An Important Decision

Alexandra Herald and Central Otago Gazette, Issue 406, 18 February 1904, Page 4

An Important Decision

(Fbomoub Special Repqbteb) -JM • A case of the greatest; to dredgemasters was'heard in ; t^e ; sß Warden's. Court at Roxburgh '* <m tin -* 11th inst, when John Tough, dredgefaster of Fringle and Parties' dredge* was proceeded against on the informatipn of the Inspector of Mines for that j? he caused and permitted mooring ' lines to be shifted without the crew - engaged in shifting the lines wearing lifebelts,!' contrary to the Regulations § .raadeunder the Mining Act, Mr JFM Fraser (Crown Prosecutor) appeared for the Department, and Mr J R Bartholomew (Alexandra) and D M Findjay (Dunedin) for the defendant; wbopleaded"Not guilty." Mr.. FraKer said the Department deemed it highly necessary that the life-saying regulations should be strictly complied with in every respect. In this case it was,admitted that there waa an ample supply of lifebelts on the dredge but it was not sufficient for the master to provide the belts—he must also see that the men wore them. Top many accidents occurred on swift-flow-ing rivers, and the Department was determined to strictly enforce the Regulations. Mr Fraser admitted that Tough was a careful and capable dredgemaster, and that the men did not want to wear belts, but both they and the master were liable if they did not do so. Mr E R Green* Inspector of Machinery, gave evidence as to serving the defendant with the usual river notice. In reply to Mr Bartholomew, witness admitted the dredge was well kept, and everything in good order ; it was sometimes physically impossible for the master to insist upon the men. wearing belts. He thought the young man could not have been saved even if he had been wearing a belt. He admitted that the men could go on working without a belt without tfce dredgemaster knowing it. They should be prosecuted, and dredgemastera should refuse to allow boats to leave the dredge unless the men had belts on.

Mr Bartholomew argued that ther« was no liability on the master to see that the men put the belts on." All he bad to do and could do was to provide all appliances, and call their attention to the regulations. . This being a penal procedure the regulations must be strictly construed, and no liability inferred which was not expressly stated. The duty imposed was "to wear the belts," and there could only be a coxa* pliance with this by actually wearing the belts, which clearly showed that only the. men, and not the master, were liable under this section.

Mr Eraser having replied, His Worship gave his decision as follows:—Ib proceedings of this nature the provisions of the regulations must ho strictly construed, and he would not be justified in drawing any inference. The master's duty is to supply boats and lifebelts, and his duty ceases when th» life-saving appliances are there; thfe responsibility of wearing them liea with the men, and the law holds them, answerable. The information must be dismissed.

Mr Eraser intimated that he would appeal. . The defendant was then charged on a second information with failing to keep a boat continuously furnished with a lifebuoy. Mr Bartholomew pleaded for a nominal, penalty, i sub* mitting that the fine should be in proportion to culpable negligence. The. lifebuoy had onjy been temporarily re* moved for repairs, and the accident could not? have been averted even H the lifebuoy had bean in the boat, la all other respects there was a full supply of life-saving appliances. The accident would not have happened >f Tough's instructions had been carried out.

David Ballantyne (matter of tho Golden Gate) and Henry Oouttfe (master of the Golden Bun) gave evidence as to Tough's careful and capabl* working of a dredge. His, Worship said the regulation wa« framed for the protection of the live* of those working*on the dredge?, though it seemed in evidence not to be alway* carried out. Whether lives are to be saved or not, the regulations are framed for the safety of the men and must b» obeyed in every instance. He did nofc agree with defendant's counsel that culpable negligence should be the measure of the penalty, but felt bound to make it sufficiently severe to make dredgemasters obey the regulations. Considering the good reputation of Mr Tough, the Warden inflicted a fine *f £5 and costs 19s. $

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