MR. SMYTH: In addition to the question of the _Alert’s_ sea-worthiness there was the condition of the cargo. MR. JUSTICE HOOD: But the certificate is that she is fit to go to sea without any cargo. MR. SMYTH: Nevertheless judgment should be exercised in loading the ship so that she would occupy a proper position in the water. MR. JUSTICE HOOD: If your contention is correct, the certificate should state that the vessel was sea-worthy so long as she was loaded in a particular way. Was there any witness who said that, assuming the vessel was sea-worthy, the loading rendered her unfit for sea? MR. SMYTH: All the plaintiff’s witnesses deposed that the vessel was not fit to go outside the Heads. CHIEF JUSTICE MADDEN: Is there evidence that 44 tons of cargo could not have been stowed without making the steamer unstable? MR. SMYTH: We have the fact that 44 tons of light cargo were stowed on board. MR. JUSTICE HODGES: Wattle bark loaded up to below the water-line would not make the vessel unstable. MR. SMYTH: There is no evidence that it was below the water-line. MR. JUSTICE HODGES: Nor any that it was above. MR. SMYTH: The nature of the cargo was such that it would take space high up in the vessel, and thus render her unstable. MR. BOX submitted that the owners were liable if the steamer was so loaded as to make her more top heavy than she ordinarily was. It was a case of taking a bay-trade vessel for coastal service, and the first gale she met with she went to the bottom. The only cargo on the ship was furniture and bark, which was piled right up to the deck. It was to be remembered that a very small thing would alter the trim of a ship. Another thing to be considered was that the action of the screw tended to lower the vessel aft. THE CHIEF JUSTICE said that the evidence as to the manner in which the cargo was stowed left the matter very much in doubt. The lighter the cargo was the more naturally the vessel would sit. Was it fair to assume, in the absence of evidence, that the cargo was necessarily stowed in the worst possible way, the presumption ordinarily drawn being that men acted in the best possible way? MR. JUSTICE HOOD: Why should it be assumed that the chief officer did the work all wrong? MR. BOX referred to the evidence of Ponting as to a conversation with Mr. Hodges when he said the ship was too light. MR. JUSTICE HOOD: That does not mean that the cargo was improperly stowed, but that there was not enough of it. Did he stow it in such a way that he could go to the bottom if he had a chance? MR. BOX said that if the cargo and window had no effect on the vessel, then why did she not right herself? The steamer never righted herself after she shipped the first sea. MR. JUSTICE HODGES: The owner has to use all reasonable means to ensure the sea-worthiness of the vessel; that involves doing two things, viz., finding out what ought to be done, and, secondly, doing it.