Wreck Report for 'Balmoral', 1879

"BALMORAL."

Office of the Wreck Commissioner, Somerset House, 26th April 1879.

SIR,

I BEG to send you herewith, for the information of the President of the Board of Trade, the report, with reasons annexed of myself and the assessors, in the case of the appeal of Hugh Keith, the owner of the steamship "Balmoral," of Glasgow, to the Court of Survey for that district, from the refusal of Immer Fielden, one of the Board of Trade surveyors, to give a declaration under the provisions of section 309 of the Merchant Shipping Act, 1854, and which was heard in the Sheriff's Court at Glasgow on the 10th, 11th, and 12th days of April instant.

The Secretary, Board of Trade.

I have, &c., H. C. ROTHERY, Wreck Commissioner.

The Merchant Shipping Acts, 1854 to 1876.

The Court of Survey for Glasgow. Held at the Sheriff's Appeal Court, Glasgow, on the 10th, 11th, and 12th days of April 1879.

In the matter of an appeal by Hugh Keith, the owner of the steamship "Balmoral," of Glasgow, from the refusal of Immer Fielden, one of the surveyors to the Board of Trade, to give a declaration under the provisions of section 309 of the Merchant Shipping Act, 1854.

I, Henry Cadogan Rothery, Wreck Commissioner for the United Kingdom, do report that I have, with the assistance of John R. Ravenhill, Esqre., C.E., the assessor appointed by the Board of Trade, and of Robert Duncan, Esqre., shipowner and shipbuilder, one of the assessors for the Court of Survey at Glasgow, heard the above appeal, and I am of opinion,-

(1.) That all the vessel's plates, which have been reduced to 2/10ths of an inch, should be renewed.

(2.) That the patches along the garboard strake should be removed, and a narrow garboard strake put on and securely rivetted to the keel and garboard strake, similar to that which we now find on the fore part of the vessel.

(3.) That the corroded frames where either flange is gone should be either doubled or replaced, and all floor plates overhauled, and where necessary made good.

(4.) That the centre vertical plate bearer under the boiler should be prolonged, as far as it can be, between the engine and boiler bulkheads, and bilge or sister keelsons introduced under the sides of the boiler, and carried from bulkhead to bulkhead, and be attached to the skin of the ship by intercostal angle irons, and with a continuous angle iron running fore and aft along the top of the floor plates, and rivetted to the keelson plates and reverse bars, thus distributing the weight of the engine and boiler over a greater number of the floor plates, and at the same time giving additional strength to the bottom; and

(5.) That the vertical bracket plates in the wake of the paddle boxes, and under the paddle beams, which are found decayed, should be renewed. On these repairs and alterations being effected I think that the vessel may receive a No. 5 certificate.

I am also of opinion that each party should be left to pay his own costs of the appeal.

Dated the 12th day of April 1879.

 

(Signed)

H. C. ROTHERY, Wreck Commissioner.

We concur in the above report.

 

(Signed)

JOHN R. RAVENHILL,

Assessors.

 

"

ROBT. DUNCAN,

 

MINUTES of PROCEEDINGS taken before HENRY CADOGAN ROTHERY, Esquire, Wreck Commissioner, with Mr. DUNCAN and Mr. RAVENHILL, C.E., Assessors, at the Sheriff's Appeal Court, Glasgow, Saturday, 11th April 1879, upon an appeal from the refusal of Immer Fielden, one of the Board of Trade surveyors, to give a declaration under the provisions of section 309 of the Merchant Shipping Act, 1854.

COURT OF SURVEY APPEAL.

Keith, appellant. Board of Trade, respondents.

Mr. Spens appeared for the appellant.

Mr. Douglas appeared for the Board of Trade.

Witnesses having been called by both sides, Mr. Spens was heard for the owner, and Mr. Douglas for the Board of Trade.

Judgment.

The Commissioner.-This is the first occasion, so far as I am aware, on which any of the Courts of Survey has been called upon to exercise the powers conferred upon them by the Merchant Shipping Act, 1876, and I think that it speaks well for the way in which the surveyors of the Board of Trade have discharged their duties, for had those duties been generally exercised in an arbitrary and vexatious manner there can be little doubt that we should have had a number of these appeals.

The circumstances of the case are as follow:-The "Balmoral" is an iron paddle steamer of 126 tons gross and 41 tons net register, and is fitted with one engine of 70 horse-power. She was built at Paisley in the year 1842, and is the property of Mr. Hugh Keith, of No. 2, Oswald Street, Glasgow, who is also the managing owner.

On the 5th of March last the certificates which the vessel held as a passenger steamer being about to expire the owner was desirous of having them renewed, and he accordingly forwarded the usual application for that purpose to the Mercantile Marine Office at this port in ordinary course it would fall to Mr. Immer Fielden, one of the shipwright and engineer surveyors for this port, to survey her, the vessel being as it is called upon his list. And accordingly on the 7th of the same month Mr. Fielden went on board accompanied by the owner, and in the course of a kind of preliminary survey pointed out certain repairs which he considered would be required to entitle her to a renewal of her certificate. How it was that Mr. Fielden came to make this survey without the express authority of his superior officers we are not informed, for Mr. Fielden seems to have been well aware that instructions had been issued that the vessel would have to undergo a special survey before her certificates could be renewed. On the matter coming to the knowledge of Captain Pryce, the principal officer at Glasgow, he at once communicated with the authorities in London, and it was then arranged that Mr. Wimshurst should himself go down to Glasgow to inspect her. A survey was accordingly made of the vessel on the 10th of March by Mr. Wimshurst, accompanied by Captain Pryce and Mr. Fielden, and it was then decided that a certificate should not be granted to her.

After several ineffectual applications on the subject, Mr. Keith, the owner, determined to take the course prescribed by the Merchant Shipping Act, 1876, to compel them to give him a declaration of the vessel's fitness to receive a passenger certificate. That course is distinctly pointed out in the 14th section of the Act in these words: " Whereas by section 309 of the Merchant Shipping Act, " 1854, and enactments amending the same, the owner of " a passenger steamer as defined in that Act is required to " cause the same to be surveyed by a shipwright surveyor " and an engineer surveyor, and those surveyors are " required to give declarations of certain particulars with " respect to the sufficiency or conformity with the Act of " the ship and equipments, and to the limits beyond which " the ship is not fit to ply, and to the number of passengers " which the ship is fit to carry, and of other particulars in " the said section mentioned, and the Board of Trade, " under section 312 of the same Act, issue a certificate " upon such declaration, and the passenger steamer cannot " lawfully proceed to sea without such certificate." And it then goes on to say that, "if a shipowner feels aggrieved " ..... by the refusal of a surveyor to give the said " declaration, he may appeal in the prescribed manner to " the Court of Survey for the port or district where the " ship for the time being is." Mr. Keith accordingly on the 20th of March last entered an appeal in the Court of Survey for this port, and it is under these circumstances that the case has now come before us; and what we have now to decide is whether Mr. Keith is entitled to the remedy which he seeks.

Now the case set up by the Board of Trade, or as Mr. Spens calls it, the basis of the Board's indictment against the vessel, is to be found in two reports made by Mr. Wimshurst. It seems that on the occasion of Mr. Wimshurst's periodical visit to Glasgow at the end of October last, his attention had been called to the "Balmoral," and the following is an extract from the general report, which he made on his return, so far as it relates to this vessel: " Mr. Woodthorp next accompanied me to the steamship " 'Balmoral,' Oct. 31, 1878, which vessel has the Nos. 4 " and 5 certificates; the inspection was necessarily very " limited, but from the unworkmanlike nature of repairs " which had been made from time to time, the general " waste due to age, and the fact that in some parts and " places the frames were wasted almost away, she is quite " unfitted to carry lives in water much beyond her own " depth, and certainly should not carry passengers under " the Board's certificates to such limits as are indicated by " the No. 4 certificate. Her future must depend upon the " result of a survey of the hull, and I have little doubt she " will be found to be past repair for passenger purposes."

The second report was made after inspecting the vessel on the 10th of March last in company with Captain Pryce and Mr. Fielden, and is in these words: "In compliance " with the Board's instructions I attended in Glasgow, " and with the principal officer made such examination of " the vessel as was practicable, Mr. Fielden being present. " She was upon the patent slip, the bottom painted, and a " considerable portion of the cabin floor, ceilings, &c. " removed. Our attention was first given to the exami- " nation of the outside; one of the shell plates had been " replaced with new, and some few others were covered " with patches or doubling plates; the arrangements of " these at their butts are interesting, and under one of the " paddle beams they are sufficiently so to sketch; the flat " of the bottom is out of line, the garboard strake on the " starboard side within a length of 38 feet amidships has " nine patches upon it, while on the opposite side of ship " there are 12 patches within the same length; inside the " vessel the frames in the fore peak are wasted to the con- " dition I before stated them to be in, the forepeak bulk- " head is however good, it being about two years old, in " the compartment abaft this shows simply waste (not " excessive) due to age. In the fore cabin we saw the " inside of one of the patch plates, it is situated on the " side; and just in front of the starboard paddle beam the " first of the sponson stays had broken through the old " plate; these holes are now protected from water by the " patch. A similar doubling exists upon the sheer strake, " the butts of it come up to the paddle beam, and are over " the butts of the patch plate on the side; the termination " of the stringer is at the same vertical line, beside which " the stiffening frame to take the paddle beam is wasted " almost away. In the engine-room the deck stringer is " so badly connected at its butt as to be worth compara- " tively nothing, it is not attached to the sheer strake; the " plates and frames are in such condition as might be " expected by age, and several of them patched. There " are no bilge keelsons, and a flat plate 11 × 3/8 upon the " floors is all she has in the place of a main keelson, yet " the vessel at this part has to carry a boiler 12 feet× " 12 feet with all its attachments. In the after cabin " nothing was noted, and in the ladies cabin two patches " were being fitted to cover holes. The condition of the " vessel is so thoroughly unsatisfactory that I am only " able to recommend the Board not to issue another cer- " tificate to her, and further I beg to advise that require- " ments to bring her to a satisfactory condition would be " quite outside all reasonable limits. (Signed) James " Wimshurst, 11th March 1879." Appended is a note, which is signed by Captain Pryce, in these words, "Having " attended on this survey, I quite concur in the above " report."

Four witnesses were produced to support the case set up by the Board of Trade, all of them gentlemen of high character in their profession, and of undoubted ability. They are Mr. Wimshurst, the principal shipwright surveyor to the Board of Trade, Captain Pryce, the principal shipwright and engineer surveyor for the West Coast of Scotland, Mr. Mills, the principal officer for the Northeast Coast of England, and Mr. Murray, the principal officer for the East Coast of Scotland, and the author of several works on shipbuilding and marine engineering. They all, so far as their opportunities of judging enabled them to do so, fully supported the views expressed in Mr. Wimshurst's reports; it should, however, be observed that only Mr. Wimshurst and Captain Pryce had seen her on the slip, and that when Mr. Mills and Mr. Murray saw her she was afloat, so that they could only speak of her condition internally. All of them, however, expressed a very decided opinion that the "Balmoral" was in such a state that hardly anything short of rebuilding her from the keel would qualify her to receive a passenger certificate, and accordingly Mr. Douglas, in the terms of rule 23, which requires the Board of Trade to "state in writing what order they desired the Court to make," asked that the appeal should be dismissed with costs.

Mr. Spens then proceeded to call his witnesses, and the first witness produced in support of the owner's case was Mr. Fielden, the Board of Trade surveyor, who had inspected her on the 7th of March, and again, in company with Mr. Wimshurst and Captain Pryce, on the 10th. It seems that Mr. Fielden had examined the vessel on several previous occasions. He had surveyed her in June 1874, again on the 31st January 1877, and again on the 28th of March 1878, and had on each of these occasions given a declaration which had enabled her to obtain Nos. 4 and 5 certificates as a passenger vessel, the two last certificates expiring only on the 11th of March last. I should here observe that the No. 5 certificate entitled her to ply within a line drawn from Bogany Point, in the Isle of Bute, to Skelmorlie Castle and Ardlamont Point, and inside the Kyles of Bute, and to carry within those limits 616 passengers, and that the No. 4 certificate, whilst extending the limits to a line drawn from Carradale Point across the Island of Arran to Fairlie Head, restricted the number of passengers which she might carry to 331 in summer and 236 in winter.

Now the conclusion to which Mr. Fielden came, when he examined her on the 7th and 10th days of March last, was very different to that at which his superior officers, Mr. Wimshurst and Captain Pryce, had arrived. He admitted the condition of her plates, her frames, &c., as set forth in the report of survey of the 10th of March, but he thought that Mr. Wimshurst and Captain Pryce, when they said that the vessel was not worth repairing, had not made sufficient allowance for her strength in other respects. In his opinion the vessel, on certain repairs being done to her, would be quite entitled to have not indeed a No. 4 certificate, but a No. 5 certificate, which would enable her to ply within the Kyles of Bute, and he told us that he should have been quite prepared to give a declaration to that effect had he not been expressly forbidden by his superior officers to do so. A number of other witnesses were also produced, shipbuilders or foremen in shipbuilding yards, who substantially supported all that was said by Mr. Fielden. They admitted that there were evidences of corrosion, that several of the frames had been almost eaten away, and that externally the vessel presented a very patchy appearance, particularly along the garboard strake; but they said that although some of the plates had been reduced by corrosion, they had not found one less than 2/16ths of an inch, and they thought that due allowance had not been made by the surveyors for the additional strength derived from the great depth of the vessel in proportion to her length, and they were all very clearly of opinion that upon certain repairs being done to her she would be entitled to have a No. 5 certificate granted to her. And accordingly Mr. Spens asked the Court to find that the "Balmoral" was "entitled to a declaration " in the terms of section 309 of the Merchant Shipping " Act, 1854, from Immer Fielden, shipwright and engineer " surveyor, Glasgow, or otherwise to report that such " declaration should be granted on such moderate and " reasonable repairs being done as the Court may see fit " to point out, and in any event to find the appellant " entitled to costs."

Now if the case had rested here I should be inclined to say that the balance of evidence was on the whole in favour of the owner, Mr. Keith. On the one hand, we have four Board of Trade surveyors, all gentlemen no doubt of high standing, and whose opinions would be entitled to considerable weight, but of whom two only had seen her on the slip, and the other two had not made a very lengthened survey of the vessel, nor had they bored any of the plates. On the other hand, we have a number of witnesses, one of them a Board of Trade surveyor, who has known and examined the vessel for a great number of years, and the rest practical shipbuilders, shipwrights, or foremen in shipbuilding yards, several of whom appear to have examined the vessel with great care, tapping every plate in the vessel, and having the plate bored when they detected any signs of weakness in it. The question, too, was one upon which the owner's witnesses were peculiarly competent to form an opinion, and as no attempt was made to discredit their evidence it was quite impossible for us to put it on one side. Before, however, coming to any decision on the point it seemed to us very desirable that we should examine the vessel for ourselves; and as this also appeared to be the wish of both parties, it was arranged that, at the termination of the evidence for the owner, the Court should go and inspect the vessel, the owner having stated that the vessel should be put on the slip for the purpose.

An application was thereupon made by Mr. Douglas to be allowed, after the inspection, to produce further witnesses to speak to the condition of the vessel. The application was based upon the provision in rule 26 that: "after the " appellant has examined all his witnesses, the Board of " of Trade may, on cause shown to the satisfaction of the " judge, call further witnesses in reply." Mr. Spens, however, strongly objected; and I think with some reason. It appears to me that the object of rule 26 was to give the Court power to allow further witnesses to be examined in the event of some new facts being disclosed in the owner's evidence, which the Board of Trade had no reason to expect. It is not however pretended that there are any such facts in the present case; and it seems to me that it would be very unfair to allow the Board of Trade to reopen the case, and to supply any omissions in their original case; possibly even to reserve their most important evidence until after all the witnesses for the appellant had been examined. I therefore refuse the application.

As soon then as the evidence for the owner was completed, the Court proceeded in company with Mr. Wimshurst and Mr. Lawrie, one of the owner's witnesses, and an engineer and shipbuilder resident in this place, and made a thorough examination of the vessel, the survey lasting over two hours. And having this morning had the advantage of hearing Mr. Spens and Mr. Douglas on behalf of their respective parties, I now propose to state the conclusions to which we have come after a long and careful consideration of all the circumstances of the case; and in doing so I think that I cannot do better than follow the course set us by Mr. Spens in the very able argument with which he has favoured the Court, and consider the case under the following heads: first, the condition of her plates; secondly, the condition of her frames; and thirdly, the strength of the vessel in her bottom and centre; for it is upon these that her fitness to ply as a passenger steamer will mainly depend. No question was raised either in Mr. Wimshurst's report or during this inquiry as to the state of her engine and boiler, and we assume, therefore, that they are in an efficient condition.

And first as to the plates. It seems that the vessel was built in the year 1842, and as some of the original plates still remain in her, we should naturally expect to find a good deal of corrosion. Mr. James Stevens, one of the owner's witnesses, however, told us that about 19 years ago he had almost entirely replated her; still there would be time enough for a good deal of corrosion to set in, more especially if, as we are told by Mr. Keith, she had been very much neglected before he purchased her in 1868. The corrosion then is not and cannot be denied; but the question is, whether the plates have been reduced to such an extent as to render the vessel unsafe, and to necessitate, as Mr. Wimshurst seemed to think, the removal of the greater part of them.

Now it seems that some of the upper plates had been doubled, and although it would probably have been better to have removed the old plates altogether and to have put new ones in their place, there is nothing, the assessors think, in the doubling of these plates which would render the vessel unsafe. It is obvious that if a plate is doubled with plates of sufficient thickness the vessel would, so far as her plates were concerned, be as strong, if not stronger, than before. The assessors therefore, saw nothing to object to in the doubling. But as regards the plates generally, whilst the assessors saw nothing which would lead them to suppose that any large number of the plates would have to be removed, it is clear from the admission of the owner's witnesses that at least five or six of them have been reduced by corrosion to 2/16ths of an inch; and as Mr. Stevens, another of the owner's witnesses, stated that plates which were reduced to 2/16ths of an inch ought to be removed (an opinion in which the assessors entirely concur), it follows that these five or six plates, as well as any others which may have been reduced to 2/16ths of an inch should be removed. As regards the patches, to which Mr. Wimshurst in his report called especial attention, it seems that, except those on the garboard strake, as to which I will presently speak, they are neither numerous nor important; the few that there are have evidently been placed on the vessel to cover holes where there had been sea cocks, but which it had been found necessary to shift when the boiler was changed. These patches the assessors think are not of any importance; but it is different as regards the garboard strake; in that part the patches were almost continuous, there being, as Mr. Wimshurst said, 12 on one side and 9 on the other in a space of only 38 feet. In the opinion of the assessors this shows a considerable amount of weakness in this part, caused no doubt by the corrosion of the plates. The assessors think, too, that the manner in which these repairs have been effected are not at all satisfactory. They think that this nearly continuous line of patches should be removed, and that a narrow garboard strake should be carried along the whole length of the vessel, and be securely rivetted to the keel and garboard strake, similar to that which we now find for some feet on the fore part of the vessel. If this were done, and at the same time all the plates which may have been reduced to 2/16ths of an inch in thickness were replaced, the assessors think that, so far as her plates are concerned, she would be entitled to receive a No. 5 certificate.

As regards the frames all the witnesses admit that in the fore peak, the fore cabin, and the engine-room, many of them are very much eaten away, and this was quite apparent when we examined the vessel. The assessors think that all the frames which have been so eaten away should be either doubled or replaced, and all the floor plates overhauled and made good where necessary. If this was done they think that the vessel would, so far as her frames are concerned, be in a fit condition to receive a No. 5 certificate.

I now come to the third and most important point, namely, the strength of the vessel more especially in her bottom and centre. According to Mr. Wimshurst, the vessel's bottom was entirely out of shape, and on the occasion of our inspecting her our attention was specially called to an indentation of the bottom under the engineroom space, which Mr. Wimshurst seemed to think was due to straining. No doubt if this indentation arose from weakness it would be a very serious defect, and would go far to render the vessel unsafe. But after a most careful examination the assessors are of opinion that this indentation does not arise either from straining or from weakness; for if it did it would show signs in the butts, but there is no appearance of anything of the kind. The indentation is the same on both sides, whilst the keel is perfectly straight; and the assessors are inclined to think that possibly it may have arisen from the vessel having at some time or other been laid upon a bank, or it may have been done when she was being raised, after having been sunk, as the owner told us she was, soon after he purchased her in the year 1868; for the chains by which she would be slung would no doubt be passed under the engineroom space, where the weight was greatest, and pressing as they would do on the bottom plates of the vessel might easily cause the indentation which we saw. But whether this be so or not, the assessors are of opinion that the indentation in question is not a matter of any importance.

Some stress was laid by Mr. Wimshurst on the fact that what he called the deck stringer was so badly connected with its butt as to be comparatively of no use, it not being, as he stated, attached to the sheer strake. It seems that this vessel originally had not any stringers, and before and abaft the engine-room she has none now, and does not appear to have suffered for the want of them. Till 1876 she had a small break in the deck not more than 6 inches in height about the middle of the engine-room, but at that time this break was done away with, and the deck line made continuous with a slope towards the original deck forward. Some of the old deck beams were lifted above the old main deck stringer, which was allowed to remain at its former level, and it is at this junction of the low level stringer with the higher break deck stringer that Mr. Wimshurst now considers the butt connection bad. But as there never was any better stringer connection, and there is now a continuous line of water-way and deck where formerly there was none, it is evident that the vessel is stronger now in this place than she was before. I should add that the vessel had originally two iron beams, about 15 inches deep by 15 inches broad on top forming a half box, and running across from side to side at each end of the paddle boxes, and to the outer end of the paddle wings. The object of these beams was to support the outside of the paddle boxes, and were necessary, when the outer bearings of the paddle wheels were carried on the spring beams, but now that the weight of the paddle wheels is borne by the sides of the ship between the paddle beams there is comparatively little work thrown upon the spring beams, and consequently the same strength of paddle beams is no longer required. The attention of the Court was called by Mr. Wimshurst to the iron top plates on the paddle beams which were eaten away at the ship's side, but the assessors think that this is a matter of no importance, not only for the reasons already given, but because the two deep iron beams which go from side to side of the ship, and which carried these corroded plates, still remain giving great strength and solidity to the centre of the ship.

Whilst, however, the assessors are of opinion that the vessel is on the whole a strongly constructed vessel, due in great part to her exceeding depth in proportion to her length, and that there is no appearance of straining or weakness in any part of her, they think that there should be some alteration of the bearings or supports on which the boiler rests before she receives a certificate as a passenger vessel. The vessel, it seems, has a circular boiler, which when filled with water would probably weigh from 20 to 25 tons. Running fore and aft under the centre of this boiler is a vertical plate bearer, which extends only a short distance beyond the boiler at each end, and rests directly on the floor plates, the vessel having no centre keelson. In addition to this there is under the boiler on each side a stool resting simply upon three of the ship's frames. The assessors think that it is very undesirable to have so heavy a weight as this boiler concentrated upon so few frames in the middle of the ship, and they are of opinion that the weight should be more distributed. With this view they recommend that the centre vertical plate bearer should be carried as far forward as the main engine will allow, and aft as far as the bulkhead, so as to obtain the support of a greater number of the floor plates. Still further to support the boiler, and at the same time to give additional strength to the bottom, they recommend that there should be a vertical plate under the boiler at each side forming a kind of sister or bilge keelsons. These vertical plates should pass along the face of the stools and be attached to the skin of the ship by intercostal angle irons, and there should also be a continuous angle iron running fore and aft along the top of the floor plates rivetted to the keelson plates and the reverse bars, all the angle irons being of the same size as the main frames. The vertical plates and angle bars which should go from bulkhead to bulkhead should be connected with the bulkheads by knee plates, all the plates and angle irons being quarter of an inch thick. The assessors are of opinion that if these alterations were carried out (and they think that the whole of this work could be done at a comparatively small expense), not only would it tend to distribute the weight of the engine and boiler over a larger space, but it would go far to remedy an omission in the original construction, to which Mr. Wimshurst has called attention in his report, namely, the want of main and bilge or sister keelsons, but from which the vessel does not appear to have hitherto suffered.

One thing yet remains to be noticed, namely, the vertical bracket plates under the paddle beams, which are intended to stiffen the ship's side, and which take the thrust of the diagonal stays. The assessors observed that some of these were to a certain extent decayed, and they think therefore that they should be renewed.

Our order then is,-

(1.) That all the vessel's plates, which have been reduced to 2/16ths of an inch, should be renewed;

(2.) That the patches along the garboard strake should be removed, and a narrow garboard strake put on and securly rivetted to the keel and garboard strake, similar to that which we now find on the fore part of the vessel;

(3.) That the corroded frames, where either flange is gone, should be either doubled or replaced, and all floor plates overhauled and where necessary made good;

(4.) That the centre vertical plate bearer under the boiler should be prolonged, as far as it can be, between the engine and boiler bulkheads, and bilge or sister keelsons introduced under the sides of the boiler, and carried from bulkhead to bulkhead, and be attached to the skin of the ship by intercostal angle irons, and with a continuous angle iron running fore and aft along the top of the floor plates, and rivetted to the keelson plates and reverse bars, thus distributing the weight of the engine and boiler over a greater number of the floor plates, and at the same time giving additional strength to the bottom; and

(5.) That the vertical bracket plates in the wake of the paddle boxes and under the paddle beams which are found decayed should be renewed.

On these repairs and alterations being effected we think that the vessel may properly receive a No. 5 certificate.

Before concluding these observations it will be proper that I should notice an objection raised by Mr. Spens, and which, if well founded, would, it appears to me, lead to very serious consequences. Mr. Spens contended that under the 309th section of the Merchant Shipping Act, 1854, any Board of Trade surveyor whom the owner might think proper to select would be at liberty, after surveying the vessel, to give a declaration, even though expressly prohibited from so doing by his superior officers; and that upon the production of that declaration the Board of Trade would be bound under the 312th section of the Act to give the vessel a passenger certificate. Thus in the present case Mr. Keith, the owner, might have selected Mr. Fielden to survey the vessel, and Mr. Fielden might then (nay, if satisfied of her fitness it was said that he would be bound to) give the required declaration, notwithstanding any orders to the contrary which he might have received from Mr. Wimshurst or Captain Pryce; and that, upon the production of Mr. Fielden's declaration, the Board of Trade would be bound to give the vessel a certificate. Let us see how this is.

It is true that the 309th section of the Act of 1854 says that "the owner of every passenger steamer shall cause the " same to be surveyed . . . by one of the . . . . " surveyors so appointed as aforesaid," but I fail to see that this gives the owner power to select the surveyor; and as a fact I find that the form of application for the survey of the "Balmoral," which was signed by Mr. Keith in this case, is addressed not to any particular surveyor, but to the Superintendent of the Mercantile Marine Office at this place. Again, I see that the 307th section of the same Act provides that "the said surveyors shall execute their duties " under the direction of the Board of Trade, and such " Board shall make regulations as to the manner in which " the surveys shall be made," &c.; and I certainly should be very much surprised to hear that amongst the regulations so issued by the Board of Trade was one authorising an inferior officer to disregard the directions of his superior officer; I should be rather disposed to think that there was a regulation that the inferior should obey the orders of his superior officer. I confess also that I should have great difficulty in believing, after the course which these proceedings have taken, and after the sanction which appears to have been given to them by the Board of Trade authorities, that the orders given by Mr. Wimshurt and Captain Pryce to Mr. Fielden not to grant a declaration, were issued by those gentlemen on their own authority, and without the knowledge or sanction of the Board of Trade; in default of evidence to the contrary I should be disposed to think that they had been sanctioned by the Board of Trade either before or since; if so, the words of the 307th section, that " the said surveyors shall execute their duties under the " directions of the Board of Trade," would apply to this case, and Mr. Fielden would have no right to set Mr. Wimshurst and Captain Pryce at defiance.

But let us suppose for one moment that Mr. Fielden had, in defiance of the authority of his superior officers, given the required declaration, I do not see how the owner's case would be advanced, for the 312th section of the Act says that "upon the receipt of such declarations " the Board of Trade shall, if satisfied that the provisions of " the fourth part of the Act have been complied with, cause " a certificate in duplicate to be prepared and issued." If then the Board of Trade had received a declaration from Mr. Fielden that in his opinion the "Balmoral" was fit to have a passenger certificate, and another from Mr. Wimshurst and Captain Pryce that in their opinion she was not, could it be said that the Board of Trade would be "satis- " fied that the provisions of the fourth part of the Act " had been complied with?" And if they were not, it is clear that they would not only not be bound, but that they would not be entitled to grant her a certificate. I think that it is clear that there is a certain discretion left to the Board of Trade, and that they are not bound to issue a certificate upon a declaration made by an inferior officer in defiance of the orders of his superiors.

I should add that in the present case there never was, as it appears to me, a time when even, according to Mr. Fielden's own evidence, he was in a position to have given the required declaration, for he tells us that the "Balmoral" required certain repairs to be done to her before she would be entitled, in his opinion, to have a passenger certificate granted to her, and those repairs had not been done when he surveyed her on the 7th and 10th of March last, nor indeed have they yet been done.

In connection also with this part of the subject it may be well to call attention to what would seem to be an omission in the preamble to the 14th section of the Act of 1876. The words of the section are as follow: "And the " Board, under section three hundred and twelve of the " same Act, issue a certificate upon such declaration." It is obvious that there is an omission before the word "issue," and I think that there can be little doubt, on reference to the 312th section of the Merchant Shipping Act, 1854, that the words omitted are "shall, if satisfied " that the provisions of the fourth part of the Act have " been complied with." The question does not affect the present case, but I can conceive cases in which the omission might be very important, and I have, therefore, thought it right to call attention to it, in order that it may be remedied, should an opportunity occur for so doing.

Before parting with Mr. Fielden I think it right to call attention to a portion of his evidence, which I must say struck us with the greatest surprise. In answer to questions put to him by the Court, Mr. Fielden stated that he had surveyed vessels in a much worse condition than the " Balmoral." He was then asked: "You mean river " steamers?-A. Yes; I am sorry you have put the question " to me, because the ship does not belong to English " owners now. No doubt it will come before the Board " of Trade, and I do not wish to anticipate. Q. Is this a " vessel to which you gave a certificate?-A. Yes; but at " the time I examined her she was not worse than the " 'Balmoral' is now, but I anticipated she would soon be, " and I told the owner that the next time she would be " surveyed considerable alterations would have to be made " on her. Q. For how long a time did you give her a " certificate?-A. I gave her a certificate for six months. " Q. And before the expiry of the six months she had " got into such a bad state.?-A. No; you misunderstand " me. I gave her a certificate for six months, intimating " that when the docking period arrived again in 12 months " time very considerable repairs would have to be effected " in the vessel. The six months certainly expired. It " fell within the owner's province to ask for a renewal of " that certificate. When he did so, I pointed out to him " the defects in the hull of the vessel and in the boilers. The " vessel was really on her last legs. Beyond that I really " could not go and did not go. The second six months have " expired, and now the vessel has been sold to foreign " owners. Q. She belonged to an English firm formerly? " -A. Yes. Q. Then at the expiry of the six months had " this vessel the same kind of patches put on as the 'Bal- " moral' had?-A. No. She has had few patches on her " and is not patched as the 'Balmoral' is. Q. Well what " was it that you complain of in her condition?-A. It is " the general thinness of the plates. In some places it is " worse than in others, and there are some streaks of " plating that must be taken out. Q. And the frames " too?-A. No, the frames are not in very bad order. " Q. Are they in as bad order as the 'Balmoral's'?-A. I " expect they are, but they were not when I gave the certificate. " Q. Then you consider the 'Balmoral's' frames are worse " than those of the vessel to which you gave the certificate? " -A. Yes, I think so; but notwithstanding, I think this " vessel is fitted for trading in the river. Q. And is the other " vessel fitted for her trade?-A. No. Q. Not to be a " river steamer?-A. Not without considerable repairs. " Q. Have you had any other vessel equally bad to which " you have given a certificate?-A. I have given certi- " ficates to vessels not dangerous, but of a threatening " character, I would rather say that. Q. You see this " is a very important matter. There are great numbers of " people who go as passengers in these boats, and they are " all interested in their safety?-A. Yes, and I hold myself " responsible for the certificates I give. Q. Do you think " it quite right to grant certificates to vessels of a possibly " threatening character?-A. Yes, until I am satisfied " that the vessel is dangerous, or threatening to be so in " a short time. Q. You think you would be justified in " giving a certificate to a vessel having defects of a pos- " sibly threatening character, and that you cannot refuse a " certificate unless you felt perfectly sure that she was in a " dangerous condition?-A. No, I could not refuse a " certificate unless I felt sure that the ship was dangerous. " Of course if a ship was not dangerous she was safe, and " therefore entitled to a certificate.

Such is the extraordinary evidence which this gentleman has given. In another part of 'his evidence Mr. Fielden stated that he must draw the line somewhere. No doubt he should, and I think he would act wisely if in future he drew the line before getting to vessels having a "possibly threatening aspect." I cannot think that he is justified in giving a declaration of seaworthiness to a vessel with a "possibly threatening aspect." It appears to me that, when the lives of 616 persons are in question it is his duty to leave a proper margin of safety, and not to wait until he finds that she is in a positively dangerous condition.

It only remains for me to say what ought to be done in regard to the costs. The 10th section of the Merchant Shipping Act, 1876, gives very full instructions on the subject of costs, but this is only in the case of the detention of a vessel by the Board of Trade, and has no reference to proceedings under the 14th section of the Act. All that is said as to the costs in proceedings under the 14th section is that, "subject to any order made by the judge of " the Court of Survey, the costs of and incidental to an " appeal under this section shall follow the event." Whether this does or does not give the Court full control over the costs we are in the present case relieved from any difficulty on that point, the parties having agreed that the question of costs should be decided by the Court. This being so what the Court has to do is to follow, as far as it can, the course which the Legislature has pointed out as that proper to be adopted in these cases, namely, that the costs "shall follow the event."

Now if our decision is correct, and for this purpose I must hold that it is so, it is clear that when the owner entered his appeal the vessel was far from being in a condition to justify her having a passenger certificate; even Mr. Fielden was not prepared to give her one, and in the opinion of the assessors she will require to have very considerable repairs done to her before she could be allowed to ply as a passenger steamer. On the other hand, we are far from approving the conduct of the Board of Trade. According to Mr. Wimshurst and the other surveyors of the Board of Trade she was not worth repairing, and the repairs necessary to bring her to a satisfactory condition would in their opinion be "quite outside all reasonable limits." I am not saying that it was the duty of the Board of Trade surveyors to tell Mr. Keith what repairs were necessary to be done in order to entitle her to a certificate, but they had equally no right to say, as they seem to have done, that no repairs short of building her up again from the keel would put her into a proper condition to receive a passenger certificate. In our opinion both parties are to blame; the owner for demanding a passenger certificate, when it is clear that he was not entitled to one; and the Board of Trade surveyors for saying that under no circumstances would they feel justified in giving her one. And under these circumstances it appears to us that the proper course will be to leave each party to pay his own costs. There will therefore be no order as to costs.

 

(Signed)

H. C. ROTHERY, Wreck Commissioner.

We concur.

 

(Signed)

JOHN R. RAVENHILL,

Assessors.

 

"

ROBT. DUNCAN,

 

L 673. 150.-5/79. Wt. 1603. E. & S.