SEAMEN'S WAGES.

Dominion, Volume 4, Issue 1132, 20 May 1911, Page 7

SEAMEN'S WAGES.

IN COASTAL TRADE. INTERPRETATION OF THE LAW. ..' AiN-LUPQKTANTCASE.. A caso of considerable importance to shipowners and seamen was argued in the.'Supreme Court yesterday, before Mr. Justice Chapman. • Tho facts, which were not in dispute, were that the steamer Durham, which is owned in.'England, and is customarily engaged in. trade, between New Zealand and tho West of England,. arrived at Auckland on January 16, - : 1911, and .loaded certain cargo there for tho West of England last January, and proceeded then'co to Wellington, Lyttclton, Port Chalmers, and Bluff, taking in cargo for the West of England at each port. On February 3, whilst sho was at tho Bluff, tho master received orders to go to Loudon instead of Bristol. He, however, loaded a't Bluff as. previously intended, and returned to Wellington, where all the cargo was discharged, and transhipped to be carried to Bristol by tho steamer Susses. Tho Point at Issue. Tho Shipping and Seamen's Act, Section 75, imposes upon oversea ships' engaging ■ in ' New Zealand ■ coastwise trade the necessity of paying their seamen at New Zealand rates of.. wages while 'so engaged. In this caso tho owners admitted their liability to pay such wages on the voyage from Bluff to Wellington, but claimed exemption in regard; to ; the rest of the voyage. Tho Customs Department, however, claimed that., tho coastwise trading bogan at Auckland, and that New Zealand wages ; must be paid accordingly. Tho master and owners of the Durham applied" to the Court under the Declaratory Judgments Act for all interpretation of Section-75 of tho Shipping and Seamen's Act as to whether New Zealand wages are payable in tho circumstances of tho case. Mr.-A. W. Blair appeared for the plaintiffs, and tho Solicitor-General (Mr. J. W. Salmorid) for tho Collector of Customs at Wellington, defendant. • Urgency of tho Case. Mr. Blair mentioned that about £250 was involved in tho case, and tho.question, to. be settled was an extremely important ono.from the shipping point_ of view.. Sub-sections 2 and 3 of Section 75 made provision for preventing a "ship leaving New Zealand until the money was paid. In this case an arrangement was nlado whereby tho money was deposited, and the ship's clearance granted. Sho had left Nov/. Zealand, and would bo due at ; London in about a fortnight, and it would be necessary to eablo the result of tho case , to the High Commissioner, so that the money could be paid to tho seamen, if required, on their arrival. The case was therefore one of some urgency. He believed New Zealand was practically unique in regard to this legislation as to foreign ships in coastwise trade. His Honour: No. Italy was ehead of us. Mr. Blair said the provision first appeared . in the 1896 Act, but the machinery for enforcing it by detaining tho vessel was'first enacted in 1903. The intention was to-'prevent, foreign (i.e.,. oversea) vessels coming hero and . engaging in coastwise trado in competition with New .Zealand vessels which had to pay higher Wages and were.subiect to our industrial awards and local legislation. The • said': "Wo' will make'foreign vessels; if they .engage hi our coastjriso trade, pay the. same wages as'our own ships." .Further .or'other than that, counsel submitted, t'hrr- ■•Legislature ■■ had no power over foreign vessels. Incidentally, he mentioned the 1910 Act, which ho said would virtually extend 'the coast-line ; of' New Zealand to include Australia'.. That Act, however, had_ not yet received the Royal assent. His. Honour:. A voyage from Now York, to San: Francisco is a coastwise voyage and so is a voyage from Hawaii to New York. ; Question of Intention. Mr. Blair went on to argue that what had to bo considered in the present case was the intention of the plaintiffs at the time of shipping the cargo. Their intention could bo.clearly gathered from bills of lading and public announcements. . Tho more fact that the . destination was subsequently changed "could not affect the fact that the loading was a loading for abroad. The intention was what had to be considered. Otherwiso a chango_ duo- to accident would make tho ship ; liable to pay higher wages. ' His Honour: That is not contemplated by the Act.' '. Mr. Blair: No; but it is what the defendant is driven to say. His Honour:. This case arises from a better .offer, does it hot? ,'". Mr. Blair said ho did not'iknow. \ It might'bo so, or it might bo duo to ■ an accident having occurred to another of the company's vessels, mafc ing it necessary for tho.Durham to go to: London. Ho alluded to the in- . stance of the Turakina on which a fire broke out among the flax cargo* when she was a day or two out from Wellington on tho voyage Home. She put' hack into Wellington and discharged the damaged cargo and sold it in New Zealand. Mr.' Salmond: It was not carried from port to port, in New Zealand. Mr. Blair: Yes, it was. Theso Home boats load at several different ports. If tho defendant is right, tho fact of her unloading here constituted her a coastwise vessel. Counsel further, suggested that if a vessel loaded cheeso at Port Chalmers for England and then came to Wellington, and took out the . cheese so as to put it on the top of heavier, cargo, and after putting it in cool storage for a time, loade'd it again, tho trip from v Port Chalmers to Wellington would have to be treated as coastwise trade, if tho Departmental contention in the present case wer* sustained. Tho 'whole question, ho" contended, was one of intention. Solloitor-Ccnaral's Argument. Tho Solicitor-Gqncr.il contended that the liability in question was not divisible; tho exemption . was conditional upon tho ship wholly refraining at all iimes from entering tlie local trade. If at any time it entered tho local trade it broko the condition of exemption and forfeited its immunity. The section related not morel}'to a seaman's wages, but also to his right of discharge. If tho condition of immunity as to coastwise trade was broken, a.seaman could claim his disrhargo in a New Zealand port. Tho liability wxs indivisible in regard to the question of discharge, and it must therefore also be indivisible in regard to the question of wages. Further, a locally-owned ship was bound at all times to pay Now Zealand wages, no matter how it was employed, but tho plaintiff was trying to read Section 75 in an entirely different way. If the plaintiffs were correct, a foreign ship could come here, discharge cargo, and engage in coastal trade' for sevoral years, paying local wages when actually employed and foreign wages between whiles, whereas New Zealand ships in competition with it would havo to pay local wages all the time,. and would ihus suffer tho kind of disadvantage tho action was intended to prevent. ■ What Is Coastal Trading? Coastal trading, ho submitted, primarily meant tho trading of any ship which carried cargo from one port to another on the coast of tho samo country. A second and narrower meaning

included only ships winch loaded cargo at one port and discharged at another. /The third and narrowest meaning was limited t<< ships that habitually traded on the coast of the country. Tho last of these interpretations was not that of our law, and the powers of the Now Zealand Legislature were not so limited. Tho vessel in this case did actually carry goods from Auckland to tho bluff, and then to Wellington, and this was coastwise trade within tho meaning of tho Imperial Merchant Shipping Act, and tho New Zealand Legislature 'therefore had power to pass laws covering such a case. Tho question was not what the ship" intended, but what sho did. Coastwise trado simply meant the going from one Now Zealand port to another, and if a ship did that tho Now Zealand Legislature had power to legislate concerning her. If a mero ineftcctivo purpose'wero to govern the case, whoso purpose should it be? The master's,' tho owners', or the Nov/ Zealand agents? If the master's purpose was changed at the Bluff, the agentat Wellington must have known earlier, and the owners in London must have changed their purpose at an earlier date which was known". Mr. Blair had assumed that tho intefltion of the master was the relovant one, but ho (the Solici-tor-Genctab thought that if any intention were considered, it should be that of tho owners. Intentions could be pretended, and there might bo doubtful or alternative intentions. In reply to one of Mr. Blair's points, he urged that a vessel putting into port as tho result of'a fire was not trading, and therefore would not be liable to pay coastal wages. The Department's interpretation of the section was the only reasonable one, and the only one which would effect its purpose of causing foreign vessels to pay New Zealand wages unless they kept their hand 3 off coastwise trade. '. Mr. Blair, in the course of his reply, said that from the Solicitor-General's argument, if correct,, it would followthat practically every ship—say, an American ship—going to more than one New Zealand port could bo controlled in this manner by the New Zealand Legislature. His Honour: The United States is not very chary about making laws for vessels on its coasts. One high authority has stated that if a man-of-war anchors in an American port.-sho thereby subjects her crew to the laws of the United States. ' That goes a little further than anything we know of, but it is the assertion of tho American authorities. ■■ Decision was reserved.