LAW REPORTS.

Dominion, Volume 7, Issue 2185, 25 June 1914, Page 9

LAW REPORTS.

SUPBE3IE COURT.

HAEBODK BOARB CRINBS BT-IAW CHALIffIGED LIABILITY FOR ACCiDENfg. The Wellington Harbour Board has a by-law (No. 18S) which provides that porsons hiring cranes iind appliances, v/ith their, drivora-, from the b03.53 stall ■ bo responsible for any injury to persona or property arising from the design, state of repair, or nso of sHeli craiies. Tho board undertakes to. ti.se all cafe ia selecting proper machine;-}- attl co»petenfc drivers, but undertakes no reisponsiliility. : "'.This by-.'aw has .giveto offence to certain companies who have to; hire tho wluwf crane 3, and th& New ; Zealand Shipping Company ' yesterdif,. in theSupremo Court, before jj-ia HonbVr tlio Chief Jnstico (Sit lloberfc S-toUt), for an order quashing or ftinctiUiiig the on.tfio grounds; (31) ■ That th& said by-law, is invalid; '{%) that it is ultra viies of the board) slid: (8) that it is -unreasonable ani unpiSt and, »-olves oppressive and gratuitous, tnierferonco with tho rights of those subject to it. . . , *',''' _ -Mr. M. Jfyers' appea!rea far 'the plaintiffs, tho New Zealand. Shipping Company, and Mr. T. 'S. Appeared for the defendants, the W<jlli.ngt.on'Sftr* bour Board. ■' Reason' for Piro.cee.d!rigs,. ••• -Mr. Myers said that the. iiivKißdiate causo of proceedings -wtfs the jact. that on a certain occasion crates of.cheese wore being landed,' andj" ttartislff the negligence of the driver,, who was tho boa.i-<i'a man and not the company's, these crates had been &ma^hel.. : The Harbour Board practically eaie: "I* p you, tho Shipping tfet is .liablo to tho owner of .the- 'cheese, not ..■wo." ■ ■ . Hi 3 Honour: Are the sMp ? s: aippli.anees not suflicient to carry but these trasiwg operations P ■ . ... Mr.. Jlyera replied that the (ship'sappliances were not miflictait to dft the worl; with that proper expedition wja'eh was necessary iii a p.i'opcftyK:d i n'ipped port. These cranes, inoreoyef,, were put there for that purpose. They wore there, under statute, for tie use qf tlio board, and for tho uso- of ttie public, and the board , was. entitled, to make, bylaws, regulating their use. Tlio by-law in ■ however, rent beyond ibSo t.eguJtttifift. Hii was sure that his teafneici. friend would admit that tlifo b.,y4aw had: been designed it. W4s bsd in toto, and not good in pa-rt' ftod also bud in part. If it was gooa itt J)a.t6 aird bad in part, then , it w:as the duty of tho Court to uphold so mueh of it as was good and strike put so much of it as was bad. His. rionour, howoveri would find that it wij,s &g. difßciutii to separata tho good from'tlio fcad that tho best course (he w.a,s sure His ijon* our would conclude) <vould : be tq qßijsfc the whole by-law and Jet fcjie boiwd , then proceed, if it thought fit, ■ to frame something which was reasonable, fhe by-law had been fraine v d. to. get fie; of. a liability <in the 'hoard , by a oi the. Court, and.to throw that lmbißty,.a.n the person to whom tlje eran& was feed! fcjfef.of-lhe, cr,aij;e fas, a .eercant -ow|theTHa,rbour.-,Soa.r^ E *i)ia wasnal iit any way under the control qt the Mrer. His Honour: Who has the power i 0 .,! older; him aboutp ... •'■ ... ~

_Mr. Myers: Jp to a cerfaia.Pflint the driver receives directions <frain tlje ■stevedore, but that is. oftly during a part of the operations. .<■<.■■ His Honour: If the %4aW proylded that responsibility shoU3d ' rest, on the shipper for "Any act which attffbutahlo to the neßligernae of the ■shipper?" 'Mr. Mysrs: In that, ease, Your Honour, wo should be quite gatisfiedv Cass for tha Hartjour Boaria, Mr. Weston, in opening th» case, for tho Harbour Bo'ard, said tlrat the cor v/ifi very important betiiiie, ever careful the board iiiigtifc b<j in pwvidiiig and piijper persons, accidents would iiappeii. In the event of such accidents two -courses were open to the Harbour Board:' eit&ef to assiiino the liability, asi in that case <-,asure that their charges airaO'ld' provide a sufficieao revenue to ■cover the... risk of. ' insurance: or they might disclaim liahihty, as Jin, der this by-law, in vrfribh case the rates ot hire would bo' iowver.. Acfttdcnta might happen, in four lraysi (J) 'ijrere might be a defect, in the '■machinery so as to render it ivaS- in tlie. design; (2) the machine inj|fcti be out of repair;-(3) an incq.mpicmt or attendant of tho maehjno might ho-' appointed by the' bpard ' through' AVajlt cf reasonable care; and (4) there might be aots of negligence of. tike, firfver of : the machine, although, h.e might be a. competent man. • It migh't bo that Jiis Honour would hold Ikafc uadq.r the- ■pr©'visions of Sections $9 .and .147 of tke Act the .board had to prosrido ihn \ necessary macuincry, .attd the neeesiary : labour, and that that meant'a warranty ...by the board that.Uic boasd woujd Uso.i all.reasonable care timt tt<} mcu sap- j J plied wore, conipetcaf aed .that :fcho'l I niachiue was sale' in, clte-Sig.n: Jt wai l-true tliat the drivyra *0M eii.vijfe.vod i-.ii.nd paid by tho board gcmerJliy, !bVti Jadieu biiey were engages in, a»y, work i under a stevedoro tJiey , sv-frre owtirely I ' subject to tho Btev&ijß.rfis's dj-ractious, I .xcept that the inetiw'fi *>f. workieg tho crane'was in the diserottai ot ■ t-h© crane-driver. In that, caste tile feiaucdriver, whether emptoyed. hy ib& Ship, ping companies or by tie Marbeui ■Board, still had ..solo coijtrbi of the actual working of tie., niafihjns. Tim duty of loading and iriloatfms: cargo \va.i iwouiiarlj thb of tlie siujiowner. It Jiad "oeeu tJ»oi i other day that tho• Harbotit Boaid I should control of tlits whole «f j tho work of loading . and (BseharfJ&Ug | cargo, but the "shipping companies" olt» \ jectud. Jf His Hoiioiii- wan m opinion I the by-law required amenttaisml, ! i\ might It- done by tliifon-ing.' upon the i btinrd a warranty thafc the jß<l«bin6i.v «'as safe .in design aftrf in go,od tcpair', and that they had exorcised (Job core in appointing competent mou, and. sttß* ject to that warranty., making, the hirer of the machine and flian {iabfc for dam* ages caused by tho working of the aw.-. cJjine. . ' . His Honour reserved decision. PUBLIC SERVICE TESf OASE. QUESTION OS. COSTS. The recent case brought by the Public Service Association agarajrf.' tie I'tilslte Service Commissioner to tile right of a public sfrn'ftiit to appssal in tho case of appointmentSj and which was answered by the Otajtt i» faeveur. of the contention of the ossdcifttion ttiftt there was a right of appeal against live decision of tho PuWs Servico Oftwmi-s----eioner, was mentioned in the Stiprciiift Court, before His Hmwttr tho Olio); Justice, yest-erday. Mr, M. Myers, for the I'tibfie gervico Association, applied foi , ftosts iii e<Mvn<?ction Avith tlio proceedings, Mr.'P. S. K. Jfac-assey fer tlve ■ Solicitpr-Goneral, said thsifc ho bad (to in— .s.tructione to oppose i,he afljilfealion, but .submitted that only Ordinary costs . should be allowed. His Honour nmdsj <uj ordor for 20

guineas tests nird disbursements as [ aganist tko deCemfonfc in Hie action, the .{ I'tiWie Service Commissioner, j