RESIDENT MAGISTRATE COURT.

Westport Times, Volume III, Issue 448, 7 January 1869, Page 2

RESIDENT MAGISTRATE COURT.

Wednesday, Jan. 6. (Before J. Giles, Esq., E.M.) A. Bascand, master of the steamer ' "Waipara, was charged with a breach of the post-office regulations by not giving to the Postmaster, Mr Winstanley, sufficient notice of the vessel's departure for Greymouth. Mr Pitt conducted the prosecution, which, he said, was initiated at the instance of the Postmaster-General. He thought the circumstances justified the infliction of some penalt l7 ur>on the defendant, but at the same time it was proper to state that there were circumstances in the case which would justify his Worship in not inflicting a heavy penalty. Mr Tyler, for the defendant, did not deny the facts of the case- He was prepared to admit that, on the 28th of November, notice was given that the Waipara was to leave Westport for Greymouth on the 30th, and that the vessel did not leave on that day, but left on the oth December. But the circumstances under which the departure took place were such that he considered the section of the Act under which the prosecution was laid was altogether inapplicable. Mr Pitt admitted that the facts as stated constituted the case for the prosecution.

Mr Tyler, in answer to the charge, repeated that there had been no alteration in the time of sailing such as was contemplated by the section of the Act. The Waipara did not leave at the time of which notice was given, but that was through no fault of the defendant, but was in consequence of the weather, or "the act of God." Although the defendant cleared out from time to time for Greytnouth, it was sufficiently known to the Postmaster that the Waipara proceeded by way of Charleston. It was impossible to clear out for Charleston, because it was not a port of entry, and in sailing for that port it was necessary to be guided by the state of the tides aud sea. It was such a port that it was impossible to get into it unless the sea was very smooth. During the week in question, the Waipara was waiting in the Buller with steam up every day, in expectation of a telegram being received stating that Charleston harbor was practicable. Underthesecircumstances, she might sail at any hour. The alteration thus occurring not through the act of the defendant, but in consequence of the weather, he scarcely thought that he could be held responsible. He thought the section of the Act contemplated only cases in which an alteration of departure was due to the act of the master, owners, or agents of a vessel detaining her for cargo and passengers. In nine cases out of ten it would be impossible, giving twentyfour hours' notice, to go into Charleston at all. If his Worship was still of opinion that the circumstances should have been represented to the Postmaster, he thought a nominal penalty would be quite sufficient. He proposed calling Captain Bascand to give evidence as to the circumstances.

The Magistrate said that, if it were admitted that it was through weather tbat the delay occurred, the case was reduced to a question of law. Mr Pitt pointed out, by the section, that when alteration of sailing was made, " timely notice," and not notice for twenty-four hours, was all that

was necessary. But he contended that the section did not relieve the defendant even if the alteration were " by the act of God." The simple issue which the prosecution had to prove was that the vessel did not sail at the time appointed, and that "timely notice " was not given. Mr Tyler contended that in thiß case it was impossible to give even timely notice. His learned friend's argument was to render any person responsible for tbe acts of a power higher than his own. It could not be that the law ever contemplated such a thing.

The Magistrate could easily conceive a case in which an alteration might arise over which a ship-master «.:..l.i U~„_ _l 1 TJ..4. 4_ il.. migui/ ua\\D U0 cuui/iwi. xjuv ui vnc present case the vessel simply remained in harbor for several days after tbe appointed time for sailing. Supposing: this had occurred simply through the influence of the weather, the detention would be beyond his control, but that would not prevent him from giving notice. He thought it wasthedutyof a masterto give notice from time to time. If he saw any prospect of going out, he should inform the Postmaster. But m the present case the defence was very much weaker. He did not mean to say that the detention was not justifiable, but he did not see that anything had been advanced to excuse the master from intimating that he would probably sail at a certain time. He might have given a proximate notice. This was not done in this case, and he considered the facts as stated justified a conviction. Mr Tyler urged, in mitigation, the defendant's ignorance of the law, and the fact of his having done the same on previous occasions. The Magistrate said it was very desirable that masters of vessels should have their attention called to the Act, and the intention of the Government to enforce it, as well as the heavy penalty—a penalty cf £IOO. He had no doubt that this case, with the previous case which had been heard, would suffice to call attention to the circumstances. It must be held that now an opportunity had been given to masters of vessels to make themselves acquainted with the Act. In any future cases under this Act there would be no more nominal penalties, but the Act would be enforced with full rigour. In the present case he had no doubt that there was some misapprehension, and as the prosecution did not press for a heavy penalty, there was no necessity for imposing one, and the Court would be satisfied by attention being called to the case. The penalty imposed was 40s. and costs, including three guineas as counsel's fee.