(No. 338.)
"LEADER."
The Merchant Shipping Acts, 1854 to 1876.
IN the matter of the formal investigation held at Westminster on the 13th and
14th of November 1878, before H. C. ROTHERY, Esquire, Wreck Commissioner,
assisted by Captain PICKARD, R.N., and Captain NICOLAS, as Assessors, into the
circumstances attending the abandonment of the sailing ship "LEADER," of
Swansea, in the North Sea, on the 29th day of October 1878.
Report of Court.
The Court, having carefully inquired into the circumstances of the
above-mentioned shipping casualty, finds, for the reasons annexed: (1.) That the
cargo of the "Leader" was properly stowed.
(2.) That the shifting boards were insufficient in depth.
(3.) That the master was justified in proceeding to sea with a cargo of 160 tons
of grain in bulk.
(4.) That the abandonment of the said ship was under the circumstances not
wholly unjustifiable.
The Court accordingly returns to Nicholas Bate, the master, his certificate.
The Court makes no order as to costs.
Dated this 14th day of November 1878.
(Signed)H. C. ROTHERY,
Wreck Commissioner.
We concur in the above report.
(Signed)BENJN. S. PICKARD, R.N.,Assessors.
"B. G. W. NICOLAS,
Reasons.
The Commissioner.—The present case shows the great advantage of treating these
cases in a summary way, and without unnecessary formalities. Here is a vessel
abandoned by her master and crew in the North Sea, subsequently taken into
Ramsgate, and thence brought to London, where she arrives on the 8th instant,
and we are now at the 14th with the case heard and determined. It was said by
Lord Stowell that the principle of velis levatis should be adopted in all cases
in which ships are concerned; and a somewhat long experience has shown me the
wisdom of that remark. I am convinced that in the great majority of shipping
cases pleadings only lead to great and unnecessary delays and expense. The
expedition with which this case has been brought before the Court reflects great
credit on the department of the solicitor to the Board of Trade, whilst at the
same time it has wrought no injustice either to the master or to the owners.
The facts of the case are as follows:—The "Leader," which is a two-masted
schooner, belonging to the Port of Swansea, of 107 tons gross and 99 tons net
register, was built at Bideford in the year 1858, and at the time of her
abandonment was the property of Mr. Nicholas Bate, of Port Talbot, and Mr. John
Curtis; Mr. Bate, who was the owner of three-fourths parts of her, being also
the master and managing owner.
On the 18th of October last the vessel left Randers, a port in the Cattegat,
laden with a cargo of 811 quarters of barley, equal to about 160 or 170 tons,
and bound therewith to London. Her crew consisted of five hands all told, and
she drew 10 feet 3 forward, and 11 feet 2 aft, and had a freeboard, we are told,
of 2 feet. Nothing material occurred uutil the 24th, at noon of which day she
was about 200 miles south-west of the Schonwen Light. Towards the evening a gale
sprang up from the S.S.E., the vessel at the time being on the port tack heading
S.W. After about an hour and a half the wind suddenly veered round to the
westward, and the vessel was then laid upon the starboard tack. The gale
continuing to increase, the vessel was laid on her beam ends, and before they
could close the fore and aft scuttles tons of water, we are told, passed down
through the forecastle and cabin into the hold. The vessel lay over on her port
side head to wind, and with only a very small portion of the main sail set, for
about 10 hours, when the gale having abated, we are told that she righted
herself. It was found, however, that she had then a list to port of from 6 to 8
inches. On the 25th and 26th they were able to make sail and to proceed on their
voyage, the list, however, still continuing; but on the 27th the gale
recommenced with great fury, and the vessel was again thrown on her beam ends.
On the 28th the weather was more moderate, but at 5 a.m. of the 29th the gale
began again, and the ship then lay with her port side under water. Fearing that
she would founder, the master hoisted signals of distress, and in answer thereto
a smack called the "Regard" bore down, and having brought up to windward, sent
her boat to them. The boat having passed to leeward of the schooner was able to
approach her on the lee side; and the whole of the crew then got into her, and
were taken off to the "Regard." The wind and sea continuing very high, the
"Regard" lay off, and at noon another smack called the "Nelson" bore down and
spoke the "Regard," and on being told that the water was up to the forecastle
floor she made no attempt to board her.
At 2 o'clock, the gale having somewhat moderated, a boat was sent from the
"Regard" to the schooner, to see whether anything could be done with her; and on
their return they brought away some of the master and seamen's effects. On a
second visit the mate of the "Regard" and the mate of the "Leader" went on
board, and tried the starboard pump; but after pumping for about half an hour,
and failing to make it suck, they considered it hopeless to attempt to save her,
the wind and sea being still very high, and the vessel lying over with her port
side under water; and accordingly they returned to the "Regard." taking with
them some more of the private effects. At about halfpast four they bore away for
Ramsgate, which they reached early on the morning of the 31st.
On seeing the "Regard" bear away the "Nelson" proceeded to her fishing ground,
and fished through the night, but at daylight on the following morning
perceiving the schooner afloat they bore down towards her, and a few minutes
afterwards were followed by another smack called the "Spray." On the mates from
the two smacks boarding her, they proceeded to examine her, and finding no water
either in the forecastle or in the cabin, they tried to sound the pumps. The box
of the lee pump could not be lifted, but on sounding the starboard pump they
found only 3 feet of water in it. They accordingly determined to try to save
her, and with that view they pumped out all the water, and having set some sail,
the mate and one hand from each smack were put on board, and a course was shaped
for Ramsgate, the two smacks keeping company. On nearing Ramsgate Harbour the
vessel was brought to anchor, and one of the smacks was sent to the harbour to
bring out the tug, and with her assistance the vessel was taken safely into
Ramsgate. There she was rejoined by her master and mate; and a steam tug having
been engaged for the purpose, she was towed round to London, where she arrived
on the 8th of the present month.
These then being the undisputed facts in the case, the opinion of the Court has
been asked by the counsel for the Board of Trade on the following questions:—
" First, whether, when the 'Leader' left Randers her " cargo was properly
stowed?
" Secondly, whether the shifting boards were sufficient " in depth?
" Thirdly, whether the master was justified in proceeding " to sea with a cargo
of 160 tons of grain in bulk?
"Fourthly, whether the 'Leader' was under the circum- " stances prematurely
abandoned, or whether her abandon- " ment was justifiable?"
And the Court has been further asked to state "Whether " in their opinion the
master's certificate should be dealt " with?"
These are the questions which have been submitted for the opinion of the Court,
and I propose to consider them in the order in which they have been dealt with
by the learned counsel.
And first, was the cargo properly stowed? Now apart from the question, whether
the shifting boards were or were not sufficient, a point with which I will
presently deal, I think we can have no hesitation in saying that it was properly
stowed. The great object in these cases is to take care that the hold shall
always be kept perfectly full. So long as the hold is perfectly full there can
be no shifting of the cargo. Now the mate has told us that the stowage of the
cargo was made under his superintendence, and that with the view of filling the
hold as full as possible he filled in the grain between the beams with his
hands. It is clear, therefore, if we are to accept his evidence, that special
precautions were taken to fill the hold as full as possible.
But however full the hold may be at first, it is certain that in the course of
the voyage the cargo will settle to a certain extent, barley perhaps less than
other grain, but still even barley to a certain extent. Let us see then what
precautions were taken to fill up the space which might be left by the settling
of the cargo. It seems that the vessel had a main hatch some 14 feet long by 8
feet broad, the combings of which rose about a foot above the deck. This was
completely filled with grain. There were also over the fore and after hatches
what are called booby hatches, that over the fore hatch rising some 3 feet above
the deck, that over the after hatch about 4 feet above the deck. These two booby
hatches were also filled full of grain, the forward one containing about one
ton, the after hatch about two tons. The object of placing grain in the main
hatch and in these two booby hatches was to feed the cargo as it settled down,
the hatches themselves having been of course left open, and as Mr. Aspinall has
very justly pointed out the proof that they answered their purpose is shown by
the fact that upon the arrival of the vessel at Ramsgate the main hatch was
found to be still nearly full, whilst the grain in the fore and after booby
hatches had sunk to the level of the deck, but not below the bottom of the
combings. It seems, too, that before leaving Ramsgate for London they wanted to
trim the cargo from the port to the starboard side so as to bring the vessel
somewhat more upright, but that it was found impossible to do so, the hold being
quite full; a sure proof that there could have been no shifting of the cargo, or
at all events none of any importance.
But then it may be asked how, if this was so, can we account for the list which
the vessel had to port; and I think we shall have no difficulty in doing so.
According to the evidence, the water which got into her was taken in when she
was lying over on her port side; any water, therefore, that might get in would
as a matter of course run down and wet the cargo on that side. The effect would
be to make the cargo on the port side much heavier than that on the starboard
side, which, as I am advised by my assessors, would sufficiently account for the
list that the vessel had, and which it seems was only from 6 to 8 inches when
the gale abated.
But it may be said that we have the evidence of Mr. Abbott, the Board of Trade
Surveyor, who went on board and examined her on the 8th, the day of her arrival
in London, and who tells us that he found the top of the cargo on the starboard
side wetted, whilst the cargo on the port side was dry. Let us see what
opportunities Mr. Abbott had of examining the condition of the cargo, for we are
quite disposed to place implicit reliance upon what he says, so far as his own
observation extended, and apart from any theories which he might have formed on
the subject. Now Mr. Abbott tells us that when he went on board on the 8th
instant he found a very small portion of the cargo had been taken out of her, to
the depth only of about 3 feet in the way of the main hatch, and that it
appeared to have been removed more from the port side than from the starboard
side. He told us also that, so far as he could see, the cargo on the port side
was dry, but that the top of the cargo on the starboard side was wet. He also
said that he did not again see the vessel until the 11th, and that then the
whole of the cargo had been discharged with the exception of about 2 feet at the
bottom, which was wet fore and aft and on both sides. On the other hand, we have
the sworn evidence of the master, who was present at and superintended the
unloading of the cargo, and who told us that the cargo on the starboard side was
dry, but that that on the port side was wet for about 6 feet from the side.
Now it is admitted that the water, which wetted the grain, passed down, not
through the main hatch, but through the cabin and forecastle, and possibly also
through the seams of the water ways on the port side, when that side was under
water, it is, therefore, quite consistent with the master's evidence that the
whole of the lower part of the cargo may have been wetted on the port side for a
distance of 6 feet from the side and yet not have come up as high as the deck.
What little water may have got in at the main hatch way and at the seams of the
deck as the water washed from side to side, may have wetted the top of the grain
on the starboard as well as the port side, and as Mr. Abbott told us that, when
he saw it on the 8th, the cargo seemed to have been removed more from the port
than from the starboard side, it is not improbable that when he saw it the
wetted portion on the top of the port side had been removed, but that they had
not yet got sufficiently low down on that side to expose that portion of it
which was thoroughly wetted. That there was a portion of it at the bottom
thoroughly wetted is clear from the evidence of Mr. Abbott himself, who tells us
that on the 11th he found 2 feet of grain in the bottom completely wetted from
side to side, but he could not of course say how high the wetting had extended
nor on which side. We think, therefore, that Mr. Abbot's evidence is not
inconsistent with the master's, and we are not disposed to assume that the
master has deposed falsely when he said that he had found the grain on the port
side wetted for six feet from the side, which in our opinion would be quite
sufficient to account for the list which the vessel had to port, without its
being necessary to assume that the cargo had shifted, a fact which is distinctly
disproved by all the other circumstances of the case.
But assuming that the cargo did not shift, does it follow that the shifting
boards were sufficient in depth? which is the second question on which our
opinion has been asked. It seems that this vessel's hold was 48 feet long, and
although we are told that there were beam fillings throughout, it is not
disputed that the shifting boards extended only between the two masts for a
length of 30 feet forward of the foremast and aft of the mainmast, for a space
altogether of 18 feet; there were no shifting boards of any kind. It is also not
disputed that the planks of which the shifting boards were composed were only 8
inches wide by 1 inch thick, and that they were arranged two deep; in fact Mr.
Abbott has told us that he measured the planks and found only 60 running feet of
them, just sufficient to make two rows of planks, extending for the 30 feet
between the masts.
A question was raised whether these two rows of planks had been placed edge to
edge, as the master stated, or whether there was an interval of 6 inches between
them, as Mr. Abbott's evidence would lead us to suppose. If indeed there was an
interval of 6 inches between the two rows, the lower row of planks would offer
no obstacle to the free passage of the grain from side to side, as the grain
would pass through the interval between it and the upper row, so that the vessel
might then be said to be fitted with only one row of shifting boards, 8 inches
deep, below the deck beams; and if to this we add 9 inches for the depth of the
deck beams, we get a total depth from the deck of only 1 foot 5 inches in a hold
which is 11 feet 3 inches deep, a provision which I need hardly observe would be
ut??erly insufficient to prevent the cargo shifting if any settlement took
place.
I think, however, that on this point we must accept the evidence of the master,
that the planks were placed edge to edge; for all that Mr. Abbott can say is
that, when he visited the vessel on the first occasion, and when only some 3
feet of the cargo had been taken out of her in the way of the main hatch, he saw
in one place, and in one place only, an interval between the two rows of planks
forming the shifting boards of about 6 inches. it seems that the shifting boards
had been nailed to the two masts at each end, and to two stanchions fixed at
about equal distances between them, and rising from the bottom of the ship.
These two stanchions were secured at the bottom by being nailed to the keelson,
and at the top one had been nailed to a beam and the other to the carling of the
main hatchway. When Mr. Abbott saw it the carling had been removed to enable
them to discharge the cargo, and consequently the top of the stanchion, which
had been secured to it, had been sent adrift; and of course the shifting boards
in the way of the main hatchway had been knocked away. It is therefore very
possible that Mr. Abbott might then have seen an interval in one place between
the two rows of planks composing the shifting boards, but it does not follow
from that that the planks had not been originally edge to edge, even up to her
arrival in port. When Mr. Abbott subsequently visited the vessel on the 11th all
the shifting boards had been removed and were lying at the bottom of the hold.
We are therefore not disposed to accept Mr. Abbott's assumption, for it is no
more, that there was an interval of 6 inches between the two rows of planks, in
opposition to the sworn evidence of the master that the planks were edge to
edge.
But assuming that the planks were edge to edge, what after all does it amount
to? Why, that we have shifting boards composed of two rows of planks, each 8
inches deep, giving a total depth of only 1 foot 4 below the beams; and adding 9
inches for the depth of the beams, between which we are told that there were
beam fittings, we get a total depth of only 2 feet 1 from the deck in a depth of
hold of 11 feet 3. Now Mr. Abbott, who has had great experience in grain
cargoes, and a part of whose duty it is to examine grain ships on their arrival
to see that the shifting boards are sufficient, has told us that, even assuming
the planks to have been edge to edge, such a depth of shifting boards would be
utterly insufficient. So long, indeed, as there was no settlement of the cargo
shifting boards might not be necessary, but the instant a space was left by the
settling of the cargo between the deck and the top of the cargo, the shifting
boards which this vessel had were quite insufficient. And in that opinion we
entirely concur.
The third point upon which we have been asked to give our opinion is, whether
the master was justified in proceeding to sea with a cargo of 160 tons of grain
in bulk? Mr. Middleton has stated that he should not make any observations upon
this point, but would leave it to the judgment of the Court with the assistance
of it assessors; and we have no hesitation in saying that in our opinion it
would not be an improper thing for a vessel of this size, only about 100 tons,
to have the whole of her cargo in bulk, provided that she had proper shifting
boards, and that proper precautions were taken, as they were in this case. to
feed the hold as the cargo settled. The instructions which were issued at
Montreal and New York in regard to to the carriage of grain cargoes, and which
are to be found in Stevens on Stowage, refer to vessels of 400 tons and upwards,
and not to small vessels like this of only 100 tons, which in our opinion might,
with the precautions I have stated, safely carry the whole of her cargo in bulk.
The fourth question on which our opinion is asked is, "whether the 'Leader' was
under the circumstances pre- " maturely abandoned, or whether the abandonment
was " justifiable?" On one side we have the evidence of the master and the crew
of the schooner, as well as that of the master and mate of the "Regard," who
tell us that, when they left her they firmly believed that she would not float
much longer, and that they had no hopes of saving her. On the other hand, we
have the evidence of Setterfield, the master of the "Nelson," and of West, the
master of the "Spray," who tell us that in their opinion it was quite possible
to save her, and that in fact they did save her. Between which of these two sets
of witnesses are we to choose? Possibly the very different circumstances under
which they saw the vessel may account for the apparent contradiction between
them.
First, as to the master and the crew of the schooner. They had been on board her
for the last five days without having had any proper food, nothing as they tell
us but biscuits and coffee, the galley having been washed away on the 24th. They
were probably exhausted with pumping, for it must be remembered that the crew
consisted of only five hands, of whom one would necessarily be at the helm, and
two would be required for the pumps. The vessel, too, had been from 5 o'clock
that morning until 10 o'clock on her beam ends, lying with her port side under
water, which was washing over the deck as far as the main hatch. They had then
everything to dispirit them and to lead them to think that it would be useless
to attempt to save her. They were confirmed, too, in that view by the master and
mate of the "Regard," who, as it has been very properly observed by Mr.
Aspinall, and admitted by Mr. Middleton, had a direct interest in remaining by
her, if they thought there was the least chance of salving her. They have told
us, however, that they thought at the time that she could not float much longer,
and they showed by leaving her that that really was their belief at the time.
On the other hand, Setterfield and West came to her on the following day, when
the gale had abated, and when according to them there was a nice breeze, so that
they were able to get some sail upon her. Nor indeed is it to be forgotten that
Setterfield himself, when he saw her the previous day, on being told that she
had water in her up to the forecastle floor, never seems to have doubted it, or
to have thought it worth his while to go on board her to see whether it was true
or not. If the vessel had not appeared to him at the time to be in a very
hopeless condition is it not reasonable to suppose that, instead of going off
that night fishing, he would have remained by her, or at least gone on board and
satisfied himself of her condition? It is obvious that when he left her that
evening he must have thought that there was very little chance of saving her,
and that must have been the impression which her appearance made upon him at the
time. Nor must it be forgotten that Setterfield and West tell us that on the way
to Ramsgate they had to pump this vessel every half hour to keep her clear. Is
it not possible that what may have seemed to be very hopeless to the master and
crew of the schooner on the evening of the 29th, when it was still blowing a
gale, may have appeared very feasible to Setterfield and West on the following
morning when the gale had abated?
Mr. Abbott has told us that when he examined her he could see no appearance of
straining or of her having made any water. On the other hand, she was 20 years
old, and I am told by my assessors that at her age, lying over as she was on her
beam ends with her port side under water, it seams only natural that the water
should come in, possibly through the seams of the water ways or at the stanchion
holes. But as a fact, Setterfield and West tell us that they had to pump her
every half hour to keep her clear, and that on each occasion they had to take a
spell of five or six minutes at the pumps. This then must not be forgotten when
we are considering whether or not the master and crew were justified in
abandoning her.
Something also was said about the insurances on this vessel. Mr. Middleton has,
in our opinion, very properly brought no charge against the master of having had
any intention of throwing her away; the question, however, having been raised, I
think that I ought not to pass it over in silence. It seems that the vessel was
insured in the Plymouth Mutual Association, Limited, in the sum of 500l., and in
a further sum of 400l. at Lloyd's. The freight also was insured for 100l., and
the cargo for 1,100l. Now as regards the ship, it seems that in the previous
year she had been insured for 1,000l, but that this year the insurance had been
reduced to 900l. It is true that Mr. Abbott valued her in the present
depreciated condition of shipping at only 500l., but then he said that she was a
very good little ship, and that a few years before she would have been worth
1,500l. But 500l. would be her value under the disadvantages of a forced sale;
and 900l. therefore does not appear to be a very extravagant sum at which to
insure her, on the assumption that the owner wanted to use her, and had no
intention of selling her. As to the freight, it seems that it had at first been
agreed that she should carry the cargo to the Irish Channel, for which the
freight would have been from 110l, to 120l., and it was consequently insured for
100l. Subsequently it was arranged that the vessel should go to London, the
freight for which was only 98l., a sum not very far from that for which it had
been insured. The cargo was insured for 1,400l., but as a matter of fact the
master had no interest in it. I have thought it right to mention these
circumstances, as they have been adverted to in the course of the proceedings,
but there is, in our opinion, nothing in these facts which would lead us to
suppose that the master had any intention of throwing the vessel away.
But although no such charge has been made against him, nor do we accuse him of
any grave misconduct in having abandoned his ship under the circumstances, we
think that it is to be regretted that he did not remain by her a little longer;
had he done so he would have found when the gale abated that the vessel would
have righted of herself again, as she had already done a few days before.
Probably a man of greater energy would have done so; but the question which we
have to consider is, whether or not under the circumstances in which this master
found himself drifting towards the Dutch Coast, with the prospect of ultimately
being driven on to it, if no assistance arrived, exhausted with pumping, without
proper food, and with the port side under water; whether, seeing this smack at
hand to save them, his conduct in abandoning his vessel was such as to call for
any condemnation from this Court; and we are of opinion that it does not. We
think, as we have said, that a man of more energy might have remained longer by
the vessel; or a man of more resources might possibly have suggested to the
master of the "Regard" that he should stay by them and endeavour to assist in
saving her. He did not do so, but his failure to do so is not, in our opinion,
sufficient to warrant us in dealing with his certificate. I think no application
is made to me for costs.
Mr. Middleton.—No, sir.
The Commissioner.—I think it was a very proper case for investigation. The Board
of Trade have not asked for costs, nor has Mr. Aspinall done so. There will
therefore be no costs.
(Signed)H. C. ROTHERY,
Wreck Commissioner.
We concur.
(Signed)BENJ. S. PICKARD, R.N.
"B. G. W. NICOLAS,
I 101. 86. 70.—11/78. Wt. B 612. E. & S.
