In December, 1907, the following correspondence passed between the parties on this point:
"3rd December, 1907.
" Messrs. Barclay, Curle & Co., Ltd.,
" Whiteinch, Glasgow, N.B.
" Dear Sirs,
" T.S.S. No. 472.
" We now return herewith the copy of signed specification received from you on the 27th November, and would remark as under:”
" . . . . . . . . . . . .
" With regard to the phrase 'and to be designed if possible to go to sea with permanent coal and water ballast only,' as you are well aware we should have liked you to have felt justified in deleting the words 'if possible,' but as you have stated you do not feel inclined to do this, we are ready to allow the words to remain, provided you can assure us that the stability of this steamer is greater than that of the 'Geelong.'
". . . . . .
" Yours faithfully,
" W. LUND & SONS."
The words, 'if possible' were an escape hatch from responsibility for the Waratah in 'light' condition. The Lunds response, that the 'stability of the steamer (should be) greater than that of the Geelong', is a clever move. If the Waratah's stability could be confirmed greater than the Geelong's, stability in 'light condition' would be guaranteed. The Geelong had proven herself in terms of stability. In fact, if the Waratah's stability was greater than the Geelong's the words 'if possible' became redundant.
Thereupon an interview ensued between Mr. Peck (of Barclay, Curle & Co.) and Messrs. Lund; subsequently, on the 11th December, Messrs. Barclay, Curle wrote Messrs. Lund, ". . . . . . paragraph 5. These points." (i.e., deadweight and stability) "were, we understand, arranged by Mr. Peck and your goodself to remain as specified."
To this Messrs. Lund replied on the 13th December, 1907, ". . . . . . paragraph 5 . . . . . . With regard to stability he" (Mr. Peck) "stated the stability of this vessel was greater than 'Geelong,' with which also we will be satisfied." Messrs. Barclay, Curle's reply to this was on the 14th December, 1907, "Remarks regarding deadweight and stability are all in order." Mr. Peck explains that he never promised the "Waratah" should have "greater" stability than the "Geelong," but says he promised she should be "as stable as the 'Geelong.'" He added that he was away when the firm replied, "Remarks regarding deadweight and stability are all in order."
However, one point emerges quite clearly from the evidence and from the correspondence, i.e., that there was an arrangement by which the paragraph, "to be designed if possible to go to sea with permanent coal and water ballast only," was to be replaced by an under-standing that the stability of the "Waratah" was to be "as great as" (Mr. Peck), "greater than" (Mr. Lund), that of the "Geelong."
The builders conceded ground, by acknowledging (Peck) had 'promised' that the Waratah should be 'as stable as the Geelong'. Clearly the owners were positioning themselves to avoid any form of culpability regarding the overall stability of the Waratah, and therefore, absolved of responsibility should the circumstantial evidence point in the direction of Waratah foundering in a storm of exceptional violence - perils of the sea argument whether Waratah was stable or not.
In normal conditions of loading and ballast, particularly with the use of spar deck bunkers, the Waratah could never have been as stable as the Geelong.