IMPORTANT JUDGMENT

Hokitika Guardian, 24 March 1926, Page 4

IMPORTANT JUDGMENT

WHAT IS A “SEAMAN-”? WELLINGTON, March 20. The reserved judgment of His Honour Mr Justice MacGregor, entered yesterday in the Supreme Court, allowed the appeal of the Holmwood Shipping Company, of Wanganui, from the decision of the Magistrate's Court at Wellington awarding Ben Searby. a Wellington seamen, £7 11s lid. allegedly underpaid him by the company.

The facts as disclosed in the Lower Court were that on June 19th, 1924, Searhv was an ordinary seaman on the shii> Holmwood, registered in New Zealand. On July 23rd, 1021, he was promoted to able seaman, in which capacity he continued until discharged on August 28th. 1924. From June 19th to July 23rd he was paid £G monthly. and thenceforward CIO monthly, the wages naicl on such vessels as the Ilolm.wnod for ordinary and able seamen. Wages under the Seamen’s and Firemen’s Award. .1924-1920, are .£9 8s 4d monthly for ordinary seamen, i and £l4 (is 8d monthly" for able sea-, men. NO COASTAL “SEAMEN.” •It is clear,” said His Honour, . that at all relevant times the respondent came within the precise terms of the statutory definition. He was first an ‘ ordinary seaman ’ and afterwards an 1 able seaman’ employed on board a sailing * ship.’ It is equally clear. however, that he did not at any time come within the narrower definition of ‘seaman’ given in the New Zealand Seamen and Firemen’s Award, which forms part of the ease on anneal. [Tndcr that award (clause 31) ‘seaman’ means ‘ any man employed either on deck or in the engineroom or stokehold of steamers or vessels propelled solely by means of intennil combustion engines.’ In other words, tlie award relates only to certain specified classes ol ‘seamen, and to these classes only while employed on steamers. It does not deal with ‘seamen ’ employed on sailing ships at all, nor does it affect other classes of -seamen,’ even if employed on steamers. Further, it does not even profess to fix the current rate of wages of ‘seamen ’ as a whole class. It does arbitrarily fix tin* wages of certain specified classes of ‘seamen ’ while employed on steamers, and to this extent it no doubt ascertains the current rate of wages for the time being ruling in New Zealand, but for these specified classes of ‘ seamen ’ only. AWARD AND ACT INHARMONIOUS.

■‘lt seems to me that the magistrate, in his interesting judgment, has failed to realise and give full effect to this pointed distinction between the definition of ‘ seaman ’ given by the Act and in the award respectively. In that way he appears to have in the result misdirected himself as to the precise question emerging before him for decision. In the course of his judgment, the magistrate says: “The question, therefore, is not wliat is the current rate of wages payable to seamen on sailing ships for the time being ruling in New Zealand. The question is, wliat is the current rate o* wages paid to seamen as a general and complete class?’ I cannot agree with the magistrate in this view of the crucial matter at issue. With every respect for his opinion. I feel bound to say that in my judgment the vital question involved in this action in effect is. what is tlie current rate of wages payable to seamen oil sailing ships for the time being ruling in New Zealand?. . .” 11 is Honour held that the facts clearly showed that the wages paid were those regularly paid to ordinary and able seamen on vessels of the Holmwood class trading to and from New Zealand ports. NO LEGAL REMEDY. “ Tt appears to me.” lie continues, "that the magistrate should, have acted un this uiieont radicted evidence, and given judgment for the appellant accordingly. ' The current rate of New Zealand ’ simply means, I think tho rate of wages for the time being generally accented or recognised in any oarlieular employment. I am satisfied from the evidence in the present case that the wages already paid to and accepted bv the respondent were the wages then generally accepted or recognised m his particular employment. On wliat legal or equitable ground he should now recover in this action the additional amount now claimed by him as wages I am quite unable to see. The appeal must he allowed, with costs ( CIO) and any necessary disbursements to the appellant. The action is remitted to the magistrate with a direction to enter judgment for the appellant company with the usual .Magistrate’s Court costs.

Mr 4'. C. A. lies lop appeared for the appellants and Mr M. Myers. K.C.. and Mr 11. F. O’Leary for the respondent.