LAW REPORTS.

Dominion, Volume 7, Issue 1892, 29 October 1913, Page 5

LAW REPORTS.

, COURT OF APPEAL. PORT CHARGES ON MAIL BOATS. THE DECISION. U.S.S. CO.'S APPEAL DISMISSED. The appeal of the Union Steam Ship Company against tho decision of tho Chief Justice (Sir Robert Stout), that their steamers wero liable to be charged dues by the "Wellington Harbour Board until the mails to bo carried under the contract wore received on board was dismissed yosterday by the Fidl Court. H.'.; Honour Sir Joshua Williams, P.C., presided, and associated with him were Their Honours Mr. Justice Dennisto'n, Mr. Justice Edwards, Mr. Justice Cooper, Mr. Justice Chapman, and Mr. Justice Sim.

When tho appeal was heard on October 3, Mr. C. P. Skerrett, K.C., with Mr Levi, appeared for tho Union S.S. Co., and Sir John Findlay, K.C., with Mr C. H. Izard, represented tho Harbour Board. Original Decision. The decision appealed against was one by His Honour, Sir Robert Stout, C.J. 11l his judgmont the Chief Justice had said: It is not claimed that no dues can bo charged on the steamships while carrying mails under the contract, but it is contended that once a steamship Has landed her mails in Wellington and left the port, the carriage of mails under tM; contract is at an end, and that her voyage to Sydney and back to Wellington is not as a vessel carrying mails u-.'der tho contract. When she returns to Wellington she comes into port, not a:t a steamship carrying mails, but as a steamship that will be employed later in carrying mails. Tho voyage to and from Sydney, though permitted, is not on behalf of the Government. lam of opinion that tho exompting clausfi must be read as meaning what it says: "any steamship carrying mails . . It is admitted that if sho has mails she is paid for them, but not under the conti act referred to, and if there is no exemption in the contract under which the defendants are paid, it is clear that the benefit of tho exemption in the contract referred to cannot bo claimed. In my opinion, therefore, tho steamers are liablo to be charged dues utitil tho mails tc bo carried under the contract aro received on board. The dues for which tho defendants will be liablo are, therefore:—(l) Tho Harbour Improvement rato on goods carried from Sydney and landed in Wellington; (2) berthage rate till tho mails are received; (3) harbourmaster's foes; and (4) port charges. Nature of U.S.S. Co.'s Appeal. Mr. C. P. Skerrett, K.C.,' in his address for the Union Company, said that 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 the harbour or port dues payable at Wellington on tho inward journey. The New Zealand Govern-' raent entered into a contract for tlio mails to be taken from Wellington to San Franscisco and from linn Francisco t'' Wellington, for the payment of £1666 13s. 4d. for each round voyage. In tho agreement Clause 32 gave tho right to the Union Steam Ship Company to extend tho service and the conveyance of mails from San Francisco to" Wellington to Sydney and vice versa. All the conditions of the contract, except the payment of a further lump sum, became applicable to tho extended service. Under Clause 17, which "was the exempting clause, all the steam vessels employed, in the servico wero declared to be exempt from dues payablo at the ports of Wellington or Auckland. The service under the contract was extended to Sydney on December 9, 1911, and tho questions all related to port dues chargeable since that date. He submitted that a vessel onteritig Wellington with Commonwealth mails-was exempt from dues. »

Harbour Board's Contentions. Sir John Findlay, en behalf of the Harbour Board, contended that tho exemption was only for steamships carrying mails. Tlio service under that contract), which was tho only ono tlio cempany was bound to perform, was tho carriago of mails from San Francisco to Wellington and hack. The Post Office recognised three different mail services —contract servico, gratuities, and contingencies—and this extended service to Sydney was paid for by tho Commonwealth and the Government as gratuity mail matter. Tho whole controversy turned 011 tho question whether they were' entitled to 'charge harbour dues on vessels coming to Wellinprton from Sydney carrying San Francisco mail matter. He submitted that those wore not mails under the contract.

Decision of the Court. The judgment, which was read by His Honour Mr! Justice Sim, stated: — "The Sail Francisco mail steamer, after delivering the inward New Zealand mail at Wellington, proceeds to Sydney. Frequently a New Zealand mail for Australia is dispatched by this steamer, and tho New Zealand Government p.avs for its carriage at the usual gratuity rates. The steamer returns from Sydney to Wellington, and carries a mail from Australia for the United States and United Kingdom. Tt frequently carries also a mail from Australia for New Zealand. The appellant company is paid for the carriage of these mails by the Commonwealth Post Office. The steamer, 'before leaving Wellington, receives on hoard tho New Zealand mail for tlio United States and United Kingdom. It was admitted by counsel for tho appellant that the local mails between Australia, and New Zealand were not carried under tlio contract between the appellant and the PostmasterGeneral, and that, therefore, the carriage of those mails did not afford any ground for exemption from harbour dues under Section 116 of the Harbours Act. 1008. It was contended, however, that the extension of the service to Sydney had been made in pursuance of the contract with "the Postmaster-General, and that tho effect of Clause 32 of that contract was to niako tho provisions of Clause 17 thereof applicable to the mail steamer whilo prosecuting the vovago from Wellington to Sydney and from Sydney back to Wellington. That appears to be tho effect of tho contract, and, if the right to exemption from dues depended 011 the terms of the contract, the appellant's, claim probably would be well founded. The mlit to exemption, however, does not depend on the terms of tho contract, „but on tho terms of tho Statute. The parties, by their contract, cannot give a greater exemption than that created bv the Statute. That exemption is* in favour of a steamship carrying mails under a, contract with the Postmaster-General, wlicro the contract provides in terms for tho exemption." Local carried from Wellington to Sydney and from Sydney to Wellington were not carried under tho contract," and their carriage pave no right to exemption. N01; were tho Australian mails for- the United States and the United Kingdom carried under tho contract. It was true that thev wero carried on a voyage prosecuted ill pursuance of the provisions of the contrary birt that fact did not mako them mails carried under tfie contract. It was contended also 011 behalf of the appo"nnt that, as tho entry into the port of' Wellington was a necessary stop in the carriage under the contract of the outward mail from Now Zealand to the United States ond United Kingdom, tho mail steamor. should bo

treated as coming within the exemption. A steamer entered a port to receive on board certain mails could not, the Court held, be described as a steamship then cariying thoso mails. Tho appeal was dismissed, with costs on the highest scale. \ SHOV7 ACCIDENT. CLAISI FOR DASIAGES FAILS. Being non-suited in his claim for £1000, a man who rescued another from a sheop-shearing machine at Marlborough Show and was permanently disabled and rendered useless himself as a result, appealed against the decision of tho Chief Justice (Sir Robert Stout) and the judgment of the Full Court which heard tho appeal was delivered yesterday, tho appeal being dismissed. _At the Appeal Court hearing Sir John Findlay, K.C., with Sir. G. A. Fell, represented Leonard Home, appellant, and Sir. C. P. Skerrett, K.C., lyith Sir. Samuel, appeared for Dalgety and Co., Ltd., the respondents. Trial Dispensed With. Sir John Findlay said that tho appellant claimed damages for injuries caused by an oil-engine at Marlborough Show, and ho contended that an oil engine came under the Slacbinery Act. His Honour dispensed with a trial on the ground that no cause of action was disclosed, • and ruled that oil engines did not comc under the Act. In arguing against that decision Sir John said that appellant's brother, who was employed by respondents as an engineer to run a sheep-shearing machine at the show, was caught in tho machine. Hearing his cries, ajrpeJlant ran to his assistance, rescued linn, but was himself caught, his loft arm being permanently disabled. 'In the original action, plaintiff claimed £1000 for the injuries he sustained) and £50 for medical and other expenses, but the Chief Justice held that there was no negligencc <n the part of tho company. Dismissed v.'lth Costs, Tho Chief Justice's rulings on"'the quostions of law were upheld by the Appeal Court, their judgment, read by Sir. Justico Edwards, being that respondents had not been guilty of any hrcach of duty cast on them by the Consolidated Act, and therefore the appeal was dismissed with costs. MAORI'S LAND DEAL. SETTLER'S AVIFE V. THE CROWN. "NO CAUSE OF ACTION." His Honour Sir. Justice Edwards read the judgment of tho Full Court in tho caso in wjiich Anna Karey Wilson, wifo of J. T. AVilson, a Dannevirko settler, claimed £50Q/from Hori Haira, a Native, of Kaitoki, Hawks's Bay, and the same from the Hon. AA T . H. Herries and other., members of the Land Purchase Board, on the ground that aftor she had paid £1000 to the Native as part-purcliasp of his section of land at Tahoraito, he sold it outright to the Cri;wn, pending tho confirmation of the, transfer to her. His Honour said it ■w<;S alleged that tho land had become Clown land, but if th« title of tho Crown had not 'been completed an interim injunction might havo been granted against the defendants, to restrain them from completing tho title until plaintiff's application to the Slaori Land Board had been properly disposed of. That point, however, did hot arise, ar.d the Court expressed no opinion on it Tho only question raised in the argument before tho Court was whether or not tho unconfirmed, transfer from tho defendant Hori Haifa to the, plaintiff would support the action. After Quoting; several sections bearing on this point, His Honour said tho instrument had never been confirmed, and while it remained unconfirmed it could not be n\a3e tho basis of any action. Pliyint'.lf alleged that it was now impossible that tho instrument under which she claimed could be confirmed. If that were correct she might suffer a hardship, thoucrh a hardship without, a remedy, but tho assumption upon which tliat allegation was founded appeared to be clearly fallacious. It was j clear that no action would lie upon any instrument of alienation or contract for an alienation until it had'been confirmed by the Native ,Land Court, .and it was equally clcar that if an action would not lie against a Native who had signed an unconfirmed contract or instrument of alienation, no action could lie against a third person upon the ground that he had induced the Native to break a contract -which was dependent upon confirmation by a .statutory Court and which mav never bind the Native who had signed it. If there were 110 other objection, asked His Honour, what damages could be proved in such an action? Could it be left to a jurv to say that but for the acts of the defendants the Slaori Land Board would havo confirmed the contract? Plainly that, was impossible. The plaintiff was therefore entitled to proceed with her application to tho Slaori Land Board for confirmation of her transfer, and if she could satisfy that board that slio was entitled to a confirmation order under Section 220 it would b;> the duty of tho board to grant the order, notwithstanding tho subsequent dealings of the defendant, Hori Haira, with the land in •question. If plaintiff could obtain an order confirming her transfer, that difficulty*, would be removed from heivway. Until she obtained such an order no notion was maintainable in respect of tho matters alleged bv plaintiff in her statement of claim. His Honour added: "The Court has not been asked to express any opinion upon any other points which may be involved in the action. These, if any, remain undetermined. We think it desirable to observe that in oases in which the Court is asked to determine points of law before trial these should be stated with as much exactitude as they must have been stated in a demurrer under the old practice. It seems to us that to ask the Gourfc the general question as to whether or not abatement of claim discloses a ground of action is embarrassing to the Court, ahd may subsequently lead to great -confusion as to what has actually been determined. The answer to the question put by the order for argument of the question of law before trial is: Tho amended statement of claim does not disclose' any cause of action against the defendants or any of them. Tho defendants will have their costs of the argument.. 25 guineas." Sir John Findlay, K.C., with Sir. T. H. G. Llovd (Darmevirke) represented plaintiff, and the Solioitor-Gener.il (Sfr. r J. AV. Salmond) with Sir. V. R. Slcrcdith Represented tho Crown.