SUPREME COURT.

New Zealand Times, Volume XXX, Issue 4508, 1 September 1875, Page 2

SUPREME COURT.

Tuesday, August 31. (Before hia Honor the Chief Justice.) The Court sat at 11 a.m. BILLING (appellant) V. HOLFORD (RESPONDENT). Hia Honor delivered judgment as follows; This was a special case stated under the Appeals from Justices Act, 1807, for the' opinion of this Court. It turns upon the meaning of the 42nd Regulation of the Harbor Regulations, made under the Marine Act, 1807. That regulation provides as follows; “ If any vessel or boat bo sunk, stranded or run on shore, or if any baulk of timber or other bulky article bo in the water, in any port or harbor, and if the master of such vessel, or ownor.or part owner or charterer or hirer thereof, or the person who shall have been in charge of such vessel or boat at the time of the sinking, stranding, or running on shore thereof, or the owner of such timber or bulky article, or the person who placed put or throw suoh timber or bulky article in the water, or the master of the vessel or boat from which such timber or other article may have fallen into tho water, shall not clear the port or harbor of such vessel, timber, or article as the case may be, within such time as the Harbormaster or other ollicer of the port shall require, by notice in writing, every such person shall bo liable to a penalty

not exceeding fifty pounds; and every such person shall be liable to a further penalty not exceeding fifty pounds for every period of twenty-four hours after the expiration of the first twenty-four hours after the expiration of the time fixed in such notice that ho shall permit such vessel, boat, timber, or article to remain unremoved.” It appears that on the 13th July, ISM, a vessel, then belonging to the defendant, was wrecked in the port of New Plymouth, and that in the following October, the vessel being an obstruction to the navigation, the Harbormaster served the defendant with a notice, under the regulation above set out, requiring him to clear tho port of the wreck within seven days ; that ho neglected to do so, and was informed against, convicted, and fined for such neglect; and that he has not since the expiration of the period of twentyfour hours after the seven days cleared tho wreck. The defendant, not having cleared the wreck, was again informed against, and on the hearing of that, tho second information, it was contended on his behalf that as he had ceased to be the owner of the wrecked vessel before tho Harbormaster gave the notice under the regulations he was not liable to tho fine under that regulation ; and the defendant appears to have been ready to prove the change of ownership. Tho Justices being of opinion that the change of ownership did not relievo the defendant from liability, determined the case against him, Intimating that such change, if proved, would make no difference in their determination. It was also contended on behalf the defendant, that even if the regulation affected to render the person who was at the time of the wreck owner liable to the penalty, yet that tho Justices ought not to convict, inasmuch as the regulation was as he contended ultra vires. Tho questions of law for the opinion of this Court are whether the regulation is ultra vires, and whether the defendant, as owner at the time of the wreck, was liable to tho penalty. On the first question it seems to me that tho regulation is not ultra vires. The regulation appears to be fully authorised by the powers conferred by the Act. The argument was that at common law the person who at the time of a vessel’s being wrecked was the owner of such vessel is not bound to remove the wreck, even though it be an obstruction to navigation. That, however, does not prove _ that a regulation throwing upon him. such a liability, or inflicting a penalty upon him for not removing it, is vires. Regulations, whether made by or under statutes, very frequently alter common law liabilities or impose duties which did not exist at common law. However, the regulation itself does not, I think, render tho owner of the vessel liable to the penalty for non-re-moval, if such owner had ceased to be so at the time of tho serving of the notice. The words “at the time of the sinking, stranding, or running on shore thereof” are, I think, connected with tho words which immediately precede them, and are used for the purpose of defining what person shall be liable who is made so by reason of being in charge of the vessel. The words are not, I think, associated with the preceding expressions “ master of such vessel ” “ or owner or part-owner or charterer or hirer thereof.” The meaning of the regulation, is, I think, that the person who at the time of notice is master (including principal officer) or owner of the wrecked or stranded vessel, and the person who at time of wreck is in charge, whether lie be owner, master, or any other, shall bo liable to the penalty if the vessel is not removed in accordance with the notice and the provisions of the regulation. No doubt the express provision that the person in charge at the time of the wreck shall bo liable seems to show an intention that the position of things at the time of the wreck is to be looked at for tho purpose of fixing the liability. There are reasons why this should not be so, but those reasons are as strong or stronger against imposing the liability on the owner at the time of the wreck as imposing it on person in charge at the time of the wreck. It might be thought that tho rule should have fixed the liability on the owners or person in charge for the time being, namely, at the time of tho giving of the notice, as such person would have the control over the wreck. On the other hand, it may be said that the intent of the rule was to prevent the liability from being evaded by the transfer to a pauper of a worthless wreck, and therefore intended to make the owner of the property at tho loss of the raised walls. If the respondent’s contention were adopted then the person who became owner and master of a vessel after it was run on ground, wrecked, or stranded, would not be liable, and that though the wreck or stranded vessel were of considerablevalue, and though he was exercising control or dominion over it. It is a rule that legislative provisions are to be construed in reference to the principles of the common law, and that it is not to be presumed that the innovation upon the common law is more extensive than is clearly expressed, or further than the case requires. In the present case it is not, I think, expressed that the owner at the time of the wreck may be required to remove it; such owner, if not in charge, may bo deemed to have been free from all blame in tho matter of causing the wreck, it cannot be inferred that ho was to be rendered liable. At the same time if he docs not abandon the ship—if he retains ownership—then he, or if he assigns, then his assignees may perhaps be considered as electing to take the wreck with its burdens, and therefore properly made liable to tho penalty. With regard to tho person in charge at the time of tho wreck, he, whether master, owner, or any other, and whether blameworthy in tho matter or not, is clearly made liable. Such a regulation seems arbitrary, and in the absence of a clearly expressed intention, that a provision relating to the person in charge cannot be used in construing the regulation, so far as it applies to others than chose in charge at the time of the wreck.

If the previous conviction had determined that the defendant was owner, that is, owner within the true meaning of the regulation, then that conviction would have been an estoppel in this case. Here it appears that the conviction did not so determine. As the Justices did not hoar the evidence as to the change of ownership, and as it may turn out that the defendant was owner at the time of the notice, the case is in accordance with section S of the Act remitted to the justices with the opinion of this Court thereon. GEORGE V. HALL. Mr. Travers for plaintiff, and Mr. Gordan Allan for defendant. Mr. Allan was to have shown cause against a rule obtained by the plaintiff, to enter the verdict with substantial damages, or for nominal damages, against the defendant ; but it was agreed by both parties that the hearing should be adjourned for a week. BAUCKE V. VOGEL. Demurrer to plaintiff’s declaration. It was agreed by the plaintiff in person, and Mr. Gordon Allan, on behalf of defendant, that the argument of the demurrer should be adjourned to November, when it would be heard before three Judges, who would visit Wellington to assist in constituting the Court of Appeal, the time of hearing to be fixed by the Chief Justice. The Chief Justice declined to hear the case, as he had been counsel for the defendant in a previous action brought by the plaintiff for the same matter. The Court then adjourned.