. A. SMYTH, Mr. Box, and Mr. W. H. Williams (instructed by Messrs. Gaunson and Wallace) appeared for the plaintiff, and Mr. Purves Q. C. and Mr. Mitchell (instructed by Messrs. Malleson, England, and Stewart) for the defendants. Mr. Purves requested at the outset that all witnesses be ordered out of court, and his Honour, Mr. Justice Williams, made the necessary order, except in the case of two experts whose evidences would not relate to the facts of the trial.

THE PLAINTIFF’S CASE.

Mr. SMYTH, in opening the case, stated that the action was brought by the widow Mrs. Kilpatrick on behalf of herself and her infant daughter, born in September, 1892, to recover damages from the defendants on account of the loss of her husband; and the ground of the action was that he had lost his life through the conduct of the defendants in sending to sea, and keeping at sea, the steamer _Alert_ in an unsea-worthy condition. At the time of his death, the deceased was engaged as second engineer on the ship. He was a young man in the prime of life, being only twenty-nine years of age, and held a certificate of a high class as first engineer, although he was employed in a subordinate capacity on the fatal voyage. He was also a man of strong and vigorous constitution. The action was based on the 103rd section of the Marine Act 1890, which was precisely the same as the section of the Imperial Act, under which many decisions had been given. These showed that the representatives of any person who had lost his life in an accident arising from the unsea-worthiness of a vessel, were entitled to recover damages. The jury would be told by a number of witnesses that the steamer, from a variety of causes, was utterly and entirely unfit for the sea-going trade at the time of the disaster. The unsea-worthiness was a question of fact depending on the circumstances of the case, and would be decided by the jury under the direction of the judge.

MR. JUSTICE WILLIAMS: The cause of the action is that the defendants did not take reasonable precaution to ensure the sea-worthiness of the ship. You have not only to prove that she was unsea-worthy, but that she was so by some act of negligence on the part of the defendants.

MR. SMYTH in continuation said the _Alert_ was a small steamship of 243 tons gross measurement, built at Glasgow about seventeen years ago. She was unduly long as compared with her beam, and particularly so as compared with her depth. The engines and boilers were all placed aft, and she was constructed as a river boat on very fine lines. The weight of her machinery was about 150 tons, and in consequence of having all this weight in the after part, she sat in the water with her bow up and her stern low down. Her engines were very powerful, and when she steamed fast the effect was to bring her stern down still deeper, and of course raise her bow still higher out of the water. Then at the aft part of the ship were the saloon and engine rooms; but the entrance doors to these, instead of opening outwards, opened inwards, so that in the event of pressure of water they would open instead of closing. In addition to these, there were doors, or lids, on each side of the vessel’s deck leading into the stoke-hole and coal bunkers. Further, there were gratings, or “fiddleys,” as they are often called, on each side for admitting light and ventilation to the engineers and firemen below. In the opinion of experts, provision should have been made for covering these openings with tarpaulins, so as to prevent water from going below in heavy weather. There was also in the front of the poop a hole cut through the iron bulk-head, which was fitted with a square glass window in a wooden frame. This also opened inwards, and was used for the purpose of passing dishes of food into the pantry and saloon, when required, from the cook’s galley. Such an opening might be very well for river trade, but was a most improper thing in a small vessel sent out on the high seas. It was no wonder that the pressure of water burst this window in and caused the saloon to fill. Notwithstanding all these defects, more had to be mentioned. There was a large wooden awning which extended all over the poop, and constituted a highly dangerous article on board a vessel of the _Alert’s_ dimensions. She had besides only about forty-four tons of cargo on board, and it was stowed away in the main hold, and none in the foreward part of the ship. Consequently, the vessel was out of all trim, and not in a fit state to go to sea. The state of the weather and the manner of her loading caused the ship to list to starboard, or leeward, and all the efforts of Captain Mathieson to get her head to windward failed entirely. This was principally due to the fact that the _Alert_ had only one mast, and hence no sail could be set aft to help the ship’s head up. As a result of the way in which the vessel was loaded, she had little or no “freeboard” aft, while foreward she had a very large amount, hence the wind and waves had tremendous power on the bow as compared with the after part. Experts would be called on behalf of the plaintiff, shipwrights, pilots, master-mariners, and others acquainted with navigation, who would testify to the jury that any of the matters which he (Mr. Smyth) had drawn attention to would be sufficient to make the vessel unsea-worthy. For these reasons he would ask the jury to award the plaintiff damages for the lamented death of Mr. Kilpatrick.

EVIDENCE FOR THE PLAINTIFF.

The first witness called was Robert Ponting, the sole survivor of the wreck. Under examination by Mr. Box, the witness stated: I know the _Alert_ pretty well. I was on board of her in the capacity of cook. I was in Messrs. Huddart, Parker, and Co.’s employment. I was on the S. S. _Despatch_ before I went to the _Alert_. The _Alert_ temporarily took the place of the _Despatch_ in order to get the latter repaired, and at the time of the wreck we were on the eighth trip, I believe, after taking the place of the _Despatch_. These trips were from Melbourne to Port Albert, and Bairnsdale, and the lakes, and back, not always calling at Port Albert on the way back. I have been at sea twelve years altogether.

I recollect going to Bairnsdale on this last trip of the _Alert_. We got to Bairnsdale on that trip on Christmas night, 1893. We did not discharge cargo next day, as it was a holiday—Boxing day. The vessel discharged on Wednesday, 27th December. I saw some cargo taken in on that day. It was put in the main hold. The main hold was abaft the mast and immediately in advance of the bridge. The _Alert_ had another hold forward of the mast, and also another one, but no cargo was placed in any hold except the main. The cargo consisted principally of wattle bark, sheepskins, and some furniture. We left Bairnsdale on Wednesday afternoon about two o’clock, and called at Metung, where we took in some more bark in bundles. This was also put in the main hold. So far as I know, we had no heavy cargo on board. During the previous seven trips we never brought so light a cargo. We passed through the Lake’s Entrance that night. Outside there was a calm sea, and not much wind. Sometime after getting out to sea, the weather became thick and foggy, and during the night the ship was hove to for about four hours until the fog lifted. A breeze sprang up from the S. E., and we steered for Wilson’s Promontory, and succeeded in passing it at about seven o’clock on Thursday morning. There was not much swell on until we got through the Straits. While the wind was S. E., the trysail and staysail were set. After passing the Promontory, the wind began to vary, but it was not blowing hard, although there was a rising swell from the S. W. When passing Cape Liptrap, the ship was very lively and knocking about a good deal. She shipped no water, only spray now and then. I was not always in the cook’s galley. I kept moving about, and could see how the vessel was sitting in the water. I could not say how much freeboard she had, but she was high out of the water foreward, and down aft. The ship had an awning aft. It was made of weather-board, and was a fixture. The grating on the top of the deck was to let air into the stoke-hole. I never saw it covered over, and did not see any covering for it. The bunker holes were on deck. They were covered with iron tops, or lids. The entrances to the stoke-hole and engine room were on the port and starboard sides. There was a window in front of the poop on the starboard side. It was about sixteen inches square, a wooden frame with glass fitted in. It was large enough for an ordinary man to get through, and was used for passing food into the saloon. It opened into the pantry, and the pantry led to the saloon. When unfastened, it was made to fall down on its hinges horizontal inside the pantry, thus forming a sort of shelf on which dishes were placed. A small bracket underneath kept it in position as a shelf. When shut, the fastenings were two small brass bolts, one each side. These bolts were not so thick as my little finger, and when the window was closed they shot into catch holes at the sides of the wooden frame work. They fitted loosely, and when shutting the window we used to turn the bolts round to prevent them slipping out of their sockets. The window was constantly being used, and sometimes was left open on a fine day. I remember the ship getting to about two miles east of Cape Schanck, at three o’clock on Thursday afternoon (28th December). There was a heavy sea running off the Cape, but not so heavy as I have seen by a long way. The wind veered round to S. W., and the captain altered the ship’s course. By altering the course, the ship was kept close enough up to the wind to allow of the sail drawing to keep her steady. The crew came aft at eight bells (4. P. M.), while the ship was still heading off the land. Shortly afterwards Captain Mathieson kept the ship away on her course for Port Phillip Heads. I suppose it would be about ten minutes after the ship was kept away that she shipped the first heavy sea on the lee side. All the doors leading into the galley and stoke-hole were closed on the port (the weather) side. I could not say whether at that time they were open on the starboard (the lee) side, but they were open all the time previously. She took the sea I have spoken of on board close by the engine room. It canted her over to starboard. The deck was right full up with the water, which ran all the way aft. The after part of the alleyway was under water up to the break of the poop. The pantry window would be about two feet above the level of the main deck. I could not say whether the water covered the window altogether, but it was sufficiently up against it to get in if it were open. This was the sea that swung the saloon lamps up against the ceiling and broke them. Sail was then taken off the ship, and her head brought up to windward, but she would be no sooner close up than the seas would knock her off into the trough again. The captain was at the wheel on the bridge at this time. Another sea came over the lee side and washed me overboard feet first. This sea sent a lot of water into the saloon, the sliding door of which was wide open. After I got washed on board again, I went below into the saloon and found the water rushing about there. The pantry window was then open, and the sea coming in. The steward and I succeeded in closing the window and refastening the bolts before we went on deck again. I did not afterwards go below, but the chief mate, steward, and myself on looking down the companion saw that the water was still rising in the saloon. At this time the water on the main deck was up right over the pantry window, so that we could not see it at all. The steward said the window must have been carried away. I do not know what state the engine room and stoke-hole were in then; but shortly afterwards all the people connected with the motive power came on deck, saying they could not remain below on account of the water. I had a conversation with the chief officer concerning the condition of the ship and the weather. I got washed away some little time before the vessel foundered. She went down about half past four with her nose sticking up in the air. I am the only man that was saved out of her. After being nearly sixteen hours in the water, I was ultimately thrown ashore about ten miles from where the ship went down.

Cross-examined by Mr. Purves: Before I was wrecked, I did not know exactly what the dimensions of the _Alert_ were. I saw the figures in the papers after the Marine Board enquiry. It is correct when I say this was the lightest cargo I had ever known on board the vessel. It was the general talk of everybody on board about the cargo being the smallest we ever had. I could not swear that the captain said so. The crew said it before we left the wharf at Bairnsdale, and they said it when they were putting their life-belts on before the ship went down.

_Question._—You received certain moneys from a fund subscribed by the public? _Answer._—Yes.

_Q._—Do you know whether Messrs. Huddart, Parker and Co. contributed to that fund? _A._—It was advertised in the newspapers that they contributed £100 to the fund, and from the £1200 subscribed by the public I received £25.

_Q._—Did you have any bad weather on this particular voyage? _A._—Not exceptionally bad.

_Q._—Did you have a choppy sea,—mind I don’t mean a sea cook’s chops? (Laughter.) _A._—Yes, we had some choppy seas.

_Q._—Was it blowing a gale? _A._—Not before we reached the Schanck.

_Q._—Do you know how many miles you went from seven o’clock till four? _A._—About nine or ten knots an hour.

_Q._—At three o’clock you were two miles east of the Schanck? _A._—Yes; and at four o’clock we were six or seven miles to windward of the Schanck.

_Q._—You were going out to sea from two miles until the time you foundered? _A._—No; we were making for the Heads when she went down.

_Q._—How do you know when the vessel foundered? _A._—When I got back to the ship, after being washed overboard the first time, I found on examining my pockets that the water had stopped my watch at five minutes past four, and I estimate that she sank about twenty minutes after that. (At counsel’s request the witness here handed the watch over, and its rusty works—together with the time its dial indicated—were evidently examined with much interest.)

_Q._—Up to the time you were two miles east of the Schanck, did the vessel ship any water. _A._—Only spray. There was no heavy sea. The wind kept increasing as we went along. It was a fresh, but not a heavy gale.

_Q._—If I call a witness who said it was a heavy gale, and that it was blowing a gale before you got to Cape Schanck, you will contradict him? _A._—Yes.

_Q._—The ship never was in any danger until her course was changed to the Heads? _A._—None whatever.

_Q._—Did the danger not commence when within two miles of the Schanck at the time the course was altered so as to head out seaward? _A._—No; it was no danger that we would be frightened of.

_Q._—Did the ship have the trysail on her when shaping for the Heads? _A._—Yes.

_Q._—Did she have it on her when the captain tried to bring her head to the wind? _A._—No, they took it in.

_Q._—Up to about a quarter of an hour after her course was shaped to the Heads, you never apprehended any danger? _A._—I can’t swear to a few minutes.

_Q._—Had you ever faced such weather as this before? _A._—Not in the _Alert_.

_Q._—Had you in any ship? _A._—Yes, in the _Despatch_ on the coast.

_Q._—That is the only ship you saw such heavy weather in? _A._—I have been in dozens. I have been in the _Despatch_ in far heavier weather.

_Q._—Up to the time the ship was headed out to sea, was there any water in the saloon at all? _A._—No, not a drop.

_Q._—Do you say that the water that went in at the pantry window caused the ship to founder? _A._—I say it helped to founder her.

_Q._—Directly she was put on her course, she came on her beam ends and never righted herself. Was it not the shifting of her course that caused her to founder? _A._—Not that I am aware of.

_Q._—When she foundered, you were in the sea looking on? _A._—Yes.

_Q._—Does that picture correctly represent the sinking of the _Alert_? (Picture showing the vessel in the act of going down handed to witness.) _A._—I don’t say correctly. It is something fair.

_Q._—Do you call that a moderate gale which is depicted there? _A._—I did not make that picture. I told them the ship went down stern first, and they drew it themselves.

_Q._—In your previous evidence before the Marine Board you said, “The second sea that came washed me overboard and I clung to the rail, and the next sea took me on board again. The second sea washed me into the saloon, and the water dashed in the cabin door. The steward drew my attention to the water in the saloon.” What did you mean by that? _A._—I never used those expressions. They are put down wrongly.

_Q._—The statement was read over to you, and you signed it. Why did you not correct it? _A._—I certainly would have done so if I had understood it when it was read over. I do not remember hearing it read. It may have been read, but I could not follow it.

_Q._—Was the ship going ahead at the time she disappeared? _A._—No, she was drifting in.

_Q._—Did not the smoke and flame rush out of the funnel before she foundered? _A._—It rushed out when she was foundering.

Re-examined by Mr. C. A. Smyth: I have been suffering ever since the wreck, and was confined to bed in the first instance for about three months. When I was examined before the Marine Board was four or five weeks after the wreck. I was not recovered at that time, and had to take to my bed after that. I cannot say whether the statement I then made was read to me before I signed it. Some of the passages are not correct. My memory varies sometimes, but it is fairly good on the whole subject. I was in the saloon when the lamps were smashed, and there was no water in the place at that time. The lightness of the ship and the show of getting her round were matters of conversation amongst all of us.

HIS HONOUR MR. JUSTICE WILLIAMS: _Q._—Supposing all the doors of the companion were shut, could the water get into the saloon in any way except through the pantry window? _A._—That was the only way.

Re-cross-examined by Mr. Mitchell: _Q._—Are you able to say whether water could get from the saloon to the engine room and back again? _A._—There was a little round door over the shaft big enough for one man to get through. It would lead to the stern of the ship. I could not say whether it was open or shut.

_Q._—When you saw the water rising in the saloon, could you see the condition of the lee companion doors? _A._—All three of us—chief mate, steward, and myself—were standing in the port door at the time we saw the water rising. It was not safe then to go into the saloon.

KILPATRICK v. HUDDART, PARKER & CO., LTD.

SECOND DAY, TUESDAY, FEBRUARY 12, 1895.

_Evidence for the Plaintiff._—(_Continued._)

JAMES GRANT, examined by Mr. C. A. Smyth, stated: I am a shipwright, with about forty years’ experience in the business, and amongst shipping. I have a certificate for navigation as chief officer. I got it in 1875. I also passed my examination before the Steam Navigation Board as marine engineer. I have seen the S. S. _Alert_ running up and down the Bay several times as a Bay trader. Some repairs were effected to her machinery in the year 1893, some months before she was lost. Messrs. Robinson Bros. had the contract for the job, and I was engaged as their ship carpenter to carry out the shipwrighting work. I was working on her two months altogether. Speaking of her generally, she had very fine lines. The model now shown me appears to be like her. There is no bearing here (pointing to bottom of model). To give her stability, the flat part should be carried further along. There is no bearing until the bulging part touches the water, and it would have the effect of throwing her deep in the water aft. She was about 170 feet long, her breadth eighteen or nineteen feet, and her depth between nine and ten feet. In my opinion the _Alert_ was very long for her beam and for her depth. According to the _Alert’s_ certificate of register, she came out from England as a three masted schooner, or barque, under sail only. When I was making the alterations she had only one mast, a foremast, as shown in that model. The captain’s bridge went right across the ship, and there was a gangway going fore and aft on the starboard side, from the bridge to the poop. There was nothing on the port side at all. The stoke-hole would be about twelve feet in width athwart ships, and about five feet fore and aft. It was covered over with a grating composed of ¾-inch iron running fore and aft, and these bars were about two inches apart. There was no provision made for covering this grating with a tarpaulin by means of cleats. Nor was there any provision made for covering any of the skylights. There was nothing to prevent the water getting through either grating or skylights. If water went through either of these places, it would go into the engine room and stoke-hole. The height of the ship’s bulwarks above the main deck was four feet six inches. The breadth of the alleyways between the bulwarks and the side of the machinery casing would be about three feet at the narrowest part, and five feet further on. There was a port hole in the bulwarks opposite; but if the vessel shipped water while lying on her side, that port could not discharge inside water, and there was no provision for discharging water in the alleyways except that port hole. I remember the window made for passing food to the saloon. I did not make it. Originally it must have been cut out of the iron. It was a glass window about 16 x 14 inches, with a wooden frame. I did not notice how it opened; but if it opened inwards it would be a source of danger if the vessel shipped much water aft. I remember the bunker holes for shipping the coal. I fixed them in. Each had a cast-iron frame sunk in the deck. The covers were about sixteen inches in diameter. They were flush with the deck, and were only held in their places by their own weight. In the case of a vessel dashing about heavily with water rolling inside, those covers might get knocked off, and the stoke-hole would be filled direct from the sea. If a lug were placed on the lower part of the cover, and a half-turn given, then it would stay on and prevent water going down. The _Alert’s_ covers had no lugs. The weight of her boiler and engines would be about one hundred and fifty tons. The weight of the water in the boiler would be twenty-three to twenty-five tons. Taking into consideration the ship’s cargo, build and trim, I do not think she was fit for a sea voyage. If she had had an after mast with a sail on, it might have helped a bit when efforts were made to bring her to the wind; but as long as she was so light foreward she would be hard to bring up, if not impossible. The light cargo would affect her stability. She was not fit to stand a gale of wind. She was right enough for the Bay trade; but with my experience at sea, I say she was not safe, and I would not have gone to sea in her. She had very little freeboard aft and too much foreward. I know the awning that was over her. It was wooden and permanently fixed. When the vessel was lying over, the wind would get under it and prevent her from righting herself. The proper awning at sea is canvas. In bad weather a vessel is better without any awning.

Cross-examined by Mr. Purves: _Q._—You have described yourself as a chief officer? _A._—Yes; I will show you my discharges if you like.

Mr. Purves: Oh, I don’t want to see them. What vessels were you chief officer of? _A._—The S. S. _Omeo_, and also two sailing ships.

_Q._—Did you examine the lines of the _Alert_? _A._—Yes; I saw her out of the water in the dry dock in the River Yarra. In most good trust worthy ships’ bottoms there is a floor running a long way foreward and aft; but when working in the after hold of the _Alert_, the floor was so fine that one could not stand on it.

_Q._—What height was the casing around the engine room and stoke-hole? _A._—It was about seven feet above the deck of the vessel, and when the doors on each side are closed the only way water can get in is through the top.

_Q._—Did you ever see a sea go as high as that? _A._—I have seen a sea go over a ship’s foretopsail yard.

_Q._—What ship was that? _A._—The _Royal Bride_.

Mr. Purves: The _Royal Bride_, I presume, stood on her head to accomplish that remarkable feat. (Laughter.)

_Q._—Seas that would go over the topsail yard would also go down the funnel? _A._—I should say so. I have seen steamers at Greymouth with bags tied over the funnel.

_Q._—Then the water would be just as likely to go down the _Alert’s_ funnel as her grating? _A._—No; it would not be just as likely that the sea would go down the funnel as the grating; but seas might come over the weather side, and a good deal go down the grating. I do not say sufficient would go down that way to sink the ship.

_Q._—How many tons of water do you calculate the _Alert_ would ship through the pantry window in the course of a minute? _A._—Nearly twenty tons. It would depend a good deal on the height of the water outside. If the vessel were on her beam ends, and the window covered with water, enough would rush in to knock everything down.

_Q._—Would the wooden awning help to bring the _Alert’s_ head round in a gale? _A._—By putting up a sail aft to the wind, you can always bring a vessel up. The wooden awning might have that effect, but in my opinion it would do more harm than good.

_Q._—Suppose during a six hours’ gale, keeping a certain course, the _Alert_ never shipped a sea, would you consider that a proof of her sea-worthiness? _A._—Not altogether. The moment she altered her course she might ship a sea and go down. If I were on board, and found in a violent gale that by pursuing a certain course I was safe, I would not alter that course.

_Q._—Supposing your alleyways were full of water, and the bunkers had the covers on, how could the water get the covers off? _A._—It is very different with a vessel turning over and jumping. The sea would make you jump off your feet sometimes.

_Q._—Have you seen the _Excelsior_ steamer? _A._—I have, but I have not travelled in her. She is fine in her lines, but she is only a river boat. No man with any experience would build a vessel like the _Alert_ to go to sea.

_Q._—How much cargo would it take to make the _Alert_ sea-worthy? _A._—It could not have been done anyhow. No amount of cargo would make her sea-worthy. She might be better in a gale if she were heavily laden. She should have had about 100 tons of cargo; it would put her more on an even keel. If the forty-four tons of cargo had been put in the forehold, a difference would have been made.

_Q._—Which would make the more stable cargo, 100 tons of feather beds, or 100 tons of pig-iron? _A._—They would both be the same weight, but the feather beds would be more lively than the pig-iron. (Loud laughter.) They would, however, be the very worst cargo a vessel could possibly take, for the one would be all too high, and the other all too low. There is a medium in everything.

Re-examined by Mr. Smyth: A vessel coming out here as a barque, or schooner, would have square, as well as fore and aft canvas, and would be in proper trim. She would not require water in her boiler, and when sailing the funnel would be unshipped and put down below. The _Alert_ had two boilers, but when the alterations were made, one boiler as large as the previous two was put in. This boiler was in her when she was lost. It stood about four feet above the level of the main deck. The old boilers did not come above the deck. A light cargo would make the ship more lively, and would affect her stability. She did not have enough. If the vessel were on her course standing out to seaward, and there was no apprehension of danger, there would be nothing to prevent me, as a seaman, from altering her course. It was good seamanship to make for the Heads. I knew the late Captain Mathieson. He was a first-rate seaman, understood his business, was sober and attentive, and quite fit for the position. The greater the head of water outside the pantry window, the greater the pressure, and the more quickly the water would be forced through.

_Q._—We are told by Mr. Ponting that the vessel was lying over, and that the water was over the whole of that aperture, coming up to the break of the poop; and there is that body of water constantly coming in from the sea. That is as far as we can give you the pressure of the water outside. Can you make a calculation of the quantity of water that would go through that aperture per minute, and the weight of it? _A._—Assuming the water is two feet higher than the aperture, I make it 2,820 gallons, and 28,200 lbs. in a minute. There are 2,240 lbs. to the ton, that would give between twelve and thirteen tons.

_Q._—Supposing the water is only one foot above the aperture, what difference would it make? _A._—It would be a third less, and that would be eight or ten tons. If the water were flush with the top of the aperture, the discharge through would be a little less than I have stated, and if fifty or sixty tons of water were down that aperture, a small sea would smother the vessel, and she would go right down stern first.

To His Honour.—If the forty-four tons of cargo had been placed further foreward, it certainly would have helped the ship a bit by giving her a more even trim.

JAMES SCOTT SUTHERLAND, examined by Mr. Williams, deposed: I am a shipwright, and have had experience of about fifty years. I knew the S. S. _Alert_ for about seventeen years. I never worked on board of her until on the last occasion, when she got new engines, about two years ago. I was employed by Mr. Grant. My work was principally in the stoke-hole and engine room putting beams and flooring down there, and also in the cargo hold. I had an opportunity of judging her. In my opinion she was never intended for an ocean going vessel. I think she was altogether out of proportion by being too long for her depth and width, and too fine in her after section. She could scarcely have any freeboard according to her depth. If she were drawing nine feet six inches aft, and only had nine feet depth of hold, she could not have any freeboard. On the top of the boiler there was a skylight, and just at its after part were some gratings. These gratings led down to the stoke-hole. There was no protection for them that I saw. I lined the bunker holes on her deck. The rims where the lid fits in were let down flush with the deck; a grating went into the flange on the inside, and the lid went down on that again. From having passed over it, I say the whole was level with the deck. The vessel sat in the water with her bows up. If she shipped any water she could not help taking it into the alleyways. There were two little ports, one on each side of the bulwarks, to take the water away. There were none foreward in front of the engine room. I did not notice the window in the poop. I do not consider the wooden awning much of a disadvantage, except that it would give her extra top weight when she was off an even keel. It would do for the Bay trade, but for encountering a heavy gale there should have been a canvas awning. I do not consider forty-four tons of wattle bark and furniture a sufficient cargo to put her on an even keel. She would not be in proper trim to go to sea.

Cross-examined by Mr. Mitchell: The awning would be about equal to the weight of a mast, and would make the vessel top heavy, otherwise it would make no appreciable difference. I was working inside, and anything I saw of the outside of the ship was from casually looking at her.

ANDREW MICHAEL MCCANN, examined by Mr. Smyth, stated: I am a shipwright, shipbuilder, and general contractor, and have had over thirty years’ experience as such. I have had about thirteen years’ experience at sea in sailing vessels and steamers. I have been ship’s carpenter, second mate, and chief mate. I was partner in the firm of Campbell, Sloss & McCann, and shareholder in Robison Bros. & Co. I knew the _Alert_ since she arrived in the colony. She was engaged in the trade between Melbourne and Geelong, inside the Heads. During that time my firm did several jobs on various occasions to the vessel. I have made trips to Geelong in her as a passenger. She was a fast boat in the Bay. She was very low down aft, and carried her cargo foreward. I put that wooden awning on myself about ten years ago. It was intended as an awning. In a small boat it would not be beneficial outside the Bay. I don’t think the tendency would be good in a boat of this kind. It would take the wind pressure and incline the vessel over and keep her there. Canvas is admitted to be the proper awning, so that it can be furled, and it should be furled when the wind increases. There is a difference in the dimensions of vessels. I know the length and depth and beam of the _Alert_ approximately. From the model I know where the engines were placed. They were abaft the midship section, and would have a tendency to bring her down aft. I can only give an estimate that the engines, boiler, water, and coal would weigh about one hundred and forty tons. In ordinary fine weather, the _Alert_ would be sea-worthy with forty-four tons of cargo. There is a likelihood of heavy weather at any time outside Port Phillip Heads. In consequence of the general construction, the small freeboard, and the want of aft canvas to assist in fetching her up in the wind, if necessary, I do not think the _Alert_ was suitable for heavy weather at any time, and in my opinion she was never constructed or intended for sea voyages. The great number of times her length exceeds her beam and her depth makes her unsuitable for sea going purposes. She would make bad weather even in the ordinary weather got in the Straits outside. That means she would be a very wet ship in bad weather. She was very finely built, and was fine all round. A second mast would enable the helmsman, or master, to have more command over the ship. For the safety of the vessel more canvas would have been of great assistance, and the helm would have had more effective power. If she had after sail, and they had taken the head sail off her, it would have had a tendency to fetch her up to the wind.

_Q._—Assuming there was a grating over the stoke-hole unprotected, would that be a cause of danger? _A._—Unless properly protected, it would be a serious cause of injury. It is the ordinary custom for all hatches to be protected by tarpaulins, cleated and battened down. It would be a reasonable and proper thing to make a provision for tarpaulins over that grating, and it should be compulsory to have such fastenings. I have not seen the window in the fore part of the poop, but if there was, it should have had a shutter outside on hinges capable of being fastened inside and out. It is customary on all new ships to have the bunker hole covers secured, and so they ought to be.

Cross-examined by Mr. Mitchell: I have been on the _Alert_ I daresay one hundred times doing repairs to the ship. It was an improper thing not to be able to attach a cover to the grating. It would be a very heavy sea that would go over it from the weather side, but if the vessel were thrown on her beam ends, there is nothing to prevent it going in on the lee side. An angle of 45 degrees would be sufficient to throw her over enough to take in a lee sea that would cover it. It is not the throw over of the vessel alone, it is simultaneously the rise of the sea to leeward. I have no knowledge how far the ship did go over on this occasion, but I think there would not be much of a sea from the weather side. If she did take water in on the weather side, it would be principally forward of the bridge, and it would get to the lee side before getting to the grating. By 45 degrees I mean the vessel has to go 45 degrees from the perpendicular. This is not an unusual angle for a ship to heel over; in my experience I have known them to heel over almost to a right angle.

His Honour,—I have known large steamers to roll over to a greater degree than an angle of 45.

_Q._—By Mr. Mitchell: What is your idea as to how the _Alert_ was lost? _A._—The opinion I have formed is that they had a change of wind and a mixed sea; that the vessel began to labor and take in much water, which eventually took her down. On measuring the model of the _Alert_ now shown in court, I find that the vessel’s length was eighteen times her depth and nine times her beam, approximately.

JOHN MCKENZIE, examined by Mr. Smyth, said: I am a Marine Surveyor, and I have been a Master Mariner. I have had twenty-one years’ experience at sea, and have been thirteen years as captain to almost every part of the globe. Since the year 1870, I have been a Marine Surveyor. I have also had a good deal of experience in shipbuilding, and was for two years Shipwright Surveyor for the Underwriters’ Association. I knew the _Alert_, and first became acquainted with her thirteen years ago. I officially surveyed the vessel in one of the dry docks in Melbourne. I was then Surveyor to the Lloyd’s Associated. Captain Webb, now the managing Director of Huddart, Parker & Co., was in command of the ship at that time. I was seeing if she was in good condition and fit for risk for insurance. I did not see Captain Webb on that occasion. I found some rivets defective in the after keel of the vessel. They were not done on that occasion. Captain Webb called at our office the day after, and wished to know if I would allow the vessel to run another six mouths before completing the repairs I had asked for. He told me she was only intended for the Geelong trade. I have been on board the _Alert_ a good many times since. I remember when the last repairs to the engines were made. On several occasions I was there while they were going on. I saw the work being done. The alterations that were made would, in my opinion, not alter the trim of the ship. They were very powerful engines for such a small vessel. I have been on her several trips to Geelong. In those days she sat very much by the stern, and did not show much freeboard.

The effect of the engines going full speed had a tendency to pull her down aft fully a foot. The model on the table there was made from my instructions. It has the dimensions of the _Alert_, and it is only made from recollections of the vessel. I had no plans to guide me. It is, I believe, a very fair representation of the _Alert_. She had very fine lines both fore and aft, and thus her stability was reduced very considerably. I have calculated the weight of machinery, including shaft and propeller, as about 150 tons. That also includes the coal bunkers. With that weight in such a small vessel, it had the effect of putting her so far down in the water that she showed very little freeboard. It was too heavy for the vessel. She was not able to carry such a weight in that particular part of the ship, and it brought her down too much aft. Putting whatever cargo you like in her foreward, in my opinion she would not be fit for ocean going under any circumstances. By the time you got the vessel sufficiently loaded foreward, she would be so deeply immersed that she would show very little freeboard from the midship section aft. Assuming she had nine feet six inches of water-line aft, and four feet six inches foreward, then she had about one foot nine inches freeboard aft, and eight feet of freeboard foreward. I heard it stated in evidence that there were forty-four tons of cargo on board on her last trip. With that amount of cargo, and placed in the position it was, from the nature of the cargo—it being of so light a description—it would take so much space in the hold that it would add to her instability. It would be stowed up to the deck, and would not lie far enough foreward in the vessel. In my opinion with all that weight aft, she was not fit for sea going at that time of the year. Southerly gales are more frequent and more heavy about Bass Straits in summer than in winter. From the extraordinary dimensions of the ship in the first place, and from her being so deeply immersed in the water aft, she was not sea-worthy. For the length to be eighteen times that of her depth is, I think, out of all proportion. There is not any hard and fast rule as to what a vessel’s dimensions should be, but in my opinion, according to Lloyd’s rule, the length should never exceed sixteen times the depth. I remember the grating. It was not safe to go to sea without some protection for it. It would have been only a necessary precaution to have had cleats and tarpaulins ready. I think that the whole of the casing round the engine room was unsafe. It left only the alleyways on each side to hold water. The two sides would hold somewhere about fifty tons, and that quantity would be sufficient to put the ship out of sight. The sides of the vessel ought to have been carried up as high as the top of the casing, and the whole thing covered over with a deck. The entrances to the engine room and stoke-hole were dangerous. When the alleyways are full of water, it is bound to get through the doors of those places. I remember the window in front of the poop. It was a most improper thing to have, and was simply dangerous. In smooth water it was not so important, but it is necessary to secure every aperture to any vessel when she has to go outside the Heads. With such a window as it was, the _Alert_ was not a sea going vessel, even if her bunker lids had been fastened, which they were not.

I heard the evidence of Mr. Ponting yesterday that the vessel encountered certain weather after passing Cape Schanck, and that she stood out to sea three or four miles. It was a right thing to do to give the land a good berth, and after getting a good offing there was nothing improper in Captain Mathieson making for the Heads. I knew Captain Mathieson by reputation. He was always considered to be a careful seaman. I heard of the efforts made to get the vessel’s head up to the wind, and that every time she was brought up she paid off. I should think that was on account of her being so light foreward. If she had had an after mast it would have had some effect, but under the circumstances I question if it would have had the desired effect. When the vessel was struck by the seas, she must have been struck on the port side and hurled over to such an extent that the whole of the lee deck became flooded. The vessel was simply waterlogged, and could not steer. In all probability there was water in the engine room and stoke-hole which interfered with the fireman keeping up sufficient steam in order to get the proper amount of power. These things, combined with her light bow and the wind striking on it, would make the ship lie like a helpless log impossible to be steered. I saw the wooden awning on the _Alert_. It was very useful for passengers down the Bay, but for a small vessel like her going outside, it should not have been a fixture. The effect would be that when she came over on her beam ends, the wind would get underneath the awning and hold the ship down. If an awning were wanted, it ought to be of canvas, and not spread at all even in half a gale.