THE PENGUIN WRECK

Evening Post, Volume LXXVII, Issue 107, 7 May 1909, Page 7

THE PENGUIN WRECK

JUDGMENT IN APPEAL CASE. , COURT ENDORSES CAPTAIN '-NAYi LOR'S SUSPENSION. NAUTICAL COURT'S FININGS . UPHELD. y* The judgment of his .Honour, Mr. Justice Cooper and C^^. Qrey m 4 Lake (assessors) in ' Ao appeal , of Capfc Naylor against Y Ab SU6pens j on for ia months in oaDr jastian with the wreck ofi the Union mpa ny's Penguin, on thainight of I^'h February, was delivered iv the Ru^ n^ me Uourt*to-day. His Honour) re «^/lhe judgment as follows : — ' f his is an appeal ; from the decision of the Nautical Couifriupon an investiga-. tion respecting a shining casualty, namely, the loss-of the as. "Penguin" oa the night, of the 12fli February last.. Tlis Nautical Courtyfound that the cas-! ualty-had occurred through the wrong." lul d&faull of Captain Naylor, the mas-ter-of the Penguin, and suspended tun certificate tor 12 months, it is from riiat finding that Captain Naylor now <sppea)s. -The appeal ie to the Supreme Court* aad is to be conducted, subject to,* and/ m. accordance with, the regulations* mad* by the .prescribed rules. These regjufe,-' tions provide tha.t the Court of Appeal is to bepassisted lay not less than tw<>/>l sessors appa&ted in the manner •>£>"' scribed bvihe regulations. Ca p £V Grey^and Captain Lake have beer, dnlv appointed in tfrat behalf. * /J . "la, matters 'which concern JJ £ u~ nay : gation of a ip , and fche <^IJ? V £. such, navigation of the perso Aor Der '* whose duty 'it is to navi^to the shin and mth fj many tech^f qtsSoS Z°^^ V± - the knowledge o3" Z"u\ V meVS A S A faW the court S r^. G S ? lded b * "^.opinions ofi .m,,V f S °-f with the C\ f ° r - ltS .aBBl. a881 f ten cc. The questions-, 10 ,- decision m the preset appeal de- ■ V/svA entirely upon these, technical mat. ,ters and I desire toisay .that I have fully, availed myself of the assistance givei' to me by my assessors, an£ that the mdement oi the court is hasted upon the ans, }\eis they have given.. .me upon" tha various questions inv^ved. At the same time 1 wish to sUte that I express my, concurrence hi ihe conclusions the assessors have avrived at, after fully ex* 1 amimng and considering their reasons. .• Ule . assessors advise, me that, ia their opinion, an opiuion.in wlxich I concur, tii? vessel struck Tom's Rock or some rocks in the immediate vicinity of whao is marked on the vchart as Tom's Kocft. The- reasons for&coming to this conclusion are ' (1) Captain iNaylor's own evidence , given before- the Kfeutical Court iv which he stilted tfeat it was bis opinion that. he s&ruck Tom's Rock and gives his reasons for this onint ion. l (2) The. evidence of Farrell, A B as to seeiaig loom of Hhe laud within a ver,y short time -after the vessel struct. (b) The, plases where the rafts, the hoot*, and the bodies drifted ashore, -and the time from three hours &> •threev'hours and a half oo cupiedfcin the drift of the rafts and the fc/oats. "Tfr/ise places and times are consistent their opinion only with the casua« at having happened in the vicinity ?i roin"a liock. They advise me Uiat ityis their opinion that the suggestion /iow made that the Penguin may huva struck some sunken wreckage is inconsistent with the circumstances of the case, and particularly the suggestion made that the casually happened some three miles to seaward of Tom's Rock. It is unnecessary to go into further detail upon this branch of the case. "Tfie assessors also advise me that although no doubt a strong tide was tunning that night, the evidence does not establish that it was an exceptionally abnormal tide. Their opinion ia Lhat, viewing the evidence as a whole, it wa& not stronger than a four knot bide «n the course which Captain Nay. loirstates he set from Tory Channel. "With reference to the evidence of Captain Vickerman, my assessors are of ppinion that the «.s. Kennedy must have been at least two miles to northward and leeward of the position marked by Cap:aiu Vickerman upon, the chart. The Kennedy is a small steamer of very light Jraft, and with the wind as it was slowing that night, and the flood tide 'lght on her beam, she must have mads nuch more leeway, than he allows. - If, is their opinion is. the Penguin struck m Tom's Rock, then the two shipß jassed each other at 9.30 p.m. at an>roximately a point much nearer ia hore than Captain Vickerman stated >efore us, and nearer inshore than ho tated in the lower court. This view of he Kennedy's position is consistent, in heir opinion, with the course which plain Vickerman says he set,' conKkriiig the size, draft, and speed of he Kennedy, the conditions of the tide, aid the southerly wind aud eea. It is heir opinion that it was not possiblo indcr th-;-se circumstances for the Kenicdy^ to have met the Penguin at tho iosition stated by Captain Vickerman lefore us, or so far seaward as he stated n the lower court. "Having arrived at the conclusion that he Penguin struck Tom's Rock, thft lext question is how did she get there. Phc course that Captain Naylor set was perfectly safe course, allowing for v wo knot current only. Assuming that nly such a current was running, and hat the conrse as set was steered, and hat his speed was as stated, she would lave been at 10 p.m so far distant from Horn's Rock or any coastal danger as o have been well within the margin of afety. If, however, a four knot tida .'as running, phe would, in their opinan, have made such leewny as to Tiav© ieen clearly within the margin of daner. If. Ps was probably the case, » our knot tide was running, and she w.is teered as it is stated ?he was on the ourses set by Captain Nrylor. she v. ns, :i their opinion, at the firnc he turned iev head to sea. and immediately before he struck, in close proximity to Tom's took. 'Hie manner in which fie l'enuin g;ot into the proximity of Tom'fi vO'k is thus explained. "The further and mo^t important vestiori ib whether ib.p. casualty which inpencd under thc=e eirciiTri<;t'<noeß was wing, to use the term<; of th^ Ft?t"te, ;> the wrongful act or de f «ult of Cr.ptiin faylor. Ki<; comp^ps coni"^ v. J *s S.E. y X from his point of clepaiinio- at 'my Channel until 9 40 p.m , when ho Itered his course to E. by R. He leared Tory Channel at 10 ti 8 d.tti., ih! pet the patent Ing a' 6p m. It was dirty nigH, with frcqusnfc rain fcjusJlb, nd there wes a strovur vinrl in tho traits, although not a q\}«, M-> -vines S.E. y S. Ths log was exomiro'l at 9 p.m., f nd showed a di?t«ncc run of 12 knots, for tkle and other influences, lie actual distance run was, Captain, faylor states, about 10 milas. At 930 .m. the log was r.gain examined. It waa 3uti«l than some injury h?d hivppefiecl to ie indicator, and it showed 50 knots. fe had then run a distan-co of about 15 liles'from the time he fir^t set tho los;. a plain Xayiov says that the man who simined the log at 9 p.m. had evidently rosenod the hand, and the log ha<l fchcre)re becopie and continued useless. This

(was discovered at 9.30 pjn-, and it was j nust about this time that he met the Kennedy. He was ' slightly inshore of itho Kennedy, and in order to give the j (Kennedy ample room he deflected ,his course 'furifoer inshore, until clear of the ; ivessel, resuming his course after the [vessel had .passed. He continued to go at . ifvuEjspeed-on the S.E. by E. course until 9.40 p.m., when he altered his course to E. by S., and he continued full-speed on that course for 20 minutes. "The-assessois advise me that Captain Nayior was in (fault in two respects— 'FirSt, -when- 'he found that his patent log I was .useless, and when he must have j known tbafc^he had probably run a distance of 15 miles from Tory Channel, and was then within four miles of coastal danger, it was his duty to have ibeen exceeSngly careful, and he failed in this duty. The sight was bo dirty, and the weather so thick, that he admits he could not see the land ; but rjret he continued his course at the same speed, knowing rhat his log was useless as a check, although no doubt in the full belief that he was on a perfectly aafe course. But it was at this time that he passed the Kennedy. The Kennedy was coming, out from Wellington, and Captain Naylor must have known this by the course she was steering. The Penguin, ac I have already stated, was inshore of the ■ Kennedy ; and this fact, in the assessors' opinion, ought to have ibeen nn indication to Captain Naylor (that tho Penguin was much neaTer the land than she should have been. But, he still continued his course at full-speed. At 9.40 p.m. he altered his course to E- by S., which, dn the position in -which he really was, had the effect of bringing him in still hearer to the land, nnd at 9.45 p.m. he must have been in doubt as to his true iposition, for he then ga.ve the order to (the engineer to 'Stand by.' He, nevertheless, continued full-speed ahead after this on his E. by S. course for 15 jninutoß, and it was in turning to seaward •two^minutes after 10 p.m. that the vessel fctradr. '" "lite assessors advise me that under tfosse circumstances they agree "with tho court bolow that Captain Kaylor was guilty, not of a mere t error in judgment, but of conduct, to a wrongful default in ."hot putting to. sea. and thus run■ning upon a safe course some ."time before 10 o'clock. He should done so certainly not later than 9A5 p.m. It is the opinion of ,'my assessors that his failure to do ..this was the cause of the casualty. ;I agree with and adopt the asses.Bors' opinion. '_" "I agree, and the assessors concur, that Captain Naylor's conduct after the casualty was entirely ,?free from blame. I desire to add -nothing to what was said in the 'Court below on ■ this branch of the "case. "The' assessors' desire me to say that, in their opinion, no grounds have been shown which indicate that the Marine Department has been guilty of any breach of duty in reference to the Information given as to the state and condition of the tides in Cook Strait. The New Zealand Pilot gives, in their opinion, all necessary information on this subject. The appeal is dismissed. THEO COOPER. "Thi3 judgment sets forth our conclusions and the reasons for our conclusions, and it is our opinion that the appeal should be dismissed. W. J. GREY. OSMOND J. M. LAKE." No order would be made as to costs. His Honour pointed out that under iSecfeion 242 of the Shipping and Seamep's Act the Government had power to . alter the period of suspension or issue a mate's certificate to Captain Naylor. The assessors desired him to say that while they had been compelled to find Captain Naylor in default they regretted very much to have to do so. The court regretted it the more because of the good character, skill and caa-e which the Captain had displayed in the past. Mr. Herdman said, he understood, in reference to what his Honour had said, that it was the practice iv England to recommend the Board of Trade to alter the period of suspension. His Hononr said that there was no power to do so in New Zealand. He nad no noubt that if the matter was referred to the assessors they would give the question their most favourable consideration. He thanked Mr. Myers and Mr. Herdman for the excellent manner in which they had presented the case. Mr. Herdman had done everything ho possibly could for his client. lA report in\ accordance with the requirements of the statute would be forwarded to the Minister that morning.