(No. 189.)
"CALENICK."
The Merchant Shipping Acts, 1854 to 1876.
IN the matter of the formal investigation held at Westminster on the 8th, 21st,
and 22nd January 1878, before H. C. ROTHERY, Esquire, Wreck Commissioner,
assisted by Captain PICKARD, R.N., and Captain CURLING, as Assessors, into the
circumstances attending the abandonment of the British sailing ship "CALENICK,"
of Fowey, about 50 miles north of Heligoland, on the 24th day of November last.
The Court, having carefully inquired into the circumstances of the
above-mentioned shipping casualty, finds, for the reasons stated in the annexed
judgment, that the master and crew of the "Calenick" had not abandoned the
vessel prematurely, seeing that she was at the time in an unseaworthy condition,
that the pumps were choked, that she had a list to port, and that they had been
engaged for the preceding five days with only two hours rest during that time,
in baling the water out of her; considering also that the master, owing to his
having no chronometer on board, was ignorant of her exact position, and feared,
not unnaturally, that she would not outlive another gale.
The Court is further of opinion that the "Calenick" was in an unseaworthy
condition when she left Fowey, and unfit to proceed to sea, laden, as she was,
with a cargo of above 200 tons of china clay and stone, which sank her down aft
to a depth of 12 feet 9 inches.
The Court makes no order as to costs.
Dated the 22nd day of January 1878.
(Signed)H. C. ROTHERY,
Wreck Commissioner.
We concur in the above report.
(Signed)BENJN. S. PICKARD, R.N.,Assessors.
"WILLM. CURLING,
Judgment.
The Commissioner.-This case originally came before the Court on the 8th instant.
On that occasion Mr. Bowen, who appeared for the Board of Trade, stated that he
found himself in a position of peculiar difficulty. Circumstances had come to
the knowledge of the Board of Trade which made it doubtful whether the
abandonment of this vessel was due to the misconduct of the master, or whether
it arose from the unseaworthy state and condition of the vessel herself. He
stated that after her abandonment she had been fallen in with by another vessel,
and taken to Hamburgh; and that a Board of Trade surveyor had been sent over to
examine and report upon her condition, where she now lies. Under these
circumstances, Mr. Bowen proposed to reserve the examination of the master until
after he had received the surveyor's report, and stated that it was his
intention only to examine the mate, and two of the men from the "Calenick," and
then to ask for an adjournment until the report should be received. At the same
time Mr. Bowen suggested whether it would not be fairer, seeing the serious
character of the charges which might have to be made, and that neither the owner
nor the master were represented by counsel to adjourn the examination
altogether, thus affording them an opportunity, if they thought fit to avail
themselves of it, of appearing by counsel. In that suggestion the Court entirely
concurred. The case was accordingly adjourned until yesterday, when the
proceedings commenced with the examination of the master, the mate, and two of
the seamen of the "Calenick." The story told by the "Calenick" is as follows:
She was a vessel of 126 tons, built at Llanelly, in South Wales, in the year
1826, and at the time of the casualty, which forms the subject of the present
inquiry, was owned by Mr. George Henry Bate, of Fowey, in Cornwall, and six
other persons, Mr. George Henry Bate being the principal and managing owner. She
left Fowey on the 19th of October last with a cargo of above 200 tons of china
clay and stone, bound therewith to Bremerhaven, and we are told that she was
well furnished and equipped in all respects. On the following day she put into
Plymouth, and having there taken in one of her crew, which consisted of six
hands all told, she proceeded on her voyage, but soon afterwards a strong breeze
having sprang up, she began to make water to such an extent that the crew went
aft, and re quested that she might be taken to some port. Accordingly the
captain steered for Cowes, where they arrived on the 21st of October. There two
shipwrights were employed upon her, each for the space of from 12 to 14 hours.
Some slight caulking was done and a few patches put into her, and on the 26th
she again set sail, but the weather being foggy, she came to anchor for the
night, and on the 27th proceeded on her voyage. On the 29th she met again with
severe weather, and began to make a great deal of water. This continued until
her arrival in the River Weser, which she reached on the 1st of November. She
proceeded up the river to Bremerhaven, and on the 2nd reached Brake, and there
delivered her cargo.
The crew, it seems, had contracted merely for the voyage to Brake; they were
accordingly discharged there, but were re-engaged, and the vessel having taken
in 80 tons of sand ballast (that being, we are told, the only ballast which she
could obtain there), she left on the 14th, and proceeded down the river to
Bremerhaven, where she anchored for two or three days, and on the 19th proceeded
to sea, bound to Frederickstadt, in Norway, with the view of there shipping a
cargo of timber for conveyance to this country.
At 1.30 p.m. on the 19th the pilot left her at the light-ship, and she proceeded
on her voyage. At 10 o'clock that night it came on to blow hard, and by midnight
she was found to have a good deal of water in her hold. The ship was accordingly
laid to, and an attempt was made to free her. The pumps were, however, found to
be choked, and the only mode that they had of clearing the water was by baling
it out in buckets, carrying it up through the half-deck, and throwing it over
the side. This was continued till about 5 or 6 o'clock a.m. of the 20th, by
which time they had got the water somewhat under. The vessel was then again laid
upon her course for about two hours, but it was found impossible to proceed,
owing to the water that she made, and the list which the vessel then had to
port. Accordingly, at the request of the crew, the vessel was put about to
return to Bremerhaven. The vessel, however, continued to make so much water that
it was found necessary again to lay her to, and baling was again resorted to
with buckets. From this time the vessel continued to drift about the North Sea,
the weather being more or less stormy, and the crew, as often as they could
possibly be spared, being employed baling the water out with buckets, until
about 8 o'clock on the morning of the 24th, when a Prussian vessel, called the
"Asunte," hove in sight. The crew thereupon requested the master to be allowed
to go on board her, and, fearing, as he has told us, that she would not outlive
another gale, he consented. Accordingly, at about 10 o'clock, they launched the
boat, and went on board the "Asunte," and were by her ultimately landed at
Bremerhaven.
And here a question arose, as to whether it was competent to the Board of Trade,
before making a charge, to produce witnesses from a steamship called the "Mary
Ann Briggs," which it seems had afterwards fallen in with the "Calenick," and
taken her to Hamburgh. Now the 14th rule is in these words: "The proceedings
shall com- " mence with the examination of the master, officers, " and any other
person who was on board at the happen- " ing of the casualty, and who can give
material evidence " in regard thereto." There could be no doubt whatever that
the witnesses from the "Mary Ann Briggs" could give material evidence in regard
to the casualty, for they could tell us in what state the vessel was when they
fell in with her; but were they "on hoard at the happening of the casualty?" Now
what is meant by being "on board at the happening of the casualty?" When does
the casualty begin, and when does it end? Does the casualty begin with, and is
it confined strictly to the time of the abandonment? or does it begin from the
time when the vessel found herself in difficulties on the evening of the 19th?
and does it terminate only when the vessel was got in safety into Hamburgh? The
owner, who was not represented by counsel, contended that the casualty meant
simply the time of the abandonment. But does it mean before the actual moment of
the abandonment, or after the actual moment of the abandonment? If it means
before the actual moment of the abandonment, it may be said that the casualty
had not then been completed. If it means after the casualty was completed by the
abandonment of her crew, then none of the crew of the "Calenick" would be on
board at that time, and, therefore, none of them could be examined. The question
is not free from difficulty, but Mr. Digby, who now appears for the Board of
Trade, has, in my opinion, most properly, the owner and master not being
represented by counsel, not pressed the point, and has determined first to make
the charge, and then to exercise the right, which the 18th rule gives him, of
producing the witnesses from the "Mary Ann Briggs."
The question, however, still remains, whether or not rule 14 should not be
altered, and I confess that it appears to me that it should be. It seems to me
that it would be fairer to the Board of Trade that they should be allowed to
produce all their witnesses who can give evidence having a material bearing upon
the casualty, before they are called upon to make their charge. It seems to me
also that it would be fairer to the owner and fairer to the master that this
should be done, for otherwise the Board of Trade might be induced to make a
charge which, ultimately, on the examination of the further witnesses, might
prove to be unfounded; and in that case the master and owner would have been put
to the expense and inconvenience of having to look up evidence to rebut a charge
which, in the end, had proved to be unfounded.
On the whole, therefore, I am very strongly of opinion that rule 14 ought to be
amended, so as to allow the Board of Trade to produce all their witnesses before
they are called upon to make a charge. The difficulty, however, as I have said,'
has been avoided in this case by the course which Mr. Digby has taken in making
a charge first, and then producing the witnesses from the "Mary Ann Briggs."
Now the charge is in effect, that the master prematurely abandoned the ship. At
the same time Mr. Digby stated that he made it in order that the case might be
thoroughly investigated, and which he felt would hardly be the case unless a
charge was made. He felt, however, the peculiar position in which the master had
been placed, and that no one would more rejoice than he if the Court thought
that it could come to the conclusion that he was not guilty of the charge which
had been laid against him.
Now the statement of the witnesses from the "Mary Ann Briggs" is, that they left
the Humber on the 24th; that on the 25th they met with very severe weather; and
that at about 8 o'clock on the 26th they observed this vessel lying to. They
accordingly bore down towards her, and the mate, the carpenter, two seamen, and
two firemen having been put on board, a tow rope was passed to her, and she was
taken in tow, and by 11 a.m. they had got her into the river. They took her up
as far as Gluckstadt that night, and there came to an anchor, and on the
following morning they proceeded on to Hamburgh. Now the carpenter has told us,
and he is the only witness who can speak positively to the fact, that there were
only 18 inches of water in the vessel when' they took her in tow, that the water
did not increase at all, and that, although no portion of it was pumped out, the
same amount of water was found in her when they arrived at Hamburgh. What the
carpenter meant, I apprehend, was that there were 18 inches of water above the
ballast.
Now the crew of the "Calenick" had said that, when they left her, there were
between 2 and 3 feet of water in the vessel, and that she was making water so
fast that they had a difficulty in keeping it under. If this was true, it is
abundantly clear that she would have had a great deal more water by the morning
of the 26th, when she was picked up by the "Mary Ann Briggs;" but according to
the evidence of the carpenter of the "Mary Ann Briggs" she had less. In this
conflict of evidence the Court would have some difficulty in saying to which
side it ought to give credence. The witnesses from the "Calenick" gave their
evidence, as Mr. Digby remarked, in a very straightforward manner, and we have
no reason to think that they said anything but what they believed to be
perfectly true. On the other hand, the witnesses from the "Mary Ann Briggs" gave
their evidence in an equally clear and satisfactory manner; nor must it be
forgotten that these men being salvors of the property would have a natural
tendency to enhance the value of their services by representing the vessel to
have been in a worse state than she really was; at any rate, according to my
experience of salvage cases, salvors are disposed to represent the property
salved to have been in a worse state than it was, and their services to have
been attended with much greater difficulty than afterwards turns out to be the
case. But here the crew of the "Mary Ann Briggs" have represented their services
to have been very easy, and the vessel to have been in a comparatively sound
state.
So the case stood when the Court adjourned yesterday, but this morning the Board
of Trade have produced a gentleman, who, from his position, and from the manner
in which he gave his evidence, is entitled to the greatest consideration from
the Court; I refer to Mr. Turner, the surveyor, who was sent over to examine
this vessel at Hamburgh. Mr. Turner is the principal shipwright surveyor to the
Board of Trade for wooden vessels in the Port of London, and the report which he
has made upon the vessel is most important. I do not propose to read the whole
of it, but there are passages in it to which it is necessary that I should
refer. After stating that his examination of her extended from the 9th to the
12th instant (showing that he must have made a careful examination of the
vessel), he says: "With " the exception of these on the quarter, all the other
pieces " shut up defects, and in these parts the vessel was as far " gone from
dry rot as possible. The deck beam clamp " on both sides, from the fore side of
the foremast to the " aft side of the main rigging is rotten, some of the inside
" planks in the 'tween decks are also in a defective state." Further on he says:
"The rudder pintle and brace below " the counter are wasted and worn, and the
fastenings of " the former, through the main and filling pieces, are " loose.
The rudder in this condition is a source of " danger." And he thus ends his
report: "This vessel, " in my opinion, is unfit to proceed to sea without
serious " danger to human life. I have a firm conviction from " what I have seen
of her, that throughout the old portion " of the hull she must be in a very bad
state." That report was confirmed in every respect by the evidence which Mr.
Turner gave before us. I may add, with respect to the concluding paragraph of
his report, that he told us that it was impossible for him to examine the lower
part of the vessel, because it was covered up with ballast and rubbish of
different kinds, but his conviction was that the old portion of the hull was "in
a very bad state." It is true that he also stated that he did not think that
below the 9-feet mark she was making any water; but he distinctly stated that
between 9 and 12 feet she would make a great deal of water.
This evidence was very strongly supported by that of the shipwright, who, I will
not say repaired her, but who did a little caulking to her at Cowes, and I do
not think that it was materially or at all contradicted by the evidence of the
gentleman from Fowey, who told us, not that he had personally inspected the
vessel to know whether she was in a good state or not, but that he had in
October employed some of his men to partially caulk her, and to do repairs to
the extent of 10??.
Now the Board of Trade were very anxious that the Court should not overstep the
limits of its jurisdiction. We were told that we had nothing to do with the fact
of whether this vessel was or was not seaworthy when she left Fowey, except so
far as it had a bearing upon her abandonment by her master and crew; but I
confess that I do not so read the Act of Parliament. I cannot think that the
sole duty of this Court is to deal merely with the certificates of masters and
mates, but that one of its chief duties, and one for which the Court was
specially appointed, is to inquire into all circumstances attending the loss,
abandonment, damage, or casualty, and that in doing so it is absolutely
necessary that we should inquire, and it is our principal business to inquire,
whether this vessel when she left Fowey was or was not in our opinion in a
seaworthy state.
Mr. Digby.-I only hope that I did not say anything which implied any dissent
from anything which you have laid down. I hoped I had explained myself.
The Commissioner.-I mention it because I want that there should be no
misunderstanding upon this point. I conceive that the duty of this Court is not
simply to deal with the certificates of masters and mates, but to ascertain
whether ships are, or are not, in a seaworthy condition when they go to sea, and
whether the injury or loss in the cases which come before the Court was or was
not due to the state in which they were when sent to sea by their owners.
Mr. Digby.-That which you have just said is what I wished to convey, that the
seaworthiness was a particular clement in this investigation.
The Commissioner.-At the same time you said you considered that we had nothing
whatever to do with the question whether this vessel was or was not in a
seaworthy condition when she left Fowey.
Mr. Digby.-Except so far as that conduced to the loss. I limited it to that.
The Commissioner.-I think that is one' of the chief questions which we have to
consider.
The conclusion then to which the Court has come upon a consideration of all the
evidence in this case is that this vessel was, as Mr. Turner has properly
characterised it, a rotten vessel. We think that she ought not to have left
Fowey at all, and certainly ought not to have left it laden with upwards of 200
tons of china clay and stone, which would sink her down, as her official
log-book shows to a depth of 12 feet 9 inches aft; below, therefore, defects in
her side, through which, as Mr. Turner has told us the water would flow into
her, I do not know whether he said in buckets full, but at any rate in great
quantities, or as one of the men said like sand running through an hour glass.
No doubt it is difficult to reconcile the statement of the crew of the
"Calenick," that when they abandoned her she had between 2 and 3 feet of water
in her, with that from the "Mary Ann Briggs," that she had only 18 inches of
water in her when they picked her up two days afterwards. How these two
statements are to be reconciled we do not know; it may be that the master and
crew in their terror, not unnaturally, exaggerated the amount of water that was
in her, the more so as, owing to the vessel pitching about, it would perhaps be
difficult to say how much water there was in her. In one respect, no doubt, the
crew of the "Calenick" have exaggerated, and that is in the amount of ballast
which they say they threw overboard. According to the statement in the official
log-book they threw overboard 45 tons of ballast, 45 tons of ballast mixed with
water, which would perhaps double its weight, taken up in buckets, carried on
deck, and thrown overboard by a crew of only six hands, one of whom must have
been at the wheel, and another probably on deck; the thing is simply impossible
in the time given. There must, therefore, be some exaggeration in this respect,
and there might also have been in the quantity of water the vessel was making.
At the same time we cannot shut our eyes to the fact that the master and crew of
this vessel had been in her from the time she left Fowey; they knew her rotten
condition; they knew that she made a great deal of water from Plymouth to Cowes;
they knew that nothing had been done to her at Cowes, or comparatively nothing;
they knew that after leaving Cowes she made a great deal of water before her
arrival in the Weser; they knew that at Brake literally nothing hall been done
to her; and after leaving Bremerhaven they were for five days almost constantly
engaged in baling this vessel, and with only two hours rest during the whole
time. Is it then unreasonable that when they found this vessel approaching them,
offering them some hopes of safety, they should have desired to go on board of
her? In the opinion of the assessors who sit with me, the master and crew were
justified in abandoning her under the circumstances. No doubt, as Mr. Turner has
said, looking merely at the quantity of water she had in her, they would perhaps
not have been justified in abandoning her; but we must look at all the
circumstances of the case, at the state of the vessel, at the fact that they had
been for five days without rest; and that as the vessel was without a
chronometer they could hardly know with any certainty where they were.
On the whole, we think that the master and crew were justified under the
circumstances in abandoning this vessel as they did. At the same time I am quite
prepared to admit that the mere fact that this vessel was in an unseaworthy
state would not have justified these men in leaving her, apart from the other
circumstances of the case. The mere fact that the vessel was unseaworthy would
not justify their not attempting to bring her into port, if they could have done
so without imminent risk to their lives.
With respect to the owner, it is not for us to try him, nor to say whether he is
or is not guilty of having sent this vessel to sea in an unseaworthy condition;
but we cannot shut our eyes to the fact that this gentleman must have thought,
before she left Brake, that she was not fit to go to sea; the letters which he
wrote to the master, show that he feared that the crew, after their experience
of the vessel, would not be likely to continue the voyage to Frederickstadt and
home; and he accordingly instructs the master to offer them higher wages to
induce them to undertake the additional risk, which they would thereby incur. If
he is guilty it is for another Court to deal with him. Our duty now is to say
that, looking to the state in which this vessel was, looking to the weather that
they encountered, and looking to all the facts of the case, we think that no
blame attaches to the master for having abandoned the vessel when he did. Have
you any application to make, Mr. Digby?
Mr. Digby.-After your statement of the grounds upon which your judgment has been
based I have to submit to you whether this is not a case in which the power
which the statute gives, as against the owner, ought not to be exercised.
The Commissioner.-You ask for what?
Mr. Digby.-Section 436 of the Act of 1854 is: "The " said justices or
magistrates may make such order with " respect to the costs of any such
investigation or any por- " tion thereof as they or he may deem just, and such
costs " shall be paid accordingly, and shall be recoverable in the " same manner
as other costs incurred in summary pro- " ceedings before them or him, and the
Board of Trade " may, if in any case it thinks fit so to do, pay the expense "
of any such investigation, and may pay to such assessor " as aforesaid such
remuneration as it thinks fit."
The Commissioner.-You mean that I have the same power as the justices?
Mr. Digby.-Yes, sir.
The Commissioner.-Who do you ask should be condemned in costs?
Mr. Digby.-Considering the judgment, I ought to ask that the owner should be
condemned in costs.
The Commissioner.-What have you to say in answer, Mr. Bate?
Mr. Bate.-I cannot see how I can be condemned in costs. It has not been proven
that I sent the ship knowingly to sea in a bad state.
The Commissioner.-Have you anything further to say?
Mr. Bate.-I had no idea she was in a bad state. I never dreamt of such a thing.
The Commissioner.-You know it now.
Mr. Bate.-I hear it from the Board of Trade surveyor. I have no opportunity of
appealing against his survey.
Mr. Digby.-Will you allow me to point out that your power extends to the whole
or any portion of the costs.
The Commissioner.-Yes, I am aware of that.
Mr. Digby.-If you think fit that some portion of the costs should be paid, well
and good. We should be sorry, of course, to press too hardly upon the owner, but
we feel bound, after your intimation of the grounds upon which your judgment is
based, to make the application.
The Commissioner.-Considering that this inquiry was necessitated by the fact
that the vessel had been abandoned by her crew, and afterwards taken into port,
and that the appearance of the owner has not in any way added to the cost of
these proceedings, I think that our best course will be, under the
circumstances, not to condemn the owner in any part of the costs, leaving it to
the Board of Trade to take what action they please against him. There will,
therefore, be no costs.
(Signed)H. C. ROTHERY,
Wreck Commissioner.
W. 158. 60.-1/78. Wt. 3011.
