Chapter XVII: Conclusion (5)

Some of the witnesses examined at the trial stated that there was “no hard and fast rule with regard to the length, breadth, and depth of ships.” While agreeing as to the truth of this statement, I may add that, in my opinion, it is a great pity there is _not_ such a rule to go by so that shipowners could not get a sea-going ship built just whatever shape they pleased. Difference of opinion there may be—and perhaps must be—concerning the exact proportions of a sea-worthy ship; but there can be no difference of opinion regarding certain natural laws; for instance, a pyramid won’t stand upon its apex, and hence ships built on what I may call the “rule of thumb” principle are more apt to be wrong than right. Independently of loading and rig, the longer a ship is, the less her ability to keep out of the trough of the sea; her depth is the measure of her strength to resist a vertical strain, and her breadth of beam is the measure of her strength to stand a side blow. When iron steamers were first built they were constructed about five times as long as they were broad, and about seven times as long as their depth. These were considered safe proportions, but a genius arose who discovered—after studying the twelfth proposition of Euclid’s first book no doubt—that without any other alteration than adding two and a-half breadths to a steamship’s length, she could carry just double the quantity of cargo, while the working expense of the ship was not much increased. This, therefore, is the real reason why steamships are frequently built with their length ten times their width and sixteen times their depth. A few are even worse than this, their depth being only an eighteenth part of their length! The latter are not worthy of being called _ships_, they are mere _logs_ from a sea-going point of view! This much may, however, be said, that, in spite of the bad shape of a ship, a great deal, by means of loading and rig, can be done to help a “lame” vessel to behave herself. At the same time the reverse is also true that the best shaped ship ever built can be “crippled” by loading and rig. Any seaman reading this will thoroughly understand what I mean; but as this book is written for both “sea and shore” readers, perhaps, for the benefit of the latter class, I had better explain the apparent paradox, thus: Take a ship, the best and most sea-worthy ever built, load her with a dead cargo, say pig-iron, as much as she can safely carry, stow it fore and aft in the hold as low down as possible, that is, on the ship’s floor or “skin.” Send her to sea, and when she gets into heavy weather she will be so “stiff” that she will strain herself, and shake the masts out of her. On the other hand take a similar ship, put the iron cargo in the tween-decks, that is, the upper hold, and she will be so tender, or “crank,” that in a moderately heavy sea she will roll over and founder. The reasons are simply these: In the instance of the first ship the centre of gravity of the cargo would be too far below the centre of the ship’s displacement, and hence when a wave struck the vessel’s side she would, after heeling over, recover her perpendicular so suddenly that a severe jerk would be the result. The other ship, having the centre of gravity of the cargo too high, would roll too easily and would be so slow in starting to recover herself that her decks would be flooded from the lee side, and if there were places where the water could go below, no human aid or skill could keep her afloat, unless she could at once be brought up head to wind and sea. The latter movement would, of course, be an impossibility in the case of a sailing ship—or a steamer with weakened power—so rigged that she could not set after canvas. Anything beyond smooth water and a light breeze will put a “lame” ship in peril at sea, and little or nothing can be done by the people on board to help her; but a good, sea-worthy ship, even in very bad weather, may give time for skill and courage to do much. As an instance in point I have much pleasure in relating the following incident:—

In 1890 the ship _Enterkin_, commanded by Captain James Logan, who, by the way, was a schoolboy with me, and in after years we were both together “before the mast,” was on her passage from England to Melbourne with 2,500 tons of steel rails for the Victorian Government. The ship had got nearly as far along as Cape Leuwin when she experienced a heavy gale which, through bad stowage in port, shifted the cargo and threw the vessel on her beam ends. After some trouble the _Enterkin_ was put round on the other tack, but this did no good for the cargo shifted again, and the ship lay down just as bad on her other side. She was then put away before the wind, and whilst running along in her crippled state Captain Logan, with great presence of mind, caused all the wooden upper spars to be sent down from aloft. These spars, top-gallant and royal masts with their respective yards, were, together with all the spare ones on deck, sawn into short chunks. Watching chances between the rolls these chunks were thrown down the hatchways amongst the rails, and thus the cargo was wedged up enough to enable the ship to run back to Mauritius, where the rails were re-stowed and the _Enterkin_ made all “atanto” again. Afterwards she brought her cargo safely to Melbourne, and loaded up for England. When she reached there the insurance agents were so well pleased at the captain’s conduct that they forwarded a cheque for £300 as a slight token of appreciation. This sum, I may add, Captain Logan divided amongst all hands, from the smallest boy upward, as he considered all were entitled to share as well as himself.

Since writing the former portion, or first edition, of this book, fresh proof has been supplied of the danger incurred by allowing steamships to go to sea, without being sufficiently provided with spars and sails. In February last two of our own coasters, the _Gabo_ and the _Bothwell Castle_, broke down at sea, and for days were drifting about unable to make a port. Fortunately it was fine weather, and they both succeeded in getting assistance to tow them in. The steamer _Gascogne_, which left Havre for New York on January 26 last, had a much more trying time of it. On the third day after leaving port her machinery broke down. It was patched and she went on her way for two days more when a second and more serious break took place. This was also patched up, but in less than twelve hours a third stoppage took place. The engineers worked night and day for ninety-six hours, meanwhile the great ship was wallowing in the heavy sea, and drifting hundreds of miles out of her course. The passengers were battened down below, and all hope was abandoned, as the _Gascogne_ had got far from the track of ships. Finally the engines were started again, and the vessel steamed slowly on, arriving at New York after a fearful passage, which took seventeen days from port to port. The _Daily Chronicle_, an English newspaper, in commenting on the case, stated: “In steamship circles here the speculations concerning the whereabouts of the _Gascogne_ during the period of anxiety are looked upon as the beginning of a new departure. This feeling applies especially to a scheme for the immediate organisation of ocean-search parties, and the reserve of Government, or other ships at hand to perform this duty. The ports of the world will thus be able to mobilise a flying squadron in the interests of humanity.” This is what I call a mad scheme, very much like sending the blind to look for the blind. The better plan is to either compel steamers to be fitted with twin screws or carry enough sail to give them at least steerage way. Prevention is better than cure in this as in every other matter. The annual marine commerce of the British empire is estimated by competent authorities to amount to £970,000,000. Of this one-seventh (or £138,571,428) belongs to the self-governing colonies. Surely the interests involved in these immense sums demand that all possible means should be used to avoid casualties of every description.

The following remarks I quote from the “British Nautical Magazine,” a journal which certainly cannot be accused of pandering to the views of seamen: “In considering the safety of ships, we should not look to their efficiency in fine, or even moderately rough weather, but they should have a fair margin to meet any contingency. Indeed, the whole subject is one which has a right to be judged alone by a very high standard, as its issues are not ordinary commercial ones, but _human lives_. The question of the freeboard of ships is at once one of the most important, and one of the most complex subjects connected with naval architecture. It is only just to those who have to encounter the dangers of the sea that the vessel in which they sail shall not be loaded beyond the limit of safety, and, on the other hand, the gain of the owner upon his investment may depend upon that limit being reached. There have been, so far, only three principal proposals for fixing the load-line. _First_, a certain proportion of the depth of hold, three inches to the foot being about the average, _i. e._, the ship should have a freeboard at least about one-fourth of her depth of hold. _Second_, one-eighth of the beam is the minimum freeboard for ships whose length is not more than five times their breadth, and 1/32 of the beam should further be added to the freeboard for each additional breadth—beyond the five times—in the length of the ship, _Third_, the actual buoyancy of every ship should be calculated, and a percentage of the whole (say 30 per cent.) kept above the load-line, as reserve, or surplus buoyancy. In calculating the buoyancy of a ship, the measurements should be from the underneath side of the cargo deck—add to this the capacity of watertight erections above the deck—and thus the whole cubic content is ascertained. Allowing thirty-five cubic feet to the ton (since a ton of sea-water occupies about thirty-five cubic feet of space) the total capacity of the ship is arrived at, and 30 per cent. of the whole amount should be kept above water as spare buoyancy in an ordinary ship loaded with a general cargo. Were a cargo of less specific gravity than water carried, little or no spare buoyancy would be required, but a _maximum_ would be needed in the case of a heavy cargo where there is necessarily much empty space capable of being rapidly filled by water in the event of a leak. Freeboard has a good deal to do with the stability of a ship, and there is, probably, no department of science of which so many false notions are current, and none in which the terms employed have been so often misunderstood and misapplied. The terms _stability_ and _steadiness_ are popularly looked upon as synonymous, although they really have, in connection with this subject, widely different meanings, so diverse, indeed, that the presence of one in excess implies a want of the other. The word _metacentre_, too, has proved a stumbling-block to many people, and it is a very common error to suppose that it is the point about which the ship rolls. So far from this being the case, that a ship really does not roll about any fixed axis whatever, it is only in scientific language that she can be said to roll about an axis at all, the axis being an instantaneous one, that is, one which is constantly changing. In the case of ships whose cargoes are badly stowed, so that as the ship rolls the cargo shifts, stability, or righting force, is largely diminished, and there is thus little or no tendency to return to the upright, the ship rolling, as it were, lifelessly about at the mercy of the waves. Water-logged ships afford another illustration of the same state of things, but in these cases the evil is aggravated, as the water moves so freely that a _momentum_ is acquired which holds the ship back even when the waves have a tendency to restore her to the upright. We are not in a position to estimate the proportion of losses at sea which are caused by bad stowage; it is, without doubt, considerable, and when we remember how comparatively small a difference in the disposition of the cargo will affect the behaviour of the ship at sea, we are inclined to think that as many losses may be put down to this cause as to overloading. We must not be understood now to refer to loose, imperfect stowage, though that is the cause of great evil, but to improper disposition of the weight. This can only be remedied by the more general diffusion and appreciation of scientific knowledge; ignorance and carelessness, not greed, are the chief causes of mischief in these cases. So far as the question of stability is concerned, steamers require less freeboard than sailing ships; strong ships less than weak ones, and it is even possible to have a prescribed freeboard, according to rule, and yet such conditions of stowage that the ship would be safer if immersed deeper.”

One of the witnesses for the defence stated that the _Alert’s_ displacement, with everything on board except cargo, was 312 tons, and that her surplus buoyancy was 400 tons. Assuming this statement as correct, then by adding 44 tons—the weight of the cargo said to have been on board during the fatal voyage—I find the total displacement to have been 356 tons. This leaves the surplus buoyancy to be exactly 100 per cent. or half of the whole. If this were really the case, and in addition the ship trimmed heavily by the stern, need there be any wonder why, when the ship rolled her lee bulwarks under water, she was unable to rise to an upright position?

APPLICATION FOR A NEW TRIAL.

“The law is a sort of _hocus-pocus_ science that smiles in yer face
while it picks yer pocket, and the glorious uncertainty of it is of
mair use to the professors than the justice of it.”

—_Macklin._

“Law was made for property alone.”

—_Macaulay._

The hearing of Messrs. Huddart, Parker and Co.’s appeal commenced on Wednesday, May 8, 1895, in the Supreme Court, Melbourne, before the full court consisting of Chief Justice Madden, Mr. Justice Hodges, and Mr. Justice Hood. The Attorney-General (Mr. Isaacs), Mr. Purves, and Mr. Coldham (instructed by Messrs. Malleson, England, and Stewart) appeared for the defendants in support of the application, and Mr. C. A. Smyth, Mr. Box, and Mr. Williams, for the plaintiff to oppose it.

MR. ISAACS, at great length, read over portions of the evidence given before Mr. Justice Williams during the previous trial, and concluded by strongly urging that a new trial should be granted on the grounds, first of misdirection by the judge; and second, of the jury’s verdict being given against the weight of evidence.

MR. SMYTH, Mr. Box, and Mr. Williams, also at great length, read over portions of the evidence, and contended that the judge’s direction to the jury was a fair one, and the jury’s verdict a just one which should not be disturbed.

During the course of arguing the various items, the Chief Justice pointed out that “the effect of a second mast on the _Alert_ would have been to weigh the stern of the vessel down still more than it was down.”

MR. SMYTH: It would have assisted in getting the vessel up to the wind.

CHIEF JUSTICE MADDEN: I cannot see how much better off the vessel would be had there been another mast, except that with a sail on it, perhaps the steamer might have been steadied.

MR. JUSTICE HOOD: No doubt had there been another mast, persons would have come forward and said that was the cause of the disaster.

CHIEF JUSTICE MADDEN: When persons are in misfortune, generous people come forward and find ingenious reasons. The first thing a captain would do, if there were a second mast with a sail up, would probably be to strip it off like a shot.

MR. SMYTH: Many of the numerous experts were of opinion that a sail aft would have been not only useful, but actually necessary.

CHIEF JUSTICE MADDEN: These witnesses wished, in a generous impulse, to make the best argument they could. The generous impulses which were usually exhibited were attachable in an enlarged degree to sailors. I think the man would be a wicked one who, knowing the unsea-worthy condition of a vessel, did not report it to the proper authorities.

MR. JUSTICE HOOD: What do you say that the owners ought to have done that they did not do?

MR. SMYTH: The Act says the owner is to take all reasonable means to ensure the sea-worthiness of the vessel.

MR. JUSTICE HODGES: What would be reasonable means?

MR. SMYTH: One reasonable thing would be to see that there was protection for the pantry window.

MR. JUSTICE HOOD: Take some other steamer, the _Despatch_ for instance. What should the owners do to find out whether she was sea-worthy?

MR. SMYTH: I cannot say exactly. They run the risk.

MR. JUSTICE HODGES: They run the risk of being considered unreasonable whatever they do.

MR. SMYTH: In addition to the question of the _Alert’s_ sea-worthiness there was the condition of the cargo.

MR. JUSTICE HOOD: But the certificate is that she is fit to go to sea without any cargo.

MR. SMYTH: Nevertheless judgment should be exercised in loading the ship so that she would occupy a proper position in the water.

MR. JUSTICE HOOD: If your contention is correct, the certificate should state that the vessel was sea-worthy so long as she was loaded in a particular way. Was there any witness who said that, assuming the vessel was sea-worthy, the loading rendered her unfit for sea?

MR. SMYTH: All the plaintiff’s witnesses deposed that the vessel was not fit to go outside the Heads.

CHIEF JUSTICE MADDEN: Is there evidence that 44 tons of cargo could not have been stowed without making the steamer unstable?

MR. SMYTH: We have the fact that 44 tons of light cargo were stowed on board.

MR. JUSTICE HODGES: Wattle bark loaded up to below the water-line would not make the vessel unstable.

MR. SMYTH: There is no evidence that it was below the water-line.

MR. JUSTICE HODGES: Nor any that it was above.

MR. SMYTH: The nature of the cargo was such that it would take space high up in the vessel, and thus render her unstable.

MR. BOX submitted that the owners were liable if the steamer was so loaded as to make her more top heavy than she ordinarily was. It was a case of taking a bay-trade vessel for coastal service, and the first gale she met with she went to the bottom. The only cargo on the ship was furniture and bark, which was piled right up to the deck. It was to be remembered that a very small thing would alter the trim of a ship. Another thing to be considered was that the action of the screw tended to lower the vessel aft.

THE CHIEF JUSTICE said that the evidence as to the manner in which the cargo was stowed left the matter very much in doubt. The lighter the cargo was the more naturally the vessel would sit. Was it fair to assume, in the absence of evidence, that the cargo was necessarily stowed in the worst possible way, the presumption ordinarily drawn being that men acted in the best possible way?

MR. JUSTICE HOOD: Why should it be assumed that the chief officer did the work all wrong?

MR. BOX referred to the evidence of Ponting as to a conversation with Mr. Hodges when he said the ship was too light.

MR. JUSTICE HOOD: That does not mean that the cargo was improperly stowed, but that there was not enough of it. Did he stow it in such a way that he could go to the bottom if he had a chance?

MR. BOX said that if the cargo and window had no effect on the vessel, then why did she not right herself? The steamer never righted herself after she shipped the first sea.

MR. JUSTICE HODGES: The owner has to use all reasonable means to ensure the sea-worthiness of the vessel; that involves doing two things, viz., finding out what ought to be done, and, secondly, doing it.

MR. JUSTICE HOOD: What do you say the owner ought to have done?

MR. BOX: See that the window catches were safe. If there is a manifestly dangerous opening, and the catches are merely little screws, then the owner has not taken all reasonable means. The owner takes the responsibility of a jury finding that he has not taken all reasonable means of ensuring the safety of the vessel. The issue is one which the jury has a right to determine. Suppose there were no question of a certificate, and it were a fight between the two of us, I would submit that we would be entitled to hold the verdict.

THE CHIEF JUSTICE remarked that in the case of a concealed defect known only to the owner, or a palpable defect, the certificate would amount to nothing, but in the case of a defect which was not observed, but which proved fatal, the owner should not be held liable.

THE CHIEF JUSTICE: One of the witnesses makes a very important observation, viz., that when once on her beam ends it was all over with the steamer, and if that were so it was not the pantry window did it.

MR. BOX: All that points to the vessel not being fit for outside service.

THE ATTORNEY-GENERAL reminded Mr. Box that the vessel had been to Tasmania.

MR. BOX observed that this was a trial trip, and she took a man who volunteered to go. Once the _Alert_ nearly got swamped in the Bay. The pantry window should have been passed by a shipwright surveyor, which Captain Deary was not.

THE ATTORNEY-GENERAL said that Captain Deary was described as a shipwright surveyor, but he was not qualified as such.

THE CHIEF JUSTICE: Is not that a ground for attacking the Government which put him there?

THE CHIEF JUSTICE gave the results of a calculation he had made, which showed that the cargo was below the water line.

MR. BOX: What is your Honour’s authority?

THE CHIEF JUSTICE: The authority which I started with is the twelfth proposition of Euclid’s first book. (Laughter.)

MR. WILLIAMS submitted that the reasonable means to be taken to ensure the sea-worthiness of the vessel did not depend on the opinion of the owner or master, but on those of the jury.

The Chief Justice, in delivering judgment, said that this was an action brought by the personal representative of Mr. Kilpatrick to recover damages for the loss sustained by his being drowned by the foundering of a steamer, which the defendants called the _Alert_, in which the deceased was an engineer. The action was based on section 103 of the Marine Act. The vessel was built in 1877, and certified to be fit to carry goods to any part of the world. In 1891 she was fitted up here for sea traffic, and she received from the Marine Board of Victoria a certificate of her fitness for sea. She made several voyages to the Gippsland Lakes and Tasmania. In November, 1893, she was again repaired, and her certificate was renewed. On December 28, 1893, she left Bairnsdale with some bark and furniture. She fell in with a gale, and when the captain tried to put her head to the wind she fell off. It was said, as seemed probable, that being trimmed very low aft and very high forward, the wind caught her head and blew her off. Finally she fell over on her beam and foundered within a very short time. All her crew, unhappily, were drowned, except Mr. Ponting, her cook, who, after desperate and heroic efforts, escaped with life. Ponting, who was called for the plaintiff, said that a huge wave struck the vessel on the windward or port side, and she heeled over to her beam end, and did not rise again. Three waves dashed over while she lay so. The water entered in part through the starboard door of the saloon, and through a window which was in the saloon bulk-head used for the purpose of passing food from the galley to the pantry, which window was open. The door was then closed by the chief officer, and the window by the steward. From these and other facts the plaintiff said that the _Alert_ was inherently unsea-worthy from defective design and construction, and was, at all events, rendered unsea-worthy by bad and imprudent arrangement of her cargo, and, therefore, that the defendants did not “take all reasonable means to send her to sea in a sea-worthy condition,” and so that they were liable for the loss of Mr. Kilpatrick’s life within the meaning of the Marine Act. That Act established a court of marine survey to inquire into the propriety and fitness of granting a certificate that any vessel was sea-worthy. This court might be warned or advised by anyone of any defect in the vessel sought to be certificated, and was constituted of persons specially qualified to deal with such questions. The plaintiff practically contended that the section was intended to ignore the certificate, which was in fact a formality which every vessel must possess if she was to go to sea, and disregarding the certificate as any evidence of the satisfaction of the law’s requirements, so as to relieve the owner of liability for injuries caused by the vessel’s unsea-worthiness. He did not concur in this view. The statute, in his opinion, aimed at assuring safety to the sea-going public, and that by the examination of qualified experts acting honestly, and by the application of sufficient tests the vessel should be certified a reasonably safe, sound and sea-worthy one. And then the section imposed on the owner the obligation that neither he nor his agents should lessen the sea-worthiness by improper loading or other interference with her safety or stability as certified. The plaintiff admitted that the section did not compel the owner to warrant the sea-worthiness of the vessel. If not, then the certificate, which in his Honour’s opinion was certainly not conclusive of sea-worthiness of the vessel to satisfy section 103, must nevertheless be an exceedingly important element in satisfying it, because it embodied the deliberate opinion of skilled men responsibly chosen. There are always men, pretty numerous too, who, not being in office themselves, were ever prepared to sneer at, and belittle those who were, but it could not be assumed that those in whose hands the lives of the public were placed were chosen without the requisite knowledge, caution and discretion. If this be assumed, then it must be assumed that the section contemplated all ship owners, and these must include persons who know nothing about ships, as to their construction or sea-going necessities. If such a person’s ship was certified by a board of experts appointed by the state to be sea-worthy, unless he were compelled to warrant her sea-worthiness, what more could he be expected to do? In his opinion the board’s certificate was intended to be conclusive when granted, unless there were some fraudulent concealment of defect. The plaintiff’s contention in concrete shape was that the fastenings of the pantry window were not sufficient, and that it was by means of this window that the saloon was flooded. This involved the question whether this window was so obviously unsafe that if it escaped the notice of the board, the owner or master should have seen and mended it. Again, it was argued that the gratings on the top of the engine house were an obvious source of danger, because it was not supplied with means to cover it securely, but all the evidence showed that this contrivance, which was seven feet above the deck, took in no water till the vessel were on her beam ends. The answer to all this seemed to be that a vessel that got on her beam ends was like a vessel that got on shore. It was a condition by no means to be ordinarily expected, and so to be reasonably provided against in anticipation. She might get up in one case as she might get off in the other, but the chances were ordinarily very strongly against her, and any of her equipment might prove insufficient under a stress, which it was never to be reasonably expected she would encounter. How she came to be on her beam ends no evidence had explained, except Mr. Ponting’s statement that a great wave struck her on the port side, and threw her right on her beam ends. Hence it was to be assumed that if Mr. Ponting (who from the earliest moment of the disaster was acting rationally, struggling for his life) observed accurately all that occurred, the steamer getting on her beam ends was to be accounted for by her having been knocked down as by the mere blow of a wave. The plaintiff argued that this itself was evidence that a vessel with so little stability or flotative power as to be capable of being so knocked down was not sea-worthy. The interpretation, however, which his Honour put on the statue assumed that a vessel might be in fact unsea-worthy, but if certified by the board to be sea-worthy no liability would, in the absence of the exceptions already stated, attach to the owner. The contention would then be that those who were presumably best qualified to know had determined that the _Alert_ was sea-worthy, but through no fault of the owner they were mistaken. It was then contended for the plaintiff that whatever the _Alert’s_ condition might have been, within the meaning of the certificate as to construction or equipment, she was loaded so improperly as to destroy any stability she might have possessed, and so imprudently as not to mitigate as far as might have been her constructive difficulty of getting up to the wind which helped to set her on her beam ends. The first of these contentions would, in his Honour’s opinion, if proved, destroy any protection which the board’s certificate gave the owner, because that certificate meant sea-worthiness as long as she was properly loaded. If cargo was put in the _Alert_ in such a fashion that it made her top-heavy, or that it shifted from negligent stowage, that would account for all that happened in fact, and in law it would show that a sea-worthy boat under the certificate was made unsea-worthy by the owner’s agents. The evidence on this point, however, was absolutely inconclusive. It amounted to no more than that an unusually light cargo of bark and furniture went into the ship through her main hold. As to how or where it was stowed there was absolutely nothing to show. A verdict founded on what might be conjectured would be eminently unsatisfactory. But for this contention of the plaintiff his Honour would have thought that a verdict might have been entered at the trial for the defendants as a matter of law. This, however, was a matter of fact, which might be proved in favour of the plaintiff at another trial by other additional evidence. The argument that the cargo should have been stowed as far forward as possible was fallacious as attaching any liability to the defendants. It was not proved as a fact where it was stowed, and from anything that appeared in evidence it might have been stowed right forward. But apart from this the board’s certificate was that the _Alert_ was sea-worthy without cargo. The plaintiff contended that the low freeboard aft was a prominent feature of unsea-worthiness. If then the forty-four tons of cargo as assumed were under the main hatch, that fact must have improved her trim, and putting it further forward would only have been one step better. It was no detriment, but an advantage, from the plaintiff’s point of view, to the ship’s sea-worthiness. He considered the verdict on the present evidence quite unsatisfactory and against the weight of it. He had not overlooked the rule relating to juries, which was sometimes considered to amount to this—that the court should not disturb even an absurd verdict as long as it was not insane. The latest view of the Privy Council in Aitken v. M’Meikan on this point was that which bound the court, and, though it laid down no rule of general application, it was decided on a ground applicable here. The evidence for the plaintiff ran in a different plane from that for the defendants, and regarding that fact and that the jury had never considered the case in its true legal aspect, he thought there must be a new trial. Verdict for plaintiff set aside, and new trial granted, with costs, the costs of the former trial to abide the event of the new trial.

MR. JUSTICE HODGES agreed that there should be a new trial. In the face of the evidence, the verdict, he considered, was one which reasonable men could not find. He desired to say nothing as to the extent to which the certificate of the Marine Board was conclusive as to the sea-worthiness of the vessel.

MR. JUSTICE HOOD concurred, because he saw no evidence to justify a jury acting by reason and not by sympathy in finding that the defendants had not taken all reasonable care to make this ship sea-worthy. They had done all that the Act of Parliament required them to do. Competent men had examined their vessel, and these men had informed them that there was nothing wrong with her, and that she was perfectly fit to go to sea. As against that the plaintiff had proved nothing, but desired it to be laid down that, no matter what the owners of ships did, if an accident happened and a jury could be persuaded that the defendants were to blame, there was an end of it. In his opinion that would be legislating and not interpreting the Act of Parliament. It would be to say that shipowners were required to warrant the safety and sea-worthiness of their ships, and that was more than the law required them to do.

* * * * *

The full court, in giving judgment on the appeal for a new trial, placed a good deal of weight on the fact of the _Alert_ having passed successfully through the surveys made by the English and Victorian Marine authorities, and, further, the court was of opinion that the certificates given by these authorities were _prima facie_ evidence that the vessel was in all respects not only perfectly sea-worthy, but proof also that the owners had done everything which the law required them to do. Had I sufficient time and space at my disposal, I could cite hundreds of cases showing clearly that these surveys and certificates are more theoretical than practical. Suffice it for the present that I, as briefly as possible, relate two instances of certificated examinations which came under my own personal observation thus:—

In 1863 I was an officer on board of a large ship called the
_Saldanha_, which was chartered to carry sheep from Victoria to
New Zealand. At Geelong we took 6000 sheep on board consigned
to Port Chalmers. By way of parenthesis I may mention, what may
read rather curious now-a-days, that we had ten shillings per head
freight alone for every sheep we landed alive. On the passage down
we lost 1000 of them; some died, but the major portion were killed
by being trodden to death during the heavy lurches of the ship to
leeward. We cast them overboard every day in such quantities that
it would have been almost possible by means of the carcases to
have tracked our ship’s way from Port Phillip to Port Chalmers!
After discharging our living freight at the latter port, we sailed
again for Melbourne in order to bring down another hatch, but,
unfortunately, through the ship being “flying light”—she was like
a balloon on the water—we got caught in a heavy squall and were
driven ashore, in spite of letting go both anchors, on a sandy
beach near the entrance to Port Chalmers Heads. By means of our
boats we all landed safely and lived amongst Maoris for a few days
until three steamers came to our assistance. By means of our united
efforts, aided by a high spring tide, we got the ship off the beach
and towed her back to Port Chalmers, where, with all due solemnity,
an examination was held by Lloyd’s surveyors, and also by the
insurance agents. The result of these, and other numerous surveys,
was that the _Saldanha_ was condemned as unsea-worthy, and sold
by the insurance agents for a few hundred pounds to a company who
desired to make a coal hulk of her. Accordingly she was “stripped
to a gantlin” and used for such purpose.

And now for the sequel: Within eighteen months after the purchase,
this ship—notwithstanding her condemnation by certificates—under
the name of the _Retriever_ was sent to Melbourne and put upon the
patent slip at Williamstown for examination. After being on the
slip for twenty-four hours, the first real examination, for there
was neither dock or slip in those days at Port Chalmers, the ship
was found all correct, certified accordingly and taken across to
Sandridge Railway Pier, where she loaded a first class cargo of
wool, hides, tallow, etc., consigned to the United Kingdom. For
aught I know to the contrary, the _Retriever_, late _Saldanha_, is
afloat doing duty yet!

The second instance occurred in 1871, when the S. S. _Queen of the
Thames_ was in Melbourne on her first and only voyage. She belonged
to the then well-known firm of Davitt and Moore, and arrived here
safe after what was, at that time, considered a remarkably quick
passage of fifty-two days from London. Just a few days prior to
the _Queen of the Thames_ leaving here for England, attention
was drawn to the fact that she had no “long boat,” and it was
suggested that she should be compelled to carry one in the interest
of sea-worthiness. Her commander, Captain McDonald, became quite
indignant at the idea of “colonials” daring to interfere with the
equipments of his ship. In those days there was no Marine Board
composed of shipowners, but there were other means of looking
after the interests of “those who go down to the sea in ships,”
and consequently the captain was informed that unless he obtained
the requisite boat, his ship would not be allowed to clear at the
customs.

The following are extracts from a bitter letter of Captain McDonald’s which appeared in the _Argus_ newspaper of February 20, 1871:—

“The _Queen of the Thames_ and everything about her was planned
and built with a special view to the Australian passenger and mail
service, and the best skill and experience procurable in Great
Britain were enlisted in her service.... Although the Board of
Trade, Lloyds, the Emigration Commissioners of Great Britain, etc.,
passed the _Queen_ with her life boats, and though she and they
were highly complimented by all the authorities at home, still
_your_ Mr. Gossett is not satisfied with these arrangements. He
has discovered the dreadful truth that she has no long boat, and
he threatens that he will not allow her to leave the port until
she is provided with one.... It seems hard that a non-professional
Victorian official should have the power to dictate changes in the
vessel’s arrangements, and enforce these changes under such a heavy
penalty as the detention of the ship would imply.”

Mr. Gossett was, however, inexorable, although the captain pleaded that he was nearly ready for sea, and there was not time to get a boat built. At length the difficulty was got over by the _Queen of the Thames_ getting the _Lady Jocelyn’s_ long boat and the latter ship giving an order for a new one in its place. As may be imagined Captain McDonald, in anything but a good humour, quickly sailed for London. On the way there the ship got wrecked close to the Cape of Good Hope, and that very boat which the captain had so reluctantly taken with him was the principal means of saving all hands from a watery grave! I may just add that the _Queen of the Thames_ was classed AA I at Lloyd’s, a much higher class than that of the _Alert_, and yet Mr. Gossett, I am glad to say, refused to recognise the certificate—although undoubtedly a high one—and had the courage to carry out what he believed to be a measure for the safety of all concerned.

During the progress of the arguments in the Kilpatrick v. Huddart, Parker and Co. appeal case, Mr. Justice Hood, in commenting on the rig of the _Alert_, said: “No doubt had there been another mast in the ship persons would have come forward and said that was the cause of the disaster.” While Chief Justice Madden, on the same subject, was of opinion that “the first thing a captain would do, if there was a second mast with a sail up, would probably be to strip it off like a shot.” With regard to both of these opinions, although I feel constrained to comment at length on them, I must, for the sake of brevity, content myself with the remark that the dictum or logic they contain “may do for the marines, but certainly won’t do for sailors.”

Furthermore, the Chief Justice said, “I think the man would be a wicked one who, knowing the unsea-worthy condition of a vessel, did not report it to the proper authorities.” Now, while all right-minded people will heartily agree regarding the healthy sentiment contained in the foregoing sentence, nevertheless it is well known that a good deal depends upon circumstances. There are positions wherein men can report defects in anything, and get praise—as they should—for so doing, and there are also positions wherein men, on shore, if they drew attention to defects, would be instantly “sacked” from their employment, and, if on board ship, would in all probability be sent to jail as wicked designing men! I will try to give an instance in point: About three weeks after the jury brought in a verdict in favour of Mrs. Kilpatrick, I interviewed a seaman on board of a steamer then lying in the Yarra at the Australian wharf. He made a statement which I took down in writing, and after reading same over to him, he, in my presence, declared it was true in every particular. Here it is, “I solemnly and sincerely declare that my name is ——.[2] I am an able seaman, and came out to Melbourne as such in the barque _Alert_. She was a long, narrow, and shallow vessel, built for a river steamer, but we brought her out under sail only. Her machinery was in position but her funnels were not; they were stowed below. In the first instance she sailed for Melbourne from Greenock, and after being a week at sea the crew refused to go any further in her. They all went aft and desired the captain to put the ship into the nearest port. Accordingly the _Alert_ was taken in to St. Tudwell Roads, Cardigan Bay, Wales, where the crew were taken ashore, tried for refusing duty, and sent to jail for six weeks. At the earnest request of the men a surveyor was sent to examine the ship. He stated that the men had a just cause of complaint, and he pronounced the _Alert_ to be unsea-worthy. The magistrates, on learning this, at once made an order releasing the men from confinement. A new crew was shipped, of whom I was one; but, owing to the name the vessel had got, and the extra risk to run, we demanded, and got, £3 15s. per month, the then highest wages out of the port for coasters. During a period of three weeks, fifteen attempts were made to get the _Alert_ out of the Bay, and fifteen times she had to go back to her anchorage. The reason we could not get outside was because the wind was not fair and the ship would not stay. There was no room to wear her round, so there was nothing for it but go back. At last a slant was got, and we sailed for Melbourne. Prior to leaving St. Tudwell Roads the authorities on shore told us that although we had signed articles we need not go in the ship unless we liked, and Captain Webb, to encourage us, said he was going out himself as a passenger in her to Melbourne. At the last moment he changed his mind and did not come with us. Captain Munn was in command, and the _Alert_ carried eight hands all told. She was very crank, or tender, and every night at sundown, fine or foul, the top-gallant sails were taken in and stowed. At no time during the passage out would the vessel stay. When we wanted to put her on the other tack we had always to wear her round. She was loaded with ballast and trimmed on a fairly even keel. The decks were never dry except during calms. Frequently a lot of water got into the saloon, and was got out by all hands bailing with buckets. In one breeze we had she shipped a sea which smashed in the skylight and carried away the wheel and binnacle. We were about five months coming out, and ran short of provisions on the way. I do not remember a window in front of the poop. If there was one it must have been covered over, for I never saw it or heard of it at any time. We never expected to reach Melbourne in her. She was a dangerous vessel, and not fit, in a breeze with a seaway, to either stay, wear, or run. I would not ship in her again under any circumstances. When in Queensland I read in the newspapers some account of the trial, and was sorry that I was not in Melbourne to give evidence as to what I knew of the _Alert_. And I make this solemn declaration, conscientiously believing the same to be true, and by virtue of the provisions of an Act of the Parliament of Victoria rendering persons making a false declaration punishable for wilful and corrupt perjury.” (Signed)

Declared at Melbourne this 19th day of March, 1895, before me, J. A. Reid, J.P.

The following comments on the decision of the Full Court appeared in the Sydney _Bulletin_, published June 1, 1895:—

“The Victorian Full Court lately granted a new trial in the _Alert_ case, with costs against the unfortunate woman who won a verdict some few months ago. The _Alert_ foundered in a gale off Port Phillip Heads, and all hands, save one, were drowned. Mrs. Kilpatrick, widow of the second engineer, sued Huddart, Parker and Co., for damages, alleging that they had not taken every reasonable means to ensure the sea-worthiness of their vessel, her complaint being bracketed, so to speak, with a suggestion that the said _Alert_, having little margin of sea-worthiness to spare, stood always in need of special precautions against accident. The case was tried by Judge Williams and a jury of six, and Mrs. Kilpatrick was awarded £600 damages. Judge Williams explained his view of the law concerning shipowners’ responsibility, and analysed the evidence, and did his best, no doubt, to procure a fair, honest expression of intelligent opinion from the jurymen. Messrs. Huddart, Parker and Co. availed themselves of the Law of Appeal—which is the birthright of capital, and will remain its birthright until the people arise and kick. The Full Court set aside the verdict of Justice Williams’ jury. Widow Kilpatrick asked for justice, and thought she had got it in the form of £600 damages. Had _she_ lost the case, she didn’t possess the money-power to appeal—but this is, in legal eyes, an irrelevant detail. The Full Court finds that the outcome of a long trial was not justice, nor law, nor anything except costs. Justice Madden and his two colleagues ruled that “the jury had never considered the case in its true legal aspect.” Nobody knows the law, says the lawyers, nevertheless the true aspect of the thing they can’t swear to is easily recognised. This by the way. Perhaps the jurymen who gave damages to the engineer’s widow were all wrong, according to the Act. If so, Judge Williams, their adviser, should have told them that no vessel certificated by the Marine Board, and floating comfortably on the water, can be called unsea-worthy. The lack of proper fastenings to a pantry window may be of grave consequence when the vessel gets on her beam ends, “but this defect would not be obviously dangerous,” in the ordinary way, and sea-worthiness is estimated in quite an ordinary way, says the Full Court. Judge Williams, by this showing, should have directed the jury to find for the defendant, but the Full Court made no reference to him. Common-sense asks why Justice Williams allowed an obviously absurd verdict to pass. And if he couldn’t squelch it on the spot, why couldn’t he, seeing that one judge is, or ought to be, as good as the rest of them? And if it wasn’t absurd—but the list of questions that suggest themselves is appalling. The answer is costs. An appeal to a higher court is an accusation of injustice, or ignorance, or dense stupidity against the lower court. The setting aside of a jury’s verdict, on the ground that they “never considered the case in its true legal aspect” is an assertion that the judge didn’t present it to them in a proper way. When the world troubles to consider the legal aspect of these appeals, it will suddenly observe that the law invites contempt, purely for the sake of costs.”

I have a strong impression that our new Governor, Lord Brassey, when he arrives and gets fairly into his new position, will be found to be the right man in the right place. His Excellency is both a lawyer and a seaman in his own person. He was educated at Oxford, and took his M. A. degree there. In 1864 he was called to the bar, but he never had any inclination to follow it up, for his natural bent was toward the sea and shipping. He passed for, and holds, a Master-mariner’s certificate. From 1880 to 1884 he was a Lord of the Admiralty, and during the ensuing year filled the more important post of Secretary to the Board. He was created a Peer in 1886, and since then has served as a very useful member of the “Commission on unsea-worthy ships.”

In order to show that Lord Brassey is not what seamen term “a fresh water sailor,” it may be mentioned that from 1854 to 1893, inclusive, he has sailed upwards of 228,680 knots, a distance which would girth our entire globe nearly ten times! During the above period he has, in his own vessels, been to Australia, Africa, Borneo, Canada, India (east and west), Norway, Russia, Straits Settlements, United States of America, etc., etc. In short, his Lordship has been—in the homely language of the “Geordie” sailor when asked how much he had travelled—“to Rooshayah, Prooshayah, Memel, and Shields, the fower quarters o’ the globe ye noodle.” Having had such a remarkable experience of sea and ships, it may be taken for granted that Captain Lord Brassey is a pretty good judge of what constitutes safety—so far as human knowledge can go—with regard to the shape and rig of a vessel. He is very wealthy, and, if he desired, could have his steam yacht full powered enough to be driven thirty knots an hour, but his is not a policy of “speed and smash,” it is one of “sense and security.” Hence the _Sunbeam_, in case of a breakdown of her machinery, carries sail amounting to 9200 square yards of canvas. Under steam alone she averages about ten knots an hour, but with a spanking breeze, and all sail set, fifteen knots per hour are easily got out of her.