(No. 341.)
"HELENA" and "ELECTRYON."
The Merchant Shipping Acts, 1854 to 1876.
IN the matter of the formal investigation held at Westminster on the 26th and
27th of November 1878, befort H. C. ROTHERY, Esquire, Wreck Commissioner,
assisted by Captain HOLT, I.N., and Captain HARRIS, as Assessors, into the
circumstances attending the loss of the sailing ship "HELENA," of Aberystwith,
through collision with the sailing ship "ELECTRYON," of Wells, about seven miles
south of the Newarp Lightship on the 9th of November 1878, whereby loss of life
ensued.
Report of Court.
The Court, having carefully inquired into the circumstances of the
above-mentioned shipping casualty, finds, for the reasons annexed:
(1.) That a proper look-out was kept on board the "Helena," but not on board the
"Electryon;" and that there is nothing to show that the proper regulation lights
were not carried by both vessels.
(2.) That considering that the "Electryon" was running before the wind at the
rate of between six and seven knots through the water, the lower fore topsail
should have been enough to keep her under control; but that it would have been
only a proper precaution on the master's part, knowing as he did that in bad
weather his vessel did not steer well, if he had kept his foretopmast staysail
set, as he might easily have done.
(3.) That proper measures were not taken by the master of the "Electryon," after
he had sighted the "Helena," to avoid a collision, more especially in not
complying with Article 12 of the regulations for preventing collisions at sea.
(4.) That the master of the "Electryon" took no measures whatever to save the
"Helena's" crew; but that at the same it would not have been possible, when once
the ships were clear of one another, for the "Electryon," which was in ballast
and light, to have stood by or fetched the "Helena," which was heavily laden and
deep; and that it would not have been possible on that night to have lowered a
boat.
(5.) That proper measures were taken by the master of the "Helena," after he had
sighted the "Electryon," to avoid a collision, to wit, by complying with Article
18 of the regulations for preventing collisions at sea.
For his wrongful acts and defaults in not having kept a proper look-out on board
his vessel, in not having taken proper measures to avoid a collision, and in not
having taken more active measures to save those on board the "Helena," the Court
suspends the certificate of James Randall, the master of the "Electryon," for
three months.
The Court makes no order as to costs.
Dated the 27th day of November 1878.
(Signed)H. C. ROTHERY, Wreck Commissioner.
We concur in the above report.
(Signed)HY. HARRIS,Assessors.
"G. TREFUSIS HOLT,
Reasons.
The object of the present inquiry is to ascertain the circumstances attending a
collision between the "Helena" and the "Electryon," which occurred early in the
morning of the 9th of November instant, at some distance to the southward of the
Newarp Lightship, and which resulted in the loss of the "Helena" and one of her
crew.
The "Helena" was a schooner of 98 tons register, built at Aberystwith in 18(i),
and at the time of her loss she was the property of Mr. Richard Lumley, of
Aberdovey, in the county of Merionetbshire, who was also the managing owner. She
left Duddon, in Cumberland, on the 1st of October last, bound to Middlesboro
having a crew of five hands all told. Her cargo consisted of 162 tons of iron
ore, and she drew 9 feet 9 forward and 11 feet 2 aft, and had a freeboard of 18
inches; she was therefore somewhat low in the water. Like all vessels, however,
which carry cargoes of ore, she appears to have been a good strong substantial
vessel, was classed A 1 at Lloyd's, and was insured for the sum of 980l., or
about 10l. a ton. On the 6th of November instant, she arrived in Yarmouth Roads,
and brought up to wait for a favourable wind. At 10 a.m. of the 8th she sailed
with what the captain called a middling breeze from the south-west, which
carried her as far as the Hasbro' Lightship, when the wind veered round first to
west, then to north-west, then to north, and ultimately to north-east, when it
blew a gale. At 10 p.m., the gale being at its height, orders were given to
shorten sail, and in doing so the topsail blew away. The ship was then put about
to run back under close-reefed mainsail, fore staysail, and standing jib. They
passed the Newarp Lightship and had got some distance to the southward of it
when the standing jib gave way in the after leech. The head sails were thereupon
taken in, and she was laid to on the port tack for the purpose of repairing it.
It was now nearly 2 a.m.; it was blowing a gale from north-north-east to
north-east, and the ship was heading from east to east and by north, and
drifting to leeward. At this time, and whilst the mate and one of the hands were
out on the bowsprit, mending the jib, the "Electryon's" light was observed broad
on the port bow. There is some discrepancy between the witnesses as to how far
the light was observed on the port bow, whether it was four or five points on
the port bow, or whether she was nearly abeam; but at any rate the light was
observed from four to seven points on the port bow. At this time we are told
that the "Electryon" was about three-quarters of a mile distant, and appeared as
if passing so as to go clear astern of the "Helena." When, however, she got to
within about three or four ships lengths she seemed suddenly to bear down upon
the "Helena," and came on, striking her nearly at right angles on the port
quarter, and cutting her down below the water's edge. The "Helena's" people,
finding that their vessel was sinking under them, grappled for the "Electryon's"
head gear. All succeeded in clambering on board the "Electryon," with the
exception of a boy. He at first got hold of the mate's legs, but they both fell
back upon the schooner's deck; the mate got up again, seized the "Electryon's"
bob stay, and hauled himself up on board her, but the poor boy was left on board
the "Helena." How long the "Electryon" and the "Helena" remained in contact has
been a matter of much controversy in these proceedings. It is sufficient for the
present to say that after a time the "Electryon's" yards were squared and she
sailed away for Harwich, where she landed the crew of the "Helena." The "Helena"
herself and the boy have never since been heard of.
Such is the story that is told us by the "Helena's" people. Let us now see what
the "Electryon's" people say.
The "Electryon" it seems is a brigantine of 190 tons, built at Prince Edward
Island in the year 1862, and was at the time of the casualty which forms the
subject of the present inquiry the property of Mr. Robert Henry Cooper, Mr.
James Randall, of Clay, Norfolk, being the managing owner. She left Yarmouth for
Newcastle on the 26th of October last in ballast, and having a crew of six hands
all told. Her ballast consisted of some 55 or 60 tons of stone, and she drew 7
feet 9 forward and 7 feet 11 aft, so that she was high out of the water. She had
got down as far as Cromer when the wind came on to blow hard from
west-north-west, and obliged her to run back to Yarmouth Roads. There she lay
until between 7 and 8 o'clock of the 8th of the present month, when she again
sailed. At 6 p.m. she had got down to between Cromer and Sherringham Shoal Buoy,
when her head was laid inshore, the wind blowing a whole sail breeze from the
north to north-north-west. At 7 p.m. there was every appearance of there being a
hard gale and accordingly the captain ordered sail to be shortened, and she was
put under reeefed storm trysail, main staysail, foretopmast staysail, and lower
foretopsail. At 8 p.m. the wind came away from the north-north-east, and she was
then laid upon the port tack, with her head off shore. At 11 o'clock Newarp
Light was sighted, bearing south-south-east, and they accordingly ran for it.
Before rounding it, however, we are told that the ship broached to and fell over
on her beam ends; and that thereupon the storm trysail and main staysail were
taken in, which caused the vessel to right. After this, but when precisely we
are not told, the jib stay was carried away in one of the squalls, and they were
obliged, so the master told us, to lower the foretopmast staysail, and from that
time they continued under only the lower foretopsail. She also seems to have
lost her jib, and to have split some other sails; but this is not a matter of
any very great importance. After passing the Newarp the wind came away from the
north-east, blowing a hurricane, and the vessel was kept about a
south-south-west course, with the wind nearly aft, but withal on her port
quarter, and still under her lower foretopsail alone. Shortly before 2 a.m. the
"Helena's" port light was observed two points on the port bow. All the witnesses
agree in putting it two points on the port bow, with the exception of one, who
has been called to-day, and who stated that it was four points on the port bow;
but we prefer to take the evidence of the other witnesses that this light when
first seen was only two points on the port bow. It seems that the captain was at
the time in his cabin, looking, we are told, at his chart, but on the light
being reported to him by the mate he came on deck, and looked for the light; not
being able to see it he waited a short time, and then saw the "Helena's" sail,
upon which he gave the order to hard-a-port the helm. The evidence of the
helmsman is somewhat different, he told us that the first order which he got
from the master was to port the helm a little, and that he did put it a point or
half a point to port; and that it was not until after the "Electryon" had
broached to that the helm was ordered to be put hard-a-port. However this may
be, they all agree in saying that the "Electryon" at first appeared to be
passing clear astern of the "Helena," when a sea suddenly struck her, and she
broached to and ran stem on into the "Helena's" port quarter. The wind being
upon her port quarter forced her round, and her starboard bow then came into
collision with the port quarter of the "Helena."
Such are the facts as told by the respective parties in this case, and the
questions on which the Board of Trade have requested the opinion of the Court
are as follows:—
(1.) "Whether a proper look-out was kept on board the two vessels; and whether
the regulation lights were carried " by both of them?
(2.) "Whether the 'Electryon,' was under proper canvas " when the 'Helena' was
sighted?
(3.) "Whether, after sighting the 'Helena,' proper " measures were taken by the
master or person in charge " of the 'Electryon' to avoid a collision,
particularly " whether he complied with the regulations for preventing "
collisions at sea?
(4.) "Whether, after the collision, the master of the " 'Electryon' stood by the
'Helena;' and whether he " took all possible measures to save her crew?
(5.) "Whether, after sighting the 'Electryon,' proper " measures were taken by
the master or person in charge " of the 'Helena' to avoid a collision?"
Lastly, the Board of Trade say that in their opinion "the " certificate of the
master of the 'Electryon' should be " dealt with."
Before I proceed to deal with the several questions on which our opinion has
been asked I will refer to a matter that was raised by Mr. Nelson, who has
appeared for the "Helena" in this case, and who has submitted for the opinion of
the Court, whether the quantity of ballast that the "Electryon" had on board was
sufficient? She had, as I have stated, from 55 to 60 tons, and having consulted
the assessors upon the point, I am informed that, although the proper quantity
of ballast to be put in any ship must depend to a great degree upon her build,
they have no reason to think that the quantity of ballast which the 'Electryon'
had on board, and which was nearly one-third of her registered tonnage, was not
sufficient.
I now proceed to consider the first of the questions which have been submitted
to us, and I think that it will be convenient to divide it into two parts. And
first, were the regulation lights carried by both these vessels? Of course it is
impossible for us, as the evidence stands, to say whether these vessels carried
the regulation lights, that is to say, lights which in clear weather could be
seen at a distance of two miles; seeing that the lights were not produced, and
that there is not a particle of evidence on the point, except that all the
witnesses say that their own lights were good lights, and were burning brightly.
Neither vessel, however, has accused the other of not having had proper lights,
and it is an admitted fact in the case that the "Helena's" port light was seen
from the "Electryon," and the "Electryon's" port light from the "Helena." I
think, therefore, that as the evidence stands, it is impossible for us to say
that the lights which these vessels carried were not the lights which they were
required to carry by the regulations.
The next point is, whether a proper look-out was kept on board both vessels? And
first, as regards the "Helena." Of the four men who were saved from the "Helena"
three have been produced, and they have been quite consistent in the evidence
which they have given as to seeing the "Electryon's" light. They all say that
they saw it first at the distance of about three-quarters of a mile off. The
mate and one of the men were at the time out on the bowsprit repairing the gib;
they, too, saw the "Electryon's" light, and had time to finish what they were
about and to come in on deck before the "Electryon" struck them. There is
nothing to show that there was not a good look-out being kept on board the
"Helena;" on the contrary, the evidence is, in our opinion, conclusive that they
were keeping a good look-out.
The case of the "Electryon," however, is very different, the evidence of her
witnesses on this point is very contradictory, and in our opinion most
unsatisfactory. The master told us that his practice always was, when there was
any need of an efficient look-out to be kept, to put two men forward abreast of
the foremast, one on each side, but that on the present occasion it was not
possible to do this, owing to the jib stay having got loose, and he was afraid
from its swinging about that it would start the seizings at the top of the mast
and thus bring the topmast down, and he thought, therefore, that it would not be
safe to put the men there, and accordingly he has told us that they were all
stationed abaft the mainmast. Now the assessors tell me that there could be no
reason, if the master anticipated any danger from the swinging about of the jib
stay from side to side, why he should not have secured it with a rope's end or
to some part of the rigging, and then all danger of the seizing giving way would
have been avoided. We think, therefore, that the excuse which the master has
offered for not placing the men forward, namely, that he was afraid that the
foretopmast would come down upon them is untenable. The mate, too, whilst
admitting that all hands were abaft the mainmast, gave a different reason for
not putting them forward, which was owing to the vessel's great sheer and high
bulwarks, which, however, after all proved to be only about 2 feet 6 high.
Now if ever there was a night in which there was need of a good look-out being
kept it was, as Mr. Marsden has very properly observed, this. The "Electryon"
had left Yarmouth Roads in company with 200 vessels, all of which were at this
time running back to Yarmouth Roads, and if ever, therefore, there was an
occasion for a good look-out it was this. And what look-out had they? At the
moment that the light of the "Helena" came in view the master was down below in
the cabin. It was a fact which he did not mention in his examination, and it
only came out in the course of the mate's examination, but there is no doubt
that it was so. The master certainly led us to believe that he had been on deck
when the light was reported to him by the mate, that he had thereupon looked for
it, and not seeing it he waited for a short time until he made out the vessel's
sail. The mate no doubt was on the quarter deck near the wheel, and probably on
the windward or port side. Of the rest of the crew there was one man at the
wheel, the boy we were told was below, and the other two men were somewhere
about the deck, but where we have not been able to ascertain with certainty.
According to the mate they were to leeward of the deckhouse, which is abaft the
mainmast, and where clearly they could not see anything that was approaching
them or that they were approaching on the windward or port side. According to
Albert King, the man at the wheel, one of the men, but which of them he does not
know, was standing alongside the wheel on the lee or starboard side. David King,
another of the witnesses, told us that he was looking-out forward abreast of the
foremast, but as according to the master he had ordered the men to keep abaft
the main-must, and according to the mate you could not keep so good a look-out
forward as you could aft, we can see no reason why this man should have been
forward, and I am afraid, therefore, that we must disbelieve his evidence. It
comes then to this, that when the "Helena" was first sighted, the captain and
boy were below, there was one man at the wheel, two to leeward of the
deck-house, or at all events on the leeward side of the ship, and only one
person, the officer of the watch, looking-out, if indeed he was looking-out, to
windward or on the port side. I say if indeed he was looking-out, for it is very
doubtful whether he first saw the light of the "Helena," or indeed who first saw
it. The mate told us yesterday that it was the man at the wheel, Albert King,
who first called his attention to it; but Albert King in his examination to-day
told us that he did not see the light first, but that it was the mate who first
saw and reported it. Here then we have the most contradictory and unsatisfactory
evidence, both as to where the hands were stationed, when the light first came
in sight, and by whom it was first seen; and the conclusion to which we must
come is, that there was no good and efficient look-out being kept on board this
vessel. And now at what distance was the "Helena" when she was first sighted?
The master and mate told us yesterday that she was only three or four or four or
five ships lengths off when first seen, and they tried to make out that this was
due to a passing squall. On the other hand, the two witnesses who have been
examined to-day have told us that they saw the vessel from half to
three-quarters of a mile off, and that there was no blinding squall at the time;
it must also be remembered that it was very nearly full moon at the time. Now we
certainly are not disposed to believe the evidence of these men, that they saw
the "Helena's" light at the distance of half to three-quarters of a mile in
contradiction to that given yesterday by the master and mate, that they were
close upon her before they saw her; the more so as the master and mate's
evidence is confirmed by the entry in the log-book, which says, "sighted a
vessel close under the bows." We are of opinion that, although this vessel
should have been seen at a greater distance, she was in fact not seen by the
"Electryon's" people until they were close upon her, until, to use a nautical
expression, they were on the top of her; and that the reason why she was not
seen before, was because there was an inefficient and bad look-out.
I now come to the second point, on which our opinion is asked by the Board of
Trade, namely, whether the "Electryon" was under proper canvas when the "Helena"
was sighted? This is a question entirely for the assessors, and they tell me
that, considering that the wind was aft, and that the vessel was going at from
six to seven knots an hour through the water, she would be under proper control
with only her lower foretopsail set. Now the master has stated that he knew that
in bad weather she was a bad steerer; if so, it was his duty to have taken every
precaution to have prevented her from yawing about, as he says she did, three or
four points on either side of her course. One precaution which he might have
taken would have been to set the foretopmast staysail. There could, I am told,
have been no difficulty in his doing so had he first secured the jib stay. That
the master could have set his foretopmast staysail is proved by the fact that he
did afterwards set it. He has told us that it was necessary to lower the
foretopmast staysail because his jib stay was carried away, but the assessors
are at a loss to understand why this should be so. We think that the master,
knowing the qualities of his vessel, ought to have kept his foretopmast staysail
standing, and not to have lowered it as he did; and in that case he would have
had his vessel more under command.
The third question is, whether, after sighting the "Helena," proper measures
were taken by the master or person in charge of the "Electryon" to avoid a
collision, particularly whether he complied with the regulations for preventing
collisions at sea? Now the rule which applies to the present case is the latter
part of Article 12 of the regulations, which says that, "if both vessels have
the " wind on the same side, or if one of them has the wind " aft, the ship
which is to windward shall keep out of the " way of the ship which is to
leeward." Both these vessels had the wind on the same side, the "Helena" having
it some four or five points on the port bow, the "Electryon" on the port quarter
and nearly right aft, it was clearly therefore the latter's duty to keep out of
the way of the "Helena." What measures then did she take for that purpose? The
master has told us that on coming out of his cabin after the light had been
reported to him by the mate he first looked for the light, and not seeing it he
waited until he made out the "Helena's" sail, and then ordered the helm to be
put hard-a-port. But according to the man at the wheel the first order which he
got from the master was to port the helm a little, and that he put it a point or
half a point to port; and it was only afterwards, when the vessel was broaching
to, that the order was given to him to put the helm hard-a-port. Here then is a
contradiction, and contradiction on a very important point as to what was done,
and what orders were given just before the collision; but whatever was done, it
is clear upon the master's own showing that much valuable time was lost before
any orders were given, a matter of the utmost importance in this case, seeing
that the two vessels were very close to one another before the "Helena" was
seen.
The fourth question is, whether, after the collision, the master of the
"Electryon" stood by the "Helena," and whether he took all possible measures to
save her crew? in the first place, I think there is no question whatever that no
measures at all were taken by those on board the "Electryon" to save the crew of
the "Helena;" the crew of the "Helena" in fact saved themselves. And as regards
the boy who was unfortunately left on board her, we are quite disposed to
believe that once the two vessels separated it would have been impossible in the
then state of the weather for the "Electryon" again to have fetched her, the
"Helena" being a deeply laden vessel, whilst the "Electryon" was light, stood
high out of the water, and would necessarily drift much more rapidly to leeward.
The evidence also is that on that night no boat could have been lowered, and
that it would have been impossible to have saved the boy in that way. Before the
vessels separated it might have been possible by throwing ropes to him or in
some such way to have saved the boy. It has, however, not been proved to our
satisfaction that the master of the "Electryon" knew, before he ordered the
yards to be put aback so as to clear the vessels, that this boy had been left on
board. Had this been proved against him, the punishment which we should have
inflicted upon this captain would have been a very severe one, having regard to
the statutory obligation imposed upon all captains of vessels to stand by other
vessels with which they have been in collision; but we think that it has not
been conclusively shown that the master of the "Electryon" knew that one of the
crew had been left on board the "Helena" when he took those measures to clear
the two vessels. It is much to be regretted that he did not assure himself on
the point before backing away from the "Helena," and certainly it cannot be said
that those on board the "Electryon" took any steps to save the crew of the
"Helena."
The fifth question is, whether, after sighting the "Electryon," proper measures
were taken by the master or person in charge of the "Helena" to avoid a
collision? Now the only measure which the "Helena" was bound to take was that
prescribed to her by Article 18 of the regulations, which says, "Whereby the
above rules one of two " ships has to keep out of the way of the other, the
other " shall keep her course." The "Helena" did do so; she was lying to at the
time drifting to leeward; the crew, seeing this vessel bearing down upon them,
shouted out and took all the measures they could. We cannot think that there was
any obligation upon the "Helena" to have unlashed her helm, as has been
suggested, in order to get way upon her, for the effect might have been that
instead of getting out of the way of the "Electryon" she might have got in her
way. At all events her duty was to keep her course, and that she did; and we
cannot, therefore, think that the "Helena" was in any way to blame for this
collision; the whole blame of the collision, in our opinion, rests with the
"Electryon" for not having had a good lookout, the result of which was that she
did not see the "Helena" until she was almost on the top of her.
It only remains for us to consider the last point, namely, whether or not the
certificate of the master of the "Electryon" should be dealt with? Looking to
the whole of the facts of this case, looking to the fact that this vessel was,
as the master has stated, in company with so many other vessels, that it was his
imperative duty to see that there was a good look-out kept, that he has given us
no reason at all why a good look-out should not have been kept on this occasion,
we think, even after making all due allowance for the state of the weather, that
we should not be doing our duty unless we punished this man, and we shall
therefore suspend his certificate for three months. (To Mr. Marsden.) You do not
ask for any costs?
Mr. Marsden.—No, sir.
Mr. Nelson.—I do not ask for any costs against the Board of Trade. The Board of
Trade have been only doing their duty in having this matter investigated, but it
is very hard to bring owners of vessels here at very considerable expense when
there is not the slightest imputation upon anything that they have done. If you
think that the owners of the "Electryon" ought to pay for any portion of this
inquiry, well and good, I submit it to you.
The Commissioner.—I have a difficulty in the matter as Mr. Oliver is not here.
Mr. Nelson.—That may be my misfortune, but it is not my fault.
Mr. Marsden.—I do not know whether Mr. Nelson is quite accurate in saying that
his clients are brought here. I do not think that there was any compulsion upon
them to come.
Mr. Nelson.—I had a subpoena to compel me to come, the captain was subpœned.
The Commissioner.—He had a subpœna as a witness. I do not think that under the
circumstances I can give you costs. It was a very proper case for inquiry.
Mr. Nelson.—No doubt.
The Commissioner.—We could hardly have made full inquiry without the presence of
your client?
Mr. Nelson.—You have the power to give costs. It seems. to me that it would be a
very proper time to exercise that power, when one party has been absolved and
the other party has been found entirely to blame. I am not pressing for it in
this case, but I am putting it to you for your consideration in future cases. A
day will come when it will, have to be settled, I have been recently engaged in
a very long case where the expenses were very heavy, no less than 3,000l, and
the bearing of such expenses is a very serious tax upon owners where they are
not to blame. A day must come when I think you will have to excercise the power,
which hitherto you have shrunk from exercising, namely, inflicting the payment
of costs upon the party proved to be in the wrong.
The Commissioner.—I do not think in this case that I can give you the costs.
(Signed)H. C. ROTHERY, Wreck Commissioner.
We concur.
(Signed)HY. HARRIS,Assessors.
"G. TREFUSIS HOLT,
I 101. 93. 70.—12/78. Wt. B 612. E. & S.
