SUPREME COURT

Dominion, Volume 7, Issue 2189, 30 June 1914, Page 4

SUPREME COURT

HARBOUR BOARD BY-LAW

QUASHED

INVALID AND" UNREASONABLE.

•A motion under Section 12 of the ByLaws.'Act, 1010, to quash By-Law No. 188 of the Wellington Harbour Board 011 the Jjkourid that 'thoV by-law is.' invalid, being ultra vires of the board nnd unreasonable.' was dealt' with' by His

Honour the Chief. Justico (Sir Robert Stout) in a. jitdgmonti delivered, in the Supreme Court yesterday morning. The by-law'is as follows; —.

"The board's cranes, jiggers, cap- . st-ans, plant, and machinery .(hereinafter- and in the next two succeeding by-laws referred to as appliances) ■ are, with , the -drivers - and otlior persons-(if any) required to ■ work tho same, hired to ■ persons desiring the use of same upon tho express tmderstanding that ■ tho. • hirer shall bo responsible for, aiid • that the board shall incur no responsibility or liability, for or in re- ■■' spect. of, the design, condition, nature, or stato of. repair- thereof, or for any damage or injury occa- : stoned to any person, vessel,; or -goods whatsoever through the uso of an appliance hired, or through ■ any act or omission of a driver or other person hired therewith, and also that- tho hirer shall, on de- • mand,. pay to tho board tho cosj, of making good any damage or .injury .- to such appliance or to any. property , of the board whatover caused by or arising out-of the use of such appliance by the hirer, or any act or omission of -tho driver or other person hired therewith, and shall in- . . demnify and hold harmless tho ■ board against any claim, action, ordemand mado by any person or body corporate whatsoever /for or in respect of the design, condition, ■ nature, .state of repair, or .use of , such appliance, "or any act or . omission of the dri'vcr _or other person hired therewith in connection witb such .user.'.'.;. , , j This by-law ,has given offence to certain companies who have to . hire the n harf cranes, and the New Zealand Shipping, Company moved in the Supremo .Court last month for an order quashing or amending the byJaw on the grounds: (1) That the6aid by-law is invalid; (2). that it is..ultra vires, of the board; and (3) that it is unreasonable and unjust and involves oppressive and gratuitous interference with ,tho rights of those subject to it. Mr. M. Myers appeared for the plaintiffs, the Ne.w Zealand. Shipping Company, and Sir. T. S.- Weston appeared for. the.defendante, the Wellington Harbour Board.

In delivering judgment yesterday, His •Honour .said:—"lt is not necessary to consider whether the by-law .is ultra vires if it is unreasonable, .and if it is a reasonable provision., it -would in my .opinion bo.very.dilfioult to show it was ultra vires of the wido legislative powers that-the'board has. . . . It 'was' argued that it was optional for the shipping companies to have their goods lifted out of their vessels by the board's machinery; and consequently the board had a right to. make" any conditions it pleased. Though/the use of .. the Machinery was optional, it has-'to. be. remembered that it -would be. .impossible for' private pers6nq\to.-j>ut; such, cranes, on tlie whangs",,.ey^V T if,,,H i lie J '"ibpard would permit .crane's >.fo <ju their'.wnarves, ii .wljich.' l is 'not,.likely, ; ,fpr. that would ndtl'.ije,. workable! ' ;i Cranes must be .used car^-reM*sfe-largo espenso not have been incurred..' Ana that. they, are necessary for tho shipping is further proved' by the fact that they are ..used in, preference to, the appliances on' board the'best"equipped steamers. Is it'then a reasonable rule that thoso whose goods are-being, loaded or unloaded by Harbour Board machinery_ should .bo' liable, for the posisiblo' negligenco of the Hrtrbtiur Board, first ifr tho' ioris'trtictibn'of the machines, -sccond ' intho maintaining of tho, machines, third in the] appointment of' officers, and. fourth for - the 'possiblo negligence" 0f..-itlio". board's'officers? I do not think so. Tho carriers or, bailees,,of goodp _ who wish their goods "iniloiiHttf jHtf f|6l! : g?m» suited as to tli§ Btsign ofHh&. machinery,' nor as Wits upkeep', 7 nor- aW to the appointment of officers,, nor caft they dismiss any officer .-nor': control any. It is,, therefore, unreasonable that'they Should ', be held liable forany; possiblo neglect' of duty. of. that.'.characteivohthe Harbour- Board." After •& number of> Authorities - which 'had htich cited m tho: case" His Honour held thitt the motion must 1 be allowed. .'The. bylaw, .-was declared void and ■ therefore quashed. .Costs,'.'£7 75.-, and-disburse-ments were allowed tho New Zealand Shipping Companyi ■ ■' . . • ' USABILITY FOR FREIGHT. ". / CLAIM FOR A PIANO. In ."the .... Court . .yesterday morning the Chief Justice. (Sir Robert Stout) delivered. reserved .judgment .in the case of th? Shaw, S»v,i!Ji and Albion_ Coy.^iLtcl. I—a.ii1—a.ii appeaLir.om a Magisterial decision. ".On,, yept'ember 22 las,t year -.the; Dj:S.M., heard.-an . action 'which, was brought in tho Court by C.. .\Y. AValker/dgfiinst. ,tho Shaw, Savill aud-Albion Conipajiy, Ltd., in jvhieh Walker claimed value of a piano, . or its return, and damages for its retention. ■ The.case was-decided by the. Magistrate in tho Shipping Company's -favour, but. shortly afterwards, and before steps for appeal could be taken, ;Dr. M'Arthur died. An appeal agajnst .the decision of the. Magistrate was heard, by-the Chief Justice in the Supremo Court during the present month. ' ■ • • ■ ■ . The-facts,, .as | indicated, by. the proceedings,, were that appellant Walker had become iho'holder of a [-bill of-lad-ing for the piano in question before.it, along with others, arrired in New Zealand. The goods wore shipped under a Bill of lading to A. H. Light-, trading as the Dominion Piano Companyi The freight was paid on shipment at Hamburg, but, on arrival in New -Zealand, delivery- was . stopped, by the shipping company, on behalf of the.'shipper, pending repayment of freight.-. The question at issue was whether ;Walker having become possessed of tho bill of lading, was entitled to claim delivery of the piano without reimbursing the shipper of the goods;in Germany. In giving judgment yesterday, His Honour the Chief. Justice said:' "The amount due on the goods' was the frieght that the shipper, and; consignor had paid. It was in'm.y opinion part of the price as the consignor had paid tho freight and it was payable by the consignee. This was not a case of a purchaser of a bill of lading for .value. Tho fact is that tho real purchaser was the appellant and he chose to -allow Light, the -consignee,' to act as if ho were principal. That the appellant is the' real principal is proved by the receipt he'accepted for his payment of £7o lis.. Bd. to Light. . The receipt - said (inter alia): ■ "Received from Mr. C. W. Walker the sum of. £75 lis. ,Bd., the purchase on his behalf | of two pianos, etc."- The-appellant know when ho got the bill of lading that the freight was not paid and he docs not apparently see any dishonesty in attempting to obtain pianos which were purchased for him without paying their cost to-tlie seller. I am of opinion that the magistrate's decision must bo affirmed with £6 Gs. costs and disbursements." ' ' ' ' "

Mr. D. AI. Findlay appeared for Walker, while Mr. 11. E. Evans appeared fcr the Shaw, Savill, and Albion Company.