Chapter XV: Conclusion (3)

_Q._—That is not answering my question. How was the glass window protected? _A._—The glass was the protection, and if necessary a piece of canvas could easily have been placed over it. The aperture was about sixteen inches by fourteen inches, and we did not think it was a source of danger, that is why it was not further protected. I was in the service of Huddart, Parker & Co. some years ago. I was second mate, mate and master in various of their vessels. I was appointed to the Marine Board in March, 1890, about five years after leaving Huddart, Parker & Co. I know Captain Webb. He was managing director of Huddart, Parker and Co. up to a short time ago. He is a member of the Marine Board. Mr. Ernest Parker of Huddart, Parker & Co. is also a member of the Marine Board. I never in my life designed a ship. A shipwright surveyor ought to have a knowledge of designing ships. I never had that knowledge. I knew the covers to the _Alert’s_ coal bunkers. They were iron, kept on by their own weight. If necessity demanded it there was no trouble in putting four battens and a piece of canvas over them. When making my declaration I was perfectly satisfied that these bunker lids were quite sufficient held down by their own weight.

Re-examined by Mr. Purves: According to the evidence given, the _Alert_ was kept away, and I say that before she was kept away all the places that required covering should have been seen to. Supposing there was a drop of water about the deck, there would have been no difficulty in making everything secure. The lids to the bunker holes would weigh about fifty to sixty pounds each.

Re-cross-examined by Mr. Smyth: The bunker lids were about ¾ of an inch in thickness. They might not have weighed more than forty to fifty pounds, and they may have been an inch thick for all I know.

CHARLES WILLIAM MCLEAN, examined by Mr. Purves, stated: I am engineering surveyor to the Marine Board of Victoria, and have occupied that position since the inception of the present Board, and previously I was under the Steam Navigation Board—ten years altogether. Prior to that I was assistant resident engineer to the Melbourne Harbour Trust. I have been as engineer on steamers trading here on the coast, and hold a certificate as first class sea-going engineer. I am a member of the Institute of Civil Engineers in London. I have been engaged in supervising and designing the actual construction of vessels. I knew the _Alert_, and saw her very frequently. I saw her in December, 1892, when the boilers were out. A change was then being made in her machinery. I made a thorough examination of the position of the old machinery, and also of the hull from stem to stern, both internal and external. I always considered her sea-worthy. She was much fuller below the water than she appeared to be above water. The water displaced by the vessel when loaded down—without any cargo, but with everything ready for sea—would weigh about 312 tons. Comparing that with the surplus buoyancy—which is the amount the water would weigh if all the spaces above water were filled—it was very good. The surplus buoyancy was about 400 tons, being rather more than the displacement. That means that there was a very fair amount of surplus buoyancy. I acted on behalf of the Marine Board in examining the _Alert_, and I gave a declaration to the secretary of that Board. The _Alert_ was then plying in the Bay for a short time after. I next saw her between the 2nd and 4th November, 1893, when it was proposed to send her down to the Gippsland trade in place of the _Despatch_ which had to be laid up to get new engines. The owners desired a home trade certificate for the _Alert_ to go outside the Heads. The new machinery had been placed higher up than the old, and it was thought in doing that that every provision had been made for outside work. The new machinery did not alter the main freeboard at all, but raised the ship about five inches aft. I was perfectly satisfied that the engine room protection was quite the thing, the very best that was made, and as a result of the examination I gave the certificate. I remember the pantry window referred to. It was about two feet three inches above the level of the main deck. It was fastened by two ordinary bolts running into catches, and was quite safe.

HIS HONOUR: _Q._—Do you say that under those circumstances that window would be as safe as a port? _A._—I think so from the way it was made. I certainly think it was not as dangerous as a port, because the ports are always below the main deck. Nothing more than broken water could reach the pantry window.

TO MR. PURVES.—I recollect the stoke-hole grating, it was eight feet wide from door to door, and about three feet six inches fore and aft. Nothing more than broken water could get in through that grating. An occasional sea would perhaps pass over, but no solid water would get in there until the vessel would be over on her beam ends. There would be no difficulty in putting canvas covers on. The bunker lids were of a very ordinary type. I never knew of one to lift off yet. I can name numbers of vessels that have the same lids as the _Alert_ had. I don’t think there is anything in the suggestion that the wooden awning rendered the ship unfit to go to sea. When the awning is lying over at an angle of 45 degrees, the wind would get below it, and the vessel would be lifted up. Buoyancy would be the resulting tendency. In my opinion the _Alert_ was a stable ship, and her stability was added to by the alterations to the engine room. Her machinery including everything would weigh about 105 tons. In addition, she had two ballast tanks, one of these right foreward in the fore peak would hold fifteen tons of water, and would be most suitable for anyone desiring to trim the ship. She was a long vessel, but her proportions were not unusually long. The declaration given under the Marine Act meant that she was right without cargo. We have always to assume they may go out without any cargo. Of course cargo improves the vessel’s stability, but we have always to look at the worst side.

Cross-examined by Mr. Smyth. I say the vessel was sufficiently stable for ocean-going purposes without any cargo at all. Included in the one hundred and five tons I spoke of, I allowed for coal twenty tons, water fifteen tons, weight of boiler thirteen tons, weight of engines twenty-six and a half tons, shafting six tons, and additions to engine room seven and a half tons. Then there were four tons of chain cable in her bottom. If both tanks were filled, they would hold twenty tons water ballast. I never was master of a vessel. I was at sea as engineer only, for about three years. I am accustomed to calculate the stability of ships, and that is why I am able to say this vessel was capable of going out on the ocean without any cargo. If a number of experienced men say that forty-four tons of cargo was not sufficient for the _Alert_, I would contradict them. Such men know nothing of stability. I gave evidence before the Marine Board enquiry, as I do to-day, that the boat was perfectly sea-worthy.

_Q._—Do you remember that the Marine Court found, after you gave your evidence, that she was not sufficiently stable? _A._—No, I do not remember that. (Mr. Purves here objected the Marine Court did not find that the _Alert_ had not sufficient stability.)

MR. SMYTH to witness: This is what the court found. “In view of the vessel’s construction and the manner in which laden on her last voyage, having only about forty-four tons of cargo, the _Alert_, in the opinion of the court, had not sufficient stability.”

_Q._—Will you now say that after you gave your evidence the Marine Court did not find she had insufficient stability? _A._—I don’t know what they meant, but that was their finding I believe. Their finding may have been due to the cargo; if it was not of the kind to add stability, the vessel would be still more unstable with cargo than without. For all I know the cargo may have been built too high, or been all on one side. I am not prepared to say that the cargo was the cause of making the vessel unstable on this occasion. The alterations to the engines made her more stable than before. Portions of the new machinery did come higher above the deck than before the alterations, three feet perhaps. The difference in weight between the old machinery and the new would be about six tons. An iron plate outside the window would have made it strong as the bulk-head. I do not think it was one of my duties to see about the pantry window. It was not considered dangerous. I knew it was there, and took it into consideration when the vessel was getting overhauled in February, 1893. The certificate I gave then was for the Bay trade. When giving the certificate to go outside, in November, 1893, I don’t think I did consider on that particular occasion whether the window was safe or not. From memory I fix its height above the main deck at two feet six inches. It was like the window in the _Excelsior._ I have not passed the _Excelsior_ as a sea-going vessel. She is a Bay trade boat, and will require a lot of alterations before I pass her for the sea. The _Alert_ was thoroughly overhauled in February, 1893, and in November of the same year I simply surveyed her for giving a certificate to go outside.

_Q._—How long were you over this November survey? _A._—I don’t remember the time; I will say two hours.

_Q._—Mr. Johnson signed the certificate with you. Was he with you at this survey? _A._—No, he was not, but I knew what he did. He examined the vessel concerning her steam.

_Q._—He was there to make this examination and to give that certificate, but he was not with you? _A._—That is so; he was there at other times.

_Q._—We have evidence that the water went down the gratings, and that in consequence the fires got low, and the men connected with the engines came up from below to put on their life-belts. Was that not on account of the water going down the stoke-hole? _A._—The water was going somewhere. The doors must have been left open. It did not go down the gratings that I know of.

_Q._—Assuming that the water went down the gratings, would that be an element of danger. _A._—Yes, it would.

_Q._—And there being no protection, you gave a certificate to go outside the Heads? _A._—Yes; the grating of the S. S. _Dawn_ is the same.

_Q._—Has not the _Dawn_ a very much larger freeboard? _A._—I don’t know.

_Q._—Do you know the dimensions of the _Dawn_? _A._—Yes, she is one hundred and fifty-four feet long, twenty-four feet beam, and eighteen feet in depth. She is not the same class of vessel as the _Alert_.

_Q._—Then why did you compare the two vessels? _A._—I only referred to the gratings.

Re-examined by Mr. Mitchell: The new engines and boilers of the _Alert_ were six or seven tons lighter than the previous ones, but the difference was made up to be nearly equal by additions to the vessel’s hull.

_Q._—It was suggested that by the way you slummed this survey, you were responsible for the loss of the men at sea? _A._—The survey was not slummed, and no blame was attached to me at all.

_Q._—Your opinion is that the water must have got in through the doors and skylights being neglected? _A._—Yes.

HIS HONOUR: _Q._—Assume that before the ship was kept away, and all her gratings, skylights, doors, and pantry window covered and protected, do you think there would be any danger in putting the vessel away on her course for the Heads when she had a south-east sea and a south-west wind? _A._—No; if all openings had been closed, she was comparatively safe.

HIS HONOUR: _Q._—A number of the witnesses described the boat as being rather skittish and tender? _A._—Boats like her require to be specially handled; but with everything properly fastened, I would have had no hesitation in going for the Heads, although I think it would have been better to have kept out to sea. She would have weathered it.

WILLIAM WATSON, examined by Mr. Purves, stated: I am a surveyor for Lloyd’s Registry of Shipping. The British Lloyd’s is an institution that has grown during the last sixty years. It is the biggest thing in the world. A vessel that is “A1” at Lloyd’s has a character that any man, who is interested in running risks, takes as a standard. The document now shown me is a certificate stating that the _Alert_ was classed when first built “ninety A1,” fit to carry dry and perishable cargo to all parts of the world. Below is a maltese cross which indicates that she was built under special survey. (Mr. Box here objected that the certificate given when the vessel was built had nothing to do with the present case, and his Honour decided to admit the evidence subject to the objection). Witness continuing said, “ninety A1” is simply a distinction to show that it is not “one hundred A1” nor “eighty A1,” but still an “A1” ship. The meaning of “A1” is that the hull of vessel so classed is fit to carry dry and perishable cargo. I knew the _Alert_ mentioned in Lloyd’s certificate, and remember the alterations made in her. I did not see her officially between July, 1893, and the date when she was lost (December, 1893). My opinion of her was that she was a good little ship. She was sea-worthy in every sense of the word, and was a very nice vessel.

_Q._—What is a nice vessel—a plum cake is very nice but I would not like to go to sea on one.—? _A._—A very smart craft I would call her. I have been to sea, but I am not a sailor.

Cross-examined by Mr. Box: I was in the employment of Lloyd’s in England, but not as surveyor. I was appointed surveyor, but did not continue in it. I am no authority as to what risks insurance companies will take. It is not a mere matter of premium. A risk is taken on the recommendation of surveyors. I am not in receipt of an annual salary from Lloyd’s, but I make surveys for them in Melbourne, and I get paid for my services by the owners of the ships in Melbourne whose vessels I recommend. I re-classified the _Alert_ in July, 1893. She was then in the Bay trade. I don’t know how she came out to Victoria. I don’t remember when she was built. I never formed an opinion as to whether she was built for the Bay trade only. She was, in 1893 when I surveyed her, fit to go all over the world. I did not go to sea in her, but I would not have been afraid to do so. She was fit according to Lloyd’s rules, and that was enough for me. It is not a rule of Lloyd’s that the grating over the engine room and stoke-hole should be covered.

_Q._—Is this a rule of Lloyd’s: “The engine room skylights are to be in all cases securely protected, the gratings over stoke-hole must also be protected with iron plates?” _A._—That rule does not refer to the grating openings on top. There is no occasion to have any cover whatever to those gratings. There was no necessity to have any protection to the pantry window; I did not look upon it as dangerous. I don’t think there would be any special liability on the part of that window to burst in when the vessel was on her beam ends. It would not be a serious matter if it did burst in. I could put a cushion in and stop it. There was no danger in the grating, and none in the pantry window.

Re-examined by Mr. Purves: Apart from my position at Lloyd’s, I have built many thousands of tons of ships. My business was a shipbuilder, and when busy, I have built over 20,000 tons a year. The reclassification of the _Alert_ brought her to her original status equal to a new ship just built. I am trusted with Lloyd’s business in Melbourne, and have a free hand. The amount of freeboard a ship has is no proof of her sea-worthiness.

THOMAS HOUSTON, examined by Mr. Mitchell, stated: I am a marine surveyor for this port. I have had over thirty years’ experience as ship master, mostly in sailing vessels. I have been in steamships, but not in command. I have been in Melbourne about nine years. I knew the _Alert_ well, and have been frequently on board. I have been under her twice while she was in dock, not in a professional way, but as a contractor for painting. I have no reason to suppose for a moment that the vessel would be unsea-worthy. I have been a passenger in the _Alert_ up and down to Geelong, and in a convivial sort of way I recollect the pantry window. I could not say its height above the main deck, but I think it was about half way up the front of the poop, and the latter was between three and four feet high. I don’t know how it was fastened. There was nothing about the window to make the ship unsea-worthy. Any practical man could make the window tight without bolts or anything else, so that it would not take a gallon of water in an hour. I have no knowledge of the height of the grating, but I am told it was seven feet above the main deck. I don’t see any necessity for cleats; it could be secured in various ways, so that no water would go down, and the bunker lids also could have been easily protected by placing a piece of canvas over them. I think the wooden awning would have assisted to bring the ship to the wind and keep her there. If the vessel was on her beam ends, the awning would in all probability tend to throw her over, but by that time she would be too far gone to recover herself, and hence it would make very little difference. The fact of having the wooden awning where it was would not make the ship unsea-worthy.

Cross-examined by Mr. Smyth: I have had a vessel pretty well over with her yard arms in the water. She came up again by throwing cargo overboard. There is nothing extraordinary in a vessel rolling over 45 degrees. There is nothing to prevent a ship from righting herself if she is sea-worthy. I have not the faintest idea what prevented the _Alert_ from righting herself. I don’t think thirty or forty tons of water on board of her ought to affect her although she was low aft. Perhaps the pantry window would have been better if made in some other way than with glass; but I consider it of no importance. Anybody could have stopped it splendidly with a cushion. If there was a lot of water in the stoke-hole as well as the saloon, she might founder. I do not believe that water came through the grating. In sending a ship to sea extreme contingencies should be provided against. An open grating was not unsafe, but still it would be better covered. I am a contractor for painting ships for Huddart, Parker, and others.

In reply to His Honour the witness said: Cutting a small window would not weaken the bulk-head. I think it most likely I would have had an outside shutter to protect the window.

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

SIXTH DAY, TUESDAY, FEBRUARY 19, 1895.

_ Evidence for the Defendants.—(Continued.)_

HUGH BELL MCMEIKAN, examined by Mr. Mitchell, stated: I am master of the tug boat _Albatross_. I have had experience at sea since 1850. I have been Master of all sorts of vessels. I knew the _Alert_, and have been on board of her often. So far as I saw she was all right. I saw her outside the Heads after she went into the Gippsland trade. She always behaved well so far as I saw. I have seen the pantry window often; it would not make the vessel unsea-worthy.

HIS HONOUR: We have heard that when this vessel got within two miles of the Schanck, she made an offing of about six miles. Supposing you had been on board of her then with a strong sea running from the S. E., and wind from the S. W., would you, before putting the ship away on her course to the Heads, have taken any precautions with regard to the window? _A._—No, I don’t think I would. It had been there long before, and had not been found fault with. If I had been in command of that ship, I would have given orders to the officers to see that everything was snug. I never heard in my life of a bunker lid coming off by the rolling of a vessel. I don’t see that the wooden awning or the forty-four tons of cargo had anything to do with the vessel’s sea-worthiness. She was sea-worthy enough to come up from Gippsland to where she did.

Cross-examined by Mr. Smyth: The _Albatross_ is supposed to go outside in any weather. Her length is one hundred and fifty feet, beam, inside paddle boxes, nineteen feet six inches, outside paddle boxes fifty feet, and depth eleven feet six inches. She sits on an even keel; but the _Alert_ sat very much by the stern. I knew the late Captain Mathieson, and he was a skilful mariner. The master on board of his own steamer is the best judge of what to do; he knows his vessel. There was nothing to prevent Captain Mathieson from altering his course for the Heads. I don’t think the _Alert_ wanted any cargo to make her stable. She would float without anything. If any steamers go to sea with bunker lids simply laid down by their own weight, that would to a certain extent be a cause of danger. I have a canvas awning on the _Albatross_.

LUCY EDITH KILPATRICK (the plaintiff) recalled by defendant’s counsel, in reply to Mr. Mitchell, said: I received some money from the fund that was subscribed. I am to get £100. I get it in weekly instalments.

TO MR. SMYTH: The £100 I am to receive is not from Messrs. Huddart, Parker & Co., but from a fund subscribed by the public. I do not know the amount of insurance the owners of the _Alert_ received.

WILLIAM WILSON, examined by Mr. Purves, stated: I am the master of the steamer _Eagle_, a tug boat. Her owners are Messrs. Huddart, Parker & Co., and I am in their employ. I have been master for nineteen years. I knew the _Alert_, and was in her for eight months in 1889. I remember the wreck of the ship _Holyhead_ at Point Lonsdale, Port Phillip Heads. I was employed on the _Alert_ at that wreck, for about three weeks altogether. I had an opportunity of judging the capacity of the _Alert_ as a sea-boat. I say she was good. I did not see anything in my eight months’ experience of her that made me think she was a dangerous ship. I did not see any fault with her at all. I wish she had been mine.

Cross-examined by Mr. Box: We had pretty rough weather when working at the _Holyhead_. Other boats could not have done the work like the _Alert_. Nothing would stop her until she met a gale of wind. Of course in a gale of wind we could not get cargo out of the _Holyhead_. I had on one occasion one hundred and forty tons of cargo in the _Alert_. It made her sit differently in the water. It balanced her.

LOUIS JOHN DALY SCHUTT, examined by Mr. Purves, stated: I am a Victorian sea pilot, and have been one about six years. Prior to that time I was in the employment of Huddart, Parker & Co. as captain and also as mate. I commanded the _Alert_ about four and a half years in the Geelong trade. During that time we had some heavy weather and seas for the Bay. I formed the opinion that she was a good little sea-boat. After I left her the engines were shifted. There was no great difference in her after the alterations. When I was in her there was a window under the break of the poop. The glass in it got broken. It was about a quarter inch thick. I put a new one in three eights of an inch thick. I maintain that it could not possibly be broken by a sea, unless the sea washed something against it. When I had charge of the _Alert_ the gratings were low down, afterwards they were built up to the top of the engine house. I believe the same bunker lids were on the ship when she went down as when I had her. They fastened down with keys, I am positive. Outside the Heads the seas are bigger than in the Bay. If I had the command offered me, I would have taken the _Alert_ to sea. I had not the slightest doubt about her sea-worthiness.

Cross-examined by Mr. Smyth: I was in command of the _Alert_ from 1884 to 1889. She was never out at sea while I was in her. I put the glass window in myself. One of the passengers who was the worse for liquor put his foot against the previous one and cracked it. I have had seas on board in the Bay, and the starboard alleyway full, but no water ever went below. In my time the engine room went right back to the front of the poop, and prevented water going from one side of the ship to the other. One of the new improvements made was that this casing was cut away and an after hold put in.

_Q._—When the _Alert_ foundered, did the water getting into the saloon take her down stern first? _A._—I say no. Supposing forty tons of water were in the cabin it would be pretty well full. I don’t see that it would take her down, owing to the watertight compartments.

GILBERT MOORE, examined by Mr. Mitchell, stated: I am a master mariner in charge of the S.S. _Excelsior_, one of Huddart, Parker & Co’s steamers trading between Melbourne and Geelong. I knew the _Alert_, and was in command of her. For two or three winters I was trading with her to Geelong and back to Melbourne, and sometimes we had heavy weather. She behaved very well indeed. Sometimes in bad weather she would not behave very grand. In moderate, good, and fine weather she was beautiful. I went to Tasmania in her in February, 1893. I had no cargo going over, but coming back I had I daresay about seventy tons. We had fine weather going but a stiff breeze coming back. She behaved well and was a bit wet. I remember the pantry window; it did not affect the ship in any way. It was about eighteen inches above the deck. It was sufficiently secured to withstand the pressure of water. The bunker lids had slots and turned round, thus fixing them in. I saw that they were fastened. I can’t see how the wooden awning or the open grating would make the ship unsea-worthy. It is a matter of opinion. There was a tarpaulin to cover the grating if they liked to put it on.

_Q._—What in your opinion should have been done with the vessel before changing her course for the Heads? _A._—I would have put the engines dead slow. As a matter of course a man, in weather like she was in, should have seen that everything was secure. If I had to run the ship, I would keep the engines slow; and if I had a sail, I would set it. If the sea was too heavy and she would not come to the wind, I would let go a sea anchor.

Cross-examined by Mr. Smyth: I knew the late Captain Mathieson. He was a careful seaman, and a good ship master. He would be the best judge of what he ought to do. The grating was six feet wide, and fore and aft from eleven to thirteen inches.

_Q._—Supposing Mr. Grant, the man who put the grating in, said it was twelve feet across and three feet six inches long? _A._—I know differently; I never measured it, but I say it was not three feet long.

_Q._—You looked very particularly before you went to Tasmania to see that the bunker lids were fastened with slots? _A._—Yes, I did. I considered it necessary. They fitted properly and were caught with slots.

_Q._—If you were the only witness out of thirty who said these lids did not fit in by their own weight, will you contradict them all? _A._—Yes.

_Q._—If Mr. Grant, who fitted them in, states that the lids secured themselves only by their own weight, do you contradict him? _A._—Yes; I say what I know.

_Q._—You swore at the Marine Board enquiry that you took the _Alert_ to Tasmania as a trial trip? _A._—I meant to say it was a severe trial to the ship.

_Q._—We are told by witnesses that her freeboard aft was only about two feet? _A._—That is wrong. She had double that. She never had less than four feet aft from the water’s edge to the deck. She used to draw ten feet six inches aft, and her depth of hold was nine feet six inches.

_Q._—Then how could she get the freeboard? _A._—Because she had a long heel aft.

_Q._—Did you say to-day that it was according to the weather, and that in bad weather the _Alert_ would not behave very grand? _A._—I don’t remember saying that, but if I did, it would be true of her, or any other ship.

_Q._—When you were in the _Alert_, did she ever take water down into the engine room or stoke-hole? _A._—It might be a few drops, or a bucketful, down through the gratings, or the doors.

CHARLES WILLIAM MCLEAN was recalled to explain that although there was a clause in the _Alert’s_ river and Bay certificate that she was not fit to ply outside the river and Bay, as defined by the Act, it did not mean that the vessel was unfit to go outside the Heads.

HIS HONOUR: That is a question for argument.

MR. SMYTH: I shall argue that the vessel was certified as unfit to go outside the Heads.

MR. PURVES: That is an absurd argument, because there was a subsequent declaration that she was fit to go outside.

HIS HONOUR: I think it is a question of construction. If the vessel was going to trade in the river and Bay, she got a certificate to that effect. If she were going to trade outside the Heads, she must have a certificate for outside. The one is not inconsistent with the other. That is the view I hold at present.

CARL GUSTAFSON, examined by Mr. Purves, stated: I am a Russian Finn and an A.B. seaman in the employ of Huddart, Parker and Co. I am now forty-eight years of age, and have been at sea since I was nine years old. I was seaman on board the _Alert_ for four years, and was in her after she was altered and went to sea. I was not in her outside the Heads. My experience of her was in the Bay. In heavy weather I have seen the decks flooded, but never knew of any water going below, either through gratings or pantry window. From what I knew of the _Alert_, I would go anywhere in her. I thought her a good strong boat.

Cross-examined by Mr. Box: I remember the _Alert_ in the Bay taking a very large quantity of water on board. The engines had to be slowed down because the seas came over. I can’t remember if the fires were nearly put out on that occasion. She was not in very much trouble. The pantry window was a round glass in a wooden frame. It had a wooden slide in front outside that covered it right over. I am in the _Excelsior_ now, but I an not mixing up her pantry window with the _Alert’s_. I never noticed how it was fastened inside. When I left the _Alert_, two years ago, I have been in the _Excelsior_ ever since.

WILLIAM KING, examined by Mr. Purves, stated: I am chief engineer of the _Excelsior_. I am an engineer by profession, and have had sixteen years’ experience of shipping. I knew the _Alert_, and was chief engineer of her from 1890 to 1893 in the Bay trade, and also for six months after the engines were altered. During that time I went outside the Heads to Tasmania. On that voyage I considered she was perfectly sea-worthy. We had fine weather going, and very rough weather coming back. I was perfectly satisfied with the way she behaved. I never heard of, or saw, any water coming in through bunker holes or gratings while I was in her. I would go to sea in her any time and anywhere.

Cross-examined by Mr. Box: Engineers and seamen have to take a good deal of risk sometimes. If one is out of employment it is not easy to get a billet. There was no risk in going in the _Alert_. We were sixteen hours coming from Tasmania. That was the only time I went outside in her. The _Excelsior_ is larger than the _Alert_. I have seen the latter shipping heavy water in the Bay. She had to go slow at times. The new engines lifted her about six inches higher in the stern.

JOHN LEGG, examined by Mr. Purves, stated: I am dockmaster in the employ of Mr. Duke, of Duke’s dock. By trade I am a shipwright, and have been employed by Mr. Duke for about thirty years. I have had the _Alert_ in dock on many occasions. She was buoyant and able, in my opinion, for her size.

Cross-examined by Mr. Box: I have never designed a vessel myself. I have been to sea as master of sailing-vessels, not steamers. I don’t know anything about the _Alert’s_ inside. She was not very deep, and was rather narrow in the beam. I would not call her a very tender vessel. I was on board of her before she was altered, but not after. I would call her a stable vessel for her size. There is no doubt that she was fitted for the Bay trade. As to going outside that all depends upon the weather. It would be a risky thing taking a vessel built from that model outside in all sorts of weather. I would go to sea in the _Alert_ in ordinary weather.

JAMES TRAINOR, examined by Mr. Purves, stated: I am a seaman, but at present I am a labourer. I was an A.B. on board the _Alert_ and other ships for sixteen years. I went to Tasmania in the _Alert_. She went without cargo and came back with seventy tons of oats. She behaved like any other vessel of her size would do. I considered her as good as any other vessel.

Cross-examined by Mr. Box: I have been wrecked twice. It was my idea to go in the _Alert_ to see how she would behave. I asked to go. I volunteered to go in her. I was Huddart, Parker’s man then.

_Q._—I suppose there was great excitement in the office to see how she would go? _A._—Yes. (Laughter.) I had heard great talk of the _Alert_. I was not astonished to get back safely in her.

RICHARD GOUGH, examined by Mr. Mitchell, stated: I am a shipwright surveyor, and have been working for about three years surveying ships for the Marine Board. I knew the _Alert_, and on two occasions made a survey of her for the river and Bay trade. The last survey I made was in April, 1893. I then made a declaration. I should say the _Alert_ was sea-worthy in every respect. The opening spoken of as the pantry window was about fourteen inches by twelve inches square. The glass was about half-an-inch thick, and was in a strong wooden frame. I don’t remember how it was fastened. It would not make the ship unsea-worthy in the slightest degree. The grating was a great height from the main deck, and if any water went down it would only be a splash. The bunker lids fitted into sockets. They rested by their own weight. Unless the ship were upside down no water could go through them. In my opinion the wooden awning did not make the ship unsea-worthy. When the alterations were being made I did not have before me the specification of what had to be done.

Cross-examined by Mr. Box: On one occasion after repairs were completed the _Alert_ had a permit to go to Tasmania, not a certificate. A certificate is for a year; a permit is only for the occasion. I gave a certificate to the engineer. There would be no examination of the vessel again on her return from Tasmania because she had a certificate for the river and Bay trade. We do not make a declaration to give a permit. I did not make a declaration that the _Alert_ was fit for the outside trade. Captain Deary was appointed shipwright surveyor, and he took my place. Captain Deary is not a shipwright, but I cannot help that. He was appointed, and is a shipwright surveyor by virtue of his office. A shipwright surveyor’s certificate should be given by a man skilled in shipwright surveying. I never measured the grating. When I surveyed the _Alert_ for the permit to go outside the Heads to Tasmania, she had not got a shutter in front of the window. I do not remember whether she had a shutter at any time I surveyed her. I signed a certificate about life-boats only for the river and Bay trade. I signed only the permit to go outside. The _Alert_ was built for shallow water.

Re-examined by Mr. Mitchell: In my opinion the _Alert_ was a sea-worthy vessel fit to go to Tasmania. When Captain Deary made the declaration that she was fit for the outside trade, I was still a shipwright surveyor, but was receiving no pay from the Marine Board. I had ceased to be their officer through retrenchment. I believe the _Alert’s_ trip to Tasmania had something to do with clearing the Customs duty off her engines.

SAMUEL JOHNSON, examined by Mr. Mitchell, stated: I am assistant engineer and surveyor for the Marine Board. I have had two and a-half years’ experience in that capacity. I have had about five years’ experience at sea as third and chief engineer. I signed the declaration with Mr. McLean. Alongside the wharf I tested the vessel under steam to see to the safety valve. The test was satisfactory. Mr. McLean inspected everything else. I only saw the vessel in dock for about half an hour.

Cross-examined by Mr. Smyth: So far as the steam was concerned I made a thorough examination. I signed the declaration for that part of the survey which I did. I made no examination of the vessel’s hull. I daresay my examination took over an hour alongside the wharf, and on that I gave the certificate. So far as I was concerned that authorised the _Alert_ to go to sea.

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

SEVENTH DAY, WEDNESDAY, FEBRUARY 20, 1895.

_Evidence for the Defendants.—(Continued.)_

THOMAS WEBB, examined by Mr. Purves, stated: I am a master mariner, and a member of the firm of Huddart, Parker & Co. I knew the S. S. _Alert_. She was built under my special superintendence at Glasgow. She was classed ninety A1. I have had experience in the navigation and building of ships. When finished the _Alert_ was a sea-worthy ship. The pantry window was built in her during her construction. I was master of her for about twelve years, and my opinion was that she was a very fine sea-boat. The alteration of her engines gave her more lift aft, about five inches. During the twelve years I was in command, she ran every day whatever the weather was. I saw no indication in her of a danger of shipping seas. In my time no water went in at the pantry window, nor in the grating, which latter was four feet lower then than when she was lost. She was insured for £4,000. She stood in my ledger at that time at £13,000, and we were satisfied to stand the risk of £9,000.

Cross-examined by Mr. Smyth: The vessel cost about £12,000 at first, and we expended £7,000 on her here, putting in new machinery in 1893. On the voyage out from England she was insured for £12,000. She came out under sail, as a barque, with funnels down. She was then in charge of Captain Munn, who gave her the character of a splendid sea-boat. He told me that. He is dead now. At the time she was trading in the Bay I believe the insurance was less than £4,000. I was managing director of the Company. I am not so now. I am still a member of the firm and also a member of the Marine Board. During my twelve years’ command of the _Alert_ in the Bay, I have seen her take some water on board. She did not quite fill the alleyways. She could not fill them as the water ran away through the port-holes and the scuppers. The pantry window was glass in my time. It was cracked by heat but not by water. I never gave instructions to Captain Mathieson to hurry up. I told him not to go so fast, and complained about too much coal being used. There might have been a time when she was in the Bay trade that she was not insured at all. She got Lloyd’s certificate in 1877 when she was built, and that was allowed to drop until 1893. We did not find it necessary to put her on Lloyd’s Register again in 1893; it was for our own convenience to put her back on it so as to give her a character again, in case we wanted to sell her. We paid the fees, £5 5s., for putting her back on Lloyd’s Register. My company subscribed £100 to the fund got up for the _Alert_ sufferers. Ponting had some I believe. He got it through us. I don’t think Huddart, Parker & Co. paid him anything at all. There was £1,200 subscribed. Mrs. Kilpatrick got her portion of that. I don’t think Huddart, Parker & Co. gave her anything. Only one writ has been served on Huddart and Parker in addition to the present case. I believe the plaintiff in the other case is Mrs. Mathieson—the late captain’s wife. I consider we did our duty when my firm gave £100 to the relief fund, to which the public subscribed £1,100 more.

ALEXANDER WILSON, examined by Mr. Purves, stated: I am engineer in charge of ports and harbours in the employment of the Victorian Government. I am by profession an engineer. I have no other qualification. I have had experience of the sea for seven years in the capacity of a marine engineer. I consider myself competent to give an opinion as to the sea-worthiness of ships. The steamer _Alert_ has been under my observation ever since she arrived here. Up to 1881 I surveyed her every six months. My opinion is that she was a good sea-worthy boat. I recollect a small pantry window she had in the poop. I don’t think it affected her sea-worthiness. I don’t think it would be possible for green seas to find their way down the grating on top of the stoke-hole. Ring bolts at each corner for the purpose of fastening a tarpaulin would be quite as efficient as cleats. The bunker lids rested in the ordinary way. I never knew of lids being washed off. I don’t think they made the ship unsea-worthy. Assuming that the wooden awning was made of right material, it would not affect the ship to any great extent. If she laid over it would rather have a tendency to raise her again. Wood instead of canvas would not in the least make her unsea-worthy. There is a wooden one on the _Lady Loch_, and she goes anywhere. The old steamer _Western_ had a house on deck with a wooden awning. The _Alert_ had watertight bulk-heads. She was divided into one, two, three, and four compartments when I knew her. These bulk-heads would prevent water going from one part to another. The ship in my opinion had sufficient stability.

Cross-examined by Mr. Smyth: I am not a shipwright, but I have designed seven ships. The _Lady Loch_ is one. She does not carry her awning the whole length of the poop like the _Alert_. The length of the _Lady Loch_ is one hundred and seventy-five feet, beam twenty-five feet, and depth about twelve feet. She has only a small portion of awning aft. Her freeboard depends upon what she is carrying. I should say with nothing in her but coal and her machinery it would be about four feet. The _Western_ was not far different in dimensions to the _Alert_, but was a different class of vessel. The _Western’s_ length was one hundred and eighty-three feet, beam, twenty-three feet, and depth, twelve feet six inches. I agree with Mr. McLean that an iron casement outside screwed down would be a good protection for the pantry window, but whether it was necessary is another thing. The water would not have got in if the window had been shut; and if the window was burst open, it would be a matter of five minutes to put it right. It could be barricaded from the outside. I would find my way there with a piece of timber and shove it up against the face of the window. As for the gratings, if green seas came down, the only thing the men could do would be to spread canvas and lash it over the gratings.

_Q._—How long would it take with a vessel lying over on her beam ends, and heavy seas running, to get your canvas and lash it over? _A._—You are putting almost an impossibility. I cannot imagine the ship getting into that position. It would take ten minutes to get the canvas—supposing the covers were at hand. All these vessels carry covers, but I would not swear that the _Alert_ carried covers.

_Q._—Do you say that the bunker lids are always let in by their own weight? _A._—I am not prepared to say positively whether I have seen any screw on like the lid of a four hundred gallon tank. I think some are that way. I am not positive how the _Alert’s_ were.

_Q._—Would not a canvas awning that you could take in be better than a wooden awning at sea? _A._—It would be advantageous I think.

_Q._—You told us that cleats were unnecessary, as ring bolts would do? _A._—I am informed that there were ring bolts alongside the grating. I did not see them that I can remember. I am not a master mariner. I was not in command of a ship. I am not a seaman, mate, or captain. I am an engineer.

CLEMENT ERNEST JARRETT, examined by Mr. Purves, stated: I am manager of the Alliance Marine and General Insurance Coy. I remember the steamer _Alert_. She was insured in my office for £4,000, and valued at £6,000. I have known her ever since she came out. I employ experienced people, and I insured her after survey. I would have insured her for double the amount she was insured for, if required, without hesitation. I knew the vessel personally. I travelled in her outside the Heads, and formed the opinion that she was a very nice little vessel. I am not a seaman. I should not have the slightest hesitation in going out in her. In fact I had serious thoughts of going out in her on the trip on which she was lost.

Cross-examined by Mr. Smyth: £6,000 was the owners’ valuation. They valued her specially for insurance, not necessarily that that was her value. I accepted their valuation, and considered it too low. I insured her when she was in the Bay trade. She was insured for the same amount, and never less. She was insured for less before she had the new engines. £3,000, I believe, nothing less. I believe she was always insured.

JAMES ALEXANDER MITCHELL, examined by Mr. Purves, stated: I am a licensed Port Phillip pilot, and have been such close on twelve years. Prior to that I was master of steamers and sailing vessels for eleven years. I knew the _Alert_, and remember the day she foundered, December 28, 1893. It was reported to me on that date. I was in charge on that day of the pilot schooner _Rip_. At about 4 o’clock P. M. I was cruising, as near as I could judge, from seven to eight miles outside Port Phillip Heads. We were cruising about in all directions. The weather was very thick. We never saw the land. All along the eastern shore as far as the Barwon the weather was thick. It was clearer to seawards and towards the west. It was blowing what we call a southerly gale. The sea was very rough and very high. I cannot remember what the barometer was. It was heavy weather as a matter of fact. There was a cross sea from the south-east, and a swell from the south-west, and the two met and sent the water up. Our vessel was shipping a good deal of heavy spray. I have seen the _Alert_ at a distance, when she was passing Williamstown going to Geelong.

_Q._—After the _Alert_ got off the Schanck, about seven miles, with the wind and sea as they were, was it, in your opinion, a prudent thing to do to keep the ship away for the Heads? _A._—I should say there would be danger in that manœuvre unless they—as sailors would say—watched a slant, or watched for a smooth, and then put her on her course. Before doing this, it would be only an ordinary precaution to make everything snug.

_Q._—Your idea was that the heaviest weather was off the Schanck? _A._—Yes, and off the Heads.

Cross-examined by Mr. Williams: We boarded some ships on that day (Dec. 28). There was no particular trouble in boarding them. The same care had to be exercised that day as in every other gale. As pilot in charge I do not think that I would have boarded a vessel between three and five that afternoon. I did not know Captain Mathieson personally. I cannot say whether he got a slant. I gave my opinion on a supposed case. For all I know he may have waited for a slant.

_Q._—Assuming that there was a south-east gale blowing all day, and the _Alert_ in it, in your opinion if things had not been snug on the ship would anything have happened to her? _A._—I should hardly have thought that in a gale of wind, blowing all day long, she would have got as far as the Schanck if things had not been snug. She would have been full of water before.

_Q._—What sort of gale was it in the early part of the day? _A._—It started with a fresh breeze in the early morning and gradually increased to a moderate gale from 10 o’clock till noon. After twelve it had some indication of getting finer and the barometer rose. Then the wind veered to the south-west and blew hard. A swell had been coming from the south-west all day long.

Re-examined by Mr. Purves: I should think a vessel, perhaps two or three miles from land in the daylight, would have managed to reach Western Port; but in my opinion it would have been a dangerous thing to try. We saw nothing at all all day long.

This concluded the evidence.

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