Chapter XIV: Conclusion (2)

Cross-examined by Mr. Purves: I was not discharged from the Underwriters’ Association, but left their employment because I had finished my agreement with them. I am now in business for myself. I am a surveyor of shipping, and also teach navigation. I have the same authority to survey ships as any other surveyor. I have not got up this case. I made the model exhibited, and McKenzie the shipwright finished it. I have spoken to Captain Mathieson on several occasions. He did not carry a pilot on board. He was an exempt master and a skilful sailor. From Melbourne to Bairnsdale and back, would be about 530 miles, and the _Alert_ would need about fifty tons of coal to do the round. She would burn twenty tons in twenty-four hours, and at the time she foundered, she would have burnt a good deal of her supply of coal. A ton of water is about three feet by two feet in size. There would be a ton and three quarters in a 400 gallon tank. If both the alleyways were filled, they would hold about fifty tons of water, and the ship would go under. At the time the _Alert_ was built, the bunker tops on a good many vessels were fitted in the same way as hers; but they are not allowed to be fitted in such a way now. I surveyed the _Alert_. I did not pass her for insurance. She was refused by the Underwriters. I will swear the Secretary informed me that she was not to be insured until she was passed. She was not passed by me. Glass ports are just as efficient to keep out the sea as an iron casing, because they are properly secured inside. A window like the _Alert’s_ could be made perfectly secure, but in her case it was not. When I surveyed the ship I did not complain of the window. I would not object to it because the ship was only trading to Geelong. I know the S. S. _Excelsior_. She is not fit to go to sea. I would not pass her.

HENRY WILLIAM BYRANT, examined by Mr. Smyth: I am a duly qualified medical practitioner residing at Williamstown. I knew John Kennedy Kilpatrick for four years. He never ailed in any way. I examined him once or twice, and found him perfectly sound and a very strong man. I would not make any statement as to how long he might have lived, but he would live as long as any healthy man might live. His age was twenty-eight to thirty.

KILPATRICK v. HUDDART, PARKER & CO., LTD

THIRD DAY, FEBRUARY 13, 1895.

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

WILLIAM MATTHEWS, examined by Mr. Smyth, stated: I am a ship and boat builder. I have had about thirty-seven years’ experience. I knew the _Alert_ and travelled in her to Geelong a few times, but not outside the Heads. I see the model on the table. I think the _Alert_ was finer aft than the model. Otherwise it fairly represents her. I think she had about two feet freeboard aft, and about eight or ten feet or more out of the water foreward. I know the weight of the engines which were in the aft part of the ship. I knew her hull very well. Having regard to her length, breadth, and depth, I do not think any sane man would send a ship like that outside the Heads. I have been in the _Alert_ in the Bay, with a south-east wind, and she was nearly going down then. It was not a very heavy wind, but there was a nasty sea, and she nearly drowned the lot of us. The water came in aft over the lower part. There is no doubt that the gratings over the engine room and stoke-hole should be secured. I would fasten them with tarpaulins, iron cleats, and wedges. I think a glass and wooden frame in the bulk-head of the saloon of a vessel like the _Alert_ would be easily smashed. The glass would be a mere bagatelle against the water. It should not have been where it was in the front of the poop on a sea-going vessel like this one at any rate. I know the bunker holes. The covers should be screwed down and fastened below by a bar. They would not be secure by simply being fastened down by their own weight in a boat like that, rolling about as she did. I think if the vessel had had more cargo than the forty-four tons placed in her main hold, she would have been even worse than she was. That cargo was not right to go outside the Heads with, as the vessel, considering her length, was not fit to carry it. If the cargo had been stowed in the forehatch it would have put her more on even keel. It was a great mistake to place that wooden awning on the boat. If a gale of wind were blowing, the wind would get under the awning, and if the vessel were lying over, it would help her to go over further without doubt. It would keep her down when she was down. If the _Alert_ had had another mast and sail on it, her head could have been brought up to the wind and sea. At all events it would help in doing that.

Cross-examined by Mr. Purves: I carry on business at Williamstown. I have built small vessels larger than the _Alert_, but never built a full rigged ship. It was some years ago that I was nearly drowned in the _Alert_. It was on the way to Geelong, when we were just the other side of Point Cook. The sea came in one side and out the other. I cannot say the decks were full, but the after part of the boat was flooded particularly. I was not frightened, as I am used to that sort of thing. Of course if I had been washed overboard, I might have lost my life, but I did not think there was any great danger so long as I had something to hold on by. The water came over both aft and amidships. It came over the port side from the mast to the poop, heavy seas, quite enough to wash you overboard. The fires were not put out, but some water went down the bunker holes. One of the bunker lids I saw off myself. I don’t know how it came off. The sea did not go on the poop. At the time I speak of, the _Alert_ had about eighteen inches freeboard. By freeboard I mean the distance from the water up to the level of the deck. It has nothing to do with the bulwarks. I still think that forty-four tons of cargo was too much for that vessel to go to sea with. Of course if it had been placed further foreward, it would have been better.

_Q._—You appear to think that Captain Mathieson and his crew were a pack of lunatics to go outside with the _Alert_? _A._—I don’t think I ever said so. I said no sane man would send such a ship outside the Heads.

_Q._—That is pretty well the same thing. What would be the greatest risk you would have taken in the _Alert_. Albert Park Lagoon, or the upper Yarra? _A._—She was more fit for the Lagoon if the water were deep enough. Even in the Upper Yarra she would not have been safe if she encountered the wash of a big steamer. (Laughter).

_Q._—Where would you have put another mast? _A._—I would have put it just aft of the house on deck, and fitted it with a trysail and gaff. I am not prepared to say what size the sail should be.

WILLIAM WHITE, examined by Mr. Williams, said: I am a shipbuilder, and have been engaged as such for fifty years. I carried on business at Williamstown for forty years, during which time I built many ships. I knew the _Alert_. The whole weight of the engines being aft, she sat very low in the water. Her bow was up. Stability at sea is gained in two ways, first by breadth and shallowness, requiring very little ballast, or by being deep and narrow. I should say that the _Alert_ required a good deal of ballast to make her stable. Forty-four tons of cargo in the main hatch would not give her sufficient stability. She would not be sea-worthy in my opinion with it. Forty-four tons in the forehold would help to lift her stern out of the water and put the bow down.

The _Alert_ had only one mast. In trying to bring the ship to the wind, it would be almost impossible to do so on account of the height of the bow out of the water, and any sail that could be set would be so much foreward that it would be next to impossible to keep her end on to the sea. A sail aft would keep her bow to the wind. The best thing a ship can do in a gale of wind is to lie to. She had a wooden awning, and that would be a very great hindrance to the sea-worthiness of the ship. It was a very bad thing, because it would hold a great deal of wind, and could not be taken away. In the Bay wooden awnings are used, and it appears this vessel was allowed to go outside with one. It would help to blow her over and keep her in that position. As to the pantry window, I did not see it, but I say it would be extremely dangerous placed where it is said to have been. Every sea that came on board would rush aft, and tend to break everything that was not sufficiently strong to resist its force. The set of the ship in the water, being so high foreward, would naturally throw the water aft, and it would rush aft of its own accord. The grating over the engine room and stoke-hole should have been covered with tarpaulins held in cleats and battened down.

Cross-examined by Mr. Mitchell: I last went to sea as a seaman about forty years ago. I was second officer and carpenter. I have not built any large ships, because there is nothing of that sort done here, but I have built vessels larger than the _Alert_, and better sea-boats. The _Alert_ was very long and lean; if she had carried a main mast with sail, she might have been more safe.

_Q._—Did you ever measure the _Alert_? _A._—No.

_Q._—Then how do you know she was long and lean when you never measured her? _A._—In the same way that I know you are long and lean, though I never measured you. (Laughter.)

_Q._—What in your opinion was the cause of the ship foundering? _A._—I always understood that—(here Mr. Mitchell complained that the witness was going away from the subject.) Witness in a firm, determined tone said, You asked for my opinion, and I am going to give it to you, or I am going to give you nothing. (Laughter.) I always understood that the ship was blown round broadside on, and was wallowing in the sea. She became unmanageable in the trough, and, being top-heavy, rolled over till she filled with water and sank.

JOHN MURRAY ROBERTSON, examined by Mr. Smyth, stated: I am an engineer, employed as second engineer on the P. S. _Ozone_. I have been about twenty-six years at sea, and I hold a chief engineer’s certificate. I know what the dimensions of the _Alert_ were, and I know where her machinery was. It was placed aft. She had only one mast. The grating over the stoke-hole should have had a covering on it of iron, wood, or tarpaulin. In my opinion it is not right to have a window in the front of the poop in a sea-going vessel going outside the Heads. It should be blocked up with a door, or shutter opening outwards. If below the level of the bulwarks, it was not safe to have such an aperture in a vessel like the _Alert_. I knew the covers for the coal bunkers. They should have been fastened down. I think a second mast would have been an advantage to the _Alert_.

Cross-examined by Mr. Purves: The _Ozone_ is a very fast boat, and we often have heavy weather going down the Bay. Sometimes we have a lot of water on the deck. Our bunker lids have something that fastens them down when they are turned round a bit. The _Ozone_ could not jump them off, because they fit in a socket. I should think the _Alert_ was a sea-worthy ship if she had been further at sea. It is often the case that a captain has to bring the head of his steamer to the wind and lay to; when that is done, we steam easy ahead just to keep steerage way on her. I presume the _Alert_ was sea-worthy when the Board of Trade gave her her certificate.

Re-examined by Mr. Smyth: I would not say the _Alert_ was an ocean going vessel. I would call her a coasting steamer.

Occasionally there is worse weather near the land than out on the ocean. I did say there are means by which a man could batten down the window in the poop.

_Q._—How would a man batten down on the iron frame-work? _A._—In the iron I should put some small holes and put a plate over it. I would make the holes with a hammer and chisel. It would take half an hour.

_Q._—Where would you get the iron plate? _A._—It is a queer ship if there is not a bit of iron on board. Of course it would be better to have an iron door outside fastened on hinges.

ANDREW BROWN MCKENZIE, examined by Mr. Box, said: I am a shipwright, and have been about thirty-six years, more or less, in that business. I have been on board the _Alert_ several times, and have known the vessel for a long time. She had very fine lines, and was very sharp foreward and aft. She had no bearings under her counter. Any time I saw her, she never had more than about eighteen inches of freeboard. To look at the vessel, she was like a snake in the grass. If the engines had been more amidships, she would have been a better vessel. The pantry window should not have been where it was; but being there, it should have been protected. I knew the engine room and stoke-hole. There ought to have been a tarpaulin on top of the grating. The _Alert_ was very long and narrow, and should have had another mast placed aft with sail on it to help if the engines got disabled. A wooden awning covered the ship’s poop, and, in my opinion, it should have been made of canvas, so that it could be taken in when blowing. The bunker lids should have been fastened in with a turn screw, the same as the lid of an iron tank.

Cross-examined by Mr. Mitchell: I have been eight years at sea. I am the plaintiff’s father, and was on board the _Alert_ seeing my son-in-law just before the fatal voyage. I have built all sorts of ships in the old country, and have built vessels here for the Melbourne Shipping and Coal Company.

_Q._—Do you seriously say that this ship, the _Alert_, was like a snake in the grass?. _A._—Yes. That was my opinion of her. She was so long and low. I did not take particular notice of the pantry window, but if the brass bolts dropped out, the aperture could not be properly secured. I saw the grating on the stoke-hole. I say that a seaman could not with his hands have secured anything on that grating to prevent the water from coming in. In times of storm it is too late to think of these things. They ought to be provided for before a vessel leaves a port. As a rule it is the ship’s carpenter, who, under the instruction of the captain, sees to these matters, but the _Alert_ had no carpenter.

WILLIAM MALONE, examined by Mr. Box, stated: I am a seaman, and belong to the steamer _Dawn_ at present. I was engaged on the _Alert_ last November twelve months. That was four weeks before she foundered. I have been off and on at sea during the past twenty years, and was on the _Alert_ when she went outside the Heads to Bairnsdale. I never thought her a trustworthy boat for going outside. I did not see any very bad weather in her. On one trip there was a stiff breeze, and she did not act very well. With a beam sea she shipped a lot of water. She took the most of the water on board amidships, and about the alleyways. This was between Cape Schanck and Port Phillip Heads, with a fresh, but not a heavy, breeze blowing. The _Alert_ had no mast aft. A boat going outside should have an after mast in case they want to keep her head to wind in a heavy sea. There is no means of getting her head to wind without that. Her coal and engines were in the after part of the ship, and during my time she carried no carpenter. I was not discharged from the _Alert_. I had a word or two with the Captain, and luckily left her the voyage before she was lost.

Cross-examined by Mr. Mitchell; _Q._—Did the Captain accuse you of being drunk while in the performance of your duty? _A._—No, nothing of that kind. He could not do that, because I did not have any drink. Some ships will ship more water than others, but in an ordinary strong breeze a vessel should not take water on board. The water taken in by the _Alert_ on the occasion I speak of ran out aft.

JOHN LEITH, examined by Mr. Smyth, stated: I am a master mariner. At the present time I am captain of the S. S. _Maitland_. She is engaged in the regular trade between Melbourne, Port Albert, and the Gippsland Lakes. I went to sea in 1857. I was master in 1871, and have been sailing out that way since 1880. Southerly bursters come in that trade pretty nigh any time. Mr. Justice Williams: I wish to goodness you would bring one along now. (Laughter.) (Here it may be stated that during the time this trial was going on, a very hot northerly wind was blowing, making the court as warm as an oven.) The witness continuing, said: I know the _Alert_, and have been down the Bay a number of times in her as a passenger. She was always well down by the stern. She was long and narrow, with no great depth. She had one mast only, and the engines were well aft. She was not fit to be in a gale of wind, and gales do come along in Bass Straits.

_Q._—Assuming that she had an iron grating open about twelve feet athwart and four feet fore and aft, was that a proper thing to leave unprotected in a sea-going vessel of that kind? _A._—It was not in a vessel down by the heels as she was. In a gale of wind, or any heavy sea, everything would sweep over her, and fill the stoke-hole and engine room. In my opinion, provision ought to have been made for covering that grating before going outside. There ought to have been something over it, and a very good strong arrangement, such a thing as a skylight with flaps, that could have been opened and shut. A tarpaulin might stand a little time, but it would not stand many seas. I knew the alleyways between the bulwarks and the casing of the machinery. I also remember seeing the pantry window. It was open when I saw it in Hobson’s Bay, and they were passing food through it into the cabin. It was right enough for the Bay traffic, but for a sea-going vessel it should have been secured so that it would stand the same weight of water as the bulk-head. The glass should have been protected the same as port holes are protected, with a cast iron port either inside or outside. I cannot bring myself to think that a piece of glass is sufficient protection against a heavy sea. The hole that was there was big enough to fill the saloon with water, and cripple the ship. I could not say how many tons would go through, but when water runs through a hole in a ship, it goes with a great rush. With only a piece of glass between her and filling the saloon, it is a dead certainty she would founder. I never saw a bunker-hole with a lid resting by its own weight. It should be dropped into notches. Forty-four tons of cargo was not sufficient ballast for the _Alert_. At the same time I should say that one ship acts differently to another. One could go empty, while another would require a lot of cargo. The vessel that would go empty would have more beam and a flatter floor, or bottom, than the _Alert_. Amidships was the best place for the cargo, but I don’t think the _Alert_ had stability enough for a gale of wind even if she were fully loaded. I knew the late Captain Mathieson, and thoroughly agree with the statement that he was a skilful seaman and a good master of a vessel. If she had a second mast and canvas aft, the _Alert_ would have kept to the wind, head on to the sea, with less pressure on the screw propeller. The wooden awning, when the vessel was laid down on the starboard side, would assist in keeping her over to leeward.

Cross-examined by Mr. Purves: The steamer I am in, the _Maitland_, is not flat. She is round, and is a sea-worthy vessel. She can go to sea in any ordinary weather. We trade to the Lakes, the same trade in which the _Alert_ was when she was lost.

_Q._—The _Maitland_ knows how to roll, does she not? _A._—She does not.

_Q._—Does she not belong to some bill-sticker? _A._—No, unless you call the Commercial Bank by that name. There may be some bills sticking in there (Great laughter). I remember taking the _Maitland_ down to the Heads on the afternoon the _Alert_ was lost. I did not go outside because a strong ebb-tide was running. A gale rose with the ebb-tide, and made the “Rip”[1] dangerous. The wind was from the south-west, but it was not that I feared, it was the “Rip.” Had I been able to get the ship down to the Heads earlier, I would have gone on outside to sea. A south-west wind would not give smooth water under Point Lonsdale. The bunker lids of the _Maitland_ have catches. They fit in notches like the top of an iron tank.

_Q._—Supposing your gratings were open, and the ship taking water on board, what would you do? _A._—We have none on the _Maitland_.

_Q._—But if you had a grating, how long would it take you to put a spare jib over it? _A._—The spare jib might be stowed away in the fore peak and not easily got at. It might take a lot of time to get a spare sail, and then it would not be fit for the purpose.

_Q._—Would it not be prudent to make everything snug in a gale? _A._—We always make everything snug before we leave port. We don’t wait for a gale to do that. The _Alert_ was not a fit vessel for the trade she was engaged in. She was a ship never meant to go outside the Heads. She was not sea-worthy.

_Q._—Did you have any night-caps last night, Captain? _A._—No, I don’t like them.

_Q._—How is that? _A._—Ever since I was with you, I gave them up (Laughter).

Re-examined by Mr. Smyth: In my opinion there was nothing to prevent Captain Mathieson, as a skilful seaman, from making his course for the Heads. I reckon that he was as good a ship-master as any on the coast.

MR. JUSTICE WILLIAMS: _Q._—Were you lying inside the Heads on the night of the _Alert’s_ wreck? _A._—I came to an anchor about nine o’clock that evening. I knew there would be a bad “Rip” on, and therefore did not go out.

HIS HONOUR: _Q._—What was the weather like? _A._—It was a fresh gale with fierce squalls and blinding rain. From three to four o’clock in the afternoon it blew hard at times, and then would lull off for a bit.

THOMAS BICKNELL, examined by Mr. Box: I am a master mariner. I have been coasting pilot in Australian and New Zealand waters for the last ten years, and have been in all sorts of vessels. I knew the _Alert_ well for a great number of years. I have been often on board of her, and frequently a passenger in her to Geelong and back. I considered her a very unsuitable boat even for the Geelong trade, or anywhere else in the Bay; for outside the Heads she was a perfect water trap. Her extreme length did not compare with her depth, and she had a very narrow beam. She was very fine, with no bearings, and not sufficient stability. Her engines and boilers were well aft, and gave her a lift in the bow, at the same time depressing her stern. I have seen the pantry window, but did not pay much attention to it. Placed close to long, narrow alleyways that window would be dangerous unless properly constructed and secured. It should have been secured from the outside so that the pressure of water on the outside cover would have tightened it instead of forcing its way through. Water in the saloon of a vessel labouring in the sea would make her unmanageable. I saw the grating. There should have been an iron door on hinges over it, and over that a tarpaulin, because a tarpaulin in itself is not sufficient. Forty-four tons of cargo, composed of wattle bark and furniture, would have very little effect on the _Alert_. She was very tender and crank. Had that cargo been iron or ballast, it would have kept the ship out of difficulties, provided she had after canvas to keep her to the wind. In a case like hers you lose seaway, and you want after canvas to give the ship steering way. I saw the wooden awning. It would help to put the vessel down, and the wind would catch it and keep her down. It should have been made capable of being taken in in rough weather. A vessel lying over like the _Alert_ did would no doubt take water in every opening. Her freeboard was about one foot eight inches, and that is very low. I have seen her with her gunwale almost level with the water. If the bunker lids were not properly secured, then they were dangerous. A vessel leaning over very much is likely to throw them off. Knocking about as she was, the water would hit against the lee cover and throw it off, and if there was any water on the deck, it would pour down below.

FOOTNOTES:

[1] The “Rip” is the name applied by seamen to a very strong, nasty current which runs immediately at the Heads entrance. With the wind in and the tide out, or _vice versa_, a dangerous joggle of waves arise.

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

FOURTH DAY, THURSDAY, FEBRUARY 14, 1895.

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

MR. BICKNELL, cross-examined by Mr. Purves: _Q._—Are you a pilot? _A._—I am a coasting pilot and an exempt pilot for the ports of Adelaide, Melbourne, Newcastle, and all intermediate ports. I have commanded many vessels, steam and sail, in my time, and have a thorough knowledge of the Australian coast—none better. I have been on the _Alert_ in the Bay, but never outside with her. I felt she would be a coffin for someone sooner or later.

_Q._—Assuming the _Alert_ started from Wilson’s Promontory with a south-easterly gale and a south-westerly sea, passes Cape Liptrap, and gets to within two miles of Cape Schanck, carrying, on the latter part of the journey, a trysail and a staysail, and shipping no water, would that be an indication to your mind that the vessel making that passage was sea-worthy? _A._—It would not.

_Q._—If Captain Mathieson was two miles off Cape Schanck, and if a south-easterly gale veered into a south-westerly one, was he a proper seaman to try and get an offing? _A._—Yes, he was.

_Q._—What is the most dangerous sea for a boat of small freeboard? _A._—The most dangerous would be in the trough of the sea; when the lee side of it lifts over and falls on top of the ship in a mass.

_Q._—Supposing I tell you that in the case of the _Alert_ three tremendous seas coned over on top of her, would you say that was an uncommon occurrence? _A._—Heavy seas generally run in threes—one, two, three,—and the third is generally the worst.

_Q._—Would three tremendous seas one after the other have an appreciable effect on a sea-worthy ship? _A._—No, I have often been in a ship with decks flooded. She would shake the water off her decks, and away she would go, as lively as ever. That is a good sea boat.

_Q._—I presume you will admit that hundreds of sea-worthy ships have been overwhelmed by the waves? _A._—Yes, some of the best ships that ever floated have gone to the bottom. In a heavy gale of wind a ship, even riding at anchor, often founders. She strains herself, and opens out forward.

_Q._—Assuming that the _Alert_ was passed in England by Lloyd’s surveyors, would that shake your opinion as to the sea-worthiness of the ship? _A._—No, it would not.

_Q._—No matter how good a ship, how admirably proportioned, how safely built, there may come a time in her history when stress of weather may cause her to founder? _A._—Yes.

_Q._—Did you ever see a steamer on her beam ends in your life? _A._—I have seen them at an angle of 45 degrees, and we usually call that pretty near “beam ends.”

Re-examined by Mr. Box: A large quantity of water in the saloon of a vessel like the _Alert_ would make her unmanageable. Her alleyways were about forty feet long on each side, and four feet wide. They would hold at least thirty or forty tons of water, and the saloon twenty or thirty tons more. A vessel shaped like the _Alert_, flooded with water on one side, would have very little chance of recovering. I have been down the Bay in her with the wind blowing strong. She heeled over to starboard when hauled up to the wind, and took a lot of water in the alleyways.

MR. JUSTICE WILLIAMS: _Q._—We have heard a lot about these seas in the Bay. What is your opinion of them? _A._—They are mere teapot waves compared with what we meet outside.

HIS HONOUR: _Q._—Do the seas you meet in Bass Straits outside compare in size with the seas you meet round Cape Horn? _A._—No, they do not, but they are more dangerous in the Straits, because they are short, quick, and fierce.

HIS HONOUR: _Q._—Would you be surprised to hear that in going round Cape Horn a sea will sometimes come over the foreyard? _A._—With a loaded vessel I would not be surprised at all. A good deal depends upon where you are. With the wind more to the southward there is not so much drift.

NEIL MCLAUGHLAN, examined by Mr. Williams: I am a master mariner, and have been so for twenty-seven years. I have been a coasting pilot about fourteen years on the Australian coast. I knew the steamer _Alert_ ever since she came out here. She sat in the water very low aft, and very light foreward. That was because she had very little bearings, and had heavy machinery aft. She was not adapted for going outside the Heads. Forty-four tons of cargo would not be enough to trim her for a sea voyage. Of course if it had been placed in the forehold, it would have made some difference in giving her a better grip of the water forward. Wattle bark and furniture would be all top weight. She was a very tender boat at the best. With another sail aft, the captain would have a much better chance of bringing the ship’s head up, and keeping it up. I remember the alleyways each side of the engine room. The effect of water getting in them would be to put the ship still further down aft, and the water was bound to force its way below somewhere. I have seen the gratings on top of the stoke-hole and engine. For going outside the Heads they should have been covered with wood or iron, and I would have put a tarpaulin over that again, with cleats to fasten it at bottom. The window in front of the poop was composed of glass with a wooden frame. When seas came on board, with the trim the _Alert_ was in, the water would press against that window very heavily. It was very improper to have such a thing there at all, but, being there, it should have been properly guarded. A couple of pieces of iron should have been riveted on to the bulks-head, forming a slide for an iron cover plate to go up and down, and the whole secured with a screw bolt as well. The window opening inwards, as it did, increased the danger very much. It was a wrong thing to have a wooden fixed awning on the _Alert._ She would, in a breeze of wind on the beam, be thrown over to leeward by it. I noticed that the motion of her engines drew her stern down very much.

Cross-examined by Mr. Purves: I know Lloyd’s Register of British and Foreign Shipping. There are no better surveyors than those of Lloyd’s. Every ship I have commanded was registered by Lloyd’s. Still I say the _Alert_ was not fit to go to sea. As a sea-going man of experience, I think my opinion of equal value with Lloyd’s system of underwriting. On account of her weight aft, her depth of hold, her breadth of beam, and her rig, the _Alert_ should never have been sent to sea.

_Q._—You object to the deck fittings? _A._—I object to the way she was rigged. I mean the masts.

_Q._—Your objection is that she had only one mast, and should have had two? _A._—Yes, that is one objection.

_Q._—Why should a steamer have any masts at all? _A._—If anything occurred she could be navigated with sails.

_Q._—She is perfectly able to be navigated round the world without any masts? _A._—I never heard of a steamer without a mast. If the machinery goes well, and no emergency crops up, you could do without a mast.

_Q._—If you were going to purchase a ship, and could not see her, what authority would you consult? _A._—I would not purchase any ship unless I could see her myself.

_Q._—Would not a tarpaulin over the grating, if cleated-battened or nailed down, keep out any sea? _A._—No, the sea would burst it down between the bars like a bit of paper.

_Q._—How many hours would it take to fill the ship, if seas were continually thrown in, unprotected by a tarpaulin? _A._—It would take about half an hour. The water would also go down the ventilators if they were turned that way. I was last on board the _Alert_ two trips before the accident occurred.

Re-examined by Mr. Williams: Ten or twelve tons of water would go through that cabin window in a minute. Half of fifty or sixty tons of water in the saloon would put the _Alert_ down, and she would sink stern first.

LUCY EDITH KILPATRICK, examined by Mr. Box, stated: I am the widow of John Kennedy Kilpatrick. I was married to him on June 4, 1891. There is one child by the marriage called Mary. She is now two years and five months old. My husband at the time of his death was twenty-nine years old. He held a chief engineer’s certificate. He enjoyed good health, and was a strong man, and always sober. Previous to joining the _Alert_ he had been out of work for some time. His wages as second engineer of the _Alert_ were £8 per month. When he was in the employ of the Melbourne Harbour Trust as chief engineer of the dredge _Latrobe_, his wages were £22 per month. Prior to that he was working on shore, and while in work he gave me on an average £3 per week for house-keeping expenses.

Cross-examined by Mr. Purves: During the time my husband was out of work he earned nothing at all.

JAMES GRAHAM, examined by Mr. Smyth, stated: I am an actuary. I have made a calculation of what a certain sum per week would be worth as an annuity. On the basis of £8 per month an annuity would cost £1,924 10s., and on the basis of £3 per week, or £13 per month, it would cost £2,978. That is in the case of a man aged twenty-nine, and assuming he was a good life.

Cross-examined by Mr. Purves: In making the calculation, I used the “H. M. Table” prepared by the Institute of Actuaries of Great Britain. I worked it out at 3½ per cent. rate of interest, and took the expectation of life, for a healthy man of twenty-nine years, at thirty-five years. I do not reckon it would be safe to calculate interest at five per cent. now-a-days. Therefore I averaged it at a price as a practical transaction which I would be prepared to carry out.

This closed the case for the plaintiff.

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

“Between two hawks, which flies the higher pitch?
Between two dogs, which hath the deeper mouth?
Between two horses, which doth bear him best?
Between two girls, which hath the merriest eye?
I have, perhaps, some shallow spirit of judgment;
But in these nice, sharp quiblets of the law,
Good faith, I am no wiser than a daw!”
—_Shakespeare._

THE DEFENCE.

In addressing the jury on behalf of the defendants, Mr. Purees said: Under the Marine Act, owners of ships were bound to send their ships to sea in a sea-worthy condition, but that did not mean that the owner should guarantee to his servants that the ship would swim under all circumstances. The Act said nothing about the shape of the ship. The ship could be of any shape whatever, so long as she was passed by the proper authorities, and was reasonably sea-worthy in the opinion of the surveyors and those who sent her to sea. All the experience of the past in the matter of ships showed that when the Almighty brought His forces into play, the most perfect ship that ever was built met the time in her career when she was no longer sea-worthy. Noah’s ark, when it sailed—if ever it did sail—was built practically on similar lines to the ships of to-day. Some of the witnesses for the plaintiff admitted that the _Alert_ was fitted for trading in the Bay. If that were so, why was she not suitable for outside work. Bad seas had to be encountered inside the Heads as well as outside. Evidence would be adduced that would show the _Alert_ was built on the ordinary principles of shipbuilding. She was built at Glasgow by one of the most eminent firms in the world; was classed 90 A1 at Lloyd’s, and sent out here under sail as a three-masted schooner, or barque. She was employed for a time in the Geelong trade, and although some of the witnesses had said she was not fit even for the Bay, yet Lloyd’s surveyors had certified that she could go anywhere. When it was decided to put the _Alert_ to outside work, she underwent a special survey, and she had various improvements made, including an alteration to her boilers and machinery. All precautions were taken to make the vessel sea-worthy, and the local surveyors gave her a certificate in November, 1893, classing her as fit to engage in what is called “the home trade,” which ordinarily meant coasting outside from Newcastle, N. S. W., on the one hand, to Adelaide, S. A., on the other hand, a coast line embracing a stretch of at least 1,200 miles. It would be proved by evidence that the alterations made gave the ship twenty per cent. more buoyancy aft. She had an efficient captain and a good crew; and before going in the Gippsland trade, she was sent a trial trip to Tasmania. She went from Melbourne to Tasmania without an ounce of cargo in her. She loaded up at the latter place and returned to Melbourne, proving all the way that she was fit to do the work she was intended for. Then she was put in the Port Albert trade, and carried cargoes varying from 10 to 150 tons. She sailed well on her last voyage, and never shipped any seas until her course was altered towards the Heads. Within a few minutes of doing so, she shipped three successive seas, which put her on her beam ends, and she never righted. Ponting, the cook, was not the only one living who saw this. There was another eye-witness whom he (Mr. Purves) would call to prove that he saw these seas overwhelm the ship. Nothing in the world could have saved the ship under the circumstances, and it was preposterous to talk of the wreck being due to pantry windows, open gratings, or anything of that sort. In his (Mr. Purves’s) opinion Captain Mathieson committed an error of judgment in heading his ship to port instead of keeping her out to sea. The owners had every confidence in the ship, as was indicated in the fact that she was fully insured.

EVIDENCE FOR THE DEFENDANTS.

JOHN HORWOOD BARRETT, examined by Mr. Purves, stated: I am a master mariner and captain of the ship _Hesperus_. She is a full rigged ship of 1800 tons. I remember the 28th December, 1893. On that morning my vessel was to the westward of Cape Otway. Speaking from memory, we were steering east making round the Otway for Melbourne. The weather then was a heavy gale from the S. W., and that was a fair wind for me. We signalled to Cape Otway at 4.15 P. M. on the 28th, and then continued our course for the Heads after getting the proper position. Our course would be about north-east, half north. I came along as far as Split Point, and then hove to because there was a heavy sea running from the S. W. I considered it prudent to come on, as far as the ship’s safety was concerned, but I did not think it was just to come on to the Heads and take a pilot out of the schooner in such a sea as that. Therefore, on account of the danger to which the pilots would be exposed, I hove the ship to at ten P. M. till two o’clock next morning. During all that time it was blowing a strong gale with heavy squalls.

_Q._—I will ask you to come on board a little steamer one hundred and sixty-nine feet long, nineteen feet six inches beam, and nine feet six inches depth. She passes Wilson’s Promontory at nine in the morning, goes through the Straits and on to two miles off Cape Schanck, carrying with her a south-east gale and south-east sea, and does not ship any water. What is your opinion of her being sea-worthy? _A._—I should think she was decidedly a sea-worthy vessel.

_Q._—Approaching the Schanck her captain desires an offing, and takes the ship out to windward six miles. Meanwhile the wind veers round to S. W., and Captain Mathieson shifts his course and makes for the Heads. He carries with him probably the same sea he had before, and he is overwhelmed in ten minutes by several seas, and ultimately the vessel founders. Might that not happen to any ship? _A._—Certainly; to any vessel if she happened to keep away under those conditions.

Cross-examined by Mr. Smyth: _Q._—Supposing that when the _Alert_ got her offing of six miles without taking any water on board, except spray—which you say was a sign of her being sea-worthy, and that there is no apprehension of danger of any kind on board—was there anything to prevent her then making a course for the Heads, remembering that she was a steamship with a competent master? _A._—I consider that the sea I experienced—Mr. Smyth: I am not speaking of the sea you experienced. You were off Cape Otway, about sixty miles westward of the Heads, while the _Alert_ was off Cape Schanck, twenty miles eastward of the Heads. You say the sea had increased so much that you would not risk a pilot.

_Q._—Assuming that there was no danger, and the evidence here is that there was no apprehension of danger at that time when she got her offing, and being as you say a sea-worthy vessel, with, as we know, a skilful captain, was there any reason why the course should not be altered to the Heads? _A._—I cannot answer anything on assumption. I want facts.

_Q._—I have given you the facts. Was there anything to prevent the ship going for the Heads? _A._—It is fair to assume that there must have been a big sea running.

_Q._—It is fair to assume that you are endeavouring to play with me instead of giving me an answer. How many years’ experience have you had at sea? _A._—Twenty-five years in command.

MR. SMYTH: I will state the case once more. We have evidence that at the time I speak of there was a south-easterly sea and wind. Sometimes it is blowing a light gale, at others a strong breeze. She makes her offing, taking no water in. She is as you say sea-worthy. In that state of things the wind veers round to the south-west. Whatever the state of the sea, the captain has no apprehension of danger. What was to prevent him altering her course? _A._—The condition of the sea.

_Q._—What was the condition of the sea? _A._—A heavy sea running from the south-east. I assume that.

_Q._—Is that assumption of yours based on what you ascertained? _A._—No, on what you have just told me.

_Q._—What would you have done under the circumstances? _A._—I would have kept her out to sea the whole time.

_Q._—Do you mean to say that the sea was so bad that pilots did not go on board of other ships that evening you were off Cape Otway. _A._—I believe they did go on board other vessels.

_Q._—As a fact you know that the pilots did go on board other boats? _A._—Yes; I know they went on board the French mail boat.

_Q._—And if you had gone on, they would have boarded you? _A._—Yes; but I did not care to take a pilot on and send him back in a small boat.

HIS HONOUR: _Q._—Did you know anything about the steamer _Alert_? _A._—Nothing personally, except that I observed the sea, and it was so high that we could not see the pilot schooner within fifty yards of us.

[At this stage it was arranged that on account of the great heat of the weather the court would adjourn until Monday 18th instant.]

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

FIFTH DAY, MONDAY, FEBRUARY 18, 1895.

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

WILLIAM FRANCIS DEARY, examined by Mr. Purves, stated: I am inspector of shipping, and nautical surveyor to the Victorian Marine Board; also shipwright surveyor. I thoroughly understand the nature of a shipwright surveyor’s work. I went to sea in 1872, and I have had experience since that time in shipping. Apart from my official standing, I am a master mariner, and I have had the command of ships since 1883, until I took up my present position about five years ago. I knew the steamship _Alert_ for ten or twelve years. In my official capacity I have known her nearly five years. During that time I had opportunities of surveying her, and I have surveyed her critically. I remember a change in her equipment being made when she went to take up the running of the S. S. _Despatch_ in the Gippsland Lakes’ trade. Generally the changes made were in the nature of life buoys and life boats. I know her machinery was altered. Subsequently to those alterations I surveyed her on November 11, 1893, and gave a declaration upon which a certificate was issued. (Shipwright surveyor’s declaration concerning S. S. _Alert_, and dated November 4, 1893, was here handed in and marked as an exhibit.) I carefully examined the _Alert_ on the date specified in my declaration, and in all respects the requirements of the Act were fulfilled. Having regard to the projected voyage, namely within the limits of the home trade, all apertures, and skylights, and places of that kind which would require protection were sufficiently protected. In my opinion the _Alert_ was one of the most sea-worthy ships afloat. I knew her lines, her tonnage, and her dimensions. I knew Captain Mathieson, and always considered him a competent navigator. The vessel had a good crew. There was nothing omitted in the case of the _Alert_ which was done in the case of any other steamers licensed by me.

Cross-examined by Mr. Smyth: Exhibit No. 10 now handed in is a certificate granted by the Marine Board, based on my declaration and that of Mr. McLean. He is engineering surveyor to the Marine Board, and has the machinery and the whole of the iron-work in his department. I have the whole of the wood-work and the deck-work. In my declaration two life-boats are described as being in good order on the _Alert_. If it is said there was only one life-boat and a dingy, then I say it is false. One boat was slung in the starboard davits on the foreside of the bridge, and the other on top of the engine room skylight. There was a difference in their size. One was twenty feet long, and the other fourteen feet. The fourteen-foot boat was not whale-boat form, and some people might call it a dingy. There was cork padding in both boats. The top of the skylight is a very fit place for a life-boat. It would not make the vessel top heavy. In a small ship like the _Alert_, it is hard to find a place to carry a boat, and you have to do the best you can. She had not two life-boats when in the Bay. They were not required in the Bay traffic. She had boats then but not life-boats. I was appointed shipwright surveyor when the retrenchment business began, nearly two years ago. I am not a shipwright. I did not want the assistance of a practical shipwright surveyor in the case of the _Alert._ I am perfectly practical enough to carry on that work. I know there is a rule to the effect that iron gratings over stoke-holes must be protected with iron plates fitted with hinges, or otherwise, in a manner satisfactory to Lloyd’s surveyors. On the _Alert_ the protection consisted of canvas covers, which were kept ready on board for immediate use. They were not tarpaulins, but just ordinary canvas. I think they were brought out for me to see. There were no cleats to fasten them down, but they could easily be lashed down to ring bolts on the deck. The canvas might in time tear away from the grating—say in about three years. The wooden awning was put on a few years ago for the Bay trade.

_Q._—How was the pantry window protected? _A._—It could easily be protected.