(No. 391.)
"DAVID MALCOLM."
The Merchant Shipping Acts, 1854 to 1876.
IN the matter of the formal investigation held at Newcastle-upon-Tyne, on the
17th, 18th, and 19th of February 1879, before H. C. ROTHERY, Esquire, Wreck
Commissioner, assisted by Rear-Admiral POWELL, C.B., R.N., and Captain NICOLAS,
as Assessors, into the circumstances attending the stranding of the sailing ship
" DAVID MALCOLM," of London, on Whitby Rock, on the 17th of January 1879.
The Court, having carefully inquired into the circumstances of the
above-mentioned shipping casualty, finds, for the reasons annexed, that the
stranding of and material damage to the said ship was due to the wrongful acts
and defaults of Alexander Rogers, the master, and of John Steel, the mate.
I. As regards the master,-
(1.) In not setting safe and proper courses so as to take the vessel well clear
of Whitby Rocks.
(2.) In not seeing that the courses set were duly steered.
(3.) In neglecting to have the lead on deck and ready for use.
(4.) In remaining below during the first and middle watches, and at a time,
when, owing to the state of the weather, and other circumstances, the safety of
the ship required his personal supervision, such conduct being a gross
dereliction of duty, and attributable to his having been at the time more or
less under the effects of liquor.
II. As regards the mate,-
(1.) In neglecting to have the lead at hand and ready for use.
(2.) In neglecting, through being under the influence of liquor, to remain on
deck during his watch, when his personal supervision was required for the safety
of the vessel and of those on board.
For these wrongful acts and defaults the Court suspends the certificates of the
said Alexander Rogers, the master, and of the said John Steel, the mate, for 12
months each, but recommends that a mate's certificate be granted to the said
Alexander Rogers in lieu of the master's certificate, which he now holds, but
that no certificate be granted to the said John Steel, his certificate being
that of an only mate.
The Court makes no order as to costs.
Dated the 19th of February 1879.
(Signed)H. C. ROTHERY,
Wreck Commissioner.
We concur in the above report.
(Signed)R. ASHMORE POWELL,Assessors.
"B. G. W. NICOLAS,
Reasons.
The Commissioner.-This case has occupied a considerable time, but not longer I
think than the circumstances of the case appear to warrant, for when charges of
drunkenness are brought against the officers of a ship it behoves the Court to
weigh very carefully the whole of the evidence.
The "David Malcolm" is a barque belonging to the Port of London, of 509 tons
register. She was built at Moulmein in the year 1839, and at the time of the
casualty which forms the subject of this inquiry she was registered in the names
of Mr. John Stockton Rogers, of No. 9, Coburg Terrace, North Shields, and of his
brother, Alexander Rogers, the master. We are told, however, that the master had
some time since parted with his interest in the vessel to his brother. On the
16th January last she left the Tyne for Motril, in Spain, with a cargo of 704
tons of coals, and a crew of 13 hands all told. Her condition, we are told, was
good, and as she was built at Moulmein and of teak, there is every reason to
suppose that she was, as the event proved, a particularly strong vessel. She
crossed the bar at about 8.45 a.m., it being then high water, but was obliged to
bring up outside to wait for two of the men. At noon, however, she took her
departure, Tynemouth Castle bearing W. by N., distant from 2 1/2 to 3 miles.
What were the courses steered, the state of the wind and weather, and the other
circumstances which led to the stranding of the vessel, will be matter for
future consideration, suffice it to say at present, that by 3 a.m. of the
following morning she was aground on Whitby Scar, within about 200 yards of the
pier heads. Signals for assistance were immediately made, and in a short time a
number of boatmen came off, and with their assistance a kedge and two warps were
carried out. At 6.30 Lloyd's agent came off, and at 6.45, the ship having begun
to make water, some of the boatmen were engaged to assist in pumping her. At
8.45 a tug came alongside, and the tide having risen she was soon afterwards
hauled off into deep water, and having reshipped her kedge and warps she
proceeded in tow of the tug to the North, and arrived in the Tyne at about 11.30
p.m. the same evening. We are told that the agreement with the tug was for 55l.,
and 2l. for the use of the hawser, and that the boatmen who accompanied her from
Whitby to the Tyne to assist in pumping received about 60l., making altogether
about 120l. The question of material damage does not arise in this case, for it
seems that the cost of the repairs will amount to between 400l. and 500l.
The first question upon which our opinion has been asked is, what was the cause
of the stranding of the vessel? and in order that we may be able to give a
satisfactory answer to this question it will be necessary to examine the
evidence of the witnesses in some detail. The story told by the master is as
follows: he tells us that they took their departure at noon, Tynemouth Castle
bearing W. by N., distant from 2 1/2 to 3 miles, and that the vessel was first
put on a S. by E. course, the wind blowing a 2 1/2 to 3 knots breeze from N.N.W.
to N.W. by N. That course was continued till 1.30 p.m. when it was altered to
S.S.E., which was continued till about 10 p.m.; when the master ordered the
boatswain, whose watch it was, to steer S.E. by S., thus altering the vessel's
course another point to the E. He admits that he did not go on to the poop to
see that the vessel was laid upon that course; but he says that he had a box
compass in his after cabin, by which he could see that the course was altered to
S.E. by S. in accordance with his directions; and having seen that this was
done, he lay down on his bed with his clothes on and fell asleep, leaving word
with the boatswain to call him before midnight; and from that time he knew
nothing at all of what occurred until the vessel took the ground.
Now it unfortunately happens that since the casualty the boatswain has died, and
we have therefore no means of knowing whether or not he would confirm the
master's evidence on these points. At the same time we have the evidence of the
men who were at the wheel from 8 p.m., and they can tell us what courses they
steered from that time. First, then, there was James Adams, who was at the wheel
from 8 to 10 p.m., and who tells us that during the whole of his watch he
steered S.S.E. Henry Kelynmack succeeded him and remained at the wheel from 10
to 12, and he tells us that during the whole of his watch he steered a S.S.E.
course. At midnight Patrick Joyce went to the wheel, and the course which he
received from the man he relieved was S.S.E., and he began by steering that
course.
It seems that it was the chief mate's watch from midnight; he candidly admits,
however, that he was sleepy and that the boatswain had to call him twice, so
that he did not come on deck until about half-past 12. Immediately on his coming
on deck he fancied that he heard a noise on the starboard side, something like
the roll of breakers on the beach, and on calling the boatswain's attention to
it, the latter replied that he thought it was only the noise of the fan of a
steamer. Not being satisfied with this answer, the chief officer ordered Joyce,
whom he found at the wheel, to lay the vessel's head a point more to the
eastward, and in this he is confirmed by Joyce, who tells us that in obedience
to the mate's orders he put her on a S.E. by S. course, and continued to steer
that course for the remainder of the time that he was at the wheel. The mate
also told us that, after altering the vessel's course, he went to what he called
the sail cabin to look for the lead, with the object of taking soundings. It
being dark, however, he was not able to find it, and he then went to the pantry
to get a light, and whilst there a kind of fit came over him, and he remembered
nothing more until the ship took the ground.
From this time then we have only the men on deck who can tell us what occurred
previous to the casualty, but the evidence of the witness Joyce was given in so
clear and straightforward a manner that we have no hesitation whatever in
accepting it; and in fact we have no other evidence on this part of the case.
Joyce told us that, after the mate had gone below, he remained at the wheel,
there being no officer on deck, and therefore no one to strike the bells, until
half-past two, when he was relieved by an ordinary seaman, named Axel Naeman, a
Swede. Joyce told us that as Naeman could not understand any English he was not
able to give him the course, but what he did was to get the vessel's head upon
her course, and then give him the helm and try to make him understand that he
was to keep her on that course. He then went forward to James Day, who was on
the look-out, and told him to keep a good look-out, as there was no officer on
deck, and he knew who was at the helm, meaning, of course, Naeman, He then went
into the bogie to warm his feet, having been for two hours and a half at the
helm. After remaining there for some time he came out, and he then observed that
Whitby Lights, which he had seen before he left the helm, and which should have
been broad on the beam, were on the starboard bow. He accordingly went aft, and
finding the ship heading about S. and by E. 1/2 E., he put her back upon her
course, and returned to the forecastle. After being there some time, James Day,
the look-out man, suddenly put his head in at the door and sang out, "Paddy, the
ship will be ashore." He immediately ran aft and put the helm hard-a-starboard,
but at the same instant the ship struck. And without going in detail through the
evidence of the other two seamen, Day and Adams, who speak to the same
occurrences, we need only remark that Adams fully confirms Joyce as to the
extraordinary steering of the Swede, Naeman, and he also speaks to Day putting
his head into the forecastle door and saying, "Paddy, come along, she is going
ashore."
Such then being the evidence as to the courses steered from the time of leaving
the Tyne, can there be any doubt as to how the vessel came to be stranded? The
master has told us that the courses which he gave were S. and by E. from noon to
1.30, then S.S.E. from 1.30 to 10 p.m., and then S.E. and by S. from 10, and
that those courses, if made good, would have taken him about 6 1/2 miles off
Whitby, or we will say 5 1/2 miles outside the rocks. If, however, instead of
altering the course to S.E. and by S. at 10 she had been continued on a S.S.E.
course from that time she would, he said, if that course had been made good,
have passed within four miles of Whitby, or a little more than three miles
outside the rocks. He also tells us that, although the tide would have had very
little effect in setting him one way or the other, the N.E. sea, which was
acting upon the ship from the time she left the Tyne, would certainly set her
towards the shore, and that it was on that account that he ordered the course of
the vessel to be altered at 10 o'clock from S.S.E. to S.E. and by S. We know,
however, now that the course was not altered at 10 to S.E. by S., but was
continued at S.S.E. It is clear, therefore, that the stranding of this vessel
was due first to her being kept on a S.S.E. course after 10 o'clock, instead of
its being altered then to S.E. by S.; secondly, to the N.E. sea setting her from
the time of her leaving the Tyne continually more and more inshore; and thirdly,
to the erratic steering of Naeman, the Swede, who instead of keeping her on a
S.E. by S. course let her come up towards the wind, and therefore inshore. These
three causes are, in our opinion, quite sufficient to account for her getting to
windward of her course, and being stranded on Whitby Scar.
Now these being, in our opinion, the causes of the stranding of the "David
Malcolm," the next question on which our opinion is asked is, whether that
stranding was caused "by the wrongful acts and defaults of Alexander Rogers, the
master, and John Steel, the mate?
"As regards the master,"-
"(1.) In not setting safe and proper courses, after taking " his departure from
Tynemouth Castle, at noon on the " 16th January, and in neglecting to make any
allowance " for the set of the tide and N.E. sea, prior to 9.30 p.m. " on the
16th of January.
"(2.) In neglecting to see that the courses set by him " were duly steered.
"(3.) In neglecting to heave the log between noon and " 8 p.m. of the said 16th
January.
"(4.) In neglecting at 9.30 p.m. of the said 16th of January to take any steps
to verify his presumed position " by a cast of the lead, and in neglecting to
have the lead " at hand and ready for use.
"(5.) In remaining below during the first and middle " watches, either from
being under the influence of drink " or gross dereliction of duty, at a time
when, owing to " the uncertainty as to his position and the state of the "
weather, the safety of his vessel required his personal " supervision.
"As regards the mate,"-
"(1.) In neglecting to heave the log between noon and " 8 p.m. of the said 16th
January.
"(2.) In neglecting, in spite of the thickness of the " weather, to have the
lead at hand and ready for use, and " in neglecting, when he came on deck
shortly after mid- " night of the said 16th January, to take any precautions "
to verify the position of the vessel by a cast of the lead, " or to inform the
master that he heard a sound like the " sea breaking on the shore.
"(3.) In neglecting, through being under the influence " of drink or gross
dereliction of duty, to remain on deck " and superintend the navigation of the
vessel during the " middle watch on the 17th January."
And first as regards the master. Now it certainly does appear to us to be
somewhat strange that the master should, on taking his departure from Tynemouth,
have laid the vessel on a S. by E. course, which if continued would have landed
him on the coast. He tells us that his object was to make Souter Point, but the
assessors cannot understand why he should wish to make Souter Point, seeing that
he already had an excellent point of departure, Tynemouth Castle bearing W. by
N. distant 2 1/2 miles, and that a course S.S.E. from there, if made good, would
take him clear of Whitby Rocks. They are also of opinion that, if the master
considered that, owing to the N.E. sea setting him inshore, a S.S.E. course
would take him too near to the land, and that it was necessary at 10 o'clock to
put her off a point, it was his duty to see that it was done Now he does not
pretend to say that he went on to the poop to see that the order was carried
out, but he tells us that he had a box compass in his after cabin, and that by
putting it against a beam which ran across the floor of the cabin he could see
whether the order was carried out or not. He does not say that this box compass
was ever compared with the standard compass on deck, and the assessors think
that under these circumstances he could not know with certainty whether the helm
had been altered in accordance with his orders; and that it was a very improper
act not to go on deck and see that the course was properly altered, when the
safety of the vessel and the lives of those on board depended upon it. This,
too, be it observed is on the assumption that he ever gave the order to alter
the course to S.E. by S., for which we have only the master's word, unsupported
by a particle of evidence of any kind, and in direct contradiction as it is to
the acts of the seamen, who continued to steer the vessel as before on a S.S.E.
course, until it was altered by the mate between half-past 12 and 1 o'clock.
As regards the charge of not having heaved the log between noon and 8 p.m., the
assessors think that in a vessel of this class it is not usual to heave the log
until the watches are set, all the crew being busy at first starting in putting
the vessel in order. It seems that the watches were not set until eight, and
from eight the log appears to have been hove. As regards the lead too, although
in the opinion of the assessors there does not appear to have been any such very
urgent need in the then state of the wind and weather to take a cast of the
lead, until indeed she was nearing Whitby, still it was his duty to have seen
that the lead was attached to the line, and that the lead and line were on deck,
ready for use in case of need; and in that respect therefore he is to blame.
Indeed, looking at the facts of the case, had the lead and line been on the
deck, and ready for use, it is very probable that the casualty would not have
happened; if the mate, after he had heard the roll of the breakers upon the
beach, had had the lead at hand and taken a cast of the lead, and had thus
ascertained that he was much nearer to the shore than he supposed, it may
perhaps fairly be assumed that he would have at once laid the vessel's head off
shore, and instead of leaving the deck and going to the pantry and there losing
his senses, he would probably have remained on deck, and have averted the
casualty which afterwards occurred.
We are also asked to say whether the stranding of the vessel may not be due in
part to the conduct of the master " in remaining below during the first and
middle watches, " either from being under the influence of drink or gross "
dereliction of duty, at a time when, owing to the uncer- " tainty of his
position, and the state of the weather, the " safety of the vessel required his
personal supervision." Now the assessors are of opinion that this master did
remain below much more than he should have done. It does not appear that he was
on the poop more than once between 6 and 8 p.m., and then only for a very short
time; between 8 and 10 p.m. he was on deck but once, and then only on the main
deck near the door of the cabin, and with his coat and hat off. After that he
was never on deck at all until the vessel struck. It is true that he says that
he ordered the boatswain to call him at a little before midnight, but we have
only his own word for that statement, and it is utterly unsupported. Now it has
been shown that the weather during that evening was so hazy and foggy as to
necessitate the blowing of the fog horn in the watch from eight to 12; the crew,
too, were new and untried, some of them were quite inexperienced, as for
instance the Swede Naeman, who was at the wheel when the vessel went ashore, and
Yonger, the lad who had never been at sea before, and was set to keep the
look-out from 8 to 10 p.m.; many of them, too, had come on board the vessel in a
state of intoxication. Under these circumstances it behoved the master to be
more especially vigilant, and not to have passed almost the whole of his time
below; he ought to have been frequently and almost constantly on deck, seeing to
the navigation of the vessel; and above all, the assessors think that he ought
not, seeing that he had been below so much during the afternoon and evening, to
have lain down as he admits he did at 10.40 p.m. on his bed, and gone to sleep.
Such an act they think was a very gross dereliction of duty, and the question is
whether it arose from the effects of drink.
Undoubtedly, if we are to take a seaman's definition of drunkenness, this man
might probably not be said to have been drunk at any time whilst he was on
board. On the other hand, it would be equally difficult to say that he was
perfectly sober during any part of the time, at all events before the stranding.
The evidence of the seamen, Joyce, Day, and Adams, who were examined yesterday,
and I will add also that of the mate himself, certainly gave us the impression
that whilst they were endeavouring to screen the captain, they believed him to
have been under the influence of liquor. The way in which he is described as
coming up between six and eight and standing on the fore part of the poop,
staring about and doing nothing; his putting his hand upon the shoulder of one
of the men and on the breast of another, and the description given to us by the
mate of his sitting down in his inner cabin in a chair doing nothing, all seem
to point to the fact that although not actually drunk, he was under the
influence of liquor. The evidence of the two men, the carpenter and the
apprentice, Yonger, which has been given to-day, in our opinion goes for
nothing. They were produced by the master to prove that they had seen him
between 9 and 10 p.m., and that he was then sober, but they did not speak to him
at that time, and when cross-examined they completely broke down. The carpenter
told us that he was sitting in his cabin when he saw the master pass and go up
on to the topgallant forecastle. Yonger, who was at that time keeping the
lookout, swore that the master did not go on the forecastle, but that he saw him
go up on the poop at that time; and he told as that at about half-past 9 p.m. of
the 16th of January, the weather being thick and foggy at the time, he could see
from where he was keeping a look-out on the topgallant forecastle the master's
lips moving whilst he was talking to the boatswain aft. And then we have the
master telling us himself that between nine and ten he went neither on the
topgallant forecastle nor on the poop, but remained on the main deck between the
cabin door and the main mast; and the reason he gave for this was that he had
neither his coat nor his hat on, and that that was why he did not go on the poop
to see that the course of the vessel was altered in accordance with the orders
which he said he gave to the boatswain.
Now I cannot agree with Mr. Roche in thinking that this difference in details
between the master and these two men is a ground for thinking that their
evidence is to be relied on. They came forward to swear that the master had been
on deck between half-past nine and ten, and that he was then sober; but whether
the master had a coat or hat on or not, or whether he went on the poop or the
forecastle, or remained on the main deck were points which had not entered into
their calculation. Moreover, it is to be remembered that it is only to-day, and
just before the carpenter and Yonger, were examined, that we heard from the
master this story about his coming on deck without his coat and hat, and which
he gave as an excuse for not going on the poop to see that the helm had been
altered to S.E. by S. Had that idea occurred to him yesterday we should probably
have found the carpenter and Yonger somewhat better prepared to say whether the
master had or had not come up with his coat and his hat on, and whether he
remained on the main deck or went on the poop or topgallant forecastle. We are
all of opinion that even if the evidence of the carpenter and of Yonger went to
show that the master was sober that evening we could place no reliance whatever
on it. On the whole, we think that the master was under the influence of liquor
on the evening, if not during the day, of the 16th of January last whilst on
board and in charge of his vessel, and that in this way can we account for the
gross dereliction of duty of which we have found him guilty.
As regards the mate, he, too, was negligent in not seeing, as it was his duty to
do, that the lead and line were on deck and ready for use, in which case, as I
have already said, probably this casualty would not have occurred. But his chief
offence is that of being drunk and incapable of discharging his duties at a time
when it was his watch on deck, an offence which he in effect does not deny, and
which undoubtedly conduced mainly to the stranding of this vessel.
Now I do not think that I can do better than quote here a portion of this mate's
evidence, which will show perhaps better than anything that I can say what was
the state of this crew, and even of the master, and of himself. He told us that
the crew had a glass of grog all round at half-past 11, at the dinner hour; this
appears to have been in addition to another glass which some of the men told us
that they had had served out to them between seven and eight, when the watches
were set, and to certain other glasses of grog which the men had brought on
board with them. The mate also told us that between 11 and 12 in the daytime the
master gave him a glass of grog in the inner cabin, where all the spirits were
kept, and where the master is seen in the evening sitting in his chair doing
nothing. The mate further told us that when he came off duty at 8 p.m., he went
to the cabin, which he occupied in common with the boatswain, and that the
latter then took a bottle of whiskey out of his box and gave him a glass, and
that he then went asleep, and did not awake until he was called to take his
watch, and that possibly what he called his fit may have been the effect of the
liquor he had taken. According to the mate, too, Joyce, Adams, and the boatswain
were all affected with liquor when they came on board; he added that he could
not say that anyone of them was not more or less affected by liquor; all might
have had a drop; he himself had had a drop before he came on board in the
morning, besides what he had had the night before, and he would not say that the
captain might not have had a drop also. After such a description, officers and
men being all apparently more or less under the influence of drink, can it be
wondered at that the vessel, so soon after leaving port, ran aground on Whitby
Rocks, within some 200 yards of the pier head?
Lastly, it is said that the Board of Trade are of opinion that the certificates
both of the master and of the mate should be dealt with. Mr. Roche has, however,
contended that we are not at liberty to touch these officers certificates unless
we are satisfied that the casualty was due to their wrongful acts or defaults. I
admit it, but can there be the least doubt but that this casualty was due to
their acts and defaults? And first, as regards the master. Is it not clear that
the casualty was due to some, if not all, of the following causes? To his having
laid the vessel on such a course, as with the north-east sea which was setting
him inshore, would take her dangerously near to the Whitby Rocks unless the
course was altered from S.S.E. to S.E. by S., and to his neglect in seeing that
that alteration of the course was made? To his negligence in not seeing that the
lead was on deck and ready for use? To his negligence in not attending to the
general duties of the ship, and in staying down in his cabin when his presence
was required on deck? To his negligence in not seeing that the watches were
properly set, and the duties properly performed, his crew being new and untried,
some of them ignorant of their duties, and many of them having come on board in
a state of intoxication? Add to this that the master has to our satisfaction
been shown to have been more or less under the influence of liquor, which
probably kept him below when his presence was required on deck. And under these
circumstances we think that there can be no doubt that the casualty was due to
his wrongful acts and defaults, and that we are, therefore, entitled to deal
with his certificate. As regards the mate, too, there can be no doubt that his
conduct contributed in no small degree to the casualty. As chief officer it was
his duty to see that the lead was in its proper place, and, as I have before
stated, had it been on the deck ready for use, probably this man would not have
made his way into the pantry, and there lost his senses. But he is more
especially to blame for having allowed himself to become affected by drink so as
to be incapable of performing his duties when he should have been on deck
keeping his watch, and to which cause, and to which cause mainly, this casualty
is due. On the whole, we think that the certificates of both these officers
should be suspended, and we shall suspend them for the space of 12 months.
Mr. Roche.-I have to apply for a mate's certificate for the captain during the
suspension of the master's certificate.
The Commissioner.-We have carefully considered this question also, and as you
ask for it, we shall not refuse to recommend that he shall have a mate's
certificate. At the same time we think that unléss he alters his conduct he will
be not only unfit to command a vessel, but unfit also to act as chief officer.
(To Mr. de Hamel.) You do not make any application for costs?
Mr. de Hamel.-No, sir.
(Signed)H. C. ROTHERY,
Wreck Commissioner.
We concur.
(Signed)R. ASHMORE POWELLAssessors.
"B. G. W. NICOLAS,
I11 203. 70.-2/79. Wt. B 612. E. & S.
