Sydney Morning Herald (NSW : 1842 - 1954), Thursday 15 September 1898, page 7


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 Owen 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 the paper to contract and expand - opera-tions which tend to crumble the platiunm and destroy the surface of the photo

It is said that the Rococo photos are not artistic, and that one of their faults is their homogeneousness? -Homogeneousness is aimed at by every photographer and maker of paper.

What docs it mean? - Iit means unity of the surface and appearance. it 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, and all round here there is unity of the surface of the whole picture, and the metallic appearance is blending into the gelatine, and as a conseqnence it produces an

artistic effect.

His Honor Ah Would you tell that to the jury,

please ?

Witness repeated his explanation to the jury

His Honor : Is homogoneousness 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 were 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 was in the pro vision trade for about seven years in England. I next opened business as a photographer in Sydney in 1888, under the style of the London Palace of Art. Then I took Peel's studios in George-street I think I am a skilful and expert photographer. I did know a number of trade secrets, but they are now out One cannot trust his employees for keeping such

secrets.

Mr Garland Do you mean to say that the alum bath was a secret of yours? -I was the first to use the bath for hardening the gelatine on the smooth bromide photos for the purpose of burnishing prints.

Do j ou menu to say that alum as a hardening substance for gelatine has not been known to all photographers for many years? -It has been so known, but only in connection with the making of gelatine paper, mid not for hardening the gelatine on prints, to enable them to be burnished.

Does the alum affect anything besides the gelatine? -Yes, it affects other ingredients in the emulsion.

What are the ingrédients? -That is a trade secret. Do you say that gelatine prints were never burnished before 1891?-I do.

Do you claim the glazed bromide process as your own? -I claim to have been the first to have intro-duced it to the public of New South Wales in a professional way. I had not used the process before I registered the name ' Rococo " It had been used by amateurs for taking views. Amateurs generally pioneer these new ideas.

His Honor: An adaptation of " Fools rush in where angels fear to tread" would, perhaps, de-scribe the meaning of the witness. (Laughter. )

Mr Garland: Can you show me an authority which sajy that the glazed bromide process is abso-lutely permanent ?- Yes, I can Dr E. A.Gust, the greatest authority on the bromide process, says

so.

Witness reait extracts 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 say that brilliant emulsion prints are the same as glazed bromide prints? -Prac-

tically.

Mr Garland: I thought there were no glazed bromides m 1884. -There were none in Sydney.

Here is a photo which came out of your studio. Is it permanent? -It has not come out of my studio in the ordinary way, or if it has someone has after wards applied hyposulphite of soda to it. But even if the paper of a photo fades and the image remains black it is a permanent photo.

now you say in your advertisement that your work is the climax of photography. Do you mean to claim that seriously? -My business is all serious-ness. My work is the very climax of photography.

There can be none better.

And yet you sell these perfect things for-how much? -For a price which compares reasonably

with the cost.

Do you mean to say that you can produce platino-types? -Yes and I have personally produced

them.

Did you publish that you were the only producers of th Rococo process? - Yes.

Mr Garland handed witness a copy of an adver-tisement which he admitted inserting in the "Herald" some time ago. It contained, amongst other words -" Whv pay 6s 6d when our price is 5s. 6d and much better finish than those miserable black and white daubs supplied by crack-brained

poets?"

Mr Garland: Whom do you refer to? - To the general public (Laughter. )

His Honor: What ' as crack-bialnod poets ?

(Laughter )

Witness: No the advertisement refers to no person in particular. As a matter of fact l wss charging 6s 6d at my other studio. It does not refer to Mr George.

You knew Mr George was inserting poetical advertisements? -No , I did not.

Does this (another advertisement) apply to de-fendant? -No , it is a general advertisement. In December, 1895, defendant and I were advertising

in rather a free manner in the " Sydney Morning Herald " and other papers. We were attacking each other, perhaps. I had an interview with Mr Samuel Cook, the general manager of the

" Herald "

Mr Garland objected to any reference to the interview, and the objection was uphlld

Witness (continuing) said that he had once arranged to give aw y photographs on condition the sitters bought the frames from him. He was the first photographer to introduce the Rontgen

X rays into Sydney.

His Honor: I wish the Rontgon rays would tell us when this case is going to end (Laughter )

Thomas Baker, a member of the firm of Baker and Rouse, importers, dealers, and manufacturers of photographers' materials, said he knew the glazed bromide paper which had been spoken of.

Ho also knew " Nikko ". It was a white paper, and was the first glazed bromide paper which came into the Australian market. It was introduced in 1893, with the emulsion on, all ready for use-Plaintiff was the first Sydney photographer witness had known to use the glazed bromide in his trade. The paper was used in the other colonies by all classes of photographers to a smaller extent than in Sydney. Silver print was the cheapest paper, dull bromido came next, then glazed bromide, and then platinotype.

Mr Bruce Smith: Which of the four is cheapest to print and develop say in a business of 50 dozen per day? -I should think that the silver print process would be that is, where 50 negatives are used. For one dozen photos from one negative, bromide would be the cheapest

As to permanency? -Platinotype is perhaps the most permanent, bromide is not less so than silver print. The glazed bromide paper would be more permanent than the dull, though the images on either would be similarly durable.

From the artist's point of view which has greater fineness of detail-the glazed or dull bromide? - The glazed. He could not detect any difference from an art point of view between the two photos of which one purported to be a dull bromide and the other a platinotype. He did not think that apart from the glaze the " Rococo " produced was less artistic than either of the other two exhibits. To his eye the gloss was not inartistic.

To Mr Garland: There i.e. a conflict of opinion as to the relative permanency of the processes. Some authorities say that autotype and platinotype are absolutely permanent, but I regard this as none

sense. The measure of permanence is the life of the paper. The bromide is the quickest way of printing. He did not think the fading on the

" Rococo " photo produced (and bearing plaintiff's name) could have been produced subsequently by an application of hyposulphato of soda. It was probably badly produced.

Joseph Wolstenholme, photographer, in the employ of the plaintiff said he had been producing the Rococos for the past two years .Despite his long experience as a tradesman it took him two months to become expert with the Rococos. Silver prints would be cheaper than bromides, and would be printed much more rapidly. Rococo required more skill in printing than did the platinotype. For one thing it had to be done by artificial light, and platinotype could be done by daylight. He did not know anything about the chemistry of the process.

William Stanley Hall, member of the reporting staff of the " Sydney Morning Herald," was called, and asked his opinion, as works of art, of a number of Rococo photos exhibited m 1895. The evidence was rejected on the ground that Mr Hall was not a professed art expert.

His Honor said that as far as the opinion of the public on the artistic merit of the photos was con-cerned the opinion of the jury would be 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 glazed bromide paper to portraiture. The process was more difficult than silver printing or dull bromide, and was practically as permanent as platinotvpe.

The Court at this stage adjourned.