(No. 214)
"AGNES" and "ANNIE VERNON," (S.S.)
The Merchant Shipping Acts, 1854 to 1876.
IN the matter of the formal investigation held at Westminster on the 18th and
19th February 1878, before H. C. ROTHERY, Esquire, Wreck Commissioner, assisted
by Commander KNOX, R.N., and Captain HIGHT, as Assessors, into the circumstances
attending the loss of the sailing ship "AGNES," of London, through collision
with the steamship "ANNIE VERNON," of Sunderland, off Yantlet Creek, in the
River Thames, on the 8th January 1878.
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 loss of the said sailing ship "Agnes" was due to the wrongful
acts and defaults of William Hammond, the master of the said ship "Agnes," and
of Ralph Curry, the master of the said ship "Annie Vernon," viz.:-
(1.) To the said William Hammond for not having caused a proper watch to be kept
on board his vessel when lying at anchor off Yantlet Creek, on the 8th January
1878.
(2.) To the said Ralph Curry for not having paid more attention to the course of
his vessel and having got too far to the southward when passing Yantlet Flats,
instead of keeping down mid-channel in the strength of the tide and out of the
way of vessels which might be lying at anchor out of the fairway.
The Court accordingly warns the said William Hammond and Ralph Curry to be more
careful in future, and returns to Ralph Curry his certificate.
The Court makes no order as to costs.
Dated this 19th day of February 1878,
(Signed)H. C. ROTHERY,
Wreck Commissioner.
We concur in the above report.
(Signed)HENRY KNOX,
Commander R.N.,Assessors.
"EDMUND HIGHT,
Judgment.
The Commissioner.-The facts of this case are extremely simple. The "Agnes" was a
two-masted ketch of 109 tons register, built at Milton-next-Sittingbourne, in
the county of Kent, in the year 1874, and at the time of her loss was the
property of Mr. Shrubsole and Mr. Court, both of Milton. She left London on the
4th of January last with a cargo of guano bound to Antwerp, drawing at the time
7 feet 9 aft and 6 feet 9 forward, and having a crew of four hands all told. On
the 7th of January she passed Gravesend, and continued her voyage down the river
until about 6 p.m. of the same day, when she was off Yantlet Creek, her head was
then turned towards the south shore, and on getting into five fathoms water the
port anchor was dropped, and 15 fathoms of chain paid out. The tide was at that
time about half ebb. Immediately after she had been brought up a globe lamp was
hung from the forestay, about 14 feet above the deck of the vessel. The master
has told us that from that time till about 1 a.m. he kept the watch, and his
mode of keeping it was by going into his cabin, making up his papers, and taking
a turn round the deck occasionally to see that everything was going on rightly.
At 1 a.m. he called the mate and told him to arrange that the two men should
keep watches of two hours each. Accordingly one of the men went on watch from 1
to 3 a.m., the other from 3 to 5 a.m., and then the mate took the watch. At 6
a.m., the captain told us that he went on deck and saw that the light which was
hanging from the forestay was burning brightly. He went below, laid himself down
upon the locker with his clothes on and went asleep. and was only awakened by
the shock of the collision. The mate told us that his mode of keeping the watch
was somewhat similar to that of the master's. He passed part of his time in the
cabin, and occasionally took a turn round the deck to see that everything was
going on right. He seems to have done this at about 6.15, and after remaining on
deck for about five minutes he returned to the cabin, and was in the act of
lighting his pipe when the collision occurred. He told us that although he had
looked round when he was on deck, he had seen nothing whatever of the lights of
any steamer approaching them. Immediately after the collision both men rushed
out of the cabin on to the deck, but by that time the ketch's bows were under
the fore-foot of the steamer, and the water we are told was as far forward on
the deck as the foremast, so that it was quite impossible to get to the men who
were in the forecastle. The master thereupon told the mate to look after the
boat, and they both got into it, and, with some difficulty, were able to get her
clear of the vessel before she sank, and they then pulled to the steamer and got
aboard her. The collision we are told happened at 6.25 a.m., and although the
morning was dark the atmosphere was clear.
The story of the "Annie Vernon" is: that she was a screw steamer of 528 tons
gross and 318 tons net, built at Liverpool in the year 1856, and was at the time
of the casualty the property of a number of gentlemen residing at Sunderland,
Mr. Robert Pope, of 11, Tunstall Terrace, Sunderland, being the managing owner.
She left Erith at 3 a.m. of the 8th, in water ballast, bound to Sunderland, her
crew consisting of 15 hands all told. She had a pilot as far as Gravesend, where
the master took charge, and from that time he and the second mate were on the
bridge on the look-out, the master being on the port side and the mate on the
starboard side; there was also a man on the topgallant forecastle forward on the
look-out, and a man at he wheel amidships. They passed the Chapman Light at
about 5.55 a.m., and proceeded down mid-channel steering about east-south-east;
but meeting with vessels riding at anchor she had to port her helm several
times, how many times the captain was unable to say. They were going at half
speed, from 4 1/2 to 5 knots an hour, with an ebb tide of 3 knots; and the night
they say was clear for seeing lights, but there was a mist upon the water.
Shortly before the collision they had to port for two vessels which were
observed to be at anchor, and they were in the act of straightening the vessel's
course again down channel when the second mate observed what he believed to be
the hull of a small vessel a little on the starboaad bow. He immediately jumped
down and helped the man at the wheel to put the helm hard a-starboard; and very
shortly afterwards, the master having also made out this object, telegraphed to
the engine-room to stop the engines, which was done. Before however she had
stopped, or the helm had begun to take effect, she came into the "Agnes,"
striking her on the port bow, and canting her head round to the northward. The
master, feeling that if he then backed his engines the ketch would immediately
sink, ordered the engines to go ahead very slowly, so as to keep the two vessels
together and to give those on board the ketch a chance of saving their lives,
and at the same time ordered the steamer's boat to be lowered, which was done.
After a few minutes however the ketch foundered, having for some time been
prevented from sinking by her forestay having caught over the steamer's hows.
Soon afterwards both boats came alongside, the ketch's boat containing her
master and mate; and it being clear that there was nothing more to be done, the
steamer, after landing the two men, proceeded on her voyage.
On the completion of the evidence of the witnesses from the two vessels, Mr.
Ravenhill, who appeared for the Board of Trade, preferred charges both against
the master of the "Agnes" and the master of the "Annie Vernon." But before I
proceed to examine whether these charges have been proved, it will be well to
deal with a question of law which has been raised by Mr. Oliver on behalf of the
master of the "Annie Vernon." It was objected by Mr. Oliver that as the charges
against his client, involving as they did the loss of two lives, amounted to a
charge of manslaughter, the Court was incompetent to deal with them. He told us
that every person charged with the offence of manslaughter had the right to be
tried by a jury, and that it is the practice in other courts, whenever a charge
of manslaughter or felony is made, for the court to hold its hand. and to refer
the case to the ordinary tribunals for trial by a jury. I confess that I am
somewhat surprised to hear that this is the practice of other courts. I had
supposed that if in a testamentary suit before Sir James Haunen for instance, a
question arose as to whether or not a signature to a will had been forged, that
he would have gone on and tried the case, and not have held his hand until it
had been ascertained by trial before a jury whether or not the person accused of
having committed the forgery was or was not guilty of that offence. Nor was I
aware that it was the practice in other courts, in the event of a charge of
perjury having been made against one party or against another, for the court to
hold its hand until that charge had been tried before a judge and a jury. I
confess that the principle appeared to me to be new, and even Mr. Oliver was
obliged to admit that in the case of a proceeding against a solicitor to strike
him off the rolls, the Court of Queen's Bench would proceed to inquire whether
the offence with which he was charged had or had not been committed, even though
it should be a charge of felony or manslaughter.
But however this may be, I cannot shut my eyes to the fact that the Legislature
has empowered this Court inter alia to hold an inquiry into cases where loss of
life has ensued. Now is it seriously contended that if there is no suggestion
that the loss of life has resulted from the misconduct or default of anybody,
the Court may proceed to inquire; but that if there is any suggestion that it
has resulted in loss of life from any persons misconduct, the Court must at once
hold its hand? This would indeed be a farce, that if no one could be to blame,
the Court might proceed to inquire into the circumstances, but if anyone by any
possibility could be supposed to blame, the Court must hold its hand. I cannot
think that that was the intention of the Legislature, and certainly the Act does
not say so.
But Mr. Oliver has said that if I proceed to inquire into these charges I shall
be trying a case of manslaughter. In my opinion, however, I am doing nothing of
the kind. I am simply endeavouring to ascertain the causes of the casualty, and
in doing so I have to inquire whether certain acts were done by the master, and
whether they did or did not conduce to the loss of this vessel. It is not for
this Court to say whether those acts do or do not amount to manslaughter, but
whether they did or did not conduce to the casualty. I shall therefore hold that
the Court is competent to proceed with this case, notwithstanding that the
charge may amount to one of manslaughter, and I shall continue to do so until I
am restrained by higher authority.
I now proceed to consider the facts of this case, and the first question, as Mr.
Ravenhill has observed, for the Court to consider is, where was the "Agnes"
anchored at the time of the collision? According to the evidence of the
witnesses from the "Agnes," she was anchored on the edge of Yantlet Flats,
between Yantlet Buoy and Jenkin Buoy, Jenkin buoy bearing from her south-east by
east three-quarters east, distant 5/8ths of a mile. According to the "Annie
Vernon's" people the "Agnes" was anchored in mid-channel due north of the Jenkin
Buoy, and rather more than half a mile from it. That the "Agnes'" people would
be more likely to know where she was anchored than the "Annie Vernon's" would,
may, I think, be fairly assumed. We have also the evidence of the master and one
of the men from a vessel called the "Elizabeth Little." which passed her only
about half an hour before the collision, and who told us that she was anchored
when they saw her on the edge of Yantlet Flats, about a mile from Jenkin Buoy,
and midway between it and Yantlet Buoy, which would be rather higher up the
river than where the "Agnes'" people had placed her.
But the case does not rest here. According to the evidence the "Annie Vernon"
struck the "Agnes" on the port bow, canting her head round to the northward; at
this time the "Annie Vernon" was under a hard a-starboard helm, which would tend
to set her head to the northward, and she continued in that direction moving
ahead slowly for from four to ten minutes. It is obvious, therefore, that after
the collision the "Annie Vernon" would carry the "Agnes" somewhat to the
northward of where she had been anchored, whilst at the same time the ebb tide
would be setting both vessels down the river. The place, therefore, where we
might naturally expect the "Agnes" to sink would be a little to the northward
and a little further down the river than where she had been anchored. Now
according to a notice issued by the Trinity House as a warning to vessels
navigating Sea Reach, it would seem that on the 16th of January last the wreck
of the "Agnes" lay at the distance of about 8/10ths of a mile from Jenkin Buoy,
which bore from her south-east easterly. Now this place is a little to the
north, and rather lower down the river than where the people from the "Elizabeth
Little" placed her, and it is to the southward and higher up the river than
where the "Annie Vernon's" people say that the "Agnes" was anchored. I think,
therefore, that the conclusion to which we are bound to come is, that the
"Agnes" was at the time of the collision anchored on the edge of Yantlet Flats,
about a mile above Jenkin Buoy, and between it and Yantlet Buoy, and
consequently out of the fairway, and not as the "Annie Vernon's" people say to
the north of Jenkin Buoy, and in mid-channel.
That the evidence of the master of the "Annie Vernon" as to the place where the
collision occurred, is not to be relied on, and that he had at that time
completely lost his way, appears clear from some answers which he gave to
questions put to him by the Court. He told us that just before the collision the
Nore Light bore from him southeast and by east, and that he then ordered the
vessel to be steered east by south half south. I directed him to place his
vessel in such a position upon the chart as that the Nore Light should bear from
him south-east and by east, and then to draw a line showing an east and by south
half south course from it. He did so, and although he at first made a mistake in
laying down the position of the vessel much further to the north than he need
have done, still it is apparent that to bring the Nore Light to bear south-east
by east he must have been well over to the Leigh Middle, and a course east by
south half south from there would inevitably take him upon the Maplin Sand. It
was obvious that the man had lost his way, and had no idea that his vessel was
so nearly over to the south shore as it was when he came into collision with the
"Agnes."
The next important question in considering this case is had the "Agnes," or had
she not, a light exhibited and burning at the time of the collision? There can,
I think, be no question that a light was put up on the forestay of the "Agnes"
on the evening of the 7th, and that it remained there throughout the night. The
master has told us that he saw it at 6 o'clock; the mate says that he saw it as
late as a quarter past, or even 20 minutes past 6 o'clock. The master and seamen
from the "Elizabeth Little" have also told us that they saw it about 6 o'clock;
one of the coastguardsmen told us he saw it at four, and the other, that he saw
it between 5 and 6 o'clock. On the whole, therefore, we have no doubt that this
light was exhibited, and that it was burniug until 6 o'clock, or, if we believe
the mate, until 6.20 a.m. of the 8th, but the question is, was it burning at
6.25, the time of the collision? Now we have no positive evidence that the light
was burning at the moment of the collision, for the master and mate of the
"Agnes" were in the cabin at that time, and they did not, when they came on deck
after it, look to see whether it was burning or not. On the other hand, we have
the evidence of the master and the mate, and I think the lookout man on board
the "Annie Vernon," that they saw no light exhibited on board this ketch, and
they say that if there had been a light they think that they would have seen it.
No doubt this negative evidence that the light was not seen could hardly be
accepted against positive evidence that it was there; and if anyone on whom we
could have placed reliance had come forward and sworn that he had seen the light
exhibited at the moment of the collision we must have accepted his evidence; but
there is no such evidence produced. Whilst therefore we think that the
presumption is very strong that the light was burning at the time of the
collision, we cannot say that it might not have gone out after it had been seen
the last time by the mate, and which we are disposed to think must have been
more than five minutes before the collision, seeing that according to him the
steamer's lights were not in view when he left the deck. Now it is to be
remembered that this Court has not to decide the rights of the respective
parties between themselves, that is for another court to do; what we have to say
is whether it has been proved to our satisfaction either that the "Agnes" had
not a light burning at the time of the collision, or that the "Annie Vernon" ran
into a vessel with a light burning and hanging from her forestay. Neither of
these positions is in our opinion proved so as to justify us in punishing or
even reprimanding either of these masters for a breach of duty. All that we can
say is that, although the presumption is very strong that the light was burning
at the time of the collision, it has not been conclusively proved.
This then brings me to the next question which we have to consider, was there,
or was there not, a proper and sufficient watch kept on board the "Agnes?" The
master has told us the way in which he kept his watch. He says that he was in
his cabin attending to his papers, and now and then went on deck and took a look
round. This went on from between 6 and 7 o'clock in the evening till one on the
following morning. Is it to be expected, if the master kept watch in so lax a
way, that the mate or the men would keep it more strictly. The mate himself has
admitted that he kept watch very much in the same way as the master himself did.
The excuse offered by the master is that, being on the edge of the Yantlet
Flats, and out of the fair way, he did not think it necessary to keep so strict
a lookout as he should have done had he been in mid-channel But the gentlemen by
whom I am assisted are not disposed to admit this excuse; they think that it was
the duty of the master of the "Agnes," seeing that there were four hands on
board, to have had one of them constantly on deck looking out, in order to warn
vessels off that might be approaching, and to see that the vessel was riding
properly to her anchor. In the present case had the mate been, as he should have
been, on the deck of the vessel, he would have seen the lights of this steamer
bearing down upon him, and by shouting or otherwise would probably have called
the attention of those on board to the presence of the ketch, and in that way
have avoided the collision. We think therefore that there is no justification
for the way in which the look-out was kept on board this vessel.
A question was also raised, whether or not there had been a proper look-out kept
on board the "Annie Vernon?" Of course, if the light of the "Agnes" was burning
at the time, it is not easy to understand why it was not seen from the "Annie
Vernon" if a good look-out was being kept. There is also the fact that it was
the second mate who first saw the "Agnes," and not the look-out man; and that
both the master and mate say that they did not hear him report her. Prima facie,
therefore, it would seem as if the look-out man had not been so attentive to his
duties as he might have been. On the other hand, I am told by my assessors that
the second mate had probably a better opportunity of seeing this ketch first
than any of the other persons on board. He was placed higher up than the
look-out man forward, and he was on the starboard side, the side on which the
ketch was first seen. There is therefore nothing in our opinion to show that
there was not a proper look-out on board the "Annie Vernon."
Again, it is said that she was proceeding at too great a speed. The evidence is
that she was going at half speed. Seeing that the tide was running at the rate
of three knots an hour, and that it was necessary to keep steerage way upon her,
the assessors think that if she had been, as she supposed she was, in
mid-channel and not out of the fairway and where small vessels might be expected
to be lying at anchor, it would probably not have been too great a rate of
speed. No doubt she had not sufficient time, after discovering the ketch, to do
anything to avoid her, still the assessors are of opinion that half speed was
not too great a speed, considering that the night although dark was we are told
favourable for seeing lights.
Now there are two charges against the "Agnes," first, that she had not a light
exhibited and burning; and secondly, that she had not a proper look-out at the
time of the collision. We think that the first of these has not been
established, but that the charge that she had not a proper look-out has in our
opinion been clearly proved. As regards the "Annie Vernon," we think that the
master was to blame for having got so far down to the south as he did, not
indeed that he was not entitled, being a light vessel, if he thought proper, to
cross Yantlent Flats, but it was not the proper course for him in going down the
river with a strong ebb tide in his favour. The more proper and seamanlike
course for him would have been to have kept further to the north in the full
strength of the tide, and he would no doubt have done so had he not lost his way
and got down upon Yantlet Flats when he thought he was in mid-channel. In fact
it is a mere accident that he did not get ashore. If he chose to go over Yantlet
Flats he did so at his own peril, and should have taken extra precautions to
keep clear of small vessels which might be expected to be riding there. We
think, therefore, that he was to blame on this charge, but that it has not been
shown to our satisfaction that he is guilty of the other charges preferred
against him.
Now the offences of which these men have been found guilty are, in our opinion,
not deserving of any very severe punishment from the Court. The master of the
"Annie Vernon" holds a certificate of service, the master of the "Agnes" holds
no certificate. We might suspend the certificate of the master of the "Annie
Vernon," but we do not think that his offence is such as to call for so severe a
punishment. We think that it will be sufficient if we warn both of these men to
be more careful in future, the master of the "Agnes" to keep a better anchor
watch when lying at anchor in the River Thames, and the master of the "Annie
Vernon" to take more care when crossing ground where he might naturally expect
to find vessels lying at anchor. (To Mr. Ravenhill.) I presume that you do not
ask for costs?
Mr. Ravenhill.-No, sir.
(Signed)H. C. ROTHERY,
Wreck Commissioner.
W, 190. 60.-2/78, Wt, 3011.
