SEAMEN'S WAGES.

Dominion, Volume 3, Issue 798, 22 April 1910, Page 4

SEAMEN'S WAGES.

HUDDART PARKER BOATS IN COASTAL TRADE. UNDER WHICH LAW? LOCAL RATES MUST BE PAID. The Court of Appeal yesterday gave judgment in the case of the' Huddart Parker Proprietary, Ltd., versus Charles Stafford Nixon, Collector of Customs at Wellington. Tho Chief Justice (Sir Robert Stout)/Mr. Justice Williams, Mr. Justico Edwards, .and Mr. Justice Chapman were on the Bench.

At the hearing of the case, Mr. Martin Chapman, K.C., with him" Mr. E. F. Hadfield, appeared for the plaintiff company,- and Mr. M..Myers for'the defendant. ,

Tho plaintiffs in this case, which was heard by tho Appeal Court oh April 6, are a proprietary company, incorporated in tho, State of Victoria, and owning steamships registered in Melbourne. These steamers trade with New Zealand,. . and engage in trading on their voyage from tho first port they touch in New Zealand to the'last from 'which they depart. The defendant claimed that the company was bound to pay its seamen on these vessels engaged in the coasting , trade the current 'wages paid on New Zealand vessels engaged in the same trade, and he claimed this by:virtue of Section 75 of the New Zealand Shipping and Seamen's Act, 1908. Tho questions in the case were:— 1. Does Section 75 .of the Shipping and Seamen Act, 1908, apply . to the company's ships: (a) while in New Zealand ports, (b) while at sea between New Zealand ports? 2. Are the above-mentioned contentions of the Marine Department well founded? •' 3. Has the Superintendent, of ;.'Mercantile Marine the;* right.''to ■' : - make the. endorsement mentioned in ■ Sub-section 2 of Section'7s'of the v Shipping and Seamen 1 Act,. 1908, on ■ the- articles of the company's ship's : trading as aforesaid?'• ' •■

■ 4. Can seamen on.the' company's : ships s'uo in New Zealand' for, 1 the current rate of -wages ruling in ;' New Zealand, notwithstanding'that i a different rate of wages is fixed by the ship's articles? .

Chief Justice's Judgment. The Chief Justice, dealing with , these' questions in their order,, quoted Section 75 of tho Shipping and Seamen Act, which provides, inter alia, that where "the master owner or agent of any ship engages seamen in New Zeaor,. having, engaged them abroad, employs them in Now Zealand, 'those seamen while so employed shall be paid the current rate of wages ruling in New Zealand." The section also, provides that the superintendent of the port at which a ship loads or discharges cargo carried coastwise shall notify the master of the ship of the provisions, of the section, and is, empowefooV: tb : have the ship's''articles endorsed showing.'clearly the amount of wages payable;'alko that "the Collector of Customs shall 'detain the final- clearance of such ship until he is satisfied that the crew has been paid'the current '■' rate of'wages, ruling in Now Zealand:"-.His Honour further' pointed but'that Section 2 proyides that the Act applies "to all British ships registered at; trading with, or being at any place , within tho, jurisdiction of. Now shall "be vr sp 86hstrucd'as v n'ot ; ,to exceed'.the- legislative l powers [Conferred' on the General Assembly by the Constitution Act."- '.- ' Section 75': therefore : applied to' the' ships'of the , plaintiff;'unless the provisions of tho section or any of thorn wero ultra vires of the powers of the General Assembly.' This statute, unlike the "Industrial Conciliation and Arbitration Act, did purport to deal with. British. ships, and different considerations therefore "arise in this case from those' that wero dealt with in ,the. Wollington Cooks' and Stewards' Union case. He wished, however,- to, state..that notwithstanding the criticism to which his judgment had been subjected by some English ..writ.' ers, he saw ■■ nothing; to '. withdraw "in what he sa.id.as to tho. potency df our Constitution Act. Tho Court of the . Exchequer Chamber had said that tho laws of a colony had tho "operation and force of sovereign, legislation" in con-, trolling its .inhabitants. The fact was that it seemed difficult for many English people to appreciate the idea of a" Federal Government, or of a State in a Confederation- having tho powers and sovereignty which the Legislatures of tho British dominions beyond the seas possessed, They were not in all things controlled by a unitary Government. In fact, it was only in-a" very few things that they were so controlled. . Position of British Ships. The point, therefore, in his opinion, to'be considered in this case was,. Was there anything in the Merchant Ship? ping Act, 1894, that conflicted with the provisions of Section 75? The.only section rolied on by the plaintiff's counsel was. Soction_ i i<36. "■ ■'.: ' '"'■ > '• ■ ■'•

Under that'.section, if a British iship had seamen ehgaged for a voyage or engagement made in the "United Kingdom they could not, in his opinion, notwithstanding the words of Section 75, suo in New Zealand,' for their wages under their engagement. That part of Section 75 was ultra vires. But Section 166 of the British Statute did, not prevent Section 75 applying, to' the plaintiff's ships engaged in coasting trade in New Zealand-when in New Zealand or while at sea between New Zealand ports, nor .to British iships,. registered in London, in like circumstances. In fact, Section 736 of tho'Merchant Shipping Act, .1894, expressly enabled, the Parliament , of New Zealand to deal with' British ships engaged in the coastal trade. Tho 'ships of the plaintiff did not strictly_ come within Section 166 of the Irnp er ' a ' Act, "but"as' they" were registered and' controlled by a statute which tho Imperial Legislature authorised, the State.of Victoria to-pass, they ought to have the .same. protection as British ships registered in England. ;.Question 2, the Chief Justice next pointed out, virtually repeated* Question 1, and its main point was: Could, the clearance bo refused ? This he answered- in the affirmative. There wns nothing in" such a provision repugnant to anything-in the Imperial Statute. ' Regarding,the third question, it did not seem to him' of any moment for the enforcement of the extra wages whether the power of endorsement had been, properly vested in the Superintendent of Mercantile Marine or not. It was , - merely ancillary to the enactment, that the extra wages should bo paid, and. was only a notification to that effect, and he thought it was within the competence of the Legislature so to enact. ■ t

Right to Sue for Wages. As to the.fourth question he' was of opinion that the seamen could sue only for tho extra wages, and not for the wages in the articles and the extra wages. The wages' in the articles were not payab]e in New Zealand, and he did not think it was in the competence of the Now Zealand Legislature to overrulo in this respect' the articles lawfully entered into in Melbourno, as they were made under the Victorian Statute Nor was it necessary to do so to efficiently control the coasting trade: All then the seamen could suo for, if the extra wages were not paid, would btt £lie extra wages, not the wajres provided for ia the articles, But

if the Legislature of New Zealand cannot provide what wages should be paid, then it was a misnomer to say it had control of the coasting trade. The defendant was, therefore, in his opinion, entitled to succeed.

Viows of Other Judges. . Mr. Justice Wililianis gave judgment concurring with tho Chief : Justices's answers to the fourth question, and answering the first three in the affirmative. .......

Mr. Justice Chapman held 'that , the clearance could not bo . refused. ■ In other respects, he .answered the four questions to the , same effect as the Chief Justice, hud Mr. Justice Williams, but did not entirely agree with the reasons given by them. ■

Mr. Justice Edwards Dissents. Mr. Justice Edwards said that, in, hie opinion, tho answer to each of tho questions ought to be in the negative. He stated that tho determination of the questions submitted to tho Court ■depended upon whether or not the enactment of Section -75 of the Shipping and Seamen Act, 1908, came within tho authority given to Colonial/Legislatures by bection 736 of the Merchant Shipping Act, 1894 • (Imperial). The legislative power given by this enactment did not, he apprehended, extend to the power, -in the guise of-regulating the coastal traffic of this Dominion, to enact provisions which virtually repealed provisions, affecting British ships generally, contained in the Imperial Statute. ' In elaborating his reasons for. this view, liis Honour pointed out that it was the aim of. Sub-section (b) of Section 736 that all British ships (including, e.g., Victorian ships) should be allowed to participate in the' coasting trade throughout tho whole' of the British possessions upon equal terms.

Company's Difficult Position. • ''It seems to me, then," concluded his Honour,: "that the Legislature has failed.in its.attempt,to so enact'that all British ships engaged in the coast: ing trade; of this Dominion, shall, so far as concerns, tho payment of the wages of seamen engaged in that trade, trade upon equal terms. It may or may not be possible to so enact. Obviously, it would be difficult. ' '/This difficulty'is shown in another.manner by the special case nowbefor-e this .Court: It.is stated in .that case that tho.plaintiffs, ,an Aus-' traljan company,.are paying to the inenwhom' they employ the'.wages : fixed .'by an award* of the Arbitration : Court of the Commonwealth ofv Australia. It'. l is' also..stated'-that those wages' are in some .instances greater than tho current rate.'of, .wages ,in: New Zealand. 'In cases in whioh the plaintiffs pay a , higher rate of wages than is current in New Zealand they must continue to pay such .wages under the ship!s articles. ~ If, whore, they are. paying less than tho New Zealand rate of wages; • they are-compelled to pay that rate, then it must be plain that .they are not allowed 'to compete upon equal terms with a New Zealand company,' which pays throughout the rate of wages cur'rent in New Zealand." . '.','■

Leave to Appeal to Privy Council. ■; The Court agreed that the practical question at issue was whether, the ships could get a clearance, or could be de*. tained.by the Now Zealand authorities. On this point, tie opinions of •-■' their' Honours were equally divided, and Mr. Justice Chapman, as 'the junior, therefore withdrew his judgment, in so i far as the Court arriving at a decision by majority upon tho point referred'tb. ' ' , ' ■ ; ■„''

Costs were allowed on the. highest scale, namely, £36 6s. , ■'/.: • : /'':'"

Mr. Chapman asked'for' leave : to 'appeal to the Privy Council.

» Mr.■„ ,FeH, for, the ■■ defence,,sajd(, ftft: application' would not beopposed, v.* ■>.»• ■ ; Leave to appeal to the Privy Council was'; granted bit; the usual terms as to security. '■ ''" ■■' '.' ■' '''■•'■■■■■■ ;