THE PENGUIN CASE.

Dominion, Volume 2, Issue 502, 8 May 1909, Page 7

THE PENGUIN CASE.

WHAT CAUSED THE MISHAP. "HOT A MERE ERROR IN JUDGMENT." DISMISSAL ,OF THE APPEAL. ■. Judgment with rcspect to the appeal - brought by,: Captain Naylor against the suspension of his cortifioato. for twelve months in ■ connection with tho wreck- of the s.s. : Penguin was delivered by Mr. Justice Cooper .(with ,'whom Captains Gray and Lnko sat as assessors) yesterday. . , i Whoro tho Vessel struck. Tho questions-for decision, remarked his Honour, depended entirely.; upon technical . . matters concerning navigation, • He desired to say that ho had fully ■ availed, himself of the assistance given to him by tho assessors, ■ It was upon the answors that they had given him upon the various questions .involved that -:,tho judgment .was based. > At. tno.aamo .time; ho wished to state that ho expressed his full .: concurrence in tho conclusions tho assessors had at 'after fully examining ■ and . considering their reasons. Tho assessors had : advised him that,-in' their opinion (a view in •V. which; ho incurred)!: tho vessel . struck Tom's Rockj- or.somo rooks in tho immediate vicinity of what was marked on tho chart as . Tom's Rock. 1 The reasons for coming to that conclusion were — , (1) Captain Naylor's own evidence given beforo.the Nautical sCourt,rin which lie stated that it was his opinion that the vessel struck Tom's Rock, and, gavo his. reasons for that opinion 5 (2) The. evidence- of Farrell, - A.8.; ,as to seeing tho loom of tho land 'Within a; very ■ short 'timo after .tho .vessel, struck. . . .>.:(3) >Tho place where the rafts, tho boats, and the bodies drifted-ttshoro, and the'time, r from' threo hours to .three hours and a half, occupied nvthe drift -of .the'rafts and tho boats. Those place* and • time Were consistent,, in their opinion, only with tho casualty having.happened in tho vicinity of Tom's •.-■wThe. assessors advised him-that it was their opiiuoh -that the suggestion now made that tho Penguin might havo struck some sunken •; wreckage was inconsistent with tho' circum- .: stances-of.tho case, and particularly tho sug- ; gestion - mado that tho casualty. happened -'.'-some, threo miles.to seaward of.Tom's Rock.: It was ■unnecessary to go into further detail upon-that branch of the case. Ho was also advised by tho; assessors: that although no doubt a.strong tido was running on the in. question tho.evidence did not ; that 'it was an exceptionally abnormal • tido. Their opinion waa that, viewing the evidence as. a.'whole, -.it would; not' bo stronger than a four-knot tide on tho course which Captain , Naylor:stated he set from Tory Channel.; It . was also their opinion that it waß .not possible: under tho. circumstances for tho Ken- 1 ... ncdy to have met the Penguin at tho position stated by Captain Vickorman. "How Did Sho Cot Thcro?" , Having arrived at the conclusion that tho : • Pongum;struck Tom's Rock, ■ tho next question was: ,-How did -sho get thero? Tho course, that Captain; Naylor •; sot was a perfectly. safo course,' allowing for-a two-knot '..current only. Assuming that: only i; such a , currents was running, and that the course as set ijvas steered,;:and 'that; his;speed,was as stated,- she ;would have beon at 10 p.m. as -. ~farvdistant from Tom's Ilock or any, coastal danger as to have been well withui :tho mari, gin.of safety.;.- . Ifj however, a four-knot tido was,running,,sho . would, ;in their , opinion; havo mado suoh i leeway • as-, to havo- been clearly withm tho \margin "of daugor. s If, bb was ; probably,tho case, a' four-knot tide was running,- and she was steored,as it was stated she was on the;course, set by.Captain Naylor, , she was, intheir opinion, at tho ( timejnG turned, herhead,to sea,.and immediately before Bhe'struck, m closo proximity to ■ Tom's: Rock;; The manner.in which t-W Pengum.got- into:tho proximity ,of Tom's Rock •was ithus explained.. - The further and .most : ■ import ;mt,- question :casnalty ; was owing, ..to -iise-thel .itermsi of the,, statute,'; to tho, wrongful; act or default of Captain Naylon His'compass courso was S. E. by E.' from.hjs ;point ,of departure at Tory Channel until 9.40 p.m., when he altered his course to ■ E._, by S., Ho cleared Tory Channel at ton minutes to B,p.'m;,:and : set the. patent log at ■, 8 p.m. . It .was.: a dirty night, .with frequent Tain, squalls, and there was a.strong wind in ■■ the ..-/strait,-, although, not: a gale, blowing :: Bouth-east■ by -south. . The log .was examined ... at ,9 p.m., and showed a distanco, run of 12 knoteii Allowing ,for .tido 'and ' other -in- ; Alienees, .the; actual distance run wiis.. Captain;Naylor,stated,;.about ton milos; . At 9.30 ; p.m.-. tho leg was again osamincd. It was found that-some injury had happened to the ..indicator,- and it showed-60'knots. -He had ■then-run n distance, of■■ about 15 .'miles from . tho-timo he-first .set tho log. -Captain Nay- . lor said that-tho man-who examined tho lo» at 9:' p.m;shad; evidently loosened 'tho hand, and the log-had, therefore, become and continued useless.-. This was discovered at 9.30 >he met tho Kennedy.: He was ; slightly'in- ; .shore.of the Kennedy, and in order to givo the Kennedy ample room ho deflected his ": ; -.<»iwse/f^hißr./^ahoro'ijntil;r:yw'..'':<)f: ; / : ffiß : vessel, .resuming his course after :the ■ vessel had passed, y. He continued to.go at full speed : on the S.-E.-by E. coiirso until 9,40 p.m.'. ... wben.he,altered his courso to E/'by S j and -. ho : continued full speed 7 on that oourse for twenty minutes; 'il ' V :W . "In Fault iti Two Rospoots." am i advised,", continued his -Honour, that .Captain Naylor was in fault in two respects;,.. First; when ho found that his v'P.atent log was ...and , must , ha\o knoivn : that., ho - had . probably ; tun a distance .of . fifteen miles from Tory Channel :y. andv,was ithen ;,iwithin 'four .miles of coastal • danger, it. -was, his duty to have been ox- ': l'n .'.this'duty. The'mghtj waa', so :'dirty;! and tho weather so '' I- 1 j •' he," admjts';he\ i could 'not'. 'see -the land, but, yet ho continued his course at tho ■ same, speed, knowing '-that his log was use- : ;no"doubt; in the lull belief t-hat ho was on a perfectly safe ,! .oours6.'j; r , But at this time that he passed which was coming out from .Wellington, .and 'Captain Naylor must, havo ■- tho- course she wa3 steering, iho-tact that tho Penguin-was inshore of • . tho iionncdy ought, in.tno assessors' opinion; been an indication to Captain Naylor j . ; tnat tho; Penguin was';,much . nearer the viand ~, .than ; sho should havo ' been. At 9.40 p m : he altered his courso ;to E. by S., wiich in , the .position in ,whioh,'he really was had the ■ f . j—. : bringing him in still nearer to the :•: and, at : 9.45 p.m. ho must havo' been in -; doubt as .to' : his ; ;.truo' ; positioh, for .ho. then ' gavo,tho order to tho engineer, 'Stand by.' H e ,. noverthole«,-continued full .speed ahead after.; this^on-his E. by S. courao .for .fifteen minutes, and. it was i,n turning. to ; seaward two mmntes after :-10- p.m. .that'- the vessel ;. BtrucK... .Iho assessors, ndviso mo'.th,at nndei these circumstances they ngrco with tho Court below that Captain Naylor ;was guilty n<\t of - error in .iudi'ino.nt., but of conduct amounting to a wrongful default in not put, ting to sea,and thus running upon a safe courso sometime before 10 o'clock. Jtle should ; certainly not later than 9.45 .'B,tho opinion, of.tho assessors shat Jus lailuro to do this was tho causo of the ; . casualty, .and . i I . agreo -with ; and adopt the assessors opinion. I-agree, and tha assessors concur, that Captain Naylor's conduct-aftei the casualty was entirely freo from blame. Iho, assessors, desire mo'to-say, that, in tlieii opirlion, no grounds have boon shown whicl--Indicato..that the :llarino Department has ,' toon guilty, of any breaoh of duty in rofor«nco to tho information given as to tho state and condition of the tides in Cook Strait, lhe 'New Zealand Pilot' gives, j n their opinion, al nccessary information on thi= subjcct. appeal will therefore bo dis ■; but. it is, not proposed jo' make anj . order as to costs. ■ , ■ • - , J Furthar Comment on tho Case, His Honour, then, mentioned that undei tho Shipping and Seamen's-Act it -was cohi potent for. Captain Naylor to. apply for thi . shortening of .tho t<)rm of tho suspension ol his certificate, or for a. motors certificate ii tho intorim. .■- - ■ • ■ 1 . Mr. Herdman: Can tho Court mako any re eommondation on the subject?' • His Honour:,lf application were mado t<

the Government the matter would bo referred to tho assessors. "Wo regrot having had to como to tho conclusions -mentioned in tho . judgment," continued his Honour, ."but the 'evidence compoiled such a finding. Especially do we regret it' because Captain Naylor bears an exceptionally good character, and has proved himself both as master and officer, in tho various ships upon which he has served, both skilful and careful. Moro than that wo cannot say." t - Mr. Hordman: At Homo it is tlio practice, I understand, for tho Court to mako a recommendation. . , i v His Honour: On behalf of tho assessors I think'l may say that if the matter is referred to >them by the Government' they will give it thoir most caroful and earnest consideration. Subsequently his Honour added:—"l havo to thank' Mr. Myers and Mr. Herdman for tho caro and ability which they have shown; having, regard both to tho; magnitude, of the loss of life and tho consequenccs' to Captain Naylor. On < behalf': of Captain Naylor, Mr. Hordman has put tho case from ovory point of view in which it could bo put. In'accordance tlie Slfttuto I' shall forward tho requisite report to tho Minister.