(No. 328.)
"KATE KELLOCK."
The Merchant Shipping Acts, 1854 to 1876.
IN the matter of the formal investigation held at the Chancery Court, St.
George's Hall, Liverpool, on the 7th, 8th, and 9th days of January 1879, before
H. C. ROTHERY, Esquire, Wreck Commissioner, assisted by Commander KNOX, R.N.,
and Captain WILSON, as Assessors, into the circumstances attending the material
damage sustained by the sailing ship "KATE KELLOCK," of Liverpool, off Cape
Horn, on or about the 18th day of June 1878.
Report of Court.
The Court, having caréfully inquired into the circumstances of the
above-mentioned shipping casualty, finds, for the reasons annexed,-
(1.) That it has not been proved that Charles Ricker, the master of the "Kate
Kellock," proceeded to sea with his boats in a damaged condition.
(2.) That it has not been shown that proper and seamanlike measures were not
taken for saving the ship when she was pooped on the 18th of June 1878 and
afterwards.
(3.) That the master was not justified in allowing his chronometers to run down.
(4.) That the master did on the 2nd of July 1878, give up charge of his ship to
the second mate, and that he was not justified in so doing.
(5.) That the master was not justified in failing or neglecting to keep the
ship's log-book after the 17th of June 1878, the first mate being disabled, and
no orders having been given by him to the second mate to do so.
(6.) That the damage to the said ship was caused by the great severity of the
weather, and not by any misconduct or want of skill on the part of the master or
other officer of the ship.
(7.) That the damage to the ship was not occasioned by the wrongful act or
default of the master, or of anyone else on board the vessel.
The Court is of opinion that the said Charles Ricker was guilty of gross acts of
negligence in having allowed his chronometers to run down, in having given up
the charge of his ship to the second mate on the 2nd of July 1878, when she was
in the most imminent danger and in having neglected to keep the log-book
properly from and after the 17th of June 1878, but that as none of these acts
contributed either directly or indirectly to the casualty in question it has no
power to deal with his certificate.
The Court makes no order as to costs.
Dated the 9th day of January 1879.
(Signed)H. C. ROTHERY,
Wreck Commissioner.
We concur in the above report.
(Signed)HENRY KNOX,
Commander, R.N.,Assessors.
"J. P. WILSON,
Reasons.
The Commissioner.-The "Kate Kellock" is an iron ship belonging to the Port of
Liverpool, of the burthen of 1,175 tons, built at Sunderland in the year 1865,
and at the time of the casualty which forms the subject of the present inquiry
she was the property of Mr. Charles W. Kellock, of Walmer Buildings, Water
Street, Liverpool, and two other gentlemen, Mr. Kellock being the managing
owner. On Tuesday, the 16th day of April last, she left San Francisco with a
cargo of 1,400 to 1,500 tons of grain and flour, and a crew of 26 hands all
told, and having on board besides the master's wife and child. She seems to have
been in every respect a good vessel, as the result has shown, and we were told
that until after the casualty on the 18th of June she had not made any water
either on the outward or homeward voyages, I beheve the carpenter said not more
than an inch and a half. And she had five boats, as to which I shall presently
have occasion to speak.
Very soon after leaving San Francisco a leak was discovered in the fore peak,
owing to a pipe having given way close to the ship's side. Fortunately the fore
peak was separated from the vessel's hold by a water-light bulkhead, so that the
water did not get to the cargo, but as it was coming in very fast it was deemed
expedient to return to San Francisco, where the damages were repaired, and she
let again on the 23rd April. From that time all went well until about 2 a.m. of
the 18th of June, when she was nearing Cape Horn; it was the chief officer's
watch; the vessel was under two lower topsails, close-reefed foresail and
foretop staysail, steering south-east and by east, with the wind from the
westward, and therefore a little on the starboard quarter. We are also told that
she had a hawser towing astern, with both ends on board forming a bight, for the
purpose it is said of breaking the sea; but the assessors are unable to see how
it could do this, and are inclined to think that such an arrangement was rather
injurious than otherwise. At this time a wave broke over her stern, washing the
two men away from the wheel, and carrying the chief officer, who was on the
quarter deck, into the lee main chains and breaking his leg. All the woodwork of
the wheel was carried away, the cabin partly wrecked, the skylights carried
away, and the ship then broached to and fell off into the trough of the sea. On
the captain coming on deck he ordered the yards to be braced up, but the lower
main topsail was immediately blown away. About a couple of hours afterwards
another sea struck her, which carried away all her compasses, besides doing
other damage, and between that time and soon after daylight the three after
boats had been smashed, and the two forward boats carried away. An attempt was
made to get her head to wind by paying out a hawser with a piece of wood at the
end of it from the bows, but without success, for she continued in the trough of
the sea. During the day the main mast went overboard tearing up with it a
portion of the deck, and through the hole caused thereby a, good deal of water
got down into the hold, until the hole had been covered over with tarpaulins
securely battened down. Finding that the ship was labouring very heavily, orders
were given to cut away the fore and inizen topmasts, and subsequently the lower
masts also, and in place thereof a jury mast formed out of a studding sail boom
was rigged up. That night the crew were set to work to jettison the cargo, and
so heavy was the sea, that the only way to get at the cargo was through the
hatch in the forecastle, in which, I should state, the captain with his wife and
child had taken refuge, the habitable portion of the cabin being occupied by the
chief officer, whose leg, as I have said, had been broken.
In this state they continued to drift about almost helpless from that time until
Tuesday 25th June, when land was observed, and after a time they came to anchor
in 37 fathoms under the lee of what proved to be Noir Island. There they
remained until the 28th, when the weather having moderated the vessel was got
under weigh in the hope of finding a better anchorage, but they soon found that
they were again out in the open sea; and whilst endeavouring to get under
shelter of some islands to the northward, the wind failed them, and as the
weather was coming on thick they were obliged to anchor in a very exposed
situation in 37 fathoms, and with 105 fathoms of chain out. There they lay until
the 2nd July, when between 2 and 3 o'clock in the morning the port anchor, or
the chain by which she was riding, parted. Some discussion then ensued between
the master and the second mate, to which I shall presently have occasion to
refer; but in the end the chain was slipped, two men were sent to the wheel,
sail was made, and she was steered for an opening, the bearings of which had
been taken on the previous day, and most fortunately succeeded in getting safely
into Melville Sound, and in the afternoon came to an anchor to avoid running on
the rocks; so close indeed was she to the rocks that her stern at one time
struck upon it, but by shortening the cable they were able to drag her clear.
Finding themselves in this position, completely out of the way of passing
vessels, and all their boats lost, the carpenter was set to work to build a new
boat. On the 13th July, the weather being moderate, and the wind favourable, the
vessel was shifted to the opposite side of the bay, where she lay in a more
secure berth. And on the 14th, the new boat having then been finished, Mr. Trim,
the second mate, with two A.B.'s, and an apprentice, volunteers, left in her for
a place called Puntas Arenas, or Sandy Point, in the Straits of Magellan, for
the purpose of obtaining assistance. The voyage was attended with great
difficulty and danger, it being midwinter, but it was the only hope of safety
for the lives of all on board. After being out several days they fell in very
fortunately, on passing Cape San Isidro, with a steamer called the "Potosi,"
which took them on board and carried them on to Sandy Point. There they obtained
the assistance of a Chilian man-of-war called the "Magellan," with which they
returned to the "Kate Kellock," accompanied by the British Vice-Consul, and
arrived alongside of her on Sunday 28th July. During their absence the carpenter
had been set to work to make other boats, in case the second mate and those who
were with him should be lost; and with the assistance of the rest of the crew he
had succeeded in finishing one, and partly making another boat. On the following
day the "Magellan" took them in tow, and after several days brought her safely
to Sandy Point, arriving there on the 3rd August.
A day or two after their arrival the crew were taken on shore to the consul's
office, and were asked to sign a protest which had been prepared. What were the
contents of that protest we do not know, for it has not been given in; but one
and all of the crew, including the second mate and carpenter, refused to sign
it. They were thereupon discharged, and on the 6th August we e put on board a
steamship called the "Illimani" and sent to this country, the captain, his wife
and child and the chief officer alone remaining at Sandy Point. There these
latter remained until the 21st October last, when the captain gave up charge of
the vessel to Captain Stark, the underwriter's agent, who had been sent out from
England for the purpose; and they then returned to this country, an d as I am
informed arrived here only last week. The "Kate Kellock," I presume, is still at
Sandy Point.
On the conclusion of the evidence, Mr. Tyndall, on behalf of the Board of Trade,
stated that he should ask the opinion of the Court upon the following
questions:-
(1.) Was the master justified in proceeding to sea from San Francisco without
having the three damaged boats repaired?
(2.) Whether, when the ship was pooped on or about the 18th of June, and
afterwards, the master took proper and seamanlike measures for saving the ship
and the lives on board?
(3.) Was the master justified in letting the chronometers run down?
(4.) Did the master, on or about the 2nd day of July, give up charge of the ship
to Mr. Trim, the second mate, and if so, was he justified in so doing?
(5.) Was the master justified in failing or neglecting to keep the ship's log
during the time the ship was in distress after the 17th June?
(6.) Was the damage to the ship and cargo attributable to any misconduct or want
of skill on the part of the master or other officer of the ship?
(7.) Was the damage to the ship occasioned by the wrongful act or default of the
master, or of anyone else on board the vessel?
And evidence having been given that this master, although an American citizen,
holds a master's certificate issued by the Board of Trade and numbered 98,104,
and without which of course he could not have commanded this vessel, Mr. Tyndall
asked that this certificate should be dealt with.
The case comes before the Court under somewhat peculiar circumstances, for
although we have had the evidence of the second mate, the carpenter, and several
of the crew, and although I do not think that I ever before saw a better or
smarter set of seamen, or men who have given their evidence in a more clear and
straightforward manner, yet we are without the evidence of the two principal
persons on board, the master and the chief officer. The absence of the chief
officer indeed has been fully explained, he, poor fellow, having had his leg
broken at the time the vessel was pooped had had it set, I should imagine not
very skilfully, by the carpenter and the master's wife, and he is now nearly six
months after the accident lying in the hospital, and we are told to ill too be
examined. The master's absence however has not been so satisfactorily accounted
for. Mr. Coulson, the assisstant receiver of wreck, told us that on Thursday
last the 2nd January the master was with him at his office from half-past 3 or 4
till 6 o'clock giving his deposition, on which occasion he was served with a
notice of this inquiry. And Mr. Coulson told us that he then informed the master
that although the date on which the inquiry would take place was not stated in
the notice it would be held on Tuesday the 7th, and that he would have to
attend. To this intimation, however, it would seem that the master has paid no
attention whatever, for on the officer going on Saturday last to his lodgings
for the purpose of serving him with a subpona to attend as a witness he was
informed that the master had gone. Mr. Carr, however, has appeared for him in
these proceedings, and has told us that he had been expressly authorised by the
master to appear for him, in case the solicitor for the owners of the "Kate
Kellock" should refuse to do so. And as Mr. Gray Hill, who has appeared for the
owners, as well as Mr. Weightman, who has appeared for the underwriters on the
ship and cargo, altogether refused to appear for him, Mr. Carr has intimated his
intention to do so. Now Mr. Carr has explained the master's absence by saying
that he had gone to Havre, on account of the illness of his wife, to attend upon
her, and that he (Mr. Carr) had telegraphed to him for instructions, but had
received no answer from him. This occurred on Tuesday last, on the opening of
the inquiry. Yesterday Mr. Carr told us that lie had received no answer from the
master, but stated that he was ready to proceed with the cross-examination of
the witnesses, and at the conclusion of the evidence, and on the charges being
given in by Mr. Tyndall, he asked that the case might be adjourned until to-day
at 12 o'clock for the purpose of enabling him again to telegraph to the master,
and to receive his instructions, and to that application I assented. Mr. Carr
has now appeared again to-day, and has told us that he had not received any
answer to his telegram, but that he was quite prepared to proceed with the case,
and did not ask for any further adjournment.
A preliminary objection was then taken by Mr. Carr that the paper of questions
given by Mr. Tyndall contained nothing which his client was called upon to
answer, and that it contained no charge. I am, however, disposed to think that
it does contain a good deal which the captain is called upon to answer. I think
that the statements that he left San Francisco with three of his boats damaged,
that he allowed the chronometers to run down, that he gave up charge of the
vessel to the second officer, and that when the chief officer was disabled he
failed to see that the log was properly kept up, are all matters which do
undoubtedly call for an answer from the master. It is also, in my opinion,
equally clear that the paper tendered by Mr. Tyndall does contain a charge
against the master. Mr. Tyndall has asked that the master's certificate shall be
dealt with; that is to say, shall be either cancelled or suspended, as the Court
should think proper, which is a clear intimation that in the opinion of the
Board of Trade the master has been guilty of misconduct in the matters specified
in these questions, and it is a sufficient notice to him of the acts of
misconduct with which he is charged, sufficient at all events to give him, in
the terms of the Act of Parliament, "an opportunity of making a defence."
Mr. Carr further contended that even if all these questions were answered
adversely to the master, inasmuch as they were not the cause of the casualty,
the Court has no authority to inquire into them at all, or to report whether the
master has or has not been guilty of any misconduct in these respects, and he
referred us to the case of ex parte Storey as an authority for that position.
But as I read that case, the only point decided by the Court of Queen's Bench
was, whether this Court had power to cancel or suspend the certificate of a
master by whose misconduct the ship had been stranded, but without sustaining
any serious or material damage, and the Court of Queen's Bench held that it had
not. But in this case there has been material, nay, most serious damage; it is
therefore a case in which, under the 432nd section of the Merchant Shipping Act
of 1854, this Court has power to inquire, and having done so, the Court is
bound, in the words of the 433rd section of that Act, "at the conclusion of the
case " to send a report of their or his opinion thereon, accom- " panied by such
a report of or extracts from the evidence, " and such observations, if any, as
they or he may think " fit." Whether we may go on and cancel or suspend the
master's certificate for acts of misconduct, even though those acts may not have
caused the casualty, is another and a totally different question, as to which I
shall presently have a word to say. All that I am now contending for is, that
there having been material damage, this is a case in which we are entitled to
inquire, and having done so we are bound to report to the Board of Trade as to
all the attendant circumstances, and as to the acts of the master and officers,
and whether those acts have or have not contributed to the casualty.
Now the first question upon which our opinion has been asked is, whether the
master was justified in proceeding to sea from San Francisco without having had
the three damaged boats repaired? No doubt those three boats were damaged in
rounding Cape Horn on the outward voyage, for there is an entry to that effect
in the log-book, under date of the 14th of November 1877; but the question is,
whether or not they were subsequently repaired? If they were not, no doubt the
master would be much to blame, for he is responsible for seeing that the boats
are in proper condition. But the carpenter's evidence on this point was not
altogether satisfactory. In the first place, in giving his evidence he showed a
strong animus against the master, which, although it might not compel us
altogether to disbelieve his evidence, would induce us to look at it very
narrowly. Moreover, he is not confirmed by any of the crew as to the state of
these boats; they could not say anything about them. When again he was asked why
he had not repaired them, he first told us that he had not any stuff on board,
then he said that he had had no orders from the captain to do so, and lastly he
told us that although on getting to San Francisco some stuff was obtained for
the purpose, the captain said to him on his asking whether he should repair
them, "What is the use " of repairing them; perhaps they will get smashed in a "
gale off the Cape;" and so, he added, "I did not mend " them." Now it seems to
us very unlikely that any captain would have told his carpenter when three of
his boats were smashed that it was not necessary to repair them because possibly
in rounding the Cape they might be damaged again. At all events it is a most
improbable statement. Moreover, if the carpenter had materials on board, as it
is clear he had when he was at San Francisco, it was his duty to have repaired
them if he had had time, and that he had plenty of time is clear from the fact
that the ship remained at San Francisco for three months, and that they were two
months from San Francisco before this accident happened. He was also quite
competent to do so, for in about 11 or 12 days he was able to make the boat with
which the second mate went to Puntas Arenas, and in the next 14 days, before the
steamer came to them, he had succeeded, with the assistance of the crew, in
building a second, and was well on with a third boat. We think, therefore, that
the statement that those boats were damaged when they left San Francisco,
resting as it does on the unsupported statement of the carpenter, has hardly
been proved to our satisfaction, at all events to the extent of our saying that
the captain has been guilty of negligence in this respect.
The second question upon which our opinion has been asked is, whether, when the
ship was pooped on or about the 18th June and afterwards, the master took proper
and seamanlike measures for saving the ship and the lives on board? This
resolves itself into two questions, first, who gave the orders? and secondly,
were they proper orders? Now according to the second mate the whole
responsibility, and the whole management of the vessel rested with him; he gave
all the orders, he said, because they could get nothing out of the master. And
no doubt, to a certain extent, he is confirmed by the carpenter and the rest of
the crew. So far as they knew, the orders came from the second mate, but whether
they had been previously given to him by the master, they of course could not
say. Mr. Carr told us that the captain was not a blustering kind of fellow going
about the deck, and that he probably gave his orders through the second mate in
a quiet gentlemanly way; and that he may have done so is to a certain extent
clear, for when the second mate was pressed upon the point he admitted that a
great many of the orders had emanated from the master. In the first place the
orders to brace the yards up were given by the master, so also were the orders
to cut away the masts. As to rigging a jury mast, the mate would not undertake
to say that it was not the master who had given that order. The mate too has
admitted that, except during the few hours when the vessel was given up to his
charge on the 2nd of July, as to which I shall presently speak, the ship
remained under the master's charge. No doubt the master did not appear to the
crew to take that special interest in the management of his ship which under the
circumstances might reasonably be expected of him; but except for the short time
to which I have referred, there is no evidence to show that he did not continue
to retain the command of his ship. But whether this be so or not let us next
proceed to inquire whether the orders that were given were proper and reasonable
orders; for if so, and even assuming that they emanated from the second mate, if
the master saw that they were proper and reasonable orders, there could have
been no reason why he should have interfered. Now the second mate has not
ventured to say that anything was done which ought not to have been done, or
that anything more could have been done than was done; except he said that he
thinks he should have set the reefed upper main topsail. But upon that the
assessors do not agree with him; they think that if an attempt had been made to
set that reefed upper main topsail in the state in which the main mast was it
would have been attended with very great danger to the men engaged, and that it
would not have been a proper step to take. There is, therefore, nothing whatever
to show that the orders that were given were not proper orders, and nothing to
show that, except during the short time of which I have spoken on the 2nd of
July, the master had not the full charge and command of this vessel.
The third question upon which our opinion is asked is, whether the master was
justified in letting ths chronometers run down? To this there can of course be
but one answer, if the master from negligence allowed his chronometers to run
down, he is of course very greatly to blame. As the evidence now stands the
chronometers had been allowed to run down before the vessel was pooped, they
were therefore not put out of order on that occasion. Now if there is any
explanation to offer upon this point the master has not thought fit to come
forward and give it, nor has his advocate offered any suggestion to account for
their having run down. As the matter then stands at present, we have no option
but to hold that the master has been guilty of great negligence for having:
allowed his chronometers to run down.
The fourth question on which our opinion is asked is, whether the master on or
about the 2nd July gave up charge of the ship to Mr. Trim, the second mate, and
if so, was he justified in so doing? Mr. Trim told us that when the port anchor
parted they were in a very exposed situation, within three-quarters of a mile of
a reef of rocks, on which the wind was setting them, that on seeing that they
had parted he immediately called the master, and on his coming on deck the
following conversation passed between them. "I asked him," says Mr. Trim, "what
" he was going to do with the ship, he said he could do nothing, we are lost,
that was his answer. I told him I " thought we had better try to do something,
the ship " was then dragging her port chain, she was dragging " towards a reef
of rocks, which was about three-quarters " of a mile distant under our lee. I
tried to get an " order out of him, but I could get nothing. I asked " him if I
should do anything, and he said yes, and " that he should go and pray with his
wife. I then " sent for the carpenter, and ordered him to slip the chain. " I
then asked for volunteers to go to the helm, and I got " two men, and I told
them to lash themselves first and " then put the helm hard-a-port and keep her
dead before " the wind, until I gave them other orders. There was a " spare
compass in the cabin, and having consulted it " I put her on a course N.E. by E.
1/2 E., for I had observed " that there was a small opening between the islands
in " that direction. I had on the previous day taken the bear- " ings of it, and
had called the master's attention to it, and " told him that it would be well to
take the bearings of " it in case we parted, but he had said that if the ship "
parted then she would be lost. We succeeded in getting " round the point, and
continued going ahead, but could " find no bottom. In the afternoon I came to an
anchor " in 37 fathoms. I did not know what time it was, as there " was no clock
going, we had two chronometers in the " ship, but they were both run down. I
never knew it " till after they were run down." He also said, "when " we came to
anchor, I said to the captain, Captain Ricker " there is your ship, take charge
of her. I forget whether " he said anything in reply, but he seemed very much "
ashamed of himself." This evidence was confirmed by the carpenter, who told us
that after the anchor had parted the captain gave up charge to the mate, and
that the mate then told him to get his tools ready to unshackle the chain. What
passed is thus described by the carpenter, he said, " the second mate was
standing by, and said to the captain, " captain what are you going to do with
the ship, and the " captain said nothing. Then the second mate said, for " God's
sake give us some orders to do something to save " our lives, but the captain
said nothing. Then the second " mate asked him a third time, and the captain
then said, " I cannot do nothing, act yourself. The second mate " then gave me
orders to unshackle the chain and let slip, " and he then ordered sail to be
made," Now if it rested simply on the evidence of the second mate and the
carpenter, seeing the very strong animosity which they entertained against the
master, and which they took no pains to conceal, we might perhaps have hesitated
before placing implicit reliance on them, but their testimony has been fully
confirmed by the rest of the crew who have been examined before us, and who have
given their evidence in a clear straightforward manner, and apparently without
any strong feeling against the master. They told us that as soon as the anchor
had parted they all assembled round the master and mate, where they were
standing under the brake of the forecastle, and were waiting to execute any
orders which they might receive, that the second mate asked the captain what he
was going to do, and they all told us that they heard the captain give up charge
of the vessel to the second mate. That a captain should, under the
circumstances, have given up the charge of his vessel to the second mate, his
first mate being disabled, is almost inconceivable, and yet there can be no
doubt whatever of the fact, it is sworn to over and over again, and is not
denied.
Let us consider for one moment what the position of this vessel was at the time
in the South American Pilot I find, when speaking of Noir Island, the following
caution: " Between Cape Schomberg on London Isle and Noir " Island there are
many large reefs, and a great number " of detached outlying rocks, which render
this part of the " coast extremely dangerous and unfit for vessels. No " chart
could guide them; they must trust to daylight " and clear weather, with a good
look-out if necessary to " enter or leave Barbara Channel." Further on it says:
" The large space between Noir Island and Agnes Island " is extremely dangerous
for shipping, being scattered with " rocks, some just awash, some showing
themselves several " feet above, and others under the water." Then it goes on:
"The Milky Way is the name given to the space " between Kempe and Noir Islands,
as in every part of it " rocks are seen just awash or a few feet above the
water. " On them the sea continually breaks. The 'Beagle' " passed inshore of
them all close to Fury, Kempe, and " Agnes Islands, but no vessel should follow
her track, " nor is there any probability of its ever being attempted. " This
part of the coast only requires to be known to be " avoided." Lastly, we have a
description of Melville Sound, into which this vessel was obliged to run when
her anchor parted: "Melville Sound is completely filled with " islands, some of
which are large, and all are of the most " ragged and desolate character." Now I
will ask after this whether it is right to say, as Mr. Carr has done, that any
Liverpool boatman for 5s. would have undertaken to navigate this vessel from the
position in which she was when her anchor parted until she was again brought to
anchor, passing, as she must necessarily do, through the Milky Way and between
Kempe and Fury Islands and up into Melville Sound. To us it seems marvellous
that she escaped all the dangers to which she was exposed, and it surely
demanded that all on board should give their best assistance to save her from
what was almost certain destruction, and the captain above all. And yet this man
takes this opportunity to go into the forecastle to pray with his wife, leaving
the whole charge of the vessel to the second mate, the chief officer at the time
being disabled with a broken leg, No doubt the captain has received a good
character from his former owners, the Messrs. Grimshaw, but, in our opinion, it
weighs nothing against such conduct as this, when the vessel and the lives of
all on board were in most imminent peril. It is not as if the second mate was
intimately acquainted with the locality; he had never been there before, and
knew nothing of the navigation.
The fifth question on which our opinion is asked is, whether the master was
justified in failing or neglecting to keep the ship's log during the time the
ship was in distress after the 17th June. No doubt it is the duty of the chief
officer of every ship to keep the log-book, but the chief officer had been
disabled on the 18th, and from that time, therefore, he was unable to keep it. I
may observe that I have examined the log-book very carefully, and I find that
until the chief officer was disabled it was very well kept, and it makes us
regret the more that it has not been possible to produce him as a witness, as
his evidence would have been of great value. The chief officer, however, being
disabled, it would no doubt ordinarily devolve upon the second officer to
discharge his duties, but it would be for the master to inform the second
officer that he wished him to do so, for if he undertook the first officer's
duties he would also be entitled to the first officer's pay. If, however, the
master chooses to retain the second mate in his original position, and to take
upon himself the duties of the first officer, there is no reason why he should
not do so. Now it is not pretended that the master ever told the second mate
that he wished him to undertake the duties of first officer, and among those
duties that of entering up the log. We think, therefore, that the master is
responsible for the log not having been properly kept up, as it evidently was
not, from and after the 17th June.
The sixth question on which our opinion is asked is, whether the damage to the
ship and cargo was attributable to any misconduct or want of skill on the part
of the master or other officer of the ship? And the seventhis very like it,
namely, whether the damage to the ship was occasioned by the wrongful act or
default of the master or of anyone else on board the vessel? Now although the.
captain has, in our opinion, been guilty of gross misconduct in the management
of this vessel we cannot say that there is any one act done by him which can be
said to have directly or indirectly caused this casualty. The fact, if it be
one, that the boats were in a damaged state in no way conduced to the casualty.
The fact, if it be one, that the master gave no orders for the management of the
vessel, but left it entirely to the second mate in no way contributed to the
casualty; for the orders that were given were, in our opinion, very proper
orders, whether they emanated from the master or the second mate. The fact that
the master allowed the chronometers to run down did not, in our opinion, in any
way conduce to the casualty. The fact, and a most reprehensible fact it is, that
the master did on the 2nd July give up charge of the vessel to the second mate,
also in no way conduced to the casualty, nor the fact that the master neglected
to keep the log or to see that it was properly kept.
How then stands the case? Here is a master guilty of as grave acts of misconduct
as any master could commit, and yet none of those acts, so far as we can see, in
any way contributed to the casualty, which was due entirely to the extreme
severity of the weather, and to the ship having been pooped when the first
officer was in command, and, so far as we can see, without any fault on his
part. But can we go on to do what the Board of Trade have asked us to do,
namely, cancel or suspend this man's certificate? for that it is that we are
called upon to do when we are asked to deal with his certificate. I have already
stated that I consider that under the 432nd and 433rd sections of the Act of
1854 we are entitled to inquire into the facts of this case, and to report upon
them; but can we go on and cancel or suspend the master's certificate? Now there
is a section of that same Act to which no reference was made either by Mr.
Tyndall or by Mr. Carr, but of which the Court is bound to take cognizance, for
it is under that section, if under any, that it has power to deal with this
person's certificate. I refer to the 242nd section of the Act of 1854,
sub-section 2 of which alone applies to this case. The words are as follows: "If
upon any investigation con- " ducted under the provisions contained in the
eighth part " of this Act it is reported that the loss or abandonment " or
serious damage to any ship, or loss of life has been " caused by his wrongful
act or default, then the Court " may cancel or suspend his certificate." in this
case the " master has been guilty of gross acts of negligence, but none of those
acts have contributed, so far as we can see, either directly or indirectly, to
this casualty, and under the circumstances it appears to me that we have no
power whatever to deal with this man's certificate, much as we regret it, and
unfit as we believe him to be to hold the position and to discharge the duties
of a master.
(Signed)H. C. ROTHERY,
Wreck Commissioner.
We concur.
(Signed)HENRY KNOX,
Commander, R.N.,Assessors.
"J. P. WILSON,
I 101. 146. 70.-1/79. Wt. B 612. E. & S.
