BREACH OF PASSENGERS' ACT.

Otago Daily Times, Issue 275, 6 November 1862, Page 4

BREACH OF PASSENGERS' ACT.

The Resident Magistrate at Port Chalmers (T. A. Mansford, Esq.,) was to-day and yesterday engaged hearing three distinct informations laid against Capt. May, ofthe barque Stately, by Mr Monson. as Emigration officer, for alleged breaches of the Passengers' Act of 1855. On behalf of the prosecution Mr Monson appeared personally, and Mr Haggitt, of Dunedin. appeared for the defendant.

The proceedings were taken in consequence of a memorial from the passengers to the following effect: —v We the undersigned, passengers on beard the baique Stately, commanded by Mr. May, do hereby make complaint of the said master, inasmuch that he has failed in fulfilling- the agreement entered into with us in Sydney. Ist, Tho barque Statcdy was advertised to sail on the Oth day of October punctually, :mfc did not leave the Circular Quay until the 17th. 2nd. The master has neglected to provide tiie passenger, with sufficient fx)d, the food being also of inferior quality, with bad accommodation for cooking. 3rd. Whilst detained in Sydney, after the time advertised for sailing, the passengers were at the expense and inconvenience of providingthemselves with accommodation without being indemnified for the said expense- We ber, therefore, most respectfully to request that some indemnity be awarded to us for sabi detentions, loss of iiino, &c." Captain May, it .should be mentioned, had only assumed the command of tiie Stately at the moment of her leaving Sydney, her former commander having remained at that port. t The fust intormaLion was tail under the 35th section of the Act, which relates to the quantity and quality of provisions to be supplied, Iv support of this information several witnesses were examined, and others were called for t'm; defence, the result of whose evidence was to show that, iv several particulars, a brea-'h of the Act, had heen committed, and the Magistrate therefore found the charge proven, and imposed a penalty of LSO, with costs. The facts upon which this judgment was passed wiil be found sufficiently fully stated in the remarks of the Magistrate, who, in giving his decision, said : lf This is an information under the 85th Section ofthe Passenger Act, 1855, laid by Mr Monson, Emigration Officer of the Port of Otago, against Captain May, the master of the barque Stately. Before proceeding to comment upon the evidence, I cannot help i observing that the remarks made by the defcrepant's counsel, that it was no part of the Emigration Officer's duty to take up such a case, are perfectly unjustifiabl". Iv a ship carrying 190 passengers, n memorial signed by upwards of one hundred and sixty of those passengers was presented to. the Emigration Officii-, setting forth" such a variety of grievances and breaches ot the Act, that had ,:e not instituted the pro -irdiiuys which he has done he would be quite unwo-t iiy to hold his position. A much worse case was probacy never brought into a court of justice, and while tr;-iy latitude should invariably be allowed to a dotecidant's counsel in conducting his case, such r'-mu-ks as those to which I have alluded are, to say th • lea^fc, li-judged, and have a tendency to induce pub ie officers lo lay informations in cases of a trivia-! character, whicli would otherwise be passed over. Now, what are the facts as disclosed by the evidence ? Edward Power, who evidently did not exagg .•i:u'iy for no evidence could have been more fairly f.v-n, states, that on the Alonday after leaving Syr ivy salt beef was served out—that it was very bad that, in fact, it stank, and was totally unfit for use. On the following day pork was served out, and that this was quite green and stunk. Beef and pork were supplied on alternate days, and were so bad that the passengers would not allow it to he cooked because they could not eat it. The biscuits he describes as being musty and maggotty, and lice was only supplied on one day during- the passage. Malcolm M'Kay not only confirms Mr Power, but the circumstance of his having been so many years at sea in so many different passenger ships, adds considerable value to his testimony. He states that though he had been in ten passenger ships, and seaman ior twelve years, the beef was the worst sample he had ever seen, ltice and oatmeal were only served once. Potatoes were very short—in fact, that he had Only about ten altogether. The tea was never delivered to the messes, bub to the cook. The water was bad, and that on one occasion he examined the tank and saw bread, potato skins, and pieces of pumpkin in it, aud that he never received more than two quarts of water per day. Mr Quick, another pa-sender, confirms the statements of the preceding witnes-es in nearly every particular. If anything further were required to complete this case it is supplied by the cook Maloue; and here I wou'd take the opportunity of remarking that I cannot agree with the observation of the defendant's counsel that "no complaints would have been made but for the cook." Thoujrh t the cook was called as a witness on behalf of the complainant there can be no doubt whatever that his sympathy was with the defendant, aud that if he cm id have afforded him any protection he would have done so. His evidence, therefore, to my mind, is of especial value, and I think he deserves great credit, as a subordinate officer, in not endeavoring to screen the defendant. He admits that the beef was interior,—not of good quality, of course,— and that some of the passengers asked him to throw some of it overboard, which he did, because it was bad. It is not at all likely that the passengers would have requested hira to throw ifc overboard if ifc had been good, neither is it likely he would have done so except on the presumption that ifc was bad. He admits th.t the water was on two or three occasions bad, and that the tea which he received from the purser, and not frorathe passengers, was mrde from it; and on one occasion that ib was made in'one of the coppers in which meat had been cooked. On cross-examina-tion, this witness stated that the smell of the beef when boiling was so bad that he could not stand it, and that he mentioned it to the passengers because he did not think ifc fit for use. The witnesses for. the defence do not materially alter the main facts of the case. Indeed the purser, by not being able to refer to a prepared memorandum, whicli would probably have prevented his committing such an error, stated what is morally impossible could have been true; and, while I should be sorry to say that he wilfully misrepresented facts, it compels us to regard his evidence with a degree of s-spicion. He, however, admits that two services of beef, and one issue of pork, were indifferent, and not of first-rate quality, and smelt _ nauseous ;• that ouly one day's rice was issued j that the tea was complained about as being greasy, and that the soup and the tea might have been made with salt water. The evidence of the chief officer and steward is immaterial. On the 'whole, therefore, it is quite clear that numerous breaches of fie 35th section of the Act have beeu!committed; and, though I am averse to inflicting heavy or vindictive penalties, yet in this instance I consider it absolutely necessary, for the protection ofrtpassengers generally, to endeavor, as far as possible, to prevent a similar disregard of the law. I, therefore, find ths defendant Guilty, and order him to pay a penalty of LSO and costs, and in default of payment to be imprisoned in the common g.ol at Dunedin for six weeks."

he second information was laid under the 36th section of the same Act, which requires that the passengers shall be divided into uv.'s--es, and that the provisions be served uin a propu-ly cooked state;" and "daily, before 2 o'clock in the afternoon." The evidence in support of this charge svas chiefly to the effect that the dinner had on one' or two occasions beenhalf-au-houroranhourt >o late,and thatthesoup was salt and insufficiently ■ boiled.; Mr Haggitt'held the complaint to. be of too trivial and commonplace a character to justify a penalty ; but the Bench held the charge to be sufficiently proved to warrant the imposition of a fine of L 5 and costs, which was accordingly ordered.. ....... The third charge was that the defendant bad been guilty of a breach of the stipulations of the contract ticket with the passengers,-in'consequence of which the informant claimed damages under the 73rd section of the Act, for and on behalf and to the use of all the passengers.; In this case Mr Haggilt took a legal obection, which was sustained by theyßench, and the

recognition of which k import int. inasmuch as in the caseofseveralrimilarinformations laid iv different parts ot the colonies, if not also in this Province, the objection has not been made or acknowledged, and a coutrary decision given. The 73rd section is to tne effect that "Any question which may arise , rrspeeting the breach or non-performance oi any the stipulations in any sudi contract ticket, may be heard and determined iv a summary w-ay. &c." -Mr-Haggitt contended that su"h contract ticket" referred, and could only refer to contract tickets mentioned in the 71st section ot the same Act, which was that " Kverv person whatever except Emigration Commissioners, and persons as^.igr tor tbem, and under their direct authority, who sh-iil receive money for or in. respect of a passage in ■'<■■;>' ship, or of a c;ibiu passage in auy passenger ship v 'ce-amg from the United Kingdom -to auy place } tot Europe, shall give to the person paying siicii ■{. oney a contract ticket," ie. He held that tht oction clearly did not apply to a colonial voyage, but °J"y tp such as was described, viz., to a passage trom the United Kingdom, and in confirmation «f his argument he quoted the-'9Bth' section, which distinctly j make 6 exception of t- j clauses referring to passengers' contract tic'.;et3 i.-> the application of the Act to ' colonial voyages." 'i he magistrate held the objection to be valid, and the charge wa3 accrdinglv dismissed ° J

We.understand that, by a private arrangement, *ou have been accepted by the passengers," as: covering the damages sustained, by thsm through non-com-pliance with the terms of the Act.