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LAW REPORT.

WEDNESDAY, SEPTEMBER 14.

BANCO COURT.

(Before the Chief Justice and a common jury of 12.)

THE LOSS OF THE ATACAMA. ACTION FOR ALLEGED LIBEL.

£2000 DAMAGES CLAIMED.

Cowlishaw v. McLeod (part heard).

               

Mr. Pilcher, Q.C., and Mr. Gannon, instructed by    

Messrs. Sly and Russell, appeared for the plaintiff   and the Attorney-General (Mr. J. H. Want, Q.C.)  

and Mr. Wise, instructed by Messrs. Laurence and McLachlan, for the defendant. This was an action   brought by Mahlon Clark Cowlinshaw, of the firm of Cowlinshaw Brothers, of Sydney, merchants and shipowners, against William McLeod, printer and   publisher of the "Bulletin," to recover £2000 damages for an alleged libel published in the issue

of the journal named on March 26 last.

The evidence on behalf of the defendant was resumed. Bernard Einerson, shipwright, examined by Mr. Wise, said he was a buyer of old ships, and remem- bered going on board the Atacama at Garden Island, and inspecting her carefully for about two hours;  

and from what he saw he came to the conclusion that the vessel was badly strained, and that it would cost more to repair than she was worth. (Witness   gave details as to what he saw of the state of the vessel.) While on board he had a conversation   with Captain Spruitt, who said to him that the ves- sel was strained, and he did not think she would go out of Sydney Heads again. He did not say she was leaking very freely all the way over, but that the   vessel had been out in a storm, and that she was leaking.

By Mr. Pilcher: He had not gone into figures as

to what it would cost to repair the Atacama.  

Robert Henderson, boilermaker, said he was working at the Atacama at White's Wharf for two months under Me. Robert Young, sen. He did the bolting and riveting of the knees in the lower   hold. After the two days of Christmas holidays       he noticed that the water was over the lining of the ship. He though the waterways were finished then, and as far as he remembered no rain fell during the holidays. The water in the vessel was   salt. He saw the windmill pump going at times, and also the steam pump. When the knees were nearly finished, he noticed that wooden wedges were driven behind some of them. He did not think that was a very usual thing to do, and to his knowledge he had not seen it done before. When the wedges were in they were painted over     to make them and the iron look alike. He had some special work to do to the stanchions in the lower hold, and was sent down to cut some of them. Five »ero broken, and he cut two down behind tin. inset nt tho main lintch Thov wera pretty woll tho rhicf support of the ship at that part When ho linl cut theso two down he saw Bomo moro broken, and going up on dock he told Mr Robort Young, tun, "Thora are a lot of these stanchion» biokoD," and Young said, "You had better not do any moro until you soo the old man " Mr Young, sen , afterwards came on board, and ho took him down, lit a canillo, and «lioncd him the stanchions that nero broken Mr Young said "Lome them, they ore «Ding to do no more " Ho did not say to whom ho referred by " thoj " Tho stanchions wero broken either betw een decks or just nbovo the kelson The stanchions rested on tho koleon, and some supported the orlop beims, and some went right up to the 'tween deck beam! The two stanchions be cut nore full len"tb The broken Blanchions were sent to tho blacksmith's ty be ropaired, nnd wero brought bick unrepaired lhej wore then put back into their places just a« defectivo u they wore before The stanchions wcio about 3m thick Defoctivo stanchions wero of no uso to tbo ship, ond if the ship worked at all they would not work with her Iron bands woro placed round three of tho stanchions to keep them m position, out they were left unrepaired Mr You ig or his foo, to the best of his knowledge, na« about tho vfsel homo of tho bolts woro.,eatea away by rust mi the gre,ter part of them ought to ha\ e been taken out Tho \ esscl was «trained and tho iron work seemed to Ira m a \ cry bad state In tha eise of tiro of the broken stanchions bands ware not place! round them

Joseph Stopwich, Government crana drver al Newcastle, saul he assisted in loading tho Atacama ut Newcastle, and commenced loading the mnm hatch at 2 o'clock on the afternoon of January li Sho was theil 2ft to Jft down by the held As (boy loaded it would bring tbo vessel oa an even keel He afterwards proceeded to load the after hatch, and on Monday ehe went down remarkably quickly A ship of that olre would ilrap about an inch to a waggon load, but she dropped an inch and a hatf good, and seemed to go town lister and faster all the time Ho did not think tbo quick drop w as attributable to tbo coal put into her He saw the crew pumping with tho hand pump on Monday, and bo thought they used the steam pump for a lltttle while 1 hoy pumped belora breainast for about an hour and nguiu at ,t 11 o'clock and again in the afternoon, about half au hour on euch occasion lhey started with the forehold oa Tuosday aud worked until U 30 They bad been pumping for about an hour before break- fast Coal n as then being put Into her

U When you stopped coaling could you ha\o gone on putting coal into her safely without tho lessel being pumped ?-A Yes, I think so

Q Safely r-A In my opinion she was not safe

wherewr she was

Witness (continuing) saul that on Tuesday morn- ing they stopped coaling from 9 30 to 1 li Ho saw them pumping with tho steam boiler as long as they could get the feeder into her They pumped for about un hour with tho stump pump, nud thon the water got low in the glass and they stopped tbo pump lhey then manned tho hatid pump, and pumped until ho loft at li ¿0 Thora was nny «mount o£ coal ou tho wharf for tlio vossol, and theio was no reason why sho should have stopped coaling except that they w anted to pump When tlioy stopped they could have put 90 tons more coal into lier He san the carpenter sound tlio well, nnd lie Baw bv tho iron that thero itere 3ft 'Jin of water 11 the hold That wis just before they started tho donkey engine

By Mr 1 ilelier There wa« a m sly ram while they were loading It rained pietty heavily on the Monday At S JO on Tuesday she woo loaded down to her draught according to tho mate, but she was then 2ft Cm abovo the Plimsoll mark The coal

! was just wet enough to lav the dust, and he thought

very lillie water would get into tbo Bhip in that wav It di I not ram hard enough to make tha water run through tho coal'uud out of the waggons, nud if it did ho did not notice it Some of the doora of the waggons showed dry, j roving that tho water did not go ri{,ht through the coal

Bruce Stuart, night nssislant berthing master st Iiowcnstle, said thnt tho Atacama wns nn ancient tvpeof vessol oho was pumped twico on two dillerent nights Olio nigbt thoy u«od tho steam pump aud another night the baud pump as far as ho could see that wns on unusual thing to do nt night time lhere w as a drizzling rain on Saturday nilernoon and on Monday it rained heavily

Alfred Fdwards, waterman at Newcastle, said that on ono occasion while the Atacama wa« loading Diehard \\ ost, i coal trimmer, said to him, refer- ring to tho Atacama, " Iho old thing hid a lot of water in her ann we had to knock off working m order to pump her out "

Thomas ¡shepherd, a "hooker on" at tbo Go- vernment cranes, Isowcasllo, eaid that on Tuosimy tho Atucim» stopped loading from J 30 to 11 p ni

when he left tho wharf Mio wns supposed to ho finished coaling then Ho saw thom pumpiug with the donkoy ingino until it broko down, nnd tiny then started «Uli the hand pump

Louis B'rniird horso driver «t No. 14 crane, ¿Newcastle, «aid he saw tha Atacama being pumped on the tuesday It was unusual for deep-water vessels to pumn while thoy wero londiug

Augmtus Woods, " hookor on " at the same crane, laid ho noticed them pumpiug nt the Atacama foi shout two hours A vessel lyiug ut tho wharf ought not to requiro pumping liko that, and he noTer san a \esFel pumping like it before

Mr Went She nus the '"a* leaker you ever

suv^-A ie

Q W hat is >our opinion as to her seaworthiness ? -A I nonld not ha io hkod to go to sea in hor

Aleramler Gnllaghoi " hooker on " at Newcustlo crane tm 1 that on 1 uosdiiy he went Idown the foro 1 art of the fere 1 atch of the Atacoma to got some timbei Ho stiucka match nnd noticed that the

«hip at the b1 in ec unid dump and muddv When 1 he wai on dock be noticed that whilo they w or« LoaluiL (ho donkey eugino wos BUirted to pump her I hut was between') and U JO am, and ho ulso sin the cjipeuter and male Boundiii" tho

vessel

Walter bonier,, as «laut foreman of coal trim mers at fiewiaitte, slid that between 1 and 4 o'clock on Monday the Atacama scorned to fo down tory suddenly He nciei noticed such a thing biforo m a ship aid lhere nils nothing m tho trimming of io °ial tcl rauSB ll01 to go dowu in that wav At 10 o clock on I uosdaj morning tho mate would not t ito in my moro coal as he thought ho had his ?IrauMit and tho coal trimmers stirted to clean up J bo ship's hinds w ore Ihcu pumpiug The captain Hlkrn uds nnio ou boaid, nud thoy lesnmed coal- ing Hn never noticed tin pumps suck He saw oi o or his men getting some wood to stand upon under the main hatch to keep out of the water Ho dil not ti ink much of tho Atncuuia, und by tlio look U things ho did not think «ho was ill ti po to poa

Ilcri Lit Tdgnr Hobiusou, clork in tho United Munno Insurance Company, sud ho knew Mr »ebb, who wan in Mr Coull haw's olhco, aud he had trmsactioi s with bun for and ou behalf of Mr Liwhslian (Mi Want handed the witness two ii jcutnonts signed bj Wobb and proposed to examine Jura upon tnciu in referonco to the Atacama, but the evulonro was objected to and ruled inailmissable st tho present stngo ) He had boon in the insurance 'flico foi thrcu viara, and during that timo tho « nipsuv bul done u medium businuss in lnsuranco with Cowlishaw Brothois

Xlni.msJ Wallers, secretary to tlieàorth Queeus .!"...,"r""co f ' " PnnJ . aud formerly in Sydnoy

Lloyds, produced tero proposals signed by Mr. Webb for insurance in Sydney Lloyds, one dated August 23, 1803, and thn other dated Januar» 17,189ß He also produced three proposals signed by Cowlishaw Brolhersfor tho Imperial Marino Insurance Com- pany I hero were no proposals in the North Queens lona Company. There must have been other pro pi sals in bydnoy Llo} ds , but he had not been able

te) lind then!

I liornas Pearco, coaltnmmor, and who had for- merly folio* ed the sea, said he worked ou bo-lrd the Atacama ut Newcastle, and on Monday while thev wero nt on-akfivt be noticed that tua carpenter sounded aud found f jut or Hto feet of water in her hold ihov hail started pumpieg when heweet be- lo«, When he went down to commence putting co«l m tho öfter lialdi the vessel went down to her draught nil of a sudden Tim coal uud water put hor down He had nover seen a ship pilnlping as much tis

tho Atncnnm before

brnnlc M'Cormack, a hooker-oti, ¡¡gave corrobora- tive andoneo as to the vessel suddenly sinking down to her draught, and as to her looLrag slightly " nogßet^ "

Thomas; Laidman, matter mariner, and for nine years and nt present surveyor to the Sydney Under- writers' Association, said that ho wa« on board the Aticama about three hines a week while she was being repaired at While's Bay, and he fclsO examined her in dock afterwards He also saw her at her

moorings at Nowcastlc, but was not aboard of her j

Air Gibb and other members of the association re- ceived a verbal report from him of tho condition of

the vessel, uni! he wrote it down on January 19 On | baturda}, January 22, it waa printed, and on the foi- I lowing Monday it was circulatedfaraonp; the members J

of the association When he first saw tho Atacama in Is ovembcr nt Whito's Bay she looked like a vessel that had been stranded for como tims She looked a complete wrock

At 4 o'clock tho further hearing was adjourned to tho following day

(Before Mr Justice Owon and a jury of four)

PHOTOGRAPHERS' LIBEL ACTION.

Blow v. George (part heard)

This was an action by Mark Blow to recover £2000 damages from Eden George for alleged libel. Mr. Bruce Smith and Dr. Coghlan, instructed by Mr. T. Read, appeared for the plaintiff; Mr. Garland and Mr. Ferguson, instructed by Mr. G. E. H. Sanders, for the defendant.

Plaintiff, a photographer, carrying on business at the Crown Studios, George-street, secured the   registration of the word "Rococo," and applied it   to a certain class of photo. Defendant, who carries   on business at the Eden Photo Studios, published an advertisement which has already been set out, and which plaintiff alleges injured his credit and reputa- tion as a photographer, and caused certain persons who had heretofore dealt with the plaintiff in his business to cease dealing with him.

The defendant pleaded not guilty  

Mark Blow, the plaintiff, in further examination by Dr. Coghlan, named several photographers in Melbourne who, he said, used glazed bromide paper. He recognised the six photos handed to him as glazed bromides.

Dr. Coghlan: Produced by some of the leading Melbourne photographers?  

Mr. Garland objected to the question, and it was disallowed. The photos were withdrawn from evi- dence until the names of the producers were made

illegible to the jury.

At the time you introduced the Rococo photos were any other professionals using the paper in Sydney ?—No. It is true that amateurs may have   used it. They always are the first to try anything new. Professional photographers are diffident about taking up those new ideas until they are shown to have merit. There was the pink "Nikko" in regu-     lar use previously. Mr. Fuller imported the white paper for me, and treated it. Up to that time no professional was using the white paper in Sydney. I advertised it largely as "Rococo"—as a new    

process.

Did any other photographer use it afterwards?—   Oh, yes. It is still the newest process with the exception of the recently imported "Simplex"     paper, which is not used by the trade. The Rococo is a wasteful process, and I always serve out 16 pieces for 12 photos. It is a difficult process also, the printing and developing calling for

great skill.

Is the Rococo process "one of the cheapest and   simplest" in photography as stated in the alleged   libel?—It is one of the dearest and most difficult.   It would be impossible to teach the process, as Mr. George said, in two hours. Mixing the chemicals could not be learnt in the time. Amateurs, when buying a new paper, are satisfied if they get one successful picture after destroying many pieces. Sometimes they might get several pictures con- secutively, but that would be by luck. But to turn them out for the trade demands experience and special knowledge. My own man has 22 years of photography, and yet it took him one month to properly learn this process.

On the question of permanency what is your opinion of platinotypes ?/-Changes of atmosphere will cause tbo paper to contract and oxpand-opera- tions which tend to crumble the platiunm and destroy iho surface of the photo

It is Billi that tho Rococo photos are not artistic, and that one of their faults is their homogeneous news ?-Homogeneousness is aimed at by ever} photographer and maker of paper

What docs it mcanr1-it means unitv of tho surface and appearance ft is the climax of photo- graphy

His Honor I cannot understand you Could you

illustrate it

Witness (handling a photo) Easily. There you see is a metallic silver image on tho paper, aud all round lioia Hiero is unity of the surface or the wholo picture, nud tho metallic nppoarance is blending into the gelatine, and as a conseqnence it produces an

artistic ci!cet

His Honor Ah Would you tell that to the jury,

pienso ?

Witness repeated his explanation to the íury

His Honor Is homogoneousDess said to be a bad

feature ?

Dr Coghlan The witness, Mr Ross, said these pictures were homogeneous, left nothing to the im- agination, and so weie inartistic

His Honor Oh, yes Ho said the other kinds let in the light and shade and that the Rococo kind

does not

Cross-examined by Mr Garland I wa m the pro vision trade for about seven years m Fnglaud I next opened business as a photographer in Sydney in 1S8ÍI, under the stvlo of the London Palace of Art Then I took Peel's btudios in George-street I think I am a skilful and expert photographer I did know a number of trade "corotn, but they ate now out One cannot trust his employees for keeping such

secrets

Mr Garland Do you mean to Bay that the alum bath vías a secret of yours **-I was tho ? first to use the bath for hardening the gelatine on the smooth bromide »hotos for the purpose) of burnishing prints

Do j ou menu to s iv that alum as a hardening substance for gelatine has not been known to all photographers îor many jvears r1-It has been so known, but only in connection with the making of gelatiuo paper, mid not for hardening the gelatine on priutB, to enable them to bo burnished

Does the alum affect anything besides the gela- tiuo P-Yes, it affects other ingredients in the emulsion ,

What are the ingrédients "-That is a trado secret Do j ou sly that gelatine prints were never bui nisheel boforu lfeSl ?'--I do v

Do joa claim tbo glazed bromide process as your ov\ n P-I claim to have been tho first to have intro- duced it 'o the public of New South Wales in a professional way I had not used tho process be- töre 1 registered the name ' Rococo " It had been used In ninatcuni for taking views Amateurs generally pioneer these new ideas

His Honor An adaptation of " Tooli rush in whole angels .fcir to tread" would, perhat s, de- scribe tho moaning of tho witness (Laughter )

Mr Garland Can you show mo au authority which sajs that the glided bromide process is abso- lutely permanont ?-i'cs, I can Dr ID A Uust, the greatest authority on the bromide process, Boys

so

Witness reait extrada from Dr Gust's book to the effect that emulsion photos were proved to be per- manent by tests made in 1884

His Honor Do you nay that brilliant emulsion prints are tho same ns glazed bromide prints '-Prac-

tically

Mr Garland I thought there wero no glazed bromides m 18S4 i"-There wore none in bydney.

Hore is a photo which came out of your studio Is it permanentT-It has not come out ot my studio in the ordinal y way, or if it has someone has aftor wardB npplied hyposulphite of soda to it But even if the paper of a photo fades and the image remains blacW it is a permuuout photo

Äowjoiisa} m your advertisement that your work is the climax of photograph} Do vou mean to ellura that eonously i-M} business is all serious- ness M} work is tho very climax of photography

lheie eau be none botter

And }et j ou soll theso perfect things for-how much '-ror it price which compares reasonably

with the cost

Do } on menu to say that you can produce platino- types ."-Yes and I have personally produced

thom

Did }ou pubh«h that}ou wero tho only[oro duccrs ot tho Rococo process f-lies

Mr Garland handed witness a cop} of an adver- tisement Mindi he admitted inserting lu the " Horxlel ' Boino time ago It; contained, amongst other worils -" Whv pay Ga (Id when our price is .« (jil and much better finish than those miserable black and white daubs supplied by crack-brained

poets?"

Mr Garland "H horn do you refer to P- To the general public iLanghtoi )

His Honor What ' as orack-bialnod poets ?

CLaughter )

Witness No the advertisement refers to no person in particular Ab a mattei of faot l wes charging bs Od at my other studio It does not refer to Mi George

You knew Mi George was inserting poetical advertisements »/-No , I did not

Does this (another advertisement) apply to de- fendant f-No , it ib a general advertisement In Decembor, 1895, defendant and I wero advertising

ni rather a free manner in the " Sydney Morning Herald " and other papers Wo v oro attacking each other, {perhaps I bad in internow with Mr Sumuel Cook, the general manager of the

" Herald "

Mr Garland objected to auy reference to the interview, and the objection was uphold

Witness ^continuing) said that ho bid once arranged to give aw ay photographs on condition the sitters bought tho frames norn bun Ho was the first photographer to introduce tho Ronlgen

X rays into bjdncy

His Honor I wish the Rontgon roys would tell us when ibis caso l8 going to end (Luughter )

1 hoiniis Baker, a membci of the finn of Baker and Rouse, importers, dealers, and manufacturera of photographers' materials, said ho kuew the gîaccd bromido piper which had been spoken ot

Ho also kuow " Nikko " lit was a white piper, and was the first gla.cn bromido paper which carno into the Australian maiket It wa* introduced in ISO.!, with tho emulsion on, nil ready for use Plaintiff was the first bydnoy photographer witness had known to use the glszed bromide in his trade The paper was used m the other colonies by nil cíaseos of photographers to a smaller extent than m Sydney Silver print was the cheapest paper, dull bromido carne next, then glared bromide, and then platinotype.

Mr Bruce fcinith Wlif-h of the four is cheapest to nnnt and develop sa} in a business of 50 do/nn pel day F-I should think that tho silvor print process would bo that is, where 'i0 negatives are used For ono dozen photos from one negative, bromide n ould bo tho clioipest

As to permanency '-Platinotypo is perhaps the most permanent, broronlo is not less so thin sill or print fila glii7*-d bromido paper w ould bo more permanent than the dull, though tho images on either would be similarly durable

Tram tho artist's point of view which has greater fineness of detail-the glared or dull bromido t Tho glared Ho could not detect any difference from uu art point of view between tho two photos of which ano purported to bo a dull bromido mid tito othor a platinotypo Ho did not think that anart from tbu gla?o the " Rococo " produced was less artistic than either of the other two exhibits Io his oye the gloss was not inartistic

To Mr Garland Thero io a conflict of opinion as to tho relative permanency of the processes Some authorities say that autotype and platinotypo aro absolulel} permanent, but I regard Hint as none

sense Tho ineasuie of permanouco is ti lifoof tho paper Iho bromido is tho quickest way at printing i>Ho did mot think tho fading ou the

" Rococo " photo produced (and healing jilnntifif's I name) could have been produced subsequentl} by an application of hyposulphato of coda II v. as probably badly pioduced

Joseph Wolstenholme, photographer, in the om ploy of the plaintiff said ho had been producing the Rococos for the past two years Despite Ina long expcricaco as ii tradeamau it took bim two months to becomo expert with the llococoj bilvor prints would be cheaper than bromides, aud would bo priutcd much moro rapidly Rococo required moro skill lu printing than did tho platinotype For ono thing it hod to bo elone by artificial light, and platinotype rould bo dono by daylight He did not know anything about the chemistry of the process.

William Stanley Hall, niembei of tho reporting staff of the " bydnoy Morning Herald," was called, and asked his opinion ns works of nrt, of a nuoibor of Rococo photos exhibited m 1895 1 ¡io evidence was rojeoteet on tbo ground that Mr Hall was not u professed art expert

His Honor said that ns far iib the opinion of tho public on the artistic mont of the photos was con- cerned the opinion of tho jury would bo the rellex of the opinion of the public

John Harrington, photographic merchant, and formerly instructor, said plaintiff was the first pro- fessional photographer to apply the white glared bromide paper to portraiture iho process was more difficult than silver printing or dull bromido, and wa» practically as porrrnuont as plutmotvpe

ïhe Court ut thia slage adicurneJ

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