A CONTRACTOR’S CASE.

Patea Mail, Volume VIII, Issue 1023, 18 April 1883, Page 2

A CONTRACTOR’S CASE.

HARBOUR BOARD V. WILKIE

At theß. M. Court yesterday, before C A Wray, Esq., the case of the Harbour Board v. J and A Wilkie came on for hearing. Mr Hamerton appeared for plaintiffs, and Mr Barton for defendants. Defendants were charged, that they, “ within the space of six months last past, to wit, on the 4th day of April. 1883, at the Patea river, in the Colony of New Zealand, adjoining the Railway construction works on the Foxton New Plymouth Railway line, did cause to be cast on the land adjoining the Patea River, being a tidal river, earth and other substance, in a position where the same was liable to be washed down by ordinary high tide, or by storm or flood, into the said Patea River.” Defendants pleaded not guilty.

Mr Barton said the summonses were served very late, one being served only that morning, Mr Haraerton stated" that the case had been brought very reluctantly by the Harbour Board, and only after the contractors had been asked to remedy the cause of complaint. John Gibson said : I am the Chairman of the Patea Harbour Board, and have been so for about two months. As such I recently inspected the river between the wharf and breakwater, I was there bn Friday last, and on ‘theMonday previous, I know the locality of the contract, and believe Messrs Wilkie to be the contractors. In pursuance of the pilot’s last, report, I caused a letter to be written to the contractors on the ; subject; telling them they were committing a breach of the Harbours Act. That is the .reply , (produced). The embankment on the rnud flat is protected on the one side by fern treesor pungahs, but there is no protection to the other. The pungahs are not watertight. On the inside of the basin there is no protection ; the tide washes in twice every, twenty-four hours. At the end of the earthwork, near the bluff, there was no protection till Friday last, when the men were beginning to protect it. The works have been going on for many months. Earth'had washed into the river in considerable quantities. Passing over the bridge the earth on the other side was loose and unprotected. The embankment which was about 20 feet high, Was composed of unprotected loose earth. At low tide the earth could be traced in the river from about six inches to a foot deep. The. earth was deposited in a narrow part of the river, and dose to what was the channel. The men were throwing loose earth into the river. I noticed traces of earth below the works as far as the road np to the pilot’s house. Past the bluff gullies have been filled up, but have not been protected sufficiently. I noticed lumps of clay in the river, and the whole beach has got ,a coating of earth upon it. The embankment was undermined and sliding down, and will gradually go into the river unless protected. I have been in Patea twelve years, and judging trom my experience, I think tho effect of this earth in the river would, be to permanently damage tho latter by changing tho channel. It most certainly injures the navigation of tho river. •

Cross-examined : The first work is protected on the outside by fern trees. It is not protected on the inside and end. The embankment was incomplete. To my knowledge no earth has been put down there -for'‘several months. The tall earthwork is not faced at all. It is composed of yellow clay. I have noticed the cliff from the material of which the earthwork- is composed. The whole of the larger bank is on the move ; it is getting washed away at the bottom and is all cracked at the top. I think Mr Blackett is a competent engineer. I know he has been along the line, but I don't think he inspected this particular work. When there is a fresh, the river is discoloured, and the earth carried

down would form a deposit, but I presume in the course of time it would bo scoured, out. Down at the Boiling Down Works the face of the embankment is being continually eaten away, and it is protected by a stone wall. *• .By Mr Hamerton: The stone Avail at the Boiling Down Works is'much more substantial than papa rock. I'am perfectly certain that I could trace the earth in the river to the contract. Any silt that came down the river from above the bridge would be in a liquid state and in the current of the river.

Thomas Eyton :T am the secretary of the Harbour Board. A few days ago (oh the 4lh) I wrote a letter to Messrs Wilkie and Crawford. Tha tis a true copy of what I wrote (produced.) An answer was received dated the 6th of the month ; that is the reply (produced.) I went down to the works in company with Mr Gibson last Friday afternoon ; I saw the earth actually washing into the river at the embankment, ami I conld trace all along the beach where the earth bad fallen in. The solid embankment itself was cracking.' They were protecting the end of the shoulder acrosc the mud flat with papa - rock ; the tide affects the basin, but there was no protection whatever to that side of the embankment. The width of the opening to the basin is not 30 yards. Cross-examined : No notice was given to the contractors before that of the 4th. Soon after the notice was sent I saw men putting papa rock on, the embankment on the town side of the woodwork.

John Thomson: I am a harbb.ni’ engineer by profession. I have been acquainted wilh the Patea river for some years. I recently received instructions from the Harbour Board to come ami report on the river, and, in accordance, I arrived here on Thursday evening. I have inspected the river from the Heads to the bridge, and have reported thereon to the Harbour Board. At the lower end of the railway wharf there is an embankment carried across the mudflat, q! which it makes a kind of tidal basin; this basin is filled by the flood tide till emptied by ebb tide. The embankment terminates where it joins the wood work ; at this point it is subject to a severe scour, caused by the water rushing out of the basin. They havepnly now commenced to face this with .papa and stonework. Up. to the present time the protection has been inadequate, and the earth from that point was washing into the river. I consider the embankment as a whole has not been properly protected, more particularly on the inner side. The inner side received no protection and the earth is being washed rapidly into the river. On the side of the river the embankment is protected by fern trees. I have examined the protection and have found that the water is washing out the earth from behind the trunks. I found earth lying on the flat immediately in front of where it came ont, and I traced it to low water mark. I went across the trestle bridge on Friday with Messrs Gibson and Eyton. Tlie men were working and I saw them throwing soft material into the river. The material was of about the same consistency as garden soil, I picked some up and I can from personal inspection state that it was soft earth. The embankment at that point was not faced at all, and earth was washing away rapidly into the river. The embankment at the cliff encroaches 30 or 40 feet into the water and that is at the narrowest part ot the river. It is on the concave side and is exposed to the full force of the current. The result of the embankment remaining in its present condition will be that the greater portion will be carried away if a heavy fresh comes down. There would be a heavy sconr at this particular place. Farther down an attempt has been made to protect the toe of the embankment in some places by loose papa. I went down to examine the facing and I found I could pull out large , pieces which would crumble up like earth; and it would wash into the river the same as clay. At this point I found a recent deposit of earth from the contract from one to nine deep, It is forming in the bed of the river and tends to’ lessen the depth. I could trace the, deposit of earth as far, as low water mark, at the spot marked on the plan 8.8. From what I saw, I should say material quantities of earth were carried into the river, the effect of which would be to impede navigation. The effect if the earth is carried into the river, as it inevitably will bo if allowed to remain in its present condition, will be to form an island or shoal below the contract. The contract is not faced similar to the diagram on the plan. At the present time the earth is injuring the river. Cross-examined: 1 admit that the work is not in a complete state. I think it would bo an error of judgment for the Government to put papa rock oil The embankment. With a papa rock facing the river might carry away the wear anil tear from that facing, but it would diminish the scour of the stream, which has quite enough to do, in clearing out the sand. The water drags out the earth from behind the groin, which is composed of stone, at the Boiling-down works. By Mr Hamorlon; The current is materially stronger here than at a place near the wharf which is faced with papa rock which wearing away fast. The papa rock at the wharf is also of a better quality than that being used at the embankment. By the Court: The contractor could have faced the work as ho- went along ; I can’t say if he would have been justified in doing’it. The Court at this stage adjourned till-2 o’clock, and on resinning, Captain Flowerday was called, and stated : I am a master mariner, and am Harbour Master and Pilot at Patea, which position I have held for about six months. It is my duty to inspect the liver and take soundings. I. know the Railway works going on between the pilot station and the town. The river where the works are is slightly affected by the wash of the sea. Earth is being deposited in the river about which I have spoken to the foreman, Mr Kendall. I did not speak to tlie defendants.about the matter, as I did not know them personally. Largo quantities of earth have gone into the jiver,. and |

have penetrated,<as■far*a£J<Wfc'water marie; I noticed last'spring tides ill at an island is forming below the works. 'lt is abreast of the lower end of the:work, and extends 40 dr- 50 feet into theTiver. I saw two blasts fired at the. works, which caused largo 'quantities of earth to fall into the river, one lump striking one of my boats and dam,aging her. I. have seen smaller blasts, but these scarcely threw any earth into'tbo river. I have inspected the embankment, to which the tide has free access. The earth during the last month has been unprotected, but the men are commencing now to protect with papa rock. They call it ...protection, but,.,! ,do not. I have not noticed any deposits in the river, except where the boat is lying, where the the earth is about a foot deep. This earth will gradually work down into the bed of the river. I have noticed the embankment across ' tile- mud flat, jvhich has been protected by pungahs,. but the earth was - washed out between.' On the inside there is no protection, and the earth is being washed out. The end near the woodwork is now being faced with papa rock and stone. I have been a master mariner for 30 years and have traded to bar rivers. From the nature of the material being cast into the river it will very likely adhere ; if it is carried out to the bar it would probably come back, and even if it remained there it would do much more harm than if .it. were in the channel.

Cross-examined': The deposit between high and low water mark lias taken place within about three weeks. There was a flood...recently, but the deposit was not caused by that. By Mr Harnerton : In a heavy flood the stuff comes down in the shape of silt. The last flood took place about six weeks ago. The water’ was discoloured, but ! did not notice any earth in it ; I can state that the earth in question is from the works, and tends to the detriment of navigation'. This was the case for the Board.

Mr Barton', in opening the case for the defence, contended that the Harbours Act of 1878, under which iho, information was laid, was modified by the Public Works Act, 1882', ,in order that public works might be carried out. ■ John Wilkie stated : I am one of the contractors under the Government for one section of the Foxton-New Plymouth railway. Those arc the conditions under which I am working (produced) ; in those conditions the mode is described in which the work is to be carried out. The banks were to he protected by 2ft 6in of papa rock outside the bank.; the bi;i.b bank outside the bluff is to be faced with, stone, as the current is strongest there. .. There is a condition as regards protecting as the works proceed. The engineer goes over my work ; he has never pointed out to me that it was uiVsecurb. Mr E'ackelt went, over the work about six"weeks‘or2 months ago. About 25 chains of the embankment across ‘the mud flat was done, and he expressed himself well satisfied with the protection. There is a..bank,at the,end of the bridge built of papa fock whiclrds blasted, the largest pieces being rolled clown. There,is a certain amount c.f earth that might wash awaj r , but very little—nothing to damage- the river. When the stone facing’is put on the work, there will be ho silting frrtm there at all. The embankment across the flat is protected by fern trees. It is not true that the earth has come out. On the inside there is none of the material carried away. ~1 have had no coniplaint about the work, till the letter of about a week ago from the Harbour Board. It is not true that I am aware of the eartli sliding into the river. If it were I would be aware of it. Cross-examined : It is not true that the earth is coming from behind the pungahs, the evidence of Messrs Thomson, Gibson, and Eyton, on that point being,false. I have no specification that the protection should be built concurrently with the work. We protected the bluff as we went along with papa rock. Nearly the whole of the bank is papa rock. We did not throw cla3 r br mould in at that particular pointv : We are going to face with stone’: I would seeit if the river were silting up.'

T. H. Rawson ; I am a 1 Government engineer engaged on this work. l am superintending the constructing of the line. I have inspected the work. The bank across'the flat is protected by-fern trees. I don’t see that there is any effect taking place except a little river silt being deposited at the-foot of the embankment. Certain portions of the work arc to be faced : with stone because of the tidal force. When the work is completed, if papa rock is not sufhcient, the Government will protect it properly. I don’t think that there is any real occasion for interfering with the contractor. Cross-examined : I am a Civil Engineer. I have not had experience in Marine Engineering. By Mr Barton : I consider myself competent to give the evidence I have done. By the Court : There is nothing in the contract about protecting the work as it progresses. I do not see anything why' the bluff should not be protected within -a fortnight. The quantity of stuff washed into tlie river is very small. _ It is not true that the water is undermining the bank. So far as I know, the contractor has kept within his contract. John Richards : I am an overseer on the Railway, but not on the contract in question. I have noticed the work where the fern trees are. There is no appreciable amount of earth washed, away. - I have not noticed during the last month or so anything that would lead mo to suppose that the river was deepening, or otherwise. I noticed the island in the river before the contract was commenced. Cross-examined -: I was on thesis]and some 12 months ago. I believe I am referring. • to the same, one as the Harbour Master. My attention has not been called to an island that formed .in the river two months ago. I have been along the embankment that is protected,by pupgahs tied down by wire. I have noticed a little earth that has come out hut nothing of any consequence. I think the contractor did everything in his power to protect the work. Owing to the material being bad he could not do any better than he has. John Campbell : I am inspector for the Government on the Whenuakura contract. Wilkie’s section came under my notice. I have not noticed any subsidence of the earthworks beyond the natural settling. iSome earth has been washed away but it was only a very small amount. It was part of my duty to see that no earth was washed away that could be protected. Cross-examined : On the inside of the work across the flat there is no protection. There were pegs put in to show where the line across the flat was to go. Only part of that bank has been made to its full width. Where it has, the pegs are a little distance awa} 7 from it. The earth has silted down a little but has not been carried away. On the outside, where the pungahs,are, so far as I know no earth has been removed. Below the bluff I have noticed some gullies-that have been filled in. Some earth has been washed out but only small quantities. This closed the case for the defence. His Worship in giving judgment said it had been shown that everything had been

done in due form. It was manifest that in constructing works of this kind there would necessarily be some damage done however slight. The principal question the Court had to consider seemed to be whether defendants were guilty of any negligence. For any damage done in consequence of the work the Minister was liable. The evidence given by the plaintiffs tended to show that the manner in which the work was being carried out may probably affect the river. But while this was all of great importance to the Harbour Board and the river, it did not seem to him to affect the defendants who were carrying out the work according •to contract. It did not seem to him that they had acted 'with negligence. The matter was of great importance to the district generally that the river should be kept open to navigation.. He had. no doubt the would do good’By Ventilating the subject, but he did not feel justified in recording a conviction against the defendants, and-the information would therefore be dismissed. Costs £1 Is. ... '[