LOSS OF THE PENGUIN.

Dominion, Volume 2, Issue 500, 6 May 1909, Page 6

LOSS OF THE PENGUIN.

WHAT CAUSED THE MISHAP?' ■ OPPOSING THEORIES EXAMINED. DECISION TO BE GIVEN ON FRIDAY. The hearing of the appeal brought by Captain Naylor against the suspension of his certificate for twelve months consequent on the wreck of tho Penguin, was concluded before Mr. Justice Coopor, and the assessors, Captains Gray and Lake, yesterday. r Mr. Herdman appeared on behalf of Captain Naylor, and Mr. Myers for the Marine Department. Additional Evidence Volunteered. > _His Honour mentioned that he had that afternoon received a telegram from IJlonheim from a, Mr. Curtayne (whose wife, ho believed, was one of the passengers on tho Penguin) that a Mr. Biggs-Miller .could give important evidence as to the weather conditions on the night in question , . One did not ordinarily take notice, ' his Hononr continued, of communications received during the hearing of a caeo. In an important matter of this kind, however, every one naturally wanted to secure as mnch information as possible. ■ .Mr. Myers said that Mr. Biggs-Miller had given evidence at the inquest, but not at the inquiry. As far as could be ascertained there was nothing 'very important in what he could have jsaid. . His Hononr directed that a copy of the evidence tendered by Mr. Riggs-Miller at the inquest should be sent for. ' i ' .. Mr. Myers Addresses' the Court. Addressing the Court, Mr. Myers obthat Mr. Herdman had asserted that the Nautical Court should not have censured Captain Naylor without evidence as to where the Penguin struck, and where she now lay. The onus of showing'where the vessel, struck, was upon. Captain Naylor. Of course Captain Naylor could not be expected to show the position of the vessel now. If it happened that, some day,- the whereabouts of the vessel was discovered, it would only be a chance happening. The suggestioneby Captain Naylor that the Marine Department should, drag Cook Strait was a ludicrous one. By setting up that the Penguin may have •struck submerged wreckage on her course a new case had, in a sense, , been brought on behalf of Captain Naylor. It was at least arguable whether, a new case inconsistent with the case previously made out could be brought. His Honour:, Under certain circumstances no objection could be raised. Mr. Myers (continuing) said that of course he would not object becaose, if Captain Naylor could show * that an injustice had been done him, he should havs every opportunity w do so..

His Honour: I must say that you are acting quite fairly, Mr. Myers. Resuming. Mr. Myers remarked that ■'■ it wa? impossible for anybody, excepting those en board the Penguin, to say where ehe struck. Both at the inquiry and at the inquest. Captain Naylor had asserted tbnt she struck on Tom's Rock, or in that neighbourhood. Then, again, a mass of evidence had been called in support of/Captain Nayldr's theory that the misnap occurred owing to an abnormal current. The new theory that the Penguin eank through coming in contact with submerged wreckage was inconsistent with the whole of the evidence led on Captain NayWs behalf in the Nautical Court. ' > ..

New Theory an After-thought. His (Mr. Myers's) submission was that the now theory was a somersault, and an afterthought. Either there was, or:there was not, an abnormal current in the Strait that night. The latest-suggestion that the Penguin struck wreckaga gave the go-by to tho whole of the evidence tendered on behalf of Captain Naylor at the inquiry. Captain Naylor hai stated in the Court below that, after the i vessel had struck, he knew that ho had hit something, and that it wa3 something; between. Karori Rock and Sinclair- • Further, he had said that he camt to the conclusion at the time that it could not have, been , anything else but Tom's Rock that the v.essel had'struck. Proceeding, Captain Naylor had said that, a few minutes later, he saw- the loom of tho land, and he knew.it wae Tom's Rock-which hi? vessel had struck, and ordered the boats to be got ready, u the vessel struck something three or four miles off Sinclair Head, he would not,'having regard to tho weather, have seen the land. Seaman Farrell also bad stated in evidence that when he came out of his cabin, he saw the loom of tho land. That' statement he had subsequently qualified by. declaring that this was on the occasion .of his second visit on deck. As only, five minutes elapsed between the .visits, it did not make a great deal of difference, for it was further proof that the land that was seen was very close. It was, Mr. Myers'submitted, proved beyond doubt that, whatever happoned to the Penguin, happened on, the other side of Sinclair Head, or-in the neighbourhood of Sinclair Head; Was it not surprising if tho-iyessel struck a submerged ob-ject-ranothor'ship it was suggested—that nothing had come ashoro about that time? His Honour: It is singular that nothing 'except the boats has come ashore from tho Penguin? . : ..'".. .

Mr. Myers: She must have gone straight down. ■•■,.■■;'. - ■ .'. ■'

Mr. Herdman: A lifebuoy has beeii found at Palliser Bay. i '..'•.''.

Continuing, Mr. Myers said the Marine Department aid not'affirm that the Penguin struck Tom's' Rock; ' What it did say was that she struck that, or some other rock, in tho vicinity of Sinclair Head. Assuming that tho Court found that the mishap occurred in that locality; it was immaterial which rock she struck , . ' he wished to refer to the alternative theory advanced on behalf of Captain Naylor, viz;, that his vessel was caught in an. abnormal tide,of from five to seven knots. In that connection, tho attack made against tie official guides was something like tho attack which was made by sorao workmen against their tools. Even.if there was an abnormal tide, it was put' forward that tho mishap was. due to the negligence or an act of default committed or omitted on.the part of Captain Naylor. i . . • . ■ Charges Against Captain Naylor, The first default alleged was failure to take soundings probably after 9.15 p.m., but'most certainly after 9.45 p.m. If (Japta,in Naylor was on" his course when the mishap occurred, .why did he, at! 9.45 p.m., order the engineers to "Stand by" ? That ordor was only given whoa;, the vessel was getting into narrow' places, or when- something was queer. It was next, alleged that Captain, Naylor committed a default by not putting out to.sea when he was not sura, that ho was in a position of safety. It had been contended that, soundings would not have been of very great value. In answer to that, he would say that if Captain Naylor had found that the vessel was within the'fifty fathoms limit as the Department said it was, he had only one thing to do—to put out. Then, again, if two soundings had been taken, the second might have shown that tho vessel was getting into shallover water. - The third default alleged against Captain Naylor was that be relied absolutely on dead reckoning. On such a night) with the knowledge that tho currents wore most) erratic:' (as was ■' stated in evidence) it was not safe to rely solely on dead reckoning. Fourthly, it ■ was alleged fiat Captain Naylor di<> not adopt a prudent course if ho.wcro unablo to take soundings. Even if he had got tho vcsselpjifc of tho way ho was still guilty of a breach of the regulations by continuing at full speed, if indeed ho , did keep her at that rate. Whore a master had plenty of timo to make up his mind beforo ho got to a tight place (and though, going on in defiance of what prudonco should dictate) that was a wrongful act or default. That Captain Naylor must havo known, at.-9.45.0f tho difficulty in which ho was placed was shown by the,fact that ho rang to his engineers to "stand by." It would appear that Captain Naylor disregarded his company's own rules for prudent'navigation, and the ordinary principles which should guido 'mariners. Mr. Myers then discussed at length tho evidence which had been given by Captain VJckerinan. 'Just fancy, ho said, a nautical man not being able to place tho position where ho passed another boat to a few miles. After haying reviewed tho testimony of otier

witnesses he said that upon any theory which had for its base the fact that the vessel hit the land, tho mishap was duo to the absence of precautions which constituted a wrongful act or default. Mr. Herdman In Ronly. Mr. Herdman pointed out that all fcho nautical men who had given evidence iad stated i that Captain Naylor had taken an exceptionally safe course. Something extraordinary had undoubtedly happened to cause tho mishap. Ho did not eay that it was not competent for the Nautical Court .to censuro Captain Naylor without evidence having been given as to tho locality of tho vessel now. Tho theory that the vessel struck wreckage, and tho alternative theory that an abnormal current took her on a rock, were not inconsistent. It was competent for the Court to say that cither one thing or tho other.happened. If an irresistible tide w'as responsible for the mishap, Captain Naylor should be exonerated; if .the vessel struck wreckage (and there was very strong presumption that that was the case) he should also be exonerated. "Whichever theory was the 'correct one the question remained: Was Captain Naylor guilty of a wrongful act or default? Tho velocity of the speed was spoken to by the masters who were called at the inquiry. They had also stated that if thoy had found themselves in the same position thoy would have acted as Captain Naylor had done. It would almost have amounted to madness if Captain Naylor had stopped the Penguin for the purpose of taking soundings. The Court intimated that it would give its decision at 10 o'clock on Friday morning.