THE LOST DUCO.

Dominion, Volume 3, Issue 815, 12 May 1910, Page 2

THE LOST DUCO.

. INSURANCE CLAIMS. THE FIKST CASE OF A SERIES. The hearing of a case arising out of tho loss of the- steamer Duco was commenced in the Supreme Court yesterday morning, by Mr. Justice Chapman and a special jury of twelve. The Wellington Harbour Ferries, Ltd., claimed from the Corporation of the Royal Exchange Assuranco the sum of .£SOO insurance money, in addition to interest and legal expenses. Mr. C. P. Skerrett, K.C., and Mr. F. 6. Dalziell appeared for the. plaintiffs, whilo the defendants were represented by Mr. J. H. Hosldng, K.C. (Dunedin), Mr. A. A. §. Monteath, and Mr. W. H. D. Bell. . \ : ■ The following are tho names of tne special jury:— J. G. Dalrymplo (foreman), C. H. Dickerson, W. E." Hughes, E. Sulmond, E. D. Cachemaille, C. A. lnnes, H. Littlejohn, E. Larcomb, W. F. Healy, J. W. Callaghan, J. Leonard, and W. H. Coy. . The Claim. Plaintiffs set forth in their statement of claim thai they were tho owners of the ship Duco at the time of its loss; that on July 27, 191)9, at Wellington, tho defendants, in consideration of J!25 paid executed a-policy of insurance upon the said ship, whereby the defendants promlse I 'l to , pny to tho Plaintiffs, three months after the adjustment .of loss, all loss and damage accruing to tho plaintiffs by reason of the destruction or injury ol the said ship while trading from Wellington or other safe ports in New Zealand to the Chatham Islands and back, during the period from July 27, 1909, at noon, to July 27, 1910, nt noon,-whether by tlie perils Of the .sea or other, causes therein mentioned, not exceeding .£500; that the said ship, while on a voyage from Wellington lo the Chatham Islands, was, on pr about September 7, 1909, totally lost "ytto.P.erils of the sea, and that the plaintiffs loss thereby was £MO. The statement further alleged that plaintiffs had'duly performed, all the conditions of tho policy on their part, and had demanded payment of the ~£5(10, but the detemknts had repudiated all liability. I'laintiiis therefore claimed the sum of £oW, plus interest at 8 per cent, per annum.from .September 7, 1909, to the date of judgment, costs of the action, and such further or other relief as to the ( Court might seem fit. Statement of Defence. Tho statement of defence admitted all the allegations in.the statement of claim, except (a) that it appears by tho statement oi claim that the insurance thereby ft d ,™s against total loss only; and (b) that the plaintiffs did not duly pertorm the conditions of tho said policy as to seaworthiness. It was further submitted in the state-ment-of defence that plaintiffs did notperform the conditions of the said policy as to seaworthiness in that before, and at the time of, the departure of the ship Duco from Wellington on the voyage on which she was lost, and at the time of her loss, sho was not seaworthy, and in particular by reason of the matters following :-(a) Upon the deck of the said ship the plaintiffs loaded a large quantity of bags of coal and also concrete blocks and timber, an additional boat, and ■ a large tank containing water; (b) the coal irnd other things so loaded- on deck were not lashed to prevent shifting, and the effect was to render the ship '■ unstable, and ..therefore unseaworthy, and also to interfere with the steering gear and prevent the escane of sea water through washports, and in these respects also to render the. ship unseaworthy; (c) the ship wns overloaded with a cargo of coal and other material, exceeding her safe capacity, and was thereby rendered so deep in tho water as to be unseaworthy. His Honour.riiled—on the point Meing raised by Mr. Hosking—that it was for the defence to open tho case. Seaworthiness the Main Question. . Mr. Bell, in opening the case, said that tho Duco was insured with several companies for sums totalling JWO, and the present claim was the first of the series to bp heard. Tho principal question for the jury was that of the seaworthiness of the. vessel. In contracts of marine insurance the seaworthiness of the vessel was, under the Marino Insurance Act, a necessary condition, .even if it were not expressed in the contract. The contract in the present case contained the following clause:—"This policy shall be subject to tho same warranty .of seaworthiness as if the vessel were insured separately for each voyage." The jury would not have to find whether the loss of the ehip was duo to unseaworthiness or to any otner cause. Tho question, so far as the present case iras concerned, was whether, the Duco' was or was not. seaworthy' when she' left Wellington on her last voyage. Counsel quoted cases to show that unseaworthiness might be due to improper loading or to the construction of the vessel being unsuitable for the class of voyage in question. The Duco was built for a tug and was altered for the purposes of trading with the Chathams. The result of the alterations was to lessen the stability of the ship. "She might be perfectly seaworthy," said counsel,, "but she was not,a boat they could play tricks with in loading, and our case.'is that they did piny tricks in tho loading." She made one voyage fo tho Chathams' and back safely, but wu.-;: not loaded as on' the next occasion. Slio did not encounter very heavy weather on the first trip and did not behave very well, but was a tolerably safe boat. The extra loading on the second voyage inado her unseaworthy. . Defendants could not impute to the manager, of the - Ferries Company any intention to send the ship to sea in an unseaworthy condition, but tho company employed a .captain, and was responsible for his acts. The captain took the Duco to sea without obtniniw the necessary permit to carry deck cargo, he started before the appointed time, and he left his papers' behind. A Legal Point. Mr. Skerrett raised a point as to the state of the pleadings. Ho submitted that in terms of the statement of defonco it was not open to the defendants to contend that the Duco was not a suitablo vessel for the.voyage, if properly londed. It had,, however, been contended by Mr. Bell that the Duco was such a ship that it. wns not only .necessary to make lier seaworthy in the ordinary sense but also to do everything possible for seaworthiness. -Such argument (Mr. Skerrett submitted) was inadmissible, inasmuch as the statement of defence.limited the consideration of seaworthiness to tho question of loading. Mr. Hosking contended that under the general warranty us to seaworthiness, the' (ship had-to he a suitable ship for the particular voyage, and it had further to be considered whether she was put into such a condition as to make her seaworthy for the voyage. If necessary lie would ask leave to amend the pleadings so as. to meet this double aspect ot the case, j The point was. left to be determined Evidence as to, Loading. Henry, Charles Guthrie, who was hulkkeeper on the Countess of Errol, wh,, the Duco left, and an ex-seaman, slid he had charge of the loading of the coal from tho hulk to the.Duco. There were 00} tons of coal put on board, out ct winch quantity 101 tons wero mil on deck, in bags, and not lashed. Wit ness noticed it tank on the dock aft also some battens fof boxes in bundles on the lii'idgi) deck. . Ho saw the Duc.i go out. Sho was deeply loaded. Ji e .would not have gone to sea in her He was of opinion that she would have "no show" in bad weather. It would have required two men at least to pick up the bags of coal and throw them overboard, if that was rendered ueccssarv by bad weather. Should the Coal be Las Hod? ' ' To Mr. Skerrett: There was about itol tons of coal low down-in the ship, iho coal nn ilneli would bo reasonably secure with lashings from stanchion to stanchion. Coal carried on the decks of vessels was usually lashed. Jamns Meadows, an employee on the same, hulls, examined by Mr. Mentalh, snid that he had placed the coal on this Duco as described by tho previous witness. The 25 tons in the hold, or refrigerating chamber, w«s bagged, which filled tho place right up to the hatch.

It looked as if the company wanted to scud as much as possible.. After the iirst tier of bags had been laid on the deck, he said to the Duco's mate, "Shouldn't thoso bags be lashed?" the reply being, "Yes, they should be." ! When the Duco was going out, jt 6trnck him that sho was a. bit deep in the water. William Sanders, seaman, examined by Mr. Hoskiug, also gave evidence as to the loading of the Duco. Hβ would not have gone outside the Heads in, her. - . Cross-examined by Mr. Skerrott: Hβ would have gone to Day's Bay in her, but the sea was never so rough in the harbour as it was outside. Mr. Skerrett: And these arc the men wlio have- built up our great British mercantile marine! (Laughter.) The Water on Board. Edwin Payne, waterman in the employ ot the Wellington Harbour Board, said 1850 gallons of water were put into the after-peak tank, and 3400 gallons into Uie boilers. Two tanks on deck, namely a 200-gallon tonk forward, and a. 400gallon tank aft, were also filled .with, water. He put the water on the Duco for her previous voyage to the Chathams, and on that occasion he put 2600 gallons into the after-peak tank. Witness had been a seaman, but had not been to sea for the last 25 years. . ' Further examined, witness said he would not have liked to go to sea in rough weather in the Duco, as he last saw her. She was then as deep in the water as he ever saw her. I'red Matthew Brown, manager of the Wellington Steam Cooperage Company, said his company supplied 2J tons of i' battens, to be put on board the Duco on her last voyage. . ; Samuel Thomas. Woods; shipwright, said he was engaged in' constructing a refrigerating chamber on the Duco before her voyajas. to the Chatnanis. Sixteen tons of pumice and other material . were put in, ballast consisting -of. railway iron was takeu out. ■ The Court adjourned until 10 o'clock this nnrmng. '