SUPREME COURT.—IN BANCO.

New Zealand Times, Volume XXXIII, Issue 5299, 20 March 1878, Page 3

SUPREME COURT.—IN BANCO.

Tuesday, March 19. (Before his Honor the Chief Justice.) EVANS V. HORSFALL. Judgment in tins case was delivered by his Honor as follows: This was an appeal against a decision under the Resident Magistrate’s Act, 1807, in a suit brought by the consignee of goods against the master of the vessel for damage done lo the goods whilst in course of carriage. The judgment was for the plaintiff, and against that decision the defendant a *The material matters stat.d in the case are that the goods were shipped at Wellington on board a steamer called the Uangatira, of which the defendant was master, by Messrs. Turnbull and Co., under a mate s receipt or shipping note, which states that the goods were received from Messrs. Turnbull, to be forwarded to Poveity Bay consigned to J. S. Horsfall. It docs not appear that any bill of lading was taken, nor that In any way the defendant did not take upon himself, fey the receipt of the goods, the ordinary liability of a common carrier, responsible for the goods, the act of God. of public enemies only excepted. It appear*, however, that the voyage to Poverty Bay was by way of Napier, and that on the voyage off the bar at Napier a pilot was taken on board, and that on going in the ship grounded on the bar. The defendant admitted that the goods were damaged to the extent claimed ; the defendant in his evidence admitted, and the case finds, that the damage was caused by the ship grounding on the bar; hut it was contended on behalf of the defendant that he was rot responsible, as the loss was caused by perils of the seas. .... It does not appear that any other defence was raised on his behalf at the trial. At the hearing of this appeal however, the only contention on behalf of the defendant was that he was exempt from liability to the plaintiff by reason of the vessel being, as found bv the justices and stated in the case, “in the hands Of the pilot" at the time of the accident to the vessel, •whereby the damage to tho cargo, the subject of the action was occasioned. . On behalf of the plaintiff it was urged, in answer to this contention, that even if the employment of a pilot were compulsary, It was necessary that the justices should have found and stated in the case that the damage was caused solely by the default of the pilot, and that in the absence of such a finding the defendant’s liability as a common carrier coninclined to think that this case ought to be disposed of without reference to the contention made at the hearing of the appeal and not made at the trial. It is manifestly unfair, and otherwise inexpedient, that a case should be argued on appeal without reference to the defence made at the trial, and on a point not raised at the trial. As might be expected, the case is net stated with a view to the question now raised but with a view to the defence made at the trial: but this Court is asked to spell out and infer from the facts staled, other facts sufficient to raise the question upon which the defendant now relies. No doubt the appellant does not ask that this Court should do more than make such inferences of fact as necessary follow from the facts found, for the appeal •is on questions of law arising on facts found by the justices. If It were necessary, I should be prepared to decide that the defendant, not having protected himself by a special contract, is responsible even though the damages was by a peril of the seas, for he has all the liabilities of a common carrier. I proceed, however, to consider the defence now made, and the first question is whether jt appears from the case that the pilot was taken on board by virtue of any law compelling a pilot to be taken. On behalf of the deiendant, the 14th and 21st sections of the Marine Act. 18C7, were relied upon as creating this compulsion. I do not think that the 14 th section was intended to apply to a master piloting the vessel of which he is master, but to the case of a person acting as " pilot,” in the ordinary sense, that la pilot of a vessel of which he is not master or one of the crew. But the 21st section certainly does create a compulsion on the master to employ a pilot in the cases to which it applies. .... .. In order to bring the defendant under that section, it is necessary that it should appearfirst, that the vessel was not exempt from pilotage. Second, that it arrived from a place beyond the seas. Third, that the port at or off which it arrived was a port for which a pilot was licensed. ...... . I think it lay upon tho defendant to prove not only the last two conditions, but the first. For even in a proceeding to recover thepenalty, the onus would be, not on the prosecution, but on the defendant, as the exception is one personal to himself: but, however that might be in such a proceeding, I think it certainly is so where the defendant seeks to nd himself of his common law liability as common carrier. . Now, on referring to the case stated, no facts are stated which show that the first or the last of these conditions existed. As to the second. I am inclined to think that within the meaning of the Marine Act, the expression ‘’places beyond the sea ” was intended to include, not only places beyond New Zealand, hut also places within New Zealand. I think that the provision was intended to apply to coasting vessels. I findthatin the repealed Act of 1860,section 10, the analogous provision runs thus; —‘‘If the master of any vessel not exempt from pilotage, or not employed in coasting only, arriving from any place beyond the sea. That provision expressly excepts coasting vessels, but such express exception would not have been necessary if pi ce beyond the sea excluded i-laces on the coast of New Zealand. Therefore, even if no other consideration existed, I should have arrived at the conclusion that the defendant had net established his exemption from his liability as common carrier. But even if. contrary to my opinion, it conld be interred from the case that the port. was a port for which there wts a licensed pilot, and that the pilot taken was a licensed pilot taken under compulsion of law, and even if, also contrary to my opinion, the proof of the exemptions from pilotage lay on the plaintiff, there remains the farther question whether such compulsory taking, of a pilot does in law create the exemption from responsibility. At the argument it was suggested that the section of the English Merchant Shipping Act, 1854. exempting masters and owners from responsibility for damage occurring through default of pilots taken compulsorily applied to New Zealand, but I am unable lo discover that that is so. That section by the Act itself does not apply to the colonies, and no New Zealand Act that I can discover has made it applicable. However, irrespectiveof legisl 'tlon, It seems to be the better opinion that at common law the master and owner would be exempt from liability for damage which is caused solely by the act of a pilot compulsorily taken. (See "The Protector ” 1 Wm. Eobluson 56; “ The Maria," lb. 107.) . However this may be at common law —and it is on common law principles, and irrespective of any statute that the question has, as already pointed out, to be considered in New Zealand—the same rale which is now well established as to the exemption by statute must, I think, apply to the exemption which exists by the common law, and that rule is that the onus lies on the defendant to establish the exemption from his responsibility as a common carrier, and that mere proof of the fact that a pilot compulsorily taken is in charge is not sufficient to establish such exemption; but he must affirmatively prove tint the damage was caused by the pilot, and not by the master. (See the case of " The Protector," 1 Wm. Kob , supra. “ The lona,”T.aw Reports, 1 P.C., 432. "The Velasquez," lb. p. 498.) Now the case does not state facts which show that the damage was through the fault of the pilot alone, but only that the vessel was in the charge of the pilot. The justices state that the captain chose to run the risk of injuring his vessel. If I felt myself at liberty to speculate in the m ittcr, I might probably come to the conclusion that it may be inferred that the defendant interfered with the pilot In the exercise ol his proper functions, and so caused the damage ; and if so. the fact of the pilot being in charge would not exempt him. (See " The Lochlibo," 3W. Rob., adra. Rep., 310, 331.) I prefer, however, to rest my judgment on this part of the case, on the ground that the onus lay on the defendant to establish, and that he has not established, that tho damage was caused by the act of the pilot alone. ,1 therefore dismiss the appeal, with costs, and give judgment for the plaintiff, who is the respondent here, with costs. THE QUEEN V. BURTON. This was an application made by Mr. Izard for the remission of a tine of £l9O imposed npon Mr. Burton, of Auckland, for failing to appear as a witness against H. S. Myers, a bankrupt, who was criminally prosecuted. The application was received in Chambers and granted