Evening Post. TUESDAY, MARCH 2, 1909. THE PENGUIN ENQUIRY.

Evening Post, Volume LXXVII, Issue 51, 2 March 1909, Page 6

Evening Post. TUESDAY, MARCH 2, 1909. THE PENGUIN ENQUIRY.

The divided judgments of the court which has devoted so much time and care to the enquiry into the causes of the loss of the Penguin supply a fair indication of the extraordinary nice,ty of the grave problem set before the court. The two nautical assessors take opposite views of the principal question involved — the question, namely, as to the responsibility of the captain for the catastrophe — and the decisive judgment was therefor© left to Dr. M'Arthur, S.M., the chairman of the court. It was an onerous and a painful responsibility that was thus thrust upon the chairman by the difference between his expert advisers upon issues in which the technicalities of seamanship were largely concerned. Yet,, in spite of this fact and of the large amount of evidence that was called, it seems to us that the main point to be determined was one on which a levelheaded layman who had carefully listened to all that witnesses, counsel, and assessors had to say, was by no means at the hopeless disadvantage from which the outsider usually suffers when he listens to the discussion of experts. The ultimate question was one not so much of technicalities as of common-sense. By this we do not by any means desire to suggest that the question was an easy one. It was really one of exceptional difficulty, which divided sensible men on the Bench yesterday, and will probably continue to divide them wherever the case is discussed. But the conflicting possibilities and probabilities by the balancing of which the matter must in the last resort be determined are really within the province of the practical judgment of the average man, and not to bo reserved for expert treatment by the seaman. In other words, a common jury I would be just as competent a tribunal to j try the issue as a Bench of master mariners — and possibly more so, since the .follovr-fesluig which makes trial by jury

a travesty of justice where such an offence as a breach, of the gaming laws is in issue would tend in the present case to disqualify the rival tribunal. The main facts of the case are not in dispute. Coming out of Tory Channel at 7.50 p.m. on a squally, showery night, the Penguin ran into a fairly heavy southerly sea on her way. to Wellington. She was steered S.E. by E., and kept on that course till 9.40. The Brothers light was kept in view till 8.30, but no bearings were taken, and after that the heavy driving rain obscured every landmark. By 9.40 Captain Naylor's reckoning was that he had travelled eighteen miles, and was a good three miles to the south of Tom's Rock, and he then altered his course to E. by S. The effect of this was to bring the vessel's head nearer to her course for Wellington Heads, though still a good deal to the south of it, and she should still have been three miles and more clear of Sinclair Head. But after continuing for twenty-two minutes on her new course the vessel struck a rock, and sank so rapidly and so completely that nobody can as yet say whether it was Tom's Rock or something nearer to shore that she struck. It is not disputed that under . normal conditions — or even, we may say, under the conditions as they presented themselves to his senses on his emergence from Tory Channel — Captain Naylor took an exceptionally safe course — a course which would in ordinary weather have taken him six and a half miles to the south of Tom's Rock, and which, after allowing for the southerly wind and sea, and the set of the tide, might reasonably have been expected to leave him three miles to spare. The responsibility of the captain under these conditions is a matter upon which it is not surprising to find the court divided. On one point, indeed, the court is unanimous, and that is that he was guilty of a breach of Article 16 of tho " Regulations for Preventing Collisions at Sea," which provides that "every vessel shall in a fog, mist, or heavy rain storms go at moderate speed, having careful regard to the existing circumstances and conditions." As to the technical breach of this regulation there is no room for doubt, but in his dissenting judgment "Captain M 'Arthur expresses the opinion that slowing down would not have prevented the accident. Indeed, if a vessel travelling at 12^ kno£s is taKen six miles out of her course by a cross current, it does not need an expert to see that reducing her speed to six knots would only have increased the aberration. The court is also unanimous in holding that " an exceptionally strong flood tide" — one witness, with twentyeight years' experience of the Strait, had actually described it as " terrific "—" — was a principal cause of the catastrophe. Bud while Captain M 'Arthur acquits the captain of the vessel of any contributory negligence, the magistrate and the other assessor hold "that under the existing weather conditions, considering the vessel had run a course of eighteen miles at 9.40 p.m., the ship's head should have been put to sea instead of her course being continued towards Wellington." To have done this would, of course, have saved the ship, but it is easy to be wise after the event, and tho question whether Captain Naylor was in default for not displaying the necessary wisdom before the event is one of great difficulty. In Captain M'Arthur's opinion, "the exceptional flood tide setting through the Strait, shown by the evidence of witnesses as from five to eight knots, could not be reasonably anticipated by Captain Naylor." The majority of the court do not consider that he ought to have anticipated it, but they do hold that, "with the weather thick and rainy, and with neither land nor light at Pencarrow in sight," the master should have turned seawards at 9.40, as he was actually doing when the vessel struck twenty-two minutes later. We are certainly glad that the responsibility of a decision does not rest with us, and in view of the possibility of ah appeal, we do not even care to express an opinion. In the prolonging of his cruel suspense which the appeal proceedings must involve, Captain Naylor will have the sympathy of all hjs fel-low-colonists, quite regardless of their opinion on the merits of the decision of the court. One finding at least commands their unanimous approval, and that is the finding of the coroner's jury, "that the conduct of Captain Naylor, the officers, and crew of the Penguin after the vessel struck was in all respects admirable." Captain Naylor certainly played the man on that terrible occasion, and we fully expect to see his manhood take him bravely through the even more trying ordeal in which he is still engaged.