Court Of King's Bench, We...
The Times, 1824-01-29T00:00:00

* Soon after 12 o'clok tle Court ro'se, and tie LoaRD CHIEF JUS- TICE imrmediately sat at AVisi Pritus. TiNs special jry cause vras appointed for to-day (contrary to the uwtial practie) in consequence ofth1e great number of witnesses on both -sides, some of whomn weredetained in lEngland-to give evidence. llfr. JARD1XE opened thepleadings- The declaration statedthat the plaintifftook his passage from India to England by a ship be- longing to the defendants called the Apollo; that.tbeir servants so-negl gently conducted dle ship that-it was wrecked off the Cspe of Goo( d ope; and that-lte plaintiff' had tljereby been detained, had lost his baggage, and had been put to considerable expense in obtainu n-a paspssage heme. The defendants pleaded tlf general issue. The ATTOMTNeEY_GEpEIAL stated the case on behalf of the plaintff, whom he described as a -Captain in his i5lajestv's army. Being at Madras, he took a passage for himself and bis child on board the East India ship caUed -the Apollo, of which Captain Ten- nant wvas naster, fos England. Nothing-, particalar oczu'rred on the voyage till thev arrived near the Isle of France, when a circumi-tance happpned which proved the unfitness of the Captain for the respon. sible situation in which he was placed. One evening ;hile the Cap. -tam was below, a passenger observed an indication in the weather threatening a stortn. Hle communicated bis apprehensions to the optaix ;- but he merely said " lie would come by and by." - The danger increased; the Captain was a second time summoned, but even thtn refused to come. A siolent sipall came on, nad for want of d2erlecaution, the lives of tlhe crew and passengers were in imminent perl. On the 16th of Anril, the vessel-approached Table Bay, and as the wind blew from the harbour, it became necessary to make a tack in order to arrive at anchorage. The -vessel accordinkl- -stretched -across the bay,- and lhad she proceeded sufficiently far, might have made.a tack which would have brought her to anchor- age -n ?afety; but being left to the care of an officer whom-the .aptain had- often reproached as incapable, she wa-s put about too soon, and,ian upon the rocks. Even then, if proper-measures had been taken, sbe might have bcen -got off ; but they were omitted-; thi posengers escaped to' 'th'e shore and, of the crew, the captain. was ntone of the last, but among the first to leave the vessel. Cap, tain llalton hiad beer. detaipe at the Cape of Good Hope; his bsg. gage had beenlost ;- and he. had been forced -to obtain another pas. sage to England; for which injuries, occasioned by the gross nis. cqitdudt of- the defeadint's Servants, be Sow sought a compensation inage9. It was admitted,tbattbe defendinti vere the owers of the Apollo. Alr. Braner was then called, 'and said, I was five or six - years -inlis A,lasesty's servicemin the navy, and am nowin thrarmny. I was i passengerbjtheApllo, from hIadras to'Enland,Captain Tenna*t, -master: Captain llalton -wnaalso a passenger, and had with bhn a ckdd. The receipt of the defendants' agents fbr the pas%age.money Lfeawsthe witness proceeded.] There- were many- nti an woasd ' the vWgei. On the ' 10th of Felorua& we left othe 16th of April we arrived off' the Cape of Good HaEe. -About ten days before I was walking the deckA.' ' ' 3t, 8Q6Lz;'l3Tobjected, 1ftfito cvklepce Qculd be received of qU=y fnt* t, ept -ita-il .b 3 on; and Ahe int eionf f ther rw w ly tot aite apjud{ceas to the hrns~tion in issue .. .-. . - -- :[ Gi. taid,e int-th'i~ct iaA4tyii the voyage of the ivesel, aidprsvinftho rafltahoessoft.-l:sai fo: hisadty. e 4 t.: 1 SCA5LtT-T repled,, thit SE% Awis quiti rekdy .o -meet his tearne-Rfrend oS~ ad questios Of geni tpitnrsi4 but-not on par- tiplhr fhcts, *hich.tlus defienaanz iUd not c pre.spared to.nnsvcr.- ..S.The LORD-EF Osii TrIur dFdid, that the trusactwlnsofthc O{tb of' April w0ere-c sotiffiteentls' ilerw?nt .ttfriieJs4teinue, *The ttethest went on f ~da*ihmdtnstancea oft?he .wikrl: awftlollrs:' "On tbhe 16th, tberc h-& been ery R?ght. windi in ctie eary part of-the day, *jmtot amounting to. a2,alm We were .brbu.t to tho mcutnofTableb'y1 wte ret acro* it. IiTlse w.itie descnbed the course iif the siipfrom a chis >withb?at-which t cn scarcely be d inde- ibd.l -hewnd- ;s. S. ;,%lwbxdg -t of.- the ,bay and, thereFore, to iec the anchor.v,wund,.ie . as necessafy.to mikce a tacIt .icos the bay. As- we -were itrtchini. crOss th-e'.bay,,I asked the Catptinlso far wecold siretch -tosards the opposite shore; . he said we'sist a di,2ost clo to the-opposite snore. He tacked s6onzafter e mdv taton in the di-. eetion msarked in the ptlan by mc.. Hi~ -miht have 'gbne further hafore he tacked forhe began to taeR,foar or five miles before he teached 'the opp,osiee shore. Had hc cantinueid itretching aiross the bay tvro or threcnjies hartber, hem btha,e reached the anchoring.. Bround.svith otbetac. -We haa'' seerl the lights of. Sobin Island some time before we-tacked, which vrs - bbae cight -in the evening. Aillhands had been turned-ul about five in the aftnoon. When this is-done,-theihip is considered in -ti rge of the Vaptain. Before this tack-wasi made, ailhands weve tued it was then the second mate s iWatch-bis name is Tzegw6rth. The ship proceeded towards the shote. Aboat ten minutes aftdr thb ck; the Ca ptanretired t his cabin, leaving Mrit Tregworth on deck. From fi,n twent minutesi -after he. a o'ite ,d se ~k,-wie.' i~ihe opwt MUajor Swindell,-and thehipgoigthierfourktotsahour, te 'pea smooth, the evening 6u6onlight4 the shore 'quite visihie, we ran ashore. !The wind:was blowing on the ArWd side, a slight butseny hlbreeze. No mnj t was tqarb heavjng t1b lena, as, in my judgmet tberp Ahquld havi heedn. 'Mhere were many e nte foecastle, but uqolieo. to my koQiwledg, placed ther-to look st. At the time the-vesse struck, the moon YWasaaloutl15 degrees above the -horizon. The ship -flirst ded only by, the hed.- 4t thoe alarm the Captasnc ame ne d,e,k. }e'did'nqt ing immediately !to gettheshipofs inrnyjuigmieht;, tTyesa12 shou,ld have been backed directly.; the' were ote f.rI fve ntlnutes, and then at the suggestion of tie purser. When theyfhiind-the ship would no: go off withbacking tne sails, thev ?hdtild'have fqrled themn, and lower- ed the yards: neither was 'done. I heatd the Captain qlhuse Mr. Tregworth, and charge him itith2nning th(e sj p on shore. I have often heard t4e Captqlri speak of.the tneapacety of Mlr. Tregrorth. UPhis - was objected to biy Mir.: 8rlet but received bv tbe'Lord hief Justice.1 I haveheard him say,-"e v2as notfit to command a coal barge.7 The rocks we atr4ckoirarcepointead out intle charts. In 2O ninqtes the master of his Majesty's bri b-g *, came and offlred assistance. I think iP eseejionfhadeent'nade tihh judgment and skil, the vessel might h0afbeen.got off;i she went on so-easily. irfpropcr care-- beeneaused, rdo not think she could have been run on the rocks. I went ashore about half past eleven; I was the last of the passengers'who left; allgotashore that night. I left the Captain on board. I-vas detained r the Cape ti1 the 12th of blay N eIr. APaltqn siled, a few days before He embarked about 2i miles from Table Bay. his expenses might be aboat20L or rather ilore.- CrossT-examined by Air. SCARLETT.-I had been five years at sea as a midshiprman. The Apollo was a large ship, -with a very heayy cargg. Abopt five i4inutesb'efore the ship struck, I imagined her to be ui danger; I mentioned it to ffajorSwindell, but not to the Captain. I should hiave thoukh t it highally improper for a pas- sengerto interfere. Ihad neves bQeeat Taole Bay before. Mlrn Ai'Lean, a passenger zon board the -Apollo, and surgeon in his Mlajesty's service, corroborated the statement of the first wit- ness as to the state of the winds and weather. He recollected the Captain giving directio7ns to Treworth to bring the ship forward to -the wind, and afterwards abusing im in gross termss, end further desnribed what occurred when the Captain left the deck. In his judgment, the accident inight -havebeen prevented. There were 2q grown persons on board, rnany of them fernales. Eis pasage hayv ing been paid by Government, 1he had sastained no oss, and shouid bring no action. James Sweenv, a passenger atso on board at the time, described the nature of the accident in the same manner as the former wit- nesses, but with the addition, that he ran to apprise the Captazn of a ship being close at the head of theirs, who instantly ran out, and gave some nautical orders, compla5lhg9 t tbo same time of the stu- [tlajor Swindel roved that the Captain of the Ring's ship Delight offered to t aptain Tennant, if he .would aUow one of his anchors to be lowered into his boat, he would get the ship off in 20 minutes, but Captain Tennant replied, that he felt her moving, and saw no necessity for accepting the recolnmnendatlons either of the naval officers. or of others who came on bqaTd tendering assistance, and-who expressed their astonishment at Slaptain Tennant, and re- marked that as he appeared so totally indifferent abouthis ship, they would return on board theirs In answer to a- question from a Juror, the witness said that the Cag!ain appeared perFectly indLferent either for the fate of the ship, or nis passengers. In his cross-examination -by AMfr.'SCARLETT, he said that he could-not swear the Captain's intention was to have driven his ship ashore;. he could net swear what any man's intentions really were; but judging from appearances, he manifested no zeal or anxiety upon the occasion, and was quite indifferent. WVitness added, that he contemplatedan action for his loss, gLoj ifthe ptresent succeeded. VMajor Brodderick, another passenger, described the accident like the fosrner witnesses, arid thought as they entered thebdy, he heard a voice hailing them from the land. In his cross-examiuiation, he said that the Captain fired' signa) ns. Witness went on shore with a Captain Rangles, who came on oard with an anchor and hawser, and offered-hisservicesto Captain Tennaitt, who replied, that it was only three-quarters good tide, and the ship would be gotoff. Capt. Baangles then said,thatas he couldbe of no service on board, he would rcturn, and witness and his family availed-, themselves of the opportunity.ofRgging. aslore-n-hi-at CAiaiin Cope1andM1lli,ms of the t 1ataii, Service, a assenger on board the Apo71o, said, that fromshe,timethe eshptfuck uptil he left her between 11 and 12 ocdockat nigh't he saw nothing done for her except backing thc'sail5. The Cspt4m- appe1rad attentive to theladies at thetrme, and wvas escortsng one of them to the cuddy .o get her shawls. ' Colonel llobert Lattar also a passenger, described the striking of the ship, and Chat the lea3 was not heavirgat the time. She struclk as light and gentle as a. boat would-touch a beach-. A'hen boats came on hoard in answer to the signal guns which were Bred at witness's sugge tion, it was recommended bg one person that the car'go should be hove over,"-advice at whih Captain Tennant expressed great surprlse. He did not observe on the part of this- Captain the same zeal, coolness, and intrepidity, *hich he had seen upon ooeasions of the same kind by captains. in' the navy. - Cross-examined. _Hedid not conteniplate an action on the same grounds as this. Hesaw no lights thathe mistook for a strangesail on that night. There werc plent), of lights on shore, andone ot' thenm was said to be a light-house. The Captain did not, to his know- ledge, endeavour to friglhten the passengers: neither did he, to the bestof-witnesi's judgment, aist to save the ship. Captain. Survey and Captain Carpenter described the accident in the same manner as the preceding witnesses. (ieage Stolle (servant to the first nmate) said, that when the ship struck, he ran and calDed Mr. Moreamnt, his master: when they came on deck, the Captain said to Dlr. Mordaunt, " This " old fool (meaning Tregworth) has sent the ship ashore," Tregworth replied, that it was not his fault, for he had just ordered the ship to be put In his cross.examination he admitted that when quitting the Apol&o he took the ship's violin ashore, as he had broken his ovn in descending from the vessel: he thought he might as wel save the other violin, us allOw it to.he lost. Dlavid Kerr, a master in the Royal Navy,-in vhich he had-served for 20 years, was acquainted with Table lIay, which he had often navigated so late as last February. ' LThe Apollo was wrecked in April foUowing.] Upon reference'to thecharthlie saidthattherocksoff (*reen-point were long kfLown and ascertained, and he described the line of the anchorage and usual mode of " fetching in" to the town, ilustrating his description by a reference to the char:L The lead should at such times bh sounded, as the ship was found in shallow water,and a good lookout be kept,particularly atnigbt,and he should not haye tacked where the Apollo was described to have tacked on the chart. 'Vhile fetching into port or harbour, nil -hands should be tu-ned up anid kept so until the vessel anchored. His plauwould have been, when a ship struck in the mnanner described.to have tack- ed the fore and aft sails, and backed the square ones ; put out anchors, so as to prevent her turning over; and this course he would have expected to succeed. It was not seamanlike to have got ashore where tine Apollo was: at least she ought not to have been where sic was found. - In-his cross-examination he said that he should know whether the bttom of the vessel was injured or not by the concussion of striking and sounding the well: however, in either ease, he would have taken the step4 he had already mentioned. Nhe first'duty of a captainwas tohavelookedafterthesafetyofhis-pssen and cre', but at the same tirme lie should have expected the safety or preservation of the ship to be also attended to. Mr. John Franklin, a master in the Royal Navy, who had been 28 years at sea, and often passed the Cape of Good Hope, corrobo- rated the preceding witness in bis descriptio&t of the anchorage of Table Bay, and .the proper rnode of working a ship into it. In his cross-exam ination, he said that-the v4rsation of the com- pass in Table Bay was reckoned aboat two poins and a hal. He could not.answer thequestion, whether avessel coulahave weather. ed Whale Point without tacking, situated as the 4pollo was. Two other masters in' the Royal Navy delivered simiilar evidence respecting the navigation of Table Bay,- and the course which they - would have taken in tacking into the harbour, andgettihgoff a vessel which struck in that situationr. Captain Wilkinson proved having brought the plaintiffhome from the Cape, and received 1001. passage.moliey from him;. the ulaintiff's case was here closed, and 51r. SCA5LEtT rose at a quarter before, five o'lock to address the jury. -Hclamented, that at bO late an hour of the day he had to address themj and more par- ticularly as he h!ad a mnass'f evidenc to adduce in contradiction to the more material part of- that which. they had beei during-fouz hours and-a half reeeiyis fom the 'witnesses for the proseeution ; and he should do so by witnesses of tle mast snexceptionable cha. racter, did perfectlj competent- to sPealk upon- luautical. topics. . It couild not have es6apd thd attention of the jury, that most of- the withessfs for the plntilf wire military gentleman, sotveered in marine reatters, and who, however competent to discuss the dffif. culties or meet the dangers -of the land-service were entirely inade. quate to guide jrirors aDpon iheir oatls,to a right conclusion upon a ,subject w ich sailors alone werc fit toelucidate. He trustel, that when they considere4lbthg immense importance of this case to the owners of the ship -asweill-as to -the captain, whil 'were liable, if this action- were ststained, to meet actions in succession from each of dte 4G passengers on board, as well"as from the un- derwriters,.. who were answerable for the loss or damage -op the 'cargo, tey would weigh well the evidence. He should prove, tnat so fir from. Captain ..Tennant being eitler i.- attentive r. incompetesnt, -that he was a man wellknown'and re. klpected for his Trofesslonal d-nowledge. - It'was Indeed on tWe face of the enquiry -'obvious, that. an experienced captain - of a ship employea in-the East la'-Cwnpanys'seie, could not have been so intrusted -for maiy. many- eari, unles's. he-cwre found to beskilful, zeolPus.and discreet. It-woud clearly o per,1 that at the tine when.th-c ship stiuck, instead of being leew"rd of-the fogcs; she was-thoqght to-havebeen on thie.widwird sidecof them. There was at the tirfie a selhIaze which was deceptivei -an'd induced the offlcers to think that th'eyvere xnuehfirther fronithe land, thin they afterwards founid thantelves. . The. Captdn, it - was - true, did' nt icite-a bustle eieithe accident -occurred, -he felt that-he had a numher of p~eassgerhttowho-sesa&ty he was bouiidirtthe'first in.. stance: to atd nyedtiie wwere ldic a.nd Children1 and he v6s oetion herevma ~htErr th ..ddt deu~Thug teg1U6pce oi enomecnco lb VaptbAin.. e eword sothreug the n n~OP ' cy-othe CPeftaianc-Ie duy0 ~ a Th~~ first*fmes~'oi. thea dcfes the bay, - Caita[n .Tnlin ~ .i~. ..~ ~ alone - V ? h ~ ~ ~e nacibeen a?t at the tlme, ant tho ma Company, which he lad i en. tered on board theo.urav&t, as the fbourti mate, and bhad grruil .aceided to his t'eseut=ks- Hebhad ofeourse been repeatedlIvex... e aned as tollsnatiticalskiliic ther ast India HoWe. He agd 'had the Co r ingd of a le toarextra ship inrthe CompanyIs setitce Tsincne 19. In March- 1i he sailed fmo n to p eno as fadras, On thebone vtoyage, whsu the trond:, theo werng ein anl shockd calgO Ofvaluen'and he had himself 1,ou0t. worth of pro. peity, -harly sll uninbured,; butt ome near egeneral caro as in- rured. On the nightoft he 1ayrhoaApri ltbe night previous ao the loss),'he was constaunly backwArds and fhrwad s on the deck, il. tehobgh he.hadobetheill fosivwgdavs ofthat week. On the1uorni a rthese6th they a oivedoffthe sody ihe frnst of the Cape of ra nope. heremjained on deck nearly thew aole of' that day forthe pupote-nfpreparind g the ship fot the openzin Table-bay, 3ust as' they eleared. -Lonsmouth t Theowindwas then S.S.a., and occaw sionally B.S.B. Aboiw half p&qt five J,r 6ix o'clock in the evening, they made the openlng, and as the wind coaned hown frbin the east. ward, rthe,s lay over eison on the -wind, towerc m, Robind e slaned ome the starbnda y taco. When thg man on th0 chain ca_ed o ut C ta.i- foashois, tnc.y put algaut, as it bcamw e necesml ones tackn s to clear the' ishad. iThe w4tzh was reggiarly. set at the tine, 4nil the man oolnifu;. the lead in the chains. The ofIieer4were attheirprocper. stations~ At the timnethe vessel. tacked, he thought hwa to be ablout tive miles and a half' frs theland, and sailingiat threed nots anhour At-tht e na ned thecable Wordsworth (the Pirsert azul b awits IThivifnie6 niefdirincb 'of opinion as to their being Abl thev,-ear-the rocks oin the ate t tack, vent into the cabin tcg coscl togetbei And inspect the chart they remainea - -%t inlniites in the cabin for that purpcse, and asche v hi 0.u%tucoine.olt, the s'hip struck the groand he felt a very rolledct shock. lvel n he came on deck, and went out on the bow. spiUt, be wa still unable to see the near land-they could see the high ps'ecting rear landth-Sa heavy haze lay over the low lands and obscu thematid nnquestionably deceiVed Ehem as to their dis- tance Irorss-emed._Thee r was a ar.e which created a delusion ia thi 3respect daring the wholeday. The first orderhegavemonreach- log the deck after the accident, was to throw Etll sails back, and the order was as speedily as- possible execatea- This produced no effect, and they neat endeavoute to clead the lonz-boat: some guns were ianiediately fired. Tie Delgoth's heat whichwas at han,wastoo small to curam %beir. only anclior, which couild ha-re been serviceable tQ the ssi iio ther situation. nlany other boats came to themd, andt he sent seme of them instantly to the agent wbr Lloyd's, and the Port Captain, for assistance. The boats whiieh came were all smaih ones from shore, And theships in thb bay.l The passengers were at this tiJe in thLdeutntt confusion. A boFt came in conse nence of his tessapge, And was imma ediately used in Ca othir otes he ghip' t,eam nanchor; the sails were clurd ua fren the cable pressed as much as itwould bear: rt wititborut effect to extricate the ship, and the w eathe chagin t eiht o ck on the folowing morning,and a liavy s eapt sh e rolled exessively; and at e alf-past t he filled, aknd was entirely lost. The man whio sounded the lead went to sea slince in a South Sea vessel from the Cape. Cross-examined.-He rememberedl a Mlr. .Aikin coming on board at 9 o'clock in the mornind. At 12 o'clock on the previous night he got 30 fresh bands frm the shore to assist The stream-aechor car- ried oAtwas abotitl2 cwt. Hebhad lost alihisown goods; bntwben the slop was at io adras, be had given directions to have an insur- ance eWLted fore im. ble got h's plate A.thore in the afternoon of thelos o th shp,andnot o th nihtshe struck. He did not 'recollect seeingthe lightson Robnsland when they nere tacking wThineamile Ior tCEnE quartersTIo at mile of iton the parevious night. Thisdwas hio surnjetu, as the mvdnc,andhad capullted uth 1p0 fathos from to the hans. whe, knew nt whorot hinsutio fodplate ashore, having given ir. hn kordaunt, the chieftmate of the Apolo, Alr. Wlords. wvorth, the purser (who had sailed as captain of other vessels); WVil- liam GTrant, the sail-mnaker, Richard Brett, the steward; William Lang, the 3d Atend Mlr. Tregworth, whio was also oni hoardl; aU cncued i ateihting the loss of the vessel-to the liazy wea. ther an boe tstiony to the skill which the captain shiowed in endavorin together ox.~ captans Cuninghm andLauncy aid, that judging from the evidncewhih tey ear tis dy, the~y thought Captain Tennant was ot t blae, uder altecircumnstances. No imutaton haing een cast upon the Captain'si general skill, evidncewasoffhed,butnot cceted onthat point. The oan HIEFJUSTCE, t-lOn'linuites pact 9 o'clock, pro- ceedd t sumqipthe vidnce andrecpituate th principal points to te jry,who afer shrt onsltaion fond* verdict for th~e COURT OFEUING:'SB1m3urvW TMr.,z-r .TAv 9R _ HALTON V. NESRITrT AVn AIOTWFUR