TAINUI DISASTER

Dominion, Volume 13, Issue 138, 6 March 1920, Page 10

TAINUI DISASTER

FULL TEXT OP JUDGMENT

DEFENDANTS EXONERATED

(Published b.v Arrangement)

The full text of the judgment in which Air.. W. H. M'Kcan, S.M., dismissed the charges of negligence preferred nsainst Frederick John Needham ami Oiaude Smellie, as the outcome of the burning of the steamer Taimu oft bore Bav. on the North Canterbury coast, 011 September 1G lust, is as follows-.— "Tho defendants are severally charged that l.hev did by a negligent act, to wit by lading on board the Tauuu cOrtani benzine in leaking receptacles and improperly stowed, endanger tho safety ot the shin contrary to clause 2 of the \\ ar Herniations of October 10, 1917. liy consent of counsel the two charges were heard together. . "The .defendant Needhain is the shippin" manager at Christcluirch for the New Zealand Refrigerating Company, the owners of the Taimu, and the defendant Smellie is a shipping clerk employed by the same firm. It is no pan of the dutv of cither of the defendants to malaimiiself familiar with the condition of the cargoes carried on the company® vessels. Needham makes tho commitments.'but his duties take him only occasionally to Lyttelton. Smellie s .duties, however, take him to that port to cheek incoming cargoes with the ships uiiynifest. and in the ease of an outgoing vessel, to arrange for the cargo to be at the shin's side, and to make up the ship s .uapers. On September 15 last, the date when I lie ofTences are alleged to have been committed, Needham was not at livtteltou but Smellie was there performin" his ordinary duties in connection with the Tainui. which was that day loading for AVanganui. _ lhe hulk of the carao consisted of benzine, and the euilenco. which is very voluminous, shows conclusively that petrol was leaking, and in some instances actually running from the cases, and that the cases in that condition were taken on board, oonie.ot these cases had, on September 12 been discharged from the Tainui' under instructions from the T^\ s , ta l lp T„,i tendent of Marino at Lyt el ton, who had found that octroi was leaking from some of the eases, and wfts escaping through a break in the after-hold. lhe petrol thus discharged was placed.in railway trucks, and a receipt was given by the railway, which was marked shipment Taiiiui x Tainui.' This receipt was given by a railway employee named Al'Cormick. who tallied it as it came from the hold'to the trucks, and marked the trucks in the. same way. M Cormiclc cannot remember who gave the instruction that the benzine discharged was for shipment again, but another railway employee 6ays that he heard Smellio "ive tlie instruction. Sniellie. denies that' he irave such an instruction, and 1 see no reason for disbelieving him. "The Tainui made a trip to limarn, and returned to Lyttelton to load ft cargo for AVanganui. The after-hold had in the meantime been repaired in an efficient manner During the day tho captain and the mate of the Tainui wero about tho vessel and the wharf whilst the leaky cases■ were being loaded, _ ami must havo known of the condition of the cases that were lining taken on boawl. Tho captain apparently noticed that the cases wero being damaged whilst being made up in swings in the trucks, and suggested that they be made up on the wharf, and later in the day asked tor two hundred dry cases for tjie afterhold which adjoins the men s quarters. Tho mate also knew tho condition of the cases because ho instructed Nolan, who was in charge of the gang that was receiving the cargo, to turn over any cases that, were leaking, and if they did not kale that wav, to stow them.' lhe cargo discharged from tho after-hold on .the 12t'h was taken on board early in tho morning and placed, in the forohold of the vessel, but how it came to be sent on hoard has not bce:i shown. In the ordinary course of events it should have bepn taken by the Hailway Department to Shed G. to.await,instructions from the owners—tho Vacuum Oil Co. The owners of th? vessel and of the cargo jvere entitled to assume that it would bo taken there. A consignment note for this discharged cargo should have )>ecn given bv lhe owners before further shipment, but no such consignment note was given. "The practice with regard to shipments of octroi'is for tho owners to give consignment notes to tho Hallway Department for the required number of cases, and for the Hailway Department to make the actual allotment, and this is tho only practicable way of doing business. It appears that consignment, notes for tlifl quantity required for shipment for ft* neanui on September 15 had been given, aiid that an allotment had been made exclusive of this discharged cargo and was on the wjiarf ready to be taken on boarfl. The discharged cargo was, however, taken on board, and about six hundred eases intended for Wanganui wero lett on the wharf. The fact that this particular shipment went i on board does not appear to me greatly to affect tha position of tha defendants, because, although it had received nioiv handling and was on that account in worse condition than the rest: alio rest of the cargo was also in bad condition. "Smellie was not in Lyttelton when tho previously discharged cargo went on , board, but after he arrived he noticed the leaky condition of some, of the other cases. He did not comment .or report on the fact that these cases were being taken on board, and explains that the thought of danger in connection with the shipment did not occur to him, because he was not concerned with the condition of the cargo, and thought that it was a matter for the captain or the mate. He also signed a railway receipt for this benzine 'in good order or condition.' This receipt was accepted by tho Hailway Department, although' the officials in Lyttelton knew that the cases were not in good order and condition. It appears that tho Department will not accept a qualified receipt unless they have themselves given a qualified receipt for the samo goods when takon into their custody. They, therefore, accept , receipts which they know to.be false. This receipt iva3 required in the ordinary course of business, and was signed by Smellie after tho benzine had been stowed on the . vessel. Needham is not shown to have had • any knowledge of the condition of the cargo. "The Tainui was in the hands of the master who was a capable and competent officer, whose services the owners were, according to the evidence of a witness for the prosecution, fortunate in securing. Although it is hard to imagine why a careful master should have accepted such a cargo I think there is no ground at all for tho suggestion by tho prosecution that some limitation had been imposed by tho owners on his authority in respect to the caygo. I accept without hesitation tho emphatic statement of the managing director that no instruction was given by him or any other employee of' the company to the captain to accept this cargo or .to. hasten tho loading.' It is quite possible that the captain, knowing the construction of. his ship, thought tho risk of danger was small. Alodels showing the construction and method of insulation of the holds were produced, and as the holds wero waterproof the risk of benzine escaping except in the form of vapour through tho hatch wa6 small. The evidence ,of expert witnesses and the -experiments' made by go to shojy that tho explosion that occurred whilst. the Tainui was on her way to Wanganui iyas due to fumes from the hatch coming in contact with a naked flame on deck It "is not necessary, however, for mo to find whether the explosion was caused Jiy some agency abovo or below the hatch. The explosion did occur, and it was benzine vapour that exploded. "Sir John Findlay has suggested that it was not negligence to stow leaky of benzine in a hold that was benzino and vapour proof, but I do not think it necessary to decide this point. I am doubtful whether the regulation under which these charges are 'laid was intended to apply to the loading of leaky cases of benzine, regulations have been' made as to the shipping and landing of petroleum oils, and a specific regulation could easily have been made prohibiting absolutely the shipment of benzine in leaky receptacles. No such prohibition appears possible, because the impracticability of complying with such a regulation was recognised. Although ono of tho witnesses for tho prosecution

has said that it would 1)0 nn easy matter for the Railway Department to reject leaky case 9, my own experience as n purchaser of benzine during the Inst ten years convinces me that a leak cannot be detected, unless it is a very tad one, without removing the tins from tlio cases and carefully examining them. It was not contended by the defendants that the "War Regulations do not apply, and I will therefore assume for the purpose of these proceedings that the stowage of benzine in leaky receptacles was an act which endangered the' safety of the 'l'ainui, and that, if either of the defendants was responsible for that stowage lie lias committed a breach of the regulations. "t am of opinion that- neither of fhe defendants was in any way responsible' far the stowage of cargo, and that no duty was cast' on either of them to make himself familiar with the condition of. this particular cargo. The defendants' employer? had provided a vessel that was seaworthy and was . better adapted to carrying a benzine cargo than are many other wooden vessels engaged in iwryin? cargoes of that nature on, the New Zealand coast. They bad appointed a capable and competent master, and they and their employees would assume, and_ were entitled to assume, tiiat the master would carry out his duties properly. 'By iho Maritime Law,. in Ihe alisence of enstoni or agreement to the contrary,' said AVillo.*, ,T„ in Blnikie v. Rtcnbriclge, 28 T/..T.C.P.-, at page '239, 'it is tile duty of the master on tlio part of the owner to receive and properly stow on board the poods tn "be carriwl, If damago results from the misconduct of the master, be i? answerable to the owners and probably also to the shippers.' That it is customary to recognise this responsibility of the master for the acceptance of cargo is proved bv tlio evidence of the' witnesses called for the defencp, and also of ,soino of those called for tlio prosecution. It. is stated in Carver on carriage l>v sea (p. ,175) that if a stevedore is employed to load cargo it i 6 tlio right and duty of the master to control the stevedore if lie is endangering the ship's'safety. Further, if a master or person in control of a ship chooses to receive goods on board "knowing their nntire ot the dangerous manner i«, which they are packed. tho shipper of those •good'? would be relieved of a liability fo- danmge tn other carcn which would attach io tli.e shipper if the dan<™rous nature of ,tho goods or the nackimr w-ero not known to the master. It is also stated in Hnlslmry's Laws of England (Vol. 2(1, p. (W that the master' is personally responsible for injury or loss _ to'ship or cargo by reason of his negligence. A ''civil responsibility of course attaches to the owners of a ship for the negligence of their master, but the wide personal responsibility which, of course, attaches .to, the owners of. a ship for the negligence of their master, but the wide norsonnl. responsibility •with- which the master is fixed, cannnlt be extended 'to every other person emploved by Hie owners of the vessel. The question of liability negligencif cannot arisg at all "until it is established, that- the man who hns been negligent owed some duty tn the person wJio seeks to nialte him liable. (Le Lievre v. Gould, 1893.. 1Q.8., 401), and'as a .general rule no penal eon- ■ sequences are incurred where there has been no personal lwleet or default. A mens rea. is essential to 'an .offence under a penal ennctment, u.nless a contrary intention appear--" liy express language or necessary inference. V ''If I could hold that, the persons charged in. these proceedings have committed an offence, I think'that I should have to hold that the men who stowed this cargo were equally guilty of an offence tinder the regulations. Smellio knew less of the condition of the cargo than these men knew, but he liad no more right to attempt to. prevent tlio loading than they. He is a mefe'youth who liad only a few months' experience of shipping work, and was less qualified to know whether the cargo would endanger the safety of the sh.ip than the men who were doing the work. It cannot therefore be imputed to him ns a fault that he omitted to do something that he 'had no right to do. I hold that neither of tlio defendants is guilty of the offence'" charged, and that the information must therefore be dismissed."