For the plaintiff, John Wright, Esq., Alderman of Liverpool, deposed, that he was present at the wreck, assisting to save the passengers, and looked at the vessel's bottom. Some of the timbers were branch timbers, such that they could not be squared; and he thought such timber too small for a vessel of that description. Great part was under water, and some rotten. There was an iron knee in the stern frame, and the timbers appeared to be fitted with spike nails. Geo. Daney stated, that he had purchased the vessel at Glasgow for the trade between Liverpool and Wexford, between which ports she sailed for some time. He had given her new decks, and put her into very good condition. On his cross-examination, he stated, that the vessel was sixteen years old; that he did not know whether she had been built for river service; that she had been lengthened after being built, and was, at the time of the loss, of 110 tons burthen; that the deck was much worn, and that he had never seen branch timber in Liverpool steam-boats.
William Wilson had repaired the vessel. When he first saw her, he thought her not sea-worthy, on account of the state of the bottom, and told the plaintiff so, and that he thought her bottom was broken. Plaintiff said, he was confident it was not, and that he had got so good an account of her, that it could not be. Witness had repaired her three times, and thought her sea-worthy after these repairs. His account for the first repairs was £250, and for the second, £150, exclusive of men's wages. His bill for repairs altogether was upwards of £6OO, for timber-work only, exclusive of wages, which would be £200, and iron, which would be £20. His orders had been to repair her without stint; and when he turned her out the third time she was perfectly seaworthy. Cross-examined: There is a great strain on steam-vessels in rough weather. There was a week's interval between her being in his dock the second and third time. She had been leaking again very much. She looked as if she had been built for river navigation. She was a very old vessel, with small timbers. Her original tonnage was from 55 to 60 tons. Her registered tonnage was 73 tons. She had one engine; it was from 50 to 60 horse-power. Witness only unsheathed her up to the water-mark. The difference of timbers in a vessel of 55 and 73 tons is very trifling. If he had to build a vessel for sea he would not have put in such timbers. Told plaintiff the timbers looked small. They were too small. She was not cracked.
Mr. Morrison, Ship-carpenter, was superintendent of the patent slip in
the last witness's dock. He received his directions from Wilson. The
repairs authorized to be made were done. He had instructions to strip
the copper off, and to dub the planks. This was in November, 1830. A
stringer was put into her inside on each side. The stringer was a plank
four inches thick and 40 feet long. In January she came back into the
slip again. When she left the patent slip she was sea-worthy. He would
not have hesitated to have gone with her then.
Cross-examined by the Solicitor General. Did not you say when asked if
you would go to sea with her, "No, for she will prove a coffin for
somebody?"
Witness, after much hesitation, "I might have said so. I will not swear that I did not say, "She is fit for nothing hut to "be burnt." I do not recollect that. I did say so, but I might have said it. I might have said, "I never saw such a box on the slip before." Fisher and Doran were my fellow-workmen. My opinion was, she might prove a coffin for somebody at that time. I positively deny that I ever said "she was no better than a pill-box" in the presence of Alexander Clacker, the engineer. I never said to Fisher "Bear a hand, James; let us get her lapt up, for I am sorry to see the state she is in." When she first left the dock, I would not have gone in her to sea. On the first time she was put in the slip I thought her bottom was broken, and that she wanted more repairs. On the next time I found it was so, and she was repaired."
Edward Addy, Ship-carpenter in Morrison's employment. Thoroughly examined her bottom, when she came back a second time; all the fresh timber put in the bottom, and all the old timber left in it, was sound. These timbers were fastened by six or seven-inch spike nails. The vessel, at the end of the repairs on the second time of her going into the slip, was perfectly seaworthy, as far as the repairs went. She appeared built for river purposes. There are many vessels on the Liverpool river of the same scantlings exactly.
Thomas Quigley, Ship-carpenter, stated, that she was in tolerable good condition, when she last left the patent slip. He should fancy she was sea-worthy.
Captain James Spencer. Was appointed master of the Rothsay Castle in
December, 1830; superintended the last repair. Witness made no voyage in
her before she was repaired in January, 1831. The vessel went from the
gravingdock to the patent slip. There might have been an interval of two
days. When the last repairs were made, she was perfectly sea-worthy,
otherwise witness would not have trusted his life with her; he went with
her on her first voyage, which was to Wexford, from Liverpool. It was
very bad weather. The passengers and cargo bore the sea very well. She
was sea-worthy and made no water. She lay five days in Wexford, during
which time the pump was never worked. No stint was made in the
directions for the repairs.
Cross-examined. The timber was sufficiently large; branch timber is
better than square timber; small timber is better than large timber.
John Pile, master mariner. Was commander of the vessel on Spencer's leaving, in February, 1831. Went with her to Wexford. The vessel behaved very well. She came back in 37 hours. Had a very heavy gale. Only made that one voyage with her. She was sea-worthy. Saw her on the day of the accident, between four and five o'clock in the afternoon, off the Ormeshead. It was blowing hard, and a heavy sea.
Edward Gore Taylor. Was supercargo between Liverpool and Wexford, in January, February, and March, 1831. In all the trips the ship behaved as well as a vessel could do. Witness was on board the St. David on the night of the accident. Saw the vessel to the leeward near the Ormeshead. The weather was very bad and the sea very heavy. It was rough weather. Ormeshead is a dangerous place. Saw her after the last repairs; when turned out, she was in a fit state. Captain Atkinson was drowned; he was a sober, steady, skilful, active man.
David English, one of the seamen from May to the 8th of July, 1831. The vessel then went from Liverpool to Dundalk and Beaumaris. She behaved well in bad weather; did as well as or better than other steam-vessels on the same station. On the day she was lost, it was very bad weather and rained. To start from Liverpool at ten in the morning, and get off the Ormeshead at eleven in the evening, is a fair passage.
Hugh Jones, mariner. She was sheathed in the graving-dock; she made water after that, upon which she was put into the slip and thoroughly repaired, and was seaworthy. He went with her two voyages to Wexford; no vessel could have behaved better, though there were heavy gales and high sea. Witness knew the Spit sand and the Dutchman's bank. It is a very narrow passage. The strongest vessel ever built could not have got off the bank on the night of the accident.
Robert Griffiths, ship-carpenter. Saw her bottom after she was taken to Beaumaris, and then did not see any branch timber.
Bryan Cochrane, ship-carpenter, foreman to M'Argill and Daney.
Alterations in the vessel were made in August, 1831. A double side,
commonly called a sponsor, was added; and also new boilers. She was then
perfectly sea-worthy. That was a week before the accident. Never
examined her internally. A sponsor is a false side, added to the
original side.
An engineer said, there was a new boiler, but it produced too much steam
for the vessel.
John Jones, seaman. Sailed on board the Rothsay Castle in October,
1830; went two trips to Carnarvon. She performed the voyages well,
according to her situation. She was rather leaky. She was then laid up
to be put under repair. He afterwards joined her in April, 1831. She was
then on the Beaumaris station. He stayed in her two months. She made
three trips a week; never missed; required no repair; did not leak;
was thoroughly sea-worthy. No danger in going in her. Had indifferent
weather part of the time. She behaved as well as any steamer witness was
ever on board of.
Cross-examined: On the voyage to Carnarvon the pumps were
constantly going. She was very leaky. She was not sea-worthy.
Jennings was captain then. She leaked on the first voyage from
Liverpool to Carnarvon. The plaintiff lived at that time in Liverpool.
William Jones, Liverpool branch pilot. He went on the voyage when the
vessel was lost, as a passenger. Got on board at Liverpool. She started
five minutes before eleven. It was slack tide, rather draining in. It
was a very heavy sea. Captain Atkinson asked him, whether it was best to
go over Chester bar, or to go outside the light-ship. He advised the
latter. She made a very fair progress considering the heavy sea. The
wind was northwest by north. He was on deck, while oft the Great
Ormeshead, but not there long; it was very coarse weather, blowing
strong near ten o'clock, very squally, sometimes light. There was a moon
when the clouds were driven off. She was going on very well. She made no
water at that time. The pumps were not going. He was below when she
struck. He was continually up and down before. She struck on the
Dutchman's bank. He was then down. It was about twelve. He came on deck.
He saw Captain Atkinson a few minutes after. He spoke to him several
times; he was sober, and doing his duty; he was rather in confusion; he
gave orders to reverse the paddles, up jib and down jib, several times.
The vessel was on the ground, and could not get off; there was a very heavy
sea. She was thumping heavy. The sea broke over her very much. Many were
washed overboard. He was on the quarter-deck. He held by the wreck of
the quarter-deck for about five or six hours, when the life-boat took
him up. She held together for two hours. If she had not been strong, she
would never have held together half so long as she did. No sea-room
where she struck. Had she had sea-room, she would have lived out the
storm.
Cross-examined. He had seen the plaintiff often since. "Have
you not said that she was a very old vessel?", "I said she was an
aged vessel. I swear I never said she was very cranky. ( A deposition
signed by witness was handed up to him.) I said she was rather tender.
At half-past seven, some passengers asked the captain to put back. He
refused. There was no danger at the time. It was before we came to the
East Ormeshead. Between the two Ormesheads several people asked the
captain to put back because they were sick. I asked Captain Atkinson,
after the striking, to put out a light. He was then in confusion. There
was no signal by firing a gun or putting up a light. We were one mile
and a quarter from the land. The jib was hoisted. The mate said, "What's
that to you?" about the boat. She struck a number of times, before
the captain gave orders to reverse the paddles. I cannot say whether she
was to the leeward of her right course before she struck, but when she
struck, she was. I can't say whether the steam was up. If the steam had
been properly up, and she had been properly steered, it is more than I
can tell, in that state of the wind, if she could have got to that
point. She kept her course when she was off the first Ormeshead. I was
asleep when she was off Puffin Island.
Evan Evans. Was seaman on board the vessel at the time of her loss.
On that day the wind and tide were against her; she made, good way
considering the weather; her crew consisted of the captain, the mate,
two sailors, two boys, and a carpenter, besides a steward,
under-steward, and cook, and a Liverpool pilot. There were plenty of
hands. There were also three musicians on board, always ready to assist,
and two firemen, and an engineer. Between Ormeshead and Puffin Island
she shipped several seas, but was not in any way leaky. I was awake, on
deck, when she struck. I looked down into the engine-room. There was no
water of any consequence. A quarter of an hour afterwards I went to the
forecastle. There was no water there. I left my watch there, and lost
it. After the striking, the wind kept at the same rate. The sea was very
rough, and ran over us mountains high. The captain was attending the
vessel, and working her according to her manoeuvres. He did not appear
to me to be drunk. I did not leave her until the following morning, when
we were taken from the wreck by a pilotboat. Had she been a weak vessel,
she would not have stood there half the time.
Cross-examined. I can't tell whether she leaked between the
Ormeshead and Puffin Island. I never said she leaked so much between
Ormeshead and Puffin Island, that the steam quite failed. I have not
said, "I think the captain and mate were not sober." A paper was handed
up to witness, who said, after a long hesitation, "that is my
handwriting." It was put in and read, and was the examination, upon oath
of the witness, taken on the 18th of August, 1831, in which he stated,
"She leaked so much between Ormeshead and Puffin Island, that the steam
quite failed." He also said, "I do not think the captain or mate were
sober."
Lord Lyndhurst. The witness has sworn directly the reverse of his former deposition. The steam failing accounts for that which is not otherwise accounted for, viz., the vessel running to the leeward of her course on the bank.
Mr. F. Pollock. The single object of the plaintiff is to vindicate himself from any unjust imputation. According to the evidence, he directed the vessel to be repaired without any limitation.
Lord Lyndhurst. It is one thing whether the vessel was seaworthy, and another thing whether she was unseaworthy to the knowledge of the plaintiff. There is nothing to show that he knew she was unseaworthy at the time of the accident. If the plaintiff had known the course of the evidence, he probably would not have gone on with the action. At the last repair he appears to have acted as a prudent man, and gave orders for a repair without stint. I cannot approve entirely of what took place on the former voyages to Carnarvon. Extreme care and caution are requisite in individuals who undertake to carry the public in steam-vessels.
Mr. F. Pollock. I do not think, after the last witness's evidence, that it would be giving the cause a fair chance to try it now. I submit to be called.
The plaintiff was accordingly nonsuited.
[which means that insufficient evidence has been produced by the
plaintiff and the case does not proceed].