THE SURAT INQUIRY.

Evening Star, Issue 3404, 19 January 1874, Page 2

THE SURAT INQUIRY.

Saturday, January 17. Mr. Stoufyciaid there were two aspects under which he wou'd proceed to view thifc case. The first would be what might be termed the legal aspect—the second would be the evidence. First, he had to comment on the position at present of the Court. Of course the inquiry was held under the Enquiry into Wrecks Act, 1869,. it.being the legal court contemplated under the Amended Merchant Shipping Act for inquiry into the loss or abandonment of vessels. He contended that, so far as this inquiry was concerned, their Worships were three Justices of the Peace, and sitting as such he did not know of any power they had except to determine what, in theif opinion, was the cause of the ship’s loss. As to suspension of any of the three certificates banded in, he apprehended that as Justices they had no power. to cancel or suspend certificates, as they had no proof of the appointment of a Nautical Assessor. On the Bench, so far as he knew, were three Justices of the Peoce—rather two R.M.’aand a Justice of the Peace—and as such they had only power to hold an inquiry into the cause of the loss of the vessel. That was indisputable, and he required to saj nothing more; but that it was necessary in raising his points of law to comment somewhat on the evidence. Mr Haggitt: The jurisdiction of the Court is not a matter of evidence, Mr Stout admitted the Court’s jurisdiction; bujfe the appointment of a Nan deal Assessor would have to be proved, either through the Governor or the principal officer of Customs. But even supposing' w Nautical Assessor had been appointed, section 15 of the Enquiry into Wrecks Act, under which the Court sat, was peculiar in this way • Before any certificate could be cancelled or siispended, there must be such loss or abandonment of, or serious damage to ship, or loss of life as to have caused a wrongfulaot or default on the part of a certificated officer. But the case made out by the Customs did not show that the loss of the vessel was caused by any wrongful act or default, which was the gist of the whole thing. There must be some wrongful commission or omission. It could not be contended for one moment that the beaching of the ship at Catlin’s River was a WrbUpful commission or omis-1 Bion, caueiag the loss of the flhiporseribus •

damage or loss,of lifer In fact, the case Cttsfcoma appcared to be Mt ° l>e»chihg the ship, or * pirt'df the officers. nai which wu .Drunkenness to support it they would h»Ve had teS it before a higher Court ; but so far drunkenness on board this ship was cerned, that Court had nothing whatever to , Thafc also fitted of no dis? , And here ho had to deal somewhat with the evidence. There was no wrongful act or default up to the time of the vessel striking. No single Shipmaster or expert was examined to show to the Coiwt’that any®hXnS improper had been done _or.jDpcurr.ed up to the time of the vessel striking. That was not alleged - indeed, three-fourths, if not tne whole of the evidence went to ,show„ the conduct of the captain and* officers 1 after Ilio vesHfel strubk; It was plain tV&t the loss’ t)f the ship was causfed by herstrikingbn a rock or reef. That being so, it bbuld not be shown that up to that tiine there-had been any wrongful act or: default %n thepart mther of the captaid br of ahy of his He, therefore, apprehended that; under ibe 15th section of the Enquiry into Wreolts Act,* their-Worships, oven if a Nautical Assessor had been, appointed, r bad nb pCwbr to deal with the Suspension of any of the three certificates handkcl in. It mighthave been argued by the other side—hkd there been evidence to support the ship might have been saved, even after'the serious damage caused by striking, if she hkd i w fc ;, ov ®-to, aod if she had ran to,pqrt. Well, there bad' Hot' been single naUtichl examined on that subject, and he would ask the Benchto look at ■ the mktter.id this light; The Bench could net that heaV-ing-to was a wrongful act. 1 BosSibly.-’as the captain said 1 even now, he m'ade att brror. But that was not the sort Of thing the Act contemplated. Every man is liable *to ertbt, and no man is infallible. * So far as tHe.saspension of certificates was:, concerned,': the Act contemplated not a.mere error of judgment, but some wrongful act. Even urthe argument he hiad referred to had been set up, he would have had a good reply-to it. For he would ask the Bench to look at the'position of matters in heaving-to. ' The captain strikes unaccountably on a sunken rock. He runs off the land. That cob d not, be.pcii* sidered a wrongful act. , .He .findg tjie ship is making no water.; He gets, ,the pumps ready, and at once hbaves the vessel to, so that in daylight he inay! accurately; determine his position, and calm ~the.pa»'asngerir, who are in a veiy excited condition. Could there be anything wrong in: heaving the : vessel to under such circumstances? He would ask the Bench to consider, what the risk would have been if the vessel Had not been hbve-to. If the captain, after, his vessel had struck, had crowded qp allraai), and got off the land,’the wind might have ; falien away, and the ship might • have gone down with the hundreds on board. The only other thing that : had. crbpped up that looked like .a' wrongful aotor default ’ was the fact of ) ‘the cap- | tain’s not having signalled the steamer. That was not a default contemplated by sec? tion 15 of tbe-Mercbant ShippingAoh—He : asked the Bench to look at the evidence, anil : say whether there was evidence of any dei fault; or evidence accusing the* chptain ,pf ! any thing.except not signalling the. steamer. Although the question was specifically pat tb each witness, not one could give what they considered an improper or absurd order on the pars of the captain. It could not be said that the omission to signal the steamer was the cause of the ship’s loss. It had not. been shown; nor could at be shown, that if the steamer had come alongside two or three hours before the ship was beached that ..'the , vessel would have been saved; - Then onthe face of it there was ho wrongful act or .default, and he might have sat down without saying another word, only that he had 'some comments to make on the statements of those of the crew and passengers who; had. been examined. Bie had first to observe,that had he been addressing a jury he should Vhave asked them to carefully Weigh the evidence, and discard from their'minds the tamers that had been in the air ever since tbw vessel struck. In the Northern Tress he had read Such Sensational telegrams about’ the i’oJtse that had it been beforetheSopretfie Courthe would have been obliged,, us had . been--done in. the Tichbome case,., to have askedethe Court to have prevented the newspapers from making comments until the matter was at an end. .To such experienced magistrates as ■ were on the * Bunch it was unnecessary to say thatth© solp duty of the 1 Court was to consider the evidence, and he ;only made the remarks he did -to show that, bias might be formed against a man simply from th| rumors that were about. He* had,, first ql all to observe the strangei tone pt %hls inquiry, which the Act contemplated should not he in the nature of a prosecution. - The Aot Certainly did not contemplate the fitnesses being precognised by a detective .of police, which was an improper thing to do; What ought to have been acne was simply to have called the captain, officers and drew, and the Court to have selected some of them to give evidence, and to have taken their statements,. instead of which . the witnesses, as one had stated, ,had made statements to the detective under the i repression that he was to do so in pursuance of the summons given him. Another strange thing was that not a single sailor in the mate’s watch, from 12 to 4 a.m. on January 1, wak called. If, as has been said by Mr Booth, the captain was not fit to take care of the vessel, at any rate at four o’clock, there should have been some of the seamen who were at the wheel called to say what took place in the mate’s watch. And how it was that nearly all the sailors had had a quarrel with’ the mate. A charge Was made against the mate and it would have been only fair $0 him; Why: were not the manwho wks at the wheel before fore the stewardrolieved, and jibe man at the wheel between Bicton relieving i* and Morris getting it not called? Clearly, unless the drunkenness charged against the mate, was during his, watch, or whilst, he was in com* ,mand of.the ship, there could 5 be no charge I ll ®* But it had been clearly proved that the captain remained in! charge after the striking, so that, So far as the first and second mates were concerned, it could not be said there had been any wrongful aot or default. He did not think the Crown Prose-, cutor could contend for one moment the | first and second officers had committed ;any wrongful act * i... ; ~ ; .Mr Haggitt: I say it is a wrongful act tor either the captain or mate to get drunk! , Mr Stout: Then, if that is proved, Under sec. 239 of the Mer^an|; i ,Shipppg Aet, they must be tned by a jury. He repealed that so far as the first and scoohd mates were concerned, there had been no wrongful, hot on their part, which caused the loss of the" ship. The next objection he had to raise was that the statement which should have been served upon the captain according to the Act had not been served.* The onlv r statement given to the captain before the inquiry commenced was one served nnon J7 Detective Shuryi and dated SR f ry sit 5 i th + .‘j not ae statement contemplated by the Act, and therefore 9 he contended that before the inquiry bom- - menced there-was no report o?t&S* of the case on which the iakdfe Jfirnis|i!sd -to

document was served, dated the 6th, biit r . .that was too late, as the inquiry had been.commenced by:that time.. .coming to the evidence, there was one peculiar feature M that he wished to draw attention,. r ,t >4nameiy, that if they were to take the tvitnesses’ statements as correct.,in every particular, then ievery witness who was examined was the man .who did the most, and who w.»s the cause of the vsssel’s being beached. The sailmaker thought he did everything that was done j Booth, the sailmaker’s lieutenant, thought the same of himself; Isitt was pt opinion .that without his advice Booth would have been helpless ; and Norman thought he did it all and the sailmaker nothing. He did not intend to accuse the : ''tvithesses of wilfully misstating anything, Brit they might have been prejudiced to 1 a certain extent against the officers and cap- . tain. Up to. the time .the vessel struck, the . captain (did ? what .any captain would have dope.', As.to the .place where the vessel struck, he contended that she could not have struck on Slope Point, as that was impossible, owing to -the distance she had run./ It was equally impossible that she could have ■truclc,pn 'Waipapapa- Point. / The next points were the Brothers and Chasland’s Mistake. ‘The first mate; thought she struck on the Brothers;. but after, consideration, and r judging from tfbat he saw in, the evening. the captain thinks the: vessel struck at .phaslamPs Mistake. No experthadbeen whined"on this'matter except Capt. Leys, and all that he cofild say was that be knew the bottom, off Waijpap&pa and Slope Points was foul, and that; he knew of no rocks or reefs off Chasland’s Mistake or the Brothers. But rocks , pr, reefs,' have to , be discovered some time pr other,- He would ask what evidence there was of where the vessel struck. They could only conjecture. After the vessel struck she was run off the land, and there was no water made. From twelve to four o’clock was left a blank by all the witnesses; ' Nbn'e of the, witnesses had anything to say until the steamer was aightad. Up, ..to that ’ point nothing could be said against the captain or the crew. The cap tain had, made..his statement, and.ho ;(Mr Stout) thought there was never, a witness placed iu the box who made a more straightforward. Btatement than the captain had He'thought the Bench would pay more attention to one who gave such straightforward ' testimony than to those who partly contradicted each ’other. -He would ask, what * m? re Re proofs of the captain’s incapacity ? The proofs of drunkenness given by some of: the witnesseU'Were very singular. One witness thought the captain was drunk because : he had hia bands- in his pockets. A bother thought he was drunk because he gave no orders. ) because Kelly l steered : the wrong way j and another (Isitt), beca,use the captain 1 did not take Kelly from the - wheel j If- this proved anything, it S roved the sailmaker was in fault, because When tenant! Booth), who appeared to beas incapable as hemade the captain to be, said Kelly remained at the wheel, while the sailmakev - was in - charge. After noticing , a nnmber of contradictions by the witnesses, Mr- Stout went on to say And what did W uoptor say ? He made out that every one on board ths ship was drunk except hxmpelf.- : He wquld ask the, Bench■ to look at thp yfhple o| the doctor’s testimony, ft n U eay whether there was anything in show that the captain was not able to do what, hb had to do . on board the ship. The captain admitted that he took liquor, and the first mate made the mission, But he. (Mr Stout), would ask the Bench to remember the sort of replies he got r !* h® - cross-examined' the doctor, and asked him to point out some symptoms of drunkenness displaced by thecaptaiu. The doctor eßbe* declined to, or could not, point out a single order given by the captain which showed that he did not know what he ■was doing. That was the best test of drunkenness.; Ho contended that there was nothing iii ( the symptoms displayed by the which ’was inconsistent with their hiving been the result of excitement, and toe Result 1 of having a, Ist of women, and a men who acted like women, crowding round him', 1 and asking him what to do. Ue would ask if any act had been before the Bench to prove either the captain , ®®- officers were incapable. The coritrkdictioqs m tbe evidence given by the parsed*, gers were so numerous as to show that they must'ill have been m'a very exciti d condition, and that their evidence was unreliable. All the Ben'ch could do was to determiae where the vessel Went l aahnre, aid to answer therenqniries for the Beard of Trade. : There was nothing else for the Court to do, and the captain and his officers must have their certificates returned to them. MrHaggitt would confine himself strictly to the legal points raised. There was no .possible good to be served in proving to the Court that it bad jurisdiction. ..iMriStonb; I never disputed the Court’s jurisdiction,..whjch is ample: Mr remarked that it would hive beep imperf inenceonhispart had he called upon Captain Thomson to produce his appointmentfi A Judge in the Supreme Court night as well be'asked to produce his com- • mission or a Resident Magistrate his warrant of appointment. There was no doubt the Collector of Customs at this port had the power to appoint a nautical assessor, and as little doubt that in this case the Collector had acted upon that power. Captain ThomBon. no doubt before taking his seat on the bench, was satisfied that he bad been so appointed, and convinced their Worships that such was the case. The. second' point raised was, that there had been no ■wrongful act or default, because drunkenness was not either. But he (Mr Baggitt) held that drunkenness on the part of the ship’s officers was an act punishable by that Court. Mr Stout; Not unless it led to the loss of the ship. And I object to my learned friend discussing what is a question of fact.; Mr Haggitt was making: it a question iof Jaw. The 24? nd section:of the • Merchant Shipping Act gave the Board of Trade power tp suspend or cancel certificates for drunkenS am s ng °, ther thin 8®» and Act of 1862 conferred on Courts of Inquiry, sitting hke; tpe present the sapae powers as the fiQayd of hpld. In the question of Competency or inoompeigncy drunkenness formed an important consideration, and had a strong,bpariflgion a case where property of the value of L 50.000 and the lives of nearly 300 people were involved. Besaid it was the duty of thei Court to consider the whole conduct of the : captain and officers of this vessel from the first moment on which this enquiry started -from 12 o’clock on the night of the 3lst-P.ec. Mr Stout objected to the evidence being commented upon. : Mr Haggitt said it was necessary to do so, in order that the Bench might form a correct conclusion as to the question of wrongful act. He asked the Bench to consider the conduct of the captain and his officers from 12 o’clock on the night of December 31, and w|iet|ier in making such enquiry it did not ppjber into a part of the investigation to enquire whether or not there were-charts on hoard. Mr -Stout again objected to the learned counsel dealingxwith of fact under cover of discussing legal points.Mr Haggitt asked whether..the matters of insufficient charts, there being no lead line on board, and soundings not having been taken .were not. proper elements to be considered in such an inquiry in order to the Bench, deciding upon the question of competonpy;or incompetency of the master and officers. Bat there was another question of.

drunkenness entered into it very stronglyand it was whether the vessel mast necessarily have been abandoned, it there had been no drunkenness on board. '

;, Mr Stout again objected to questions of fact ’‘eing discussed, when the argument was i i the,nature of a demurrer to jusisdiction. Mr Haggitb said a wrongful act or default had to be determined upon the whole circumstances of the case. In the exercise of a discretion Which he assumed to himself he declined to comment on the evidence, and he still .thought it unnecessary to do so. He was talking generalities, which he was applymg to the discussion •of the legal question, and asillustratinga.legal argument, andnone knew better than his learned friend he was at perfect liberty to do so. He had only to say this— that the evidence of witness after witness of what happened from the time the vessel was reported on the coast of New Zealand to the time of her wreck and abandonment appeared to be conclusive that the captain and officers were entirely incapable of p«rfprmihg their duties. As to the third point; Mr Haggitt contended that the formal investigation commenced on the 9th January; v documeat , 3 had only been put into the hands of the captain and his officers just before the former commenced to give his evidence it'would, hay© been sufficient. Mr Stout having replied, ~ ■Mr Strode said the Bench would give their decision upon the whole case at four o clock on Tuesday (to-morrow) afternoon.