PENGUIN APPEAL CASE.

Dominion, Volume 2, Issue 498, 4 May 1909, Page 6

PENGUIN APPEAL CASE.

' THE PROCEEDINGS OPENED, Yesterday afternoon the hearing of the Penguin appeal oaso was commenced before Mr. Justice Cooper, who was assisted by two assessors, Captain Lake,, harbourmaster .1 at, Napier and formerly a master of various vessels in the TJ.S.S. Company's service, and Captain Gray, who was at one time master of tho G.S. Hinemoa, as. Terranora, and other Vessels.'.'.;*.■.': : ':■'.■•■-' - : . ■*, . *:■.■*■ ■ ! ..-.•■ *■'■ The. grounds upon whioh the appeal was made were: /'.''■'\ .. ■■ : •'. . (1) That it, was .not proved that the casualty was, duo to, or contributed to, by t!he negb'gence, or wrongful act,' or default of Captain Naylor. , * : ■ . : ■.[■:,.'■: . (2) That it iwas not proved that, under* tho existing weather-conditions afany time after O.p.m. on. Friday, February 12, 1909, shelter ; should havo been Bought/ or tho vessel's head put to instead of her course being continued te -.Wellington. : -: .-■ : ■'.- That' it,was.not proved that Captain the existing conditions, wa guilty of a breach of Article 16 of the Begu:lations for* Preventing Collisions at.Sea ;(4) That it was not proved that, under tie piroumstances_.shoivn by; the; evidence, Cap--1 «, 1 ?" , .*. should have taken soanduigs. yw Ihat there was no evidence te indicate where the vessol_struck, and,.in particular, there (**idonce to. indicate that she did not strike an uncharted rock, or submerged.i Wreckage. ■' ■ • - ". •; ■.-, , (6) That, generally, there was no evidence the Court in suspending or in interfering in any : way with the master's certiHcate of the* captain. - - . I' Mr- Uerdman. appeared' on behalif bf Cap:tam, Naylor, and Mr. Myers for the Marine Department.* , '•' ■. : *:. V ■■■ • . ;■ •• , iWH^JM^n called on * his Honour' ,mtimated:,thnt.Captain Gray had been appointed .an-assessor in place ;of'Captain England,, who, it ..was understood, was not at present,in,,the -Dominion. ?...'.■.-■: -.-■ ■ : ' [ Both:; sides, Mr/ v Herdmau- said,' intended to, take advantage:of*.the rule which' permitted additional evidence.te.be-called.- It would, ;_. ho: thought, be 'most. convenient if ,the,evidence were taken before counsel Sα-dre.ssed'.-the/Court; : .*.,■■: ■■*•* : : ;Two and a quarter'■■ hours were occupied in the reading of the evidence taken- at the '.inquiry.--; ..■:";*. ..:, : :.: v .;* .•.":.■-",-■ ,;The •flrst/witjiess: called by-lfrl 'Herdman f as wiptain- Vickerman, formerly master of Jie Kennedy,^who had given'* evidence at the.inquiry.. He said that, on the'ni"ht 'i*'n U ? O V- i 8 Vessel passed the Penguin at y.dU. * Five, or six ■minutes elapsed between the :time- : he,picked up her Eghts and the time ho got,abreast - of her. His vessel nid-22 miles in 2 hours 3 minutes. '* .: .-,. Witness was;then , '-asked, .whether (taking mte consideration .the course he was steering to reach The.Brothers, if he had been n,,the.vicmrtr of Tom's Bock), he would [•^βßeared Terawlnti. In he said, ii* en ■ ? Dy: fl ? atin g wreckage in ] ™ owait d-ormg your 'journeys?—" N0.," bupposmg thd Penguin struck a submerged .spar, would,, it 'have made a hole ?>, ~ ies, if there was any weight in it.' ■■'; 'i=, ,'.'" ■" ' .-,'"'.V\'\~ ; .■.- ■ ■ ',■."'.. .Several; questions were,then asked bv Mr Myers. r .':-: .'■'.'■■■■'.■. .'.';*. ■.*.- ■■•*-.■ '•'.■-. ';, fact ;that,.'Jike.other-masters of small * boatsj.yyou -hugrthe. shore' so: as'to cheat the-tide?—"ln ; fine weather we do." ■~ ** he ?, Jd you' first see Poncarrow light thatinight?—f'About.ro'clock. ,, / :■ * . - •; And if one of ; the'witnesses stated at the M m ry, that ho lost the light at-6.30 (if ine.light, was, not, put on. until 1 7 o'clock) .mS 63 ? ot lsnow.i.what;:he is talking about? TT^β. Mbtjß put. on, at snndo'wn." ■'" ; VVhen.was.it that night that you steered a_ course } W. ?-«At; 11.17, after I.passed/the Brothers.", , .\ . '■ -. ■ -■Doej! not.'the -;log': : book show ■ that you' ...Did. you -noti.tell ;.people. ; at - Nelson -that you.ttionght .when you/saw the Penguin she was ..going deadi slow?—"No, -1 'said' 1 thought- she was -going slow." ' ■ ;. Is- , that VstilJ your 'impression?—"No;, not as result ;of; the evidence which was given at :the'inquiry. ~;/: r , ■■ . ... :'v° ..If- what .you. say'; is correct, j can yon* understand the people, on-the Penguin'seeinc your.three,lights ' . :" m - h Where were you when you passed the Penguin?—"l could not say to a few miles." Questions, wore then put by Mi. : Myers with*'.a yiow of showing that' the current which witness's .vessel .* encountered ' could iot have been more than three knots *'an : nour, as'ttgamst his estimate of seven knots at the lnoitiiry'. , , •...:., ... .. * _ ■ > He-examined, : witness stated that ho had had 31 years' experience in tho Strait. His vessel was affected by,the tide on the night m. question. .. ! : . '•:.-.■■ ■■-.- , - , .-. i ■ ..At this stage '-the' Court adjourned , until tms : ; * . - : : ■ ■ ~