The Northern Monarch.

Taranaki Daily News, Volume XLVI, Issue 127, 2 June 1904, Page 4

The Northern Monarch.

I litigation ABOUT A LAUNCH. J JUDGEMENT FOR THE Di> FENDANT. In the Magistrate's Court at New Plymouth on Wednesday morning Mr i T. Hutchison, S.M., gave judgment [ in the case Williamson v. Rothery and Harford, the hearing of which took place last week, Mr Hutchen appearing for plaintiff and Mr Quilham (Messrs Govett and Quilliam) for the defendants. The Magistrate said the case really presented no difficulty, the legal principles applicable being clear and their application to the facts of the case free from doubt. The contract was made out partly by letter and , partly by oral statements of the parties. It appeared that the defendants, owners of the wreck of the Northern Monarch, were desirous of prospecting the vessel by means of a diver, and the plaintiff agreed to send his oil launch to the wreck at a cost to the plaintiffs of £o per day The vessel left Waitara on April 20th with the diver and diving apparatus The weather was rough, and the launch having landed the diver and his assistant at Opunake (why it was not quite clear) returned. to Waitara on the 24th April, never having gone to the wreck. The plaintiff demanded £2O for the four days' hire, and as defendants delcinod to pay, lie refused to send his launch again to the wreck. Two constructions had been put on the contract : (1) The plaintiff's view that the contract was one of hiring, the working of the wreck being merely incidental ; (2) the defendant's contention that the contract was to take defendants' diver to the wreck and assist in the diving operations, the working of the wreck being the substantial object, and the basis of the contract. This view the Magistrate held was correct, and had said so at the healing, but as he had expressed an opinion then that on either view the plaintiff could not succeed he had reserved judgment in order to consult the case of the Herald flay Steam Boat Company v. Hutton (1903, 2 K.IS. 683 C.A.), quoted by Mr Hutchen for the plaintiff. He could not see that this case helped the plaintill. In the present action, assuming it. was a contract'- for hiring. There was no event the happening or nonhappening of which affi«ted the liability of t'he parties under it. It was a hiring indeterminate as to time, because dependent on the time required to get to the wreck and compete the diving operations. And it -s»ot yet been., determined by the* plaintiff, 1

on the other view, the defendants' contention which Mr Hutchison held was the correct one, that the contract was to take tho diver to I lie wreck, it was obvious that the plaintiff had not performed his contractIt had been argued that, even so, the contract was impossible of performance on account of the tempestuous weather. The Magistrate riv jected the contention as untenable, and proceeded to explain the distinction between a contract performance of which is made impossible by law, and a contract which has become Impossible by after circumstances. in the present case u person had contracted to do something which he was prevented from doing by stress of weather. This did not excuse his performance, since he could easily have provided in the contract against the risk of weather. And even if the weather excused his perfownance that would not entitle him to claim for something he did not do. U was one thing to be excused from performing a contract that would protect the promisor from liability. It was quite another tiling to claim the consideration for a contract which could not be performed. Indeed, ex hypotlics, the contract was at an end and there was nothing to sue upon. Hence the case might have been disposed of very summarily, though it seemed advisable to, discuss at some length. The plaintiff would be nonsuited, with the usual costs. Mr Hutclrcn asked the Magistrate to alter the decision to one of judgment for defendant, in order to admit of an appeal. This was done. Costs were Witnesses £1 4s, solicitor £2 2s, Court costs (is. Leave was granted to appeal. | I ! I |