Resident Magistrate's Court.

Hawke's Bay Times, Volume 14, Issue 742, 9 December 1869, Page 3

Resident Magistrate's Court.

TUESDAY, 7th DECEMI3EII. (Before John Curling, Esg, 8.M.)

VAUTIER V. DAYS AND BRISTOW, AND DAYS AND

BRISTOW V. VAUTIER. These were cross actions for damages, the plaintiff in the first case claiming £l2 for damages sustained by detention of the brig Maggie, and the plaintiffs in the second c:ise claiming £l2 Is 6d for injuries to the new wharf caused by the Maggie before the said wharf was completed. Mr Lee appeared for Messrs. Days and Bristow, and Mr Yautier conducted his own case.

Mr Lee explained that his clients had been forced, in their own defence, to brinj; the cross action. He (Mr Lee) had sent in an account of the damage to Mr Vau tier, with a note suggesting the advisability of cominu to an amicable arrangement, and thus avoiding the trouble and expense consequent on litigation. Mr Vautier had taken no notice of this letter, but had taken out a summons against his clients on tin following day. A technical objection, relating to the jurisdiction of the Court, being waived b\ consent of both parties, the case proceeded. John Helier Vautier deposed: On the 9th November last the brig Maggie was discharging at the new wharf, where she had been placed by the instructions of the Harbor-master. We had discharged souu nine tons of coal when I went to break fast, about 8 o'clock. Alter breakfast 1 found the captain lowering a spar between the wharf and the vessel, to act as a fender add protect the wharf, according to the instructions of the Provincial Engineer Finding it did not answer, the Harbormaster ordered it oft, and told the master of the vessel to get the ship's rope fenders, which he made fast to the wharf. Captain Arnold complained to me that this was not right, as the fenders were protecting the wharf but injuring the vessel; I told him we could not go against the directions of the Harbor-master. Mr Days, one of the contractors, was on the wharf at the time, and said something to the Harbor master, who told him his time was up, and that he should say very little in the matter ; a'so, that it would be a matter of impossibility to move the vessel before she was sufficiently discharged. After this, when the carters I had employed were on the wharf, Mr Days employed them to move his piledriver about a hundred yards away, in order to drive some piles at the point. About 11 o'clock Captain Arnold told me that the contractors had stopped the discharging of the vessel. I went with Captain Arnold to the Superintendent's house, but he wus not at home. We returned to port, and found that the contractors had formed a barricade of heavy timber on the wharf, which had stopped'the work, and frightened the horses. I asked the Harbor-master what was to be done; he said nothing could be done until more cargo had been discharged. I asked him if she could be uiliciently lightened during the day; he said that through the obstruction which had been offered she could not. After dinner I told the men that as I had no instructions from the Harbor-ma3ter to discontinue the work, they had better go on discharging. They removed the timber from the wharf, but as fast as they took it away Mr Days and his men threw more down. Next morning we went to work early and discharged the vessel sufficiently for her to be moved by the morning's tide. Through this obstruction the Maggie was detained in harbor for eight days. I only change for one day's demurrage, and the loss of time for one day of the laborers and: three horses and carts.

By Mr Lee: I remember the Maggie lying near the wharf in September last. Mr Pays complained of a plank being laid from the vessel to the wharf, and it was taken away. The Harbor-master ordered me to build a stage for discharging the vessel, which I did. On that occasion Mr Days told me he would hold me responsible for any damage which might occur to the wharf, I never eaid I would be res-

ponsible. In November, while the vessel! was lying outside, Mr Days told me that; the wharf would be ivady for me any time she vessel might come in. When I sent the men back to continue the discharge of the vessel I did not say " We'll open the wharf."

Michael Hayden deposed : On the 9th November I was discharging coal from the Maggie, when Mr Days told me he would not allow the carts on the wharf. I told him I was not the proper person to talk to, and continued my work. While 1 had a loaded cart on the wharf he made a barricade with timber, so that I could not get it off. There were two carts and two men employed. By Mr Lee: I don't think the wharf was quite finished. I remember pitching the timber overboard, but I put it up again. I remember threatening Days to throw him over after it. He went away, and afterwards told me that he had an order from the Superintendent for me to discon tinue unloading the vessel. I knocked off at once, but I believe what he said about the Superintendent's order was not true.

John Hayden deposed : I was employed by Mr Vautier in discharging the Maggie early in November. I began on Monday, the Bth November, at 6 in the morning. Mr Days assisted me in cleaving the wharf My men were at work all Monday. The next day I went down about 8 o'clock. Mr Days got me to move the pile-driver and monkey from the wharf, saying it would asssist me in discharging. I afterwards went away, leaving my men to go on with the job. I only had two carts employed that day.

Harry Kraeft deposed : T am Pilot and Harbor-master. I brought in the brig Maggie on Saturday, the 6th November, and moored her alongside the new wharf. There was no other place for her. She began discharging coals the following Monday. On Tuesday Mr Days told me the brig was damaging the wharf. I went on the wharf, and saw that the vessel was striking against it, but I did not see that she was doing any harm. Days wanted a spar to be put down as a fender, and I ordered this to be done, but it did moi*e harm than good. I then told the captain to make his own fenders fast to the wharf, which was done. The wharf kept shaking, and Days wanted me to take the vessel away. I told him he had better lot them continue discharging, and I would shift her at night. He said he would not. The next I saw of him he was blocking up the wharf with largo pieces of timber. I did not interfere. Before the Maggie was brought in Mr Days told me the wharf would be read.\ for her. The wharf was not finished when I brought her in, but I would not have put any vessel there without Mr Days' consent.

By Mr Lee : The vessel could have been lightered outside, but it would have been attended with delay and danger. This closed the evidence for Mr Vautier's cas°.

Mr Boss deposed : I was Provincial Engineer at the time the new wharf was in process of construction On Nov. 9 t was about crossing the ferry, and saw the Maggie alongside the wharf. In fine weather she could not have done it any damage the way she was moored. Some damage had been caused by the ftmders coming under the planking, and starting it by pressing upwards. £L would cover any damage that was done when I saw it, but I do not know what further harm the wharf raai have suffered, No one had any control over the contractor except myself, and the vessel need not have been put there without his permission. I told him that anytime he was delayed by the discharging of the vessel I would add to the contract time.

By Mr Vautier: The original contract time expired on the 15th October, but so many additions were made to the job that the time was extended.

Charles Days deposed : I am a shipwright, and one of the contractors for the wharf. On the 3rd September last I had four tiers of piles driven, and the Harbormaster moored the Maggie abreast of the wharf. I asked him why he put her there, and he said it was the usual berth. Mr Vautier had planks laid from the vessel to the capping of the wharf, which damaged the wharf so that I had to remove my machinery and withdraw one of the piles, which had been driven in six feet. This delayed the work two-and-half days. The Harbor master ordered Mr Vautier to bui d a stage, and I told him I should charge for the damage. I was employing five rnon at 10s per day, and estimate my own time at 15s, which, for two-and-a-half days, anounts to £8 2s 6d. On Saturday, the 6th November, the Maggie came in about 6 o'clock in the evening. We had knocked off about 5 p.m. I had told Mr Kraeft that I would have the wharf ready by that time if I could get the timber. On Monday we were work.ng all day at the wharf. On Tuesday I found that the vessel was damaging the wharf, and called Mr Ross's attention to the fact. He did not stay long enough to see the full extent of the damage. Three piles and a part of the capping of the wharf were started. The men could not do their work through the carts passing, and the wharf shaking. I told the Harbor-master that the vessel was damaging the wharf, but he said he had no other place tor her. I stopped the carters discharging, and barricaded the wharf with rails, which they threw off as fast as I put them on. One of the carters told me that he would throw me overboard after the rails, and that he would tie me to one of the piles. I charge for one day's hindrance, two carpenters at 12s, four laborers at 10s, and myself at 15a, —altogether £3 19s,

Eight other witnesses—men who had been employed on the wharf—were examined, and cross-examined by Mr Vau tier ; but their evidence was chiefly corroborative of that of the last witness.

The Bench was of opinion that Mr Vautier had no claim against Days and Briatow, and considered them perfectly justified in resisting the discharge of the vessel when the wharf was being damaged thereby, and therefore decided the first case in favor of defendants. The second case being fully made out, judgment would be given for the full amount claimed (£l2 Is 6d) and costs.