(No. 2180.)
"ELEPHANT" (S.S.)
The Merchant Shipping Acts, 1854 to 1876.
IN the matter of the formal Investigation held at the Sessions House, Westminster, on the 6th, 7th, 8th, 9th, 10th, 12th, 13th, and 14th days of May 1884, before H. C. ROTHERY, Esquire, Wreck Commissioner, assisted by Captains METHVEN and PARISH and W. B. ROBINSON, Esquire, Chief Constructor, R.N., as Assessors, into the circumstances attending the supposed loss of the steamship "ELEPHANT," of London, with her crew of 12 hands, whilst on a voyage from London to Portsmouth, in February last, with a cargo of machinery.
Report of Court.
The Court, having carefully inquired into the circumstances of the above-mentioned shipping casualty, finds, for the reasons annexed, that when the said vessel left the Millwall Docks on her last voyage she was in a good and seaworthy condition so far as her hull, equipments, and machinery were concerned, but that she was overladen, unstable as laden, her main hatchway uncovered, and the deck so hampered with cargo as to make it impossible for the crew to work the ship properly, and that in all probability she foundered during the gale which she must have encountered on the night of the 20th and 21st of February, after passing Dungeness. The Court is also of opinion that Mr. John Edward Scott, of No. 13, Rood Lane, London, the owner, is responsible for having sent the vessel to sea in such a condition, but for the reasons annexed it does not condemn him in the costs.
Dated this 14th day of May 1884.
(Signed)
H. C. ROTHERY,
Wreck Commissioner.
We concur in the above report.
(Signed)
R. METHVEN,
ALFRED PARISH,
Assessors.
W. B. ROBINSON,
Chief Constructor R.N.,
Retired,
Annex to the Report.
This case was heard at the Sessions House, Westminster, on the 6th, 7th, 8th, 9th, 10th, 12th, 13th, and 14th days of May instant, when Mr. Webster, Q.C., and Mr. Mansel Jones appeared for the Board of Trade, Mr. Charles Russell, Q.C., and Mr. Bucknill for the charterers of the "Elephant," Mr. Lawrence for the Owner, Mr. Crump for the underwriters on the vessel, and Mr. Barnes for the underwriters on the cargo. An affidavit having been put in and read by the Board of Trade, and thirty-nine witnesses produced by them, and two witnesses produced by Mr. Russell having been examined, Mr. Webster handed in a statement of the questions upon which the Board of Trade desired the opinion of the Court: Mr. Lawrence having then recalled the owner, and produced one witness, Mr. Barnes, Mr. Russell, Mr. Crump, and Mr. Lawrence addressed the Court on behalf of their respective parties, and Mr. Webster having replied for the Board of Trade, the Court proceeded to give judgment on the questions upon which its opinion had been asked. The circumstances of the case are as follow:—
The "Elephant" was an iron screw steamship, belonging to the port of London, of 356 tons gross, and 215 tons net register, and was fitted with engines of 45 horse power. She was built at Deptford in the. year 1873, and at the time of her loss was the property of Mr. James Edward Scott, of No, 13, Rood Lane, London, naval architect. She left the Millwall Docks at about 3.20 p.m. of the 14th February last for Portsmouth, with a crew of 12 hands all told, and a cargo of machinery and boilers of the estimated weight of about 426 tons, besides 26 tons of coal in her bunkers. She proceeded down the river in charge of a waterman named William Webb, but the evening being dark and threatening, she. brought up at about 6.30 p.m., 3 miles below Gravesend. There she remained until 4 a.m. the following morning, when she got under way and proceeded down as far as the Chapman, when finding that there was too much wind and sea she put back and anchored about a mile above the Mucking Light. There she was seen the same afternoon at anchor by Captain Reading, the master of the Trinity steam boat "Vestal," and on Sunday, the 17th, a waterman named Gibson boarded her, whilst still at anchor at the same place. Gibson, who had gone down to meet some inward bound steamer, remained on board her for about 5 hours, and on leaving was asked by the master to take on shore a telegram and letter from him to the owner. This he did, and the telegram, which seems to have been sent from the office on Gravesend Pier at 3.48 p.m. of the 17th is in these words:—"Strong south east winds—can't proceed—letter follows this—you can reply through Gibson, waterman, 4 East Terrace, Gravesend." The letter was called for, but was not forthcoming. The next morning, the 18th, the "Elephant" got under way, and ran up as far as Gravesend, and whilst the master went ashore to send off another telegram to the owner, and to get some fresh provisions, she was seen there lying at anchor by Jewiss, the master of the steam ferry boat, which plies between Tilbury and Gravesend. The telegram which the master sent from Gravesend, and which is dated 10.30 a.m. of the 18th, is in these words:—"Come back for stores—will start again immediately—don't think can go far—it is blowing hard now—very high sea about Foreland." She then proceeded down the river, and the next thing we hear of her is from Joseph Mills, a commissioned boatman belonging to the Kingsgate coastguard station, who on going on duty at 12.30 p.m. of that day saw the "Elephant" at anchor near the Long Nose Buoy, about midway between Margate and the North Foreland. I ought here to stafe that a boatman named Edward Parker told us that he had seen the vessel at anchor off Margate, and had shown the master the way to the post office, but he could not fix the date, and we are disposed to think that this must have occurred on the previous voyage, when as we shall presently see, the vessel presented very much the same appearance as on the second occasion. Be this, however, as it may, Mills the coastguardsman told us that he saw her get underway between 1 and 2 p.m. and run to the southward, but about half-past 5 she returned, and anchored again very nearly at the same place. On going on duty the next morning, that would be the 19th, at 6.30 a.m., Mills saw her still at anchor at the same place; but at a quarter to 8 he was called away to another part of the station, and be did not see her again. At about 11 o'clock however the same morning, Thomas Norris, a channel pilot saw her running from the westward towards the Deal Roads, and on being hailed followed her, till she came to anchor about a mile from Deal Pier, when he boarded her, and was asked by the master to take a telegram ashore for him, which he accordingly did. The telegram, which was from the master to the owner, and bears date Walmer Roads, 2 p.m. of the 19th February last, is in these words: " Can't go down channel—obliged to come back " here—if can't stop, must go back Margate—sea very " rough South Foreland." There the vessel remained until the following morning the 20th, when she was seen at about 7 30 a.m. off Old Stairs, some 3 miles beyond Deal, by Arundel Sutton, the captain of the lugger "Violet," and was then running to the westward. She was next seen at about 2.30 p m. the same day near the Varne by William Martin, the master of the lugger "Stag," of Dover; she passed close to him, and he lost sight of her, when she was about half way between the Varne and Dungeness Point. At about 4.30 p.m. John Fuller, master of the pilot boat "Granville," saw her between 2 or 3 miles to the S.E. of Dungeness heading to the westward, but the night soon afterwards coming on, he lost sight of her, and she was no more seen. The nest day at about 1/2 past 4 p.m. Mr. Green, the chief officer of the coastguard at Shoreham, saw some wreckage coming towards the shore, and between that hour and 6 a.m. the following day the 21st, a good deal of wreck was brought ashore, which was subsequently identified as having belonged to the "Elephant." Her jolly boat also came ashore on the 22nd some 2 miles to the east of Shoreham. We have thus traced the vessel from the time of her leaving Millwall Docks on the l4th of February until she was last seen at about 4.30 p.m. of the 20th, within 2 or 3 miles of Dungeness, heading apparently to go round the Point; and on the following day portions of the vessel were picked up on the beach at Shoreham and the neighbourhood; and there can therefore be no doubt that she must have gone down and been lost with all hands, probably somewhere near the Ower's lightship on the night of the 20th or 21st of February; and the object of the present inquiry is to ascertain, if possible, how the casualty occurred.
These being the facts of the case, the first question upon which our opinion has been asked is, "Whether, when the 'Elephant' last left London, she was in good and seaworthy condition as to her hull, equipments, and machinery." She was built, as I have said, at Deptford in the year 1873, by Messrs. William Walker and Company, and being intended to be employed in the carriage of heavy machinery, she was built exceptionally strong, under the special inspection of Liverpool Lloyds, and obtained the highest class in that association. At that time she was only 234 tons gross and 147 tons net; but in 1875 she was lengthened 28 feet by Messrs. Samuda Brothers, and her tonnage was then increased to 307 tons gross and 190 tons net; and Mr. Welch, a naval architect, under whose supervision the alterations were effected, told us that "she was a strong, well built vessel, and was, when she left Messrs. Samuda's hands, well fitted for carrying about machinery or cargoes of coals," and that her stability was good. In the early part of 1883 Mr. Scott bought her for the sum of 3,425l.; and he shortly afterwards put a topgallant forecastle and a raised quarter deck upon her, changed the after part of the vessel into a small hold, and provided the requisite accommodation for the master and officers in the bridge house, at each end of which he placed an iron bulkhead; thus, as he told us, converting her into a well decked ship. The effect of these alterations, which we are told cost about 1,200l., was to increase the tonnage to 356 tons gross and 215 tons net. In December last complaints having been made that her boiler was not in good condition, Mr. Scott had a new boiler put into her, and at the same time, I believe, gave her new hatch covers at an expense of about 535l., making the total amount expended upon her, since she had come into his possession, including the purchase money, 5,150l. She seems to have been well kept up during the whole time that she has been in his hands, and there is no reason to think that she was not, when she left the Millwall Docks on her last voyage, in a thoroughly good and seaworthy condition so far as regards her hull, equipments and machinery, and well fitted for the trade in which she was engaged, namely the carriage of heavy cargoes of machinery. Mr. Scott told us that in February 1883 he was offered 6,000l. for her, but refused it, and that she was at the time of her loss insured for 4,500l. There was also, we are told, a mortgage of 2,500l. upon her.
The second question which we are asked is, "Whether the cargo, which was loaded on board the 'Elephant' on the voyage on which she was lost, was properly placed, stowed, and secured." It appears that Mr. Scott, the owner, having entered into a charter party with Messrs. Maudslay, Sons, and Field for the carriage of about 867 tons of machinery and boilers, from Millwall Docks to Portsmouth for a lump sum of 600l., elected to send it in two trips. Accordingly about 423 tons of the machinery having been put into her, she left Millwall Docks on the 26th January last, and arrived at Portsmouth on the 3rd of February following. Having there discharged her cargo, she returned to the Millwall Docks, and there took in a second portion, weighing about 426 tons, with which she left on the 14th of February, being the voyage on which she was lost. Before, however, we proceed to explain how this cargo was stowed, it may be well to give a brief description of the vessel herself. She was, as I have said, a well decked ship, with a bridge standing some 7 feet above the main deck, and iron bulwarks, rather more than three feet high, extending from the bridge to the topgallant forecastle, and thus forming the well. Her total length was 133.8 feet, her beam 23.3 feet, and the depth of her hold 12 feet; and as the deck erections covered altogether about 66 feet of the deck, the well would be of about the same length. In the after part of the vessel was a small hold, having the hatchway on the raised quarter deck, just abaft the bridge; and forward of the engine room, and commencing some 4 or 5 feet from the front of the bridge, was the main hold, 62 feet in length, with two hatchways, a main and a fore hatchway. The main hatchway, which was 38 feet long by 15 feet wide, was right at the after part of the hold, the after coamings, which were of iron and about 3 feet high, being above and in a line with the iron bulkhead which separated the hold from the engine room. The fore hatchway which was in the fore art of the hold, was only 63 feet by 4 feet, and had coamings of about 10 inches high. Immediately forward of the fore hatchway was a steam winch, then the fore mast, and about 4 or 5 feet forward of that was another small hatchway, leading down to a store room and to the chain locker, and beyond that was the topgallant forecastle.
By the terms of the agreement the charterers, Messrs. Maudslay, were to load, stow, and discharge the cargoes; they accordingly appointed a Mr. Stubbs to be the stevedore; but he appears, as will presently be seen, to have acted throughout under the orders of Mr. Scott, the owner. In the case of the first cargo there were, as we shall presently see, written directions from Mr. Scott as to where the principal articles were to be placed in the ship; but there were no such written instructions in regard to the second cargo, and we had consequently to rely for the most part on the recollection of the witnesses, who were able to give us information on this point. These were Mr. Stubbs, the stevedore, his assistants, Frederick Malthouse, and Mr. Lowrie, the manager of the sheers in Millwall Docks. Of these, however, Frederick Malthouse was the only witness, who seemed to be able to give a clear straightforward account of the way in which the cargo had been stowed; whereas Mr. Stubbs and Mr. Lowrie gave their evidence in so confused and unsatisfactory a way, that it was impossible to place any reliance upon it. There were, however, some points, and those perhaps the most important, upon which they were all agreed. In the first place they were agreed that of the six boilers, which the vessel carried on this voyage, and whose dimensions were 18 feet 6 by 10 feet 7 by 9 feet 6, and which weighed something like 22 tons each, two were stowed forward upon the deck, one before the other abaft the foremast; the after one being over the fore hatchway, and the forward one over the small hatchway leading down to the store room and chain locker; and as it was necessary that they should clear the hatchways, the ends of the boilers were laid on planks raised some 10 inches above the decks by blocks placed under them; and as the smallest diameter of these boilers was between 9 and 10 feet, it follows that their tops must have stood between 10 and 11 feet above the deck, and being placed athwartship they would extend across the deck to within 12 to 15 inches of the bulwarks on either side. Of the other four boilers, one was placed athwartships right in the after part of the main hold, and close against the bulkhead separating it from the engine room; but as there was a box keelson some 10 inches high, running down the centre of the hold, which rendered it impossible to lay it on the skin of the ship, each end was supported by three 3 inch and one 1 inch planks, so as to raise it clear of the keelson; and as there was only a height of 11 feet 2 between the top of the box keelson and the under side of the deck, this brought the top of the boiler to within about 6 to 9 inches of the deck. Forward of this thwartship boiler were placed two other boilers running fore and aft, one in each wing, leaving a space between them about 3 or 4 feet wide, in which was placed a quantity of shafting, and then plates over the whole, so as to make a kind of platform as high as the top of the thwartship boiler, and upon this were laid baulks of timber about 9 inches thick forming a platform and bringing it up to about on a level with the deck; and upon this platform was placed in the after starboard corner of the hatchway the fourth, or as it was called the riding boiler, running fore and aft, and standing about 6 feet above the coamings, and consequently about 9 feet above the deck. Forward of this were stowed other portions of the cargo, according to Malthouse a condenser, two centrifugal pumps, and a number of cases, but according to Stubbs and Lowrie, the remainder of the hatchway was filled in with cases only. But whichever it was, they are agreed in this, that the whole mass, which rose out of the main hatchway, formed a kind of pent house or lean-to, the starboard side of which stood nearly, if not quite, as high as the top of the riding boiler, that is to say about 9 feet above the deck, and sloped down thence to the top of the coamings on the port side, presenting, as seen from either end, an appearance something like the figure in the margin. In addition to this there were on the deck on each side of the main hatchway two large heavy iron shafts with their solid couplings at each end, having a diameter of 3 feet, and therefore occupying the whole space between the bulwarks and the coamings; and above these, and resting on the top of the cargo in the hatchway on the one side, and on the bulwarks on the other, were laid some large pieces of the Uptake, standing some 4 feet above the top of the boiler. In addition to this there was one piece of the uptake between the two forward boilers, two cases on the deck between the coamings of the hatchway and the bridge, as well as cases in the after hatchway on the raised quarter-deck, and a piece of uptake above them. Such is a general description of the way in which this cargo was disposed about the deck; and the question which we have now to consider is, whether it was a proper mode of stowing it.
And first it will be observed that with this mass of cargo extending some 38 or 40 feet forward of the bridge, and with these large pieces of the uptake in the sides, it would be very difficult for the crew to get along the deck to work the ship; accordingly, a temporary gangway was constructed to enable them to get from end to end of the ship. This was made as follows: a plank, 3 inches by 9 inches and 22 feet long, was placed with with one end on the fore part of the bridge, and the other on a portion of the cargo above the main hatchway; a similar plank extended from the fore part of this cargo to the aftermost of the two forward boilers, and a third plank went from the boiler to the top gallant forecastle. And this was the way in which it was expected that the vessel was to be worked, with a narrow plank only 9 inches wide for the crew to get from one end of the vessel to the other, whatever the weather might be, and however the vessel might be rolling or pitching. In our opinion this was quite inadequate. Secondly, there was nothing, so far as we could see, to prevent the cargo from getting adrift in case the vessel rolled or pitched heavily; there were no eye bolts on the deck such as are usual, when heavy weights are carried on deck, and to which they could be properly secured. The only way, apparently, in which the two forward boilers were secured, was by lashing them together with chains, but they had no support at the sides, and nothing to prevent their slipping off the blocks, on which the ends were supported. This, in the opinion of the assessors, was quite insufficient. Lastly, there were the two forward boilers 18 feet 6 long, which were placed athwartship on the vessel's deck, and extending to within a foot to 15 inches of the bulwarks on each side, and rising some 10 or 11 feet above the deck. And if to this we add the sheer (the vessel we are told having a sheer of 3 feet forward), we get a height which would have rendered it quite impossible for any one on the bridge to have seen for a very considerable distance on either bow. Even Webb, the waterman, who took the vessel down so far as Gravesend, and who is the only person, as far as we see, who had a good word to say for her, told us that in going down the river he had a man stationed on one of the forward boilers to keep a look-out ahead. And when it is remembered that she was bound from the Millwall Docks to Portsmouth, and that she would have to pass the whole way through a very crowded channel, the assessors think that the position of these two forward boilers on deck must have seriously interfered with the proper navigation of the vessel. Apart therefore from the weight of the deck load, and from the uncovered state of the hatches, which will form the subject of the next question, the assessors are clearly of opinion that the cargo, that is to say the deck cargo, was not properly "placed, stowed, and secured," inasmuch as it prevented the crew from getting about the deck, obstructed the view from the ridge, and was liable in a seaway to get adrift.
The third question which we are asked is, "Whether the Elephant,' when she sailed on the 14th of February, was seaworthy for the intended voyage, and, if not, in what respect was she unseaworthy?" There is what may fairly be called an entire unanimity of opinion amongst all the witnesses, who saw her at almost every step of her course from her departure to the evening before she foundered, that the vessel was unseaworthy, and unfit to undertake the voyage to Portsmouth. They say that she was overladen, that she was unstable, and that there was nothing to prevent the water getting into the vessel through the main hatchway, which was uncovered. It was objected that this was the evidence of persons wise after the event. It may be well, therefore, to see what evidence there is apart from that of witnesses who judge simply from the appearance which she presented, to shew that the vessel was not seaworthy.
And first, was she overladen? From the plans which have been laid. before us, as. well as from Mr. Welch's deposition, it would seem that when the vessel left Messrs. Samuda's hands, after she had been lengthened, her deep or load draught, with 320 tons of cargo on board and 40 tons of coal in her bunkers, or a total dead weight of 360 tons, was 9 feet forward and 11 feet 6 aft, giving her a mean of 10 feet 3, and that with this she had a freeboard of three feet, which, we are told, is where the load line was then placed. This would make the total depth at side amidships about 13 feet 3, which is very nearly the same as that obtained from the plans produced by Mr. Scott, which shew a moulded depth of 12 feet 9 1/2, and adding 6 1/2 inches for the depth of the keel, we get a total depth at side of about 13 feet 4. Starting then from these data, let us see what would have been her draft and what her freeboard, with the cargo which she had on board, when she left on her last voyage. It is admitted that she had at that time about 426 tons of cargo, besides about 26 tons of bunker coal, making a total of about 452 tons of dead weight; to this, however, would have to be added the weight of the deck erections put on her by Mr. Scott, which were not there when she left Messrs. Samuda's hands, and which we estimate at about 15 tons, making a total of about 467 tons, or about 107 tons more than when she had 320 tons of cargo on board after she had been lengthened by Messrs. Samuda, and when she drew 10 feet 3 mean, and had a freeboard of 3 feet. Now we were told by Mr. Flannery that her displacement at her load draft was, in his opinion, about 6 tons to the inch; but Mr. Robinson has carefully calculated it, and found it to be about 5.2 tons, so that an additional 107 tons would sink her about 20 inches, which added to the 10 feet 3, her mean draft with 360 tons of dead weight, gives her a mean draft in salt water, when she left on her last voyage, of about 11 feet 11 inches, and a freeboard of 1 foot 4 or 5; and as Mr. Scott has told us that he put the load line at 1 foot 6 inches, it would have put the load line about 1 to 2 inches below the surface, and as we are told that she would rise some 3 inches in passing from fresh to salt water, her load line when she left the Millwall Docks would have been between 4 and 5 inches below the surface.
This is the result at which we should have come to from an examination of the plans, and from what I may call the undisputed facts in the case—the admitted weight of the cargo and bunker coal which she had on board. And it is curious how exactly it agrees with the evidence that we have of this vessel's draft and freeboard from the witnesses who saw her. First, then, there is Mr. Ballard, the pass collector at Millwall Docks, whose duty it is to record the depths of water of vessels leaving the docks, and who told us that the depth, which the master gave him on going out, was 13 feet 6; that, no doubt, would be the draft aft, the extreme depth. What was her depth forward, we were not told. The owner, I think, stated that she was about 2 feet by the stern, which would make the draft forward 11 feet 6, and her mean draft 12 feet 6; but say that she drew only 11 feet forward, that would give us a mean draft of 12 feet 3, and as her total depth at side was 13 feet 3 or 4 inches, it would leave her with a freeboard of 12 to 13 inches only, and with the water therefore within about an inch or so of the top of the disc. This, I may observe, agrees almost exactly with the evidence given by Mr. Home, the dock master, who has had a long experience at sea, and has been dock master at Millwall Docks for the last 16 years. He told us that he saw her as she left the docks, that she had then a list to port, and that on the starboard side, which was towards him, the top of the disc was about 2 inches out of the water, giving her therefore on that side a freeboard of about 14 inches. I may add that this evidence was confirmed by a number of witnesses, who saw her at different parts of her voyage; by Mr. Dutton, the Board of Trade officer; Jewiss, the master of the Tilbury ferry boat; Captain Reading, the master of the Trinity House steamer the "Vestal"; Thomas Norris, the pilot who boarded her off Deal Pier; Sutton, the master of the "Violet," who spoke her off Old Stairs; and, in fact, by almost every witness who saw her. There was, however, one gentleman, a Mr. Andrew Gib, manager to Messrs. Rail and Gardner, engineers, who happened to be in Millwall Docks when the vessel was going out, and who told us that on her port side, which was then towards him, the water, as she rolled, rose from the bottom to the centre of the disc, but then he added that she had a list to starboard. There was also Webb, the waterman, who took her down to Gravesend, and who said that, when he left her, the load line was about 2 inches out of the water. And Mr. Lawrence asked us to accept the evidence of Mr. Gib, and of Webb, the waterman, in preference to that of Mr. Home, Mr. Ballard, and all the other witnesses who have spoken to the vessel's freeboard. But this we cannot do; and the only conclusion to which we can come from the evidence before us, is that the vessel on leaving the Millwall Docks had a freeboard of 1 foot 1 to 1 foot 2 inches, which would be increased on her getting into salt water to about 1 foot 3 or 1 foot 4 inches, which, in the opinion of the assessors, would be wholly insufficient, the more so as it was the depth of winter, when she might reasonably expect to meet with stormy weather. It was said, however, that the vessel had on several previous occasions carried as much, if not more, cargo. Although I should not be disposed to regard this as any proof that she was not overladen on the last voyage, for she might equally have been overladen on the previous voyages, it may be well to inquire what voyages they were. We were told that they were the voyages from Ardrossan to Fleetwood with pig iron, from Bruges to London with broken granite, and from London to Havre with cement, and with two boilers on her deck. But when we came to inquire when these voyages were undertaken, we were told that it was in June, July, and August respectively, which would make all the difference. Moreover, in each of those cases the cargo would lie well down in the bottom of the hold, not sticking up, as the two last cargoes were, out of the hatchway, so that the hatches could be closed and battened down. The cases, therefore, are not similar; and the assessors have no hesitation in saying that the vessel was on her last voyage overladen.
Secondly, was she unstable? In the course of this inquiry the Court expressed a wish to be furnished with information as to the metacentric height of this vessel, so that it might have some data to guide it in saying whether or not she had as laden sufficient stability. No such evidence having been produced, Mr. Lawrence contended that its absence proved that the Board of Trade were satisfied that the vessel had sufficient stability, for otherwise, he said, they would have produced the necessary evidence on the point. Mr. Webster, however, would not admit that this was a fair inference; he said that the question whether they should or should not produce any evidence of her stability had engaged their very serious attention, but owing to the fact that they hardly knew even now what was the weight of the deck cargo, and what the exact disposition of the several pieces about the deck, they thought that it would be extremely difficult, if not impossible, to lay before the Court any evidence, that would be satisfactory, as to what was the vessel's metacentric height. At the same time, he said, if the Court was of opinion that it was essential to the decision of this case that such information should be laid before it, they were quite prepared to furnish the best information that could be procured on the subject. I fear, however, that I am somewhat to blame for not having clearly explained what it was that we wanted, and for what purpose it was wanted, and I will therefore endeavour to do so now The question of the stability or instability of a vessel depends mainly, if not entirely, on the metacentric height, upon the height of the metacentric above the centre of gravity. If the metacentric height be large, the vessel will have great stability; if it is small, she will have but-little stability. What then we wanted to know was what the metacentric height of the vessel was when light and without anything in her, and what when laden, say, -with a full homogenous cargo. Had we had these particulars before us, we should have been able, Mr. Robinson informs me, to estimate, with a reasonable approach to accuracy, the effect which the deck load would have had upon her, and whether such a weight, as it might be shown that she had on her deck, would or would not have been likely to have made her unstable. If we had found that the addition of the topgallant forecastle, the raised quarter deck, and the iron bulkheads fore and aft of the bridge, had tended to reduce considerably her stability, and to leave her with only a small metacentric height, we should have had no difficulty in coming to the conclusion that she was a vessel which would not bear a heavy deck load: and on the other hand, if it had been proved to our satisfaction that her metacentric height would still be great, we could fairly have assumed that she would be able to carry a large quantity of deck cargo.
I have said already that we have no evidence of a scientific character as to her stability, none upon which any reliance can be placed. Mr. Welch indeed told us that after she had been lengthened, and when she left Messrs. Samuda's hands, she was a stable vessel; but on the other hand Mr. Flannery, a naval architect, who looked at her at the beginning of last year with a view to purchase, told us that after carefully examining her he came to the conclusion that she was unstable and not fit to make a voyage across the Bay of Biscay, and that he had consequently advised his client not to buy her. Both these gentlemen had however seen her before she was bought by Mr. Scott, and before therefore she had had a top-gallant forecastle and a raised quarter deck put on her, and they admitted that they had not inclined her or made any calculations of her stability, they merely judged from her dimensions. Mr. Scott did indeed give us what he was pleased to call his calculations of the metacentric height of the vessel as laden, but I have the authority of Mr. Robinson for saying that they are literally of no value whatever; there are no ordinates, no sections, no particulars of cargo, and without these we can form no estimate as to how far Mr. Scott's calculations are correct. Captain Wilson also, the principal officer of the Board of Trade in the port of London, told us that he had talked the matter over with his staff, and that they had come to the conclusion that she was stable, but he admitted that he had made no calculations on the point, and that in coming to that conclusion they had assumed that she had had nearly twice as much cargo on deck on the first as she had on the second voyage. Granted however that she had, it would in our opinion be no proof that she was not unstable on both voyages. But what evidence is there that she had twice as much cargo on deck on the first voyage as she had on the second The only proof consisted of the accounts of the Millwall Docks for loading the vessel on these two voyages, from which it appeared that on the first voyage they had charged for 150 tons of deck cargo, whereas on the second voyage they had charged for only 80 tons. On enquiring however by whom the particulars for making these charges had been supplied, we were told that it was Mr. Lowrie, the manager of the Shears; but Mr. Lowrie when he came to be examined could give us very little information as to how he had arrived at these figures. He told us that for the under-deck cargo the practice was to charge an uniform rate of 9d. a ton on the registered tonnage, but in both the accounts they had taken the registered tonnage of the vesseel at 191 tons, whereas in fact it was nearly 216 tons, 191 tons being the registered tonnage of the vessel before the alterations made by Mr. Scott. And then as to the deck cargo, Mr. Lowrie told us that they made the charge sometimes on the dead weight, sometimes on the measurement at the rate of 100 cubic feet to the ton-they charged it, he said, either way, whichever would give them most; but he could not tell us whether in these cases the charges had been made by dead weight or by measurement, and it may very well be that if on the first voyage the charge was made by dead weight and on the second voyage by measurement, 80 tons of measurement, the cargo being machinery and iron goods, would be as much as, if not more than, 150 tons of dead weight.
In further support, however, of the statement that there had been 150 tons weight of cargo on deck on the first voyage, and only 80 tons on the second voyage, a paper was brought in, which had been prepaaed from information furnished by Mr. Stubbs and Mr. Lowrie together, and which purported to ba a "List of pieces of machinery, and weights of ditto, carried on deck of S.S. 'Elephant.'" on each of the two voyages in question. Now. the detail of the articles carried on deck on the first voyage was as follows:—
Tons.
cwts.
qrs.
lbs.
" 1 large boiler
33
10
1
27
" 1
33
10
1
27
" 2 small boilers
44
14
1
16
" 2 shafts
17
6
2
11
" 8 cases
21
2
0
0
—————————————
Making a total of tons 150
3
3
25
—————————————
On the other hand the articles said to have been carried on deck on the second voyage were as follow:—
Tons.
cwts.
qrs.
lbs.
"2 small boilers
41
19
3
18
" 1/2 of 1 small boiler
11
3
2
13
" 8 pieces uptakes
9
7
2
14
" 2 cases
2
15
0
0
"2 shafts
14
12
2
4
—————————————
Making a total of tons 79
18
2
21
"
—————————————
Now on comparing these lists the first thing which struck us was that in the first list they had charged the whole weights of the two large riding boilers in the main hatchway, whereas in the second list they had charged only half the small riding boiler; although it would seem that the riding boilers had on both occasions started from nearly the same place, namely, from about the level of the deck, and if the whole weight of the two large riding boilers had been fairly charged as deck cargo on the first voyage the whole weight of the small riding boiler should have been charged as deck cargo on the second voyage. Again, it seemed strange that 8 cases, weighing more than 21 tons, should have been charged to the first voyage, whilst only two cases, weighing 2 tons 15 cwt., had been charged to the second voyage, for it was clear that two cases would not have been sufficient to have filled up the remainder of the main hatch to the height of 9 feet on the starboard side, and to the top of the coamings on the port side, seeing that the hatch was 38 feet long by 15 wide, and that the boiler would take up only 18 feet 6 inches long by about 10 feet 7 inches wide of that space. Moreover according both to Mr. Stubbs and Mr. Malthouse, there had been two cases on the deck outside the hatchway, and between it and the bridge, as well as cases in the after hatchway. The list appeared to us to have been concocted by Mr. Stubbs and Mr. Lowrie rather with the view of making the figures agree with the accounts than of affording any information for the guidance of the Court. And that this is so is strongly confirmed by another paper which had been given in, and to which Mr. Webster called our special attention. It is described as being a " List of machinery and boilers carried by the 'Elephant' on her last voyage," with a description of each article, its weight, and where placed, and was, we were told, prepared by Mr. Calder, the clerk to Messrs. Maudslay & Co., in consultation with and from information furnished by Messrs. Stubbs and Lowrie. On looking however in the column shewing the places where the several articles had been stowed, we find first three cases, weighing 91 cwt., which are said to have been put in "to fill up part of main hatch;" then there are five cases, weighing 132 cwt., which are also said to have been used "to fill up main hatchway;" and a number of similar articles, making up a total of above 108 tons, and which it is now admitted must have been above the level of the deck. But this is not all. According to Malthouse, there was a condenser, weighing 357 cwt., stowed in the main hatchway immediately forward of the riding boiler, and forward of this were two centrifugal pumps, each weighing 71 cwt., with their gear attached. An attempt was however, made to discredit Malthouse, it was said that he had boasted before Stubbs and his wife, that he was to have from the Board of Trade, 2l. a week, during the continuance of the proceedings, and 100l. at its termination; but it was proved that Malthouse had gone to Mr. Stubbs' house at the invitation of Stubbs himself, who had asked him to come there to talk the matter over with him, as he, Stubbs, had forgotten exactly how the cargo was stowed. It was also proved that Mr. Stubbs had afterwards given Malthouse some employment at Messrs. Maudslay's for a short time, during which he had asked Malthouse to make him a plan of the cargo in the main hatchway, which Malthouse had done, and had handed to Mr. Stubbs, and although that plan or drawing was called for, it was not produced. It appears to us that the confused and contradictory way in which Messrs. Stubbs and Lowrie have given their evidence, and in which they have sought to bolster up the case, renders them quite unworthy of credit; on the other hand Malthouse appears to us to have given his evidence in a very clear straightforward manner, and to be in every way deserving of credit. If then we add to the 108 tons of deck cargo, now admitted to have been above the deck line, the weights of the condenser and of the two centrifugal pumps, we get a total on the vessel's deck on the second voyage not far, if at all, short of what was on it on the first voyage. So that the assumption, on which Captain Wilson proceeded, that she had about twice the amount of cargo on deck on the first voyage as she had on the second, turns out to be without foundation, and we are thus left without any evidence of what may be called a scientific character as to the amount of stability which this vessel had; all that can be said is that she had certainly a very unusual amount of heavy cargo on deck, but whether it was or was not sufficient to make her unstable there was nothing to shew. Under these circumstances I should have been disposed to adjourn this inquiry for the purpose of having the necessary calculations made had it not been that we have in this case an overwhelming mass of evidence from seamen and others who saw her after she was loaded, and whilst on her way to Portsmouth, evidence of a thoroughly reliable character, and to which I shall presently refer, which leaves us in no doubt whatever that she was utterly unstable.
Thirdly, as regards the hatchway, it was at first contended that, notwithstanding the riding boiler and cases projecting from the main hatchway in the way described, there was nothing to prevent the. tarpaulins being put on and battened down, and, indeed, according to Mr. Lowrie, the hatchway was safer and better stowed as it was, than if covered with the ordinary hatches and tarpaulins. There was no one, except Mr. Lowrie, who had the hardihood to make such a statement; and I think that it was generally admitted before the conclusion of the inquiry that there was nothing to prevent the water getting into the hold between the cases, and between them and the boiler, in case any should come on board. There were no pieces of plank to fill up the spaces left between the round of the boiler and the square edges of the coamings and cases, thus forming a temporary hatch, as had been done on the first voyage; and it is admitted that there were no tarpaulins on. Mr. Stubbs told us that it was at the master's own desire that the tarpaulins were not put on before she left the dock; he said that he (Stubbs) wanted to put them on, but that the master was anxious to save the tide, and would not wait to have it done. It is always the poor master, who is said to be to blame in the case of these missing ships, he not being here to defend himself; but if Malthouse is to be believed, and I do not know why he should not be, there was a pipe projecting from the riding boiler over the coamings on the starboard side, which would have rendered it impossible to have battened the tarpaulins down on that side, and there were other articles resting on the coamings on the other sides, which would equally have prevented the tarpaulins being battened down. It was said, however, that they might have been secured to the crank shafts, which were on either side of the hatchway; but although that might have afforded some protection against the rain, it would not have prevented any water, which might come on the deck, from getting under the tarpaulins, and so into the hold. Malthouse also told us that it would have been quite impossible to have put the tarpaulins on either under or over the uptakes, for that the latter would have torn them all to pieces. On the whole the assessors are clearly of opinion that, with the cargo stowed as it was, it would not have been possible to have put on the tarpaulins so as to have prevented the water getting into the hold, and that with her low freeboard and small stability, this was an element of great danger.
And now let us see what the witnesses say of her appearance, witnesses who are for the most part thoroughly well qualified to form a correct judgment, when they see a vessel, whether she is overladen or unstable. And first 1 will begin with those who saw her on her first voyage, when she left the Millwall Docks on the 26th of January and arrived at Portsmouth on the 3rd of February, and I take their evidence, because she seems to have been laden on that voyage very much in the same way as she was on the second voyage, and with about the same amount of deck load, namely, with two boilers forward athwartships, a mass of cargo rising to a height of some 9 feet out of the main hatchway, and two heavy shafts on deck, but without the pieces of uptake. Now Matthew Barrow was the pilot who boarded her and took her into Portsmouth on that occasion, and he told us that on boarding her, he said to the master "You have a rum cargo here," to which he replied "Yes, I have had a nasty time, I had to put back once or twice to a roadstead. I could do nothing with her, she rolled and wallowed in the sea," and he added, "My opinion is that she was not in a fit state to go to sea, because of the impossibility of battening her down—she would broach to and go over."
The next witness is a Mr. Joseph Ford Shaft, a joiner, in Portsmouth Dockyard, who saw her on her arrival at Portsmouth, and who told us that he said to the captain "I should not like to go to sea with you," to which the captain replied: "No—one good roll, and she would have gone;" adding that he had had to put back three times. Sharp asked him why he had come like that? and the captain answered: "They wanted me to do it in twice, and now I think I shall have to go three times." Then there is the evidence of Mr. George Blake, the boatswain of Portsmouth Dockyard, who has been 38 years at sea, and who told us, that in his opinion, "She was not in a fit state to go to sea loaded as she was; that it was an unseamanlike thing to send her to sea in that state; that she had not sufficient strength in her upper works for, and no means of securing such heavy weights on deck, and that she might easily have rolled 50 or 100 tons of water on board." That is the evidence so far as relates to the first voyage.
And now let us see what the witnesses, who saw her on the second voyage, say of her appearance and behaviour. The first witness was Captain Home, the dock master at Millwall Docks. He said that he did not think that she was "safe to go to sea. She had such a large deck cargo and no hatches on;" and that "she did not seem to have any life in her; when checked, she did not recover herself quickly." Then there was Mr. Ballard, the pass collector at the Millwall Docks, who records the drafts of the vessel going out of the docks, and he stated that he "noticed that she was very crank, and that when they checked her at the dock entrance she heeled over and was very sensitive of the check." Then we have Mr. Smith, the dock master's assistant, who said, "She was warped out under my orders; she did not appear to me to be in a seaworthy condition. She looked very deep and top heavy." There was also a lighterman named Thomas Barnett, who was waiting to take his turn, as the "Elephant" moved away from under the shears, and who said, " I should not have liked to have gone to sea in her. I do pot believe she was seaworthy." The next witness was William Miller, foreman of the lower side of Millwall Docks, who had been 19 years at sea, and who said, "She was not seaworthy in my opinion. She was too top heavy, and the main hatchway could not be covered up. I thought she was a very bad case; I should think that off the North Foreland or round Dungeness would try her, if she fell in with a gale of wind." Then there was Mr. Andrew Gib, the manager to Messrs. Rail and Gardner, engineers at Millwall, who saw her as she went out of dock, and who says that, although the load line was out of the water, he "thought that she " had too heavy a deck load and that she was tender." Then there is Charles Twin, the master of the Greenwich ferry boat, who saw her going down the river, and who says "I passed the remark that she was top heavy, "and I should not have liked to go to sea in her." We have then Captain Reading, the commander of the Trinity House steamboat "Vestal," who has had very great experience, having been 18-years in the service of the Trinity House, and who saw her on the afternoon of the 15th, as she lay at anchor above the Mucking Light, and who said " I looked for her load line, but I " could not see it; if she had one, it was below the " water, I could see her deck line; she was too deeply " laden, and had too much on deck." Then there is Thomas William Gibson, the Gravesend waterman, who boarded her on the 17th, as she lay above the Mucking Light, and remained on board her for about five hours, and he says "I told the captain that he had a very " dangerous cargo, as it appeared to me, and he said " that the cargo was hardly safe, as the vessel rolled " so heavily, and there were no hatches on, and that " at the Chapman sprays of water went down the hold, " and he had to leave the Chapman, as she could not " ride there." Gibson also said that he had been 11 years at sea, and that in his opinion "she was not sea- " worthy on account of the weight of cargo she had on " deck, and the way it was stowed; that she appeared " also to be rather deep, and that the captain had told " him that on the turn of the tide at the Chapman the " vessel got into the trough of the sea and began to " roll." He also stated that he could see down into the hold from the break of the bridge, that he couldn't see how they could have fastened down the tarpaulins, and that there was nothing to prevent the sea coming on board, and going down into the hold. The next witness is James Charles Jewiss, the master of the ferry boat running between Tilbury and Gravesend, who seems to have known the vessel well, and saw her at anchor on the morning of the 18th, about 100 to 150 Yards above the Tilbury Pier, when. the master ran up to send off the telegram to the owner and to get some more provisions, and who said, "She was deeper than I ever had seen her before, she looked very deep, and had about 1 foot of freeboard, to my judgment." Then there was Joseph Mills, the commissioned boatman of Kingsgate Coast Guard Station, who saw her at anchor in the afternoon of the 18th and the morning of the 9th off the Long Nose buoy, and who says that she appeared to him to be "very low in the water." Then there is Thomas Norris, the Channel pilot, who boarded her at about 11 a.m. of the 19th, when she was at anchor off Deal Pier, and who says, "I asked the captain what he put back for, and he said, I catched two nasty seas off the South Foreland. I told him that she was too heavily laden, and he said that he knew she was, and that she was top heavy, and too much by the head," He added that "she was deep in the water." Norris also said that the captain told him that he had "got a lot of water in the hold," and he heard him give orders to the men to pump her out, after they had had their dinners, and he tells us that he saw "the water Washing about in the hold." Then there is Arundel Sutton, the master of the lugger "Violet," who saw her off the Old Stairs some 3 miles beyond Deal at about 7.30 a.m. of the 20th, and who told us that she passed within 10 yards of them, that he hailed her, and asked where they were bound to, and they replied to Portsmouth. Sutton told us "that she was very deep, and appeared to have only about 12 inches of freeboard," adding, "that he should not have liked to go round the South Foreland with her." Then there is William Martin, the master of the lugger " Stag," of Dover, who saw her of the "Varne" at about 2.30 p.m. of the 20th, and watched her from that time till about half past 4, when she was about midway between the "Varne" and Dungeness, and according to him "she was making rather bad weather of it, and when she rolled she took seas aboard." There is also the evidence of Mr. Dutton, engineer and shipwright, surveyor to the Board of Trade in the port of London, who saw her off Blackwall Point as she was going down the river, and who told us that in his opinion she was too deeply laden.
And now I must refer to two letters written by the mate to his wife on the Sunday, as she lay above the Mucking Light, and against which the charge cannot be brought ,that they contain the opinion of a man wise after the event; on the contrary, they seem to have been written with a view to allay any anxiety which his wife might feel on his account, and, in our opinion, they do him great credit. The first letter, which is a short one, and seems to have been written on the Sunday morning, and to have been given to the waterman Gibson to post, is in these words:—"We have not got out of the " river yet, for it has been blowing too hard. We left " the dock on Thursday afternoon, and we have been " here since. We cannot venture to sea unless it is " very fine, for our deck is full of cargo half way up the " foremast. I have no idea when we shall get round. " We must watch our chance between the breezes— " I suppose there is nothing else for it." The other, which is a longer letter, and was probably written on the Sunday afternoon, after Gibson had left, and was no doubt posted the next morning at Gravesend, when they landed to send off a telegram and to obtain some fresh provisions, is in these words:—"We are lying at " anchor at this place waiting for a chance to get " round. We left the dock at half-past three on " Thursday afternoon, hut it being very dark and " threatening, we came to anchor close to where we are " now (it is about 3 miles below Gravesend) at half-past " 6 the same night, We laid here until 4 o'clock the " next morning, when we got down the river about " 10 miles, but found there was too much wind and sea, " and ran back to this place as there is more shelter " and came to anchor again, and we have not moved " since. It has been blowing a gale of wind ever since, " and it is a had, wind for us the way we are loaded, " because we are all open. We have no way of " covering the hatches to keep the water out; " but the weather seems a little better to-night, " and perhaps we shall soon get a start. The captain " tells me that the owner was on board on Wednesday " night, and he told him that the 'Camel' was very " near ready, also that he had two cargoes for us, one " to the Mediterranean, and the other to Antwerp " Well, if she goes to Antwerp, all very well, but if " she goes to the other place, I am coming home " because I would not risk my life across the Bay of " Biscay this time of the year; but I was thinking to " write to the owners from Portsmouth and ask them " for the 'Camel,' and if they refuse me, I shall not " lose much by leaving this one, that is if she goes to " the Mediterranean, because I really do not think her " good enough to go across there, that is, deep loaded, " but if she runs to Antwerp, that would just suit one " trip every week." "I have not much to say, only " that, if we do not get away in the morning, the men " is going to Gravesend to get provisions and will " post this, and I shall write whenever I have a chance " of getting it posted. So do not get uneasy about us, " for we have the boats always handy if anything " happens to the ship."
Here then was a vessel, which is in such a condition that she cannot even lie at anchor off the Chapman Light, but is obliged to run up and anchor above the Mucking, in the Lower Hope; there she lies from the 15th to the 18th, when she gets down as far as the Margate Roads, but in attempting to round the North Foreland has to put back again and anchor till the next day, when she again gets under weigh, but off the South Foreland she ships two heavy seas, which oblige her to run back to the Deal Roads. On the following morning she again gets under way and tries to go down channel, and the same night, somewhere between Dungeness and the Owers Lightship, she is lost. What too is the more remarkable is that the force of the wind during all these days and until the night when she was lost, seems not to have exceeded 5, and to have been sometimes as low as 3. Looking at these facts, and at the almost unanimous opinion of those who saw her on the way, many of them thoroughly well qualified to express an opinion on the point, we can have no hesitation in saying that this vessel, overladen and unstable as she was, and with her main hatchway entirely unprotected, was utterly unseaworthy, and unfit for the voyage, on which she was bound.
I will now take the three next questions together; they are,—
"4. Was the loss of the 'Elephant' and her crew occasioned by the way in which the cargo was loaded and secured?
"5. Was the loss of the 'Elephant' and her crew due to the absence of proper and effective hatch coverings?" and
"6. What was the cause of the loss of the 'Elephant' and her crew?" It was contended by Mr. Scott, and he was to a certain extent supported in that view by Mr. Green, the chief officer of coastguard at Shoreham, that the portions of the wreck which came ashore, bear unmistakeable evidence that the loss of the vessel was due to her having come into collision with some other vessel. They say that the wreckage, which came ashore, was found broken up into small pieces, and that amongst it was a portion of the bulkhead of the engineer's cabin; that the chocks of the boat were broken in two; that the that the compass pole was chafed; and that the jolly boat had the wood ends on the starboard side torn away; that all this shews conclusively that the vessel must have collided with some other, and that it is to that probably that her loss is due. But the assessors are as competent to form an opinion on this point, as either Mr. Scott or Mr. Green, and they are clearly of opinion that there is nothing in the wreckage to shew that the loss was due to collision, and nothing inconsistent with her having turned over and gone down. They think that all the damage referred to may have been done as the vessel was going down, either by the bridge deck, under which the engineer's cabin was, being blown up, or by the heavy pieces of iron about the deck, more especially the pieces of the uptake. It seems that on the night of the 20th—21st of February the wind began to freshen at about 8 p.m., and that from midnight it blew a gale; and the assessors think that, when near the Owers, she probably shipped some heavy seas, and that, overladen and unstable as she was, and with her cargo unsecured and her hatchways uncovered, she would in that case almost inevitably fill and go down.
The last question, which we are asked, is "Are the " owners or charterers of the 'Elephant,' or is any " other person, and if so, who, responsible for sending " the 'Elephant' to sea in an unsafe condition on her " last voyage?" It seems that the charter party between the owners and Messieurs Maudslay, Sons, and Field, was to carry about 867 tons of machinery and boilers from the Millwall Docks to Portsmouth, for the sum of 600l., the owner "having the option of making a third " voyage or supplying another vessel to take the " balance, if any," but the cargo was "to be loaded, " stowed, and discharged by the charterers." Mr. Stubbs, the stevedore, was accordingly appointed and paid by Messrs. Maudslay and Co., the object, we are told, being to prevent any of this very valuable machinery, the estimated value of which was, We were told, about 104,000l., being injured either in shipping, stowing, or discharging it. At the same time the question whether the whole of the goods should be sent in two or three trips, and where the various articles were to be placed on board the vessel, was left absolutely to the owner, who would naturally be better able to judge of the vessel's capacity, and of what she could safely carry, than the charterers. And that this was so is proved, not only by the evidence of Mr. Stubbs and of Mr. Scott himself, but also by the letters which passed between the parties on the subject. For we find that Mr. Scott having elected to take the goods in two trips, a statement entitled "Rough Dimensions of 1/2 set of Imperiéuse Engines," is at his request sent to him from Messrs. Maudslay's office; and thereupon he proceeds to note in the margin the place, where each particular article is to be stowed. Having done this Mr. Scott writes a letter to Mr. Calder, a clerk in Messrs. Maudslay and Co.'s office, apparently on the 16th of January last, and which is in these words:—
"138, Kensington Park Road,
" Bayswater, London, W.
"H. Calder, Esq.
"My dear Sir,—I am sorry I did not see you to-day. " I have arranged all the different pieces which are " enumerated on your letter sent me some days ago. to " be shipped by the 'Elephant' on her first trip. Will " you kindly have them all in the Millwall Docks for " her. The list I gave to Grants was only those which " I wanted to put in first, and I thought you might be " able to have them ready by Friday or Saturday. I " trust you will be able to give us some of them, so " that the loading may be commenced.
"I am, yours truly,
" JAMES E. SCOTT."
Mr. Scott having thus arranged the disposition of the articles on board the vessel, his clerk prepares from Mr. Scott's notes a letter of instructions to Mr. Stubbs, which Mr. Scott signs, and which is in these words:—
"13, Rood Lane, London,
" 17 January 1884.
"Mr. F. Stubbs.
"Dear Sir,—The machinery, &c., per S.S. 'Elephant' " is to be stowed as follows:—Two small boilers on deck " before and abaft mast. Athwartships in main hold " two large boilers, close to after bulkhead standing " 16' 4'' fore and aft, and 14' 3'' athwartship, and on the " top of those other two boilers of same dimensions, " the aftermost two of those boilers only to be put in " until the whole of the fore part of the hold is packed " full as under." Then he proceeds to say where other portions of the cargo are to be placed, and concludes as follows:—"All other pieces to be put in after hold, and " chimney on quarter deck."
Accordingly, the first cargo was stowed substantially in accordance with Mr. Scott's directions, two of the boilers being on the deck forward, and other two in the main hatchway projecting some 9 feet above the deck, and the other articles were placed in the holds or about the deck in the manner indicated by him. The vessel performs her voyage to Portsmouth and returns, and then another paper is sent to Mr. Scott from Messrs. Maudslay & Co., entitled "Rough Dimensions of 1/2 set " of Imperieuse Engines, Boilers, Uptakes, &c." On the receipt of this document Mr. Stubbs goes to Mr. Scott's office for directions as to how they are to be stowed, and is told by Mr. Scott that he is to stow them as he had done the previous cargo, except that instead of 2 riding boilers in the main hatchway there is to be only one, and the rest of the hatchway is to be filled up with other goods, but there are to be two boilers on deck forward, two shafts by the side of the main hatchway, and the uptakes above them. Mr. Stubbs told us that he was directed by Messrs. Maudslay to apply to Mr. Scott for instructions as to the manner in which the cargo was to be stowed, and that he followed Mr. Scott's instructions throughout; and Mr. Scott does not deny that he gave him those instructions. But then it was contended by Mr. Lawrence that we had no right to look beyond the charter party, and that as the charterers had undertaken to load, stow, and discharge the cargo, and had appointed and paid Mr. Stubbs, the stevedore, they must be held responsible for any damages that may have been caused by the way in which this cargo had been placed on board this vessel I have, however, yet to learn that two parties to an agreement cannot, by mutual consent, vary or alter it as they may think fit. Now it appears to me that Mr. Scott did, notwithstanding the terms of the charter party, assume the responsibility of saying whether these goods should go in two or three voyages, and in what way they should be stowed on board the vessel as well on the first as on the second voyage. We do not, indeed, presume to determine what may be the legal liabilities between the parties, all that we have to do is to say by whose fault it was that the vessel was so deeply laden, and the various articles placed in the several positions in which they were, and which, in our opinion, directly contributed to the casualty, and we have no hesitation in saying that it was the fault of Mr. Scott, and of Mr. Scott alone. Mr. Scott tried to carry in two trips an amount of cargo which should have been spread over three, and had he carried it in three trips it would all have gone under the hatches, and the hatches might then have been put over and properly battened down. Nor do we think that he would have been any loser for so doing, for the vessel would then probably have been able to perform the voyage in two days, whereas she was 8 days in going from the Millwall Docks to Portsmouth the first time, and had been already 7 days out when she was lost.
No charge has, I am glad to say, been made against the master or any of the unfortunate men who were on board the vessel. It was, indeed, at one part of the inquiry suggested that they ought to have put the tarpaulins over the hatches, but for the reasons which we have already given, we do not think that that would have been possible, at all events so as to prevent the water getting into the hold; and that whether they had been placed under or over the uptakes, those uptakes would have torn them to pieces. I may add that Mr. Robinson, one of the assessors, who was for 13 Years chief constructor in Portsmouth Dockyard, and under whose special supervision these matters would come tells me that of the many vessels which he has seen bringing machinery to the dockyard for Her Majesty's ships he never remembers to have seen any one with the cargo stowed as this is described to have been; he has often seen boilers and machinery carried on the deck, but never projecting as this did out of the hatchways, rendering it impossible to cover over the hatches.
At the conclusion of the judgment Mr. Mansel Jones asked for costs against Mr. Scott, the owner. If, in deed, we could compel Mr. Scott to pay a sum of money to the widows and orphans of the unfortunate men who have lost their lives through his misconduct, we should be only too happy to do so. But to condemn him in a small sum nomine expensarum, and which may be alleged in another Court as a sufficient satisfaction for the offence which he has committed, appears to me to amount almost to a farce. We are told by his solicitor that the underwriters have refused to pay the policies, and that there is some ground for supposing that they will be disputed. If this were done, it appears to me that it would be a much more adequate punishment for the offence of which we have found him to be guilty, than a condemnation in a small sum nomine expensarum. I shall not condemn him in costs.
(Signed)
H. C. ROTHERY,
Wreck Commissioner.
We concur.
(Signed)
R. METHVEN,
ALFRED PARISH,
Assessors.
W. B. ROBINSON,
Chief Constructor R.N.,
Retired.
L 367. 1952. 170.—5/84. Wt. 36. E. & S.
