LAW REPORTS.

Dominion, Volume 7, Issue 1872, 4 October 1913, Page 14

LAW REPORTS.

COURT OP APPEAL. MAIL STEAMERS & PORT DUES. INTERESTING POINT. U.S.S. CO. 6 THE HARBOUR BOARD. An interesting case bearing on harbour duos to be paid by mail steamers waa heard in tlie Appeal Court yesterday before Sir Joshua Williams (presiding), Mr. Justice Dennist-on, Mr. Justice Edwards, and Mr. Justico Sim, the appellants being tho Union Steam Ship Co., Ltd. (for whom Mr. C. P. Skcrrett, K.C., with-. Mr. Lovi, appeared) and tho respondents tho Wellington Harbour Board (represented by Sir John Findlay, K.C., with Mr. Izard).

Tho decision appealed against was one by His Honour, Sir Robert Stout, C.J. In his judgment tho Chief Justice had said: It is not claimed that 110 dues can bo charged on tho steamships while carrying mails under tho contract, but it is contended that oneo a steamship has landed her mails in Wellington and left the port tho carriage of mails under the contract is at an end; and that her voyago to Sydney and back to Wellington is not as a vessel carrying mails under the contract. When she returns to Wellington she comes into port, not as ■ steamship carrying mails, but ae a steamship that will bo employed later in carrying mails. Tho voyago to and from Sydney, though permitted, is not on behalf of tho Government. lam of opinion that the exempting clause must bo read as meaning vliat it says: " any steamship carrying mails . . .. It is admitted that if she has mails she is paid for them, but not under tho contract referred to', and if there is no oxemption in tho contract under which tho defendants aro paid, it is clear that tho benefit of tho exemption in the contract referred to cannot' be claimed. In my opinion, therefore, the steamers aro liable to be charged dues until the mails to bo carried under tho contract aro received on board. Tho dufcs for which tho defendants will- bo liablo are, therefore:—(l) Tho Harbour Improvement rate on goods carricd from Sydney and landed in Wellington; (2) Berthage rato till the mails aro received; (3) Harbour Master's fees; and (4) Port charges.

Union Steam Ship Company's Oaso. Mr, C. P. Skerrett, ICC., in Ms opening, said that this waa an appeal t-o determino a queat-ion. under section 116, sub-section 1 (d) of tho Harbours Act, 1908, which was tho only section involved. Tho parties had agreed to a further statement of fatat since His Honour's»decision, and that might have affected such decision. The question related only to harbour or port dues at Wellington on tho outward voyage of mail steamers leaving from Sydney to San Francisco,via Wellington, and not tho'harbour or port dues payablo at Wellington on tho inward journey. Sir Joshua Williams: It is admitted that on tho inward voyago they are carrying mails. Mr. Skerrett: That is so. Proceeding

lie said that t'ho New Zealand Government entered into a contract for the mails to be taken from Wellington to San Francisco and from San Francisco to Wellington for one. year from October 19, IUIO, renowablo for two y;ears (which power was properly esorciSSll) for tho. payment of . a, lump eum of £1666 13s. 4d. for cacli round voyago. In, the .agreement clauso 32 gavo tho right to the Union Steam Ship Company to extend the sorvico and tiio conveyance of mails from San Francisco to

Wellington to Sydney and vice versa. All the conditions of the contract, except t'ho payment of a further lump sum, bccaine applicable to tile extended service. Under clauso 17, which was tlio exempting clauso, all the steam . vessels employed in tlio service were declared to bo exempt ' from dues payable at tho ports of Wellington or Auckland. Tho service wider tho contract was extended to Sydney on December,!), 1911, and the questions all related to 'port' dueß chargeablo since that date. Three vessels camo expressly to Wellington to take up the work uiider tlio main contract. Sir Joshua Williams: Did thoy pay port dues? Mr. Skerrott: Not at tile time, but since tlio decision of tho Oliief Justice accounts have been rendered for such dues, and thoso amounts are involved in tho present case. Mr. Izard,: That was before the extension. Questions to ba Dcoldcd. Mr. Skerrett, continuing, dealt with the schemo' of payment for -mails, remarking that all mails wero carried under the Universal Postal Union Convention of Rome (1906). Now Zealand was the country most interested in. the trade between Now Zealand .ind £an Francisco, and entered into an agreement for the carriago of mails and the encouragement of trade and oommerco. Although New Zealand; only paid tho outward carriago of the Now Zealand mails at a lump sum sho was interested both in the carriage of Commonwealth mails and in tho return mails from San Francisco to "Wellington. Tho two questions in controversy wero: — Is there a contract for the carriage of the inward mails from Sail Francisco to .Wellington or Sydney, or is tho contract simply confined to the oarriage of the outward mails from Wellington to San Francisco? Does paragraph 32 of tho contract incorporate and apply to the extended service to Sydney paragraph 17 . of the contract exempting the Bteam'ers from harbour dues at Wellington? He submitted- that a vessel entering Wellington with Commonwealth mails was exompt on. two grounds. On the broad ground that she entered for the express purpose of embarking tho mails and performing the necessary duty of carrying the mails, and that was the broad ground on which thoy wero in conflict with the Chief Justice. Tho narrower ground watj< that when a steam ship entered Wellington Harbour sho was carrying a mail under tho contract —the. Commonwealth mail from Sydney to San Francisco. Sir John Findlay: We don't admit that that'is a mail under a contract. Mr. Justice Denniston: If you did you would bo out of Court. Mr. Levi, haying briofly addressed tho Court, Harbour ""Board's Oaso.

Sir John Findlay, on behalf of the Harbour Board, contended that tho exception contained in paragraph 17 must be read as an exemption only of steamship. - ! carrying mails. Those vessels were not concerncd principally in carrying mails, but tliore were penalties of £5 an hour for delay on tho part of tho Btcamcr and a payment for demurrage if tho vossel wbb kopt waiting for mails. Tho service undor that coiv tract, which was tho only one tho company was bound to perform, was tho carr'ia"o of mails from San Francisco to Wellington and back. Paragraph 32 did not pledge the company to carry mails to Sydney. That was at tho option of the company. Tho carriage of mails to Sydney would endanger tho regular running of tllio Sail Francisco mails, and it was arranged that if tho company had that privilego they must supply a third vessol to mako certain that tho regular service was not endangered. As a matter of fact on tho fourteen ocoasiona.on which mailn had boon carried from Wellington to Sydney

only on five liiul they been carriod by these ships, l'iio scrvico was for tho profit of tho company and not for tho benefit of Now Zealand. Tho Post Office recognisod thrco different mail services—contract service, gratuities and contingencies—and this extended service to Sydney was paid for by tho Commonwealth oiul tlio Government as gratuity mail matter. Ho refuted tho idea that a vessel could como to tho harbour, discharge its cargo and passengers, and wait four or five days, and vet escape all dues because at the end of'that timo it ivas to carry mails. Tho whole controversy turned on tho question whether they were entitled to cliarr r o harbour dues on vessels coming to Wellington from Sydney parrying San Francisco mail matter. He submitted ftat those were not mails under the contract. . ' Jlr. Izard, having given his. version of paragraphs 2, 6 and 31 of the contract, also contondod that tihe Sydney mails were not mails under tiho conr tract. , . Mr. Skerrett having replied their Honours deferred judgment, and tho Court was adjourned until. Monday morning, when tho appeal caso, George James Goldfinch and Simon Athy_ v. the Bangitikei Sawmillers' Co-operative Association, Limited, will be heard, this being followed by Dudley Bruco Hill v. the King, case romoved.