RESIDENT MAGISTRATE COURT.

Westport Times, Volume VII, Issue 1038, 17 January 1873, Page 2

RESIDENT MAGISTRATE COURT.

Tuesday, Januaiit 14. (Before Joseph Giles Esq., K.M., and S. Thorpe, Esq., J.P.) Scott v. Allison—Complainant, wife of W. Scott of Ljttelton street, complained that defendant, Mrs Allison had struck her in tho face without provocation, on Saturday night last, had also called her opprobrious names and threatened to kill her. The evidence called corroborated complainant's statement as to the assault. Defendant admitted the assault, but pleaded as justification that the complainant had spread reports that defendant and her husband had become deeply involved in debt in Wangauui, and were not safe people to give credit to. The Court ruled that the assault was unjustifiable, and fined defendant 40s. and costs 16s. Gd. to be paid within one week, or in default, defendant to suffer 1-1 days imprisonment. 'CIVIL CASES. Layette v. Patterson Summons again enlarged for service. Whyte and Pirie v. Charles Leech. Claim for goods sold and delivered. Debt admitted. Judgment for amount claimod and costs. Jules Simon v. Andreas Jacobsen. Debt admitted, but defendant pleaded that he had filed his schedule as an insolvent. Judgment given for amount claimed and costs 19s. Gd. Joshua Annett v. T. J. Jones—No appearance of plaintiff. Case struck out, defendant being allowed costs for three days expenses and mileage. It having afterwards appeared that the defendant could not reach the Court by reason of flooded rivers, execution was stayed until the hearing upon a fresh Summons. Band of Hope Goldmining Company v. John Symonds—Mr Fisher for plaintiff; Mr Home for defendant. Action to recover £SG. 10s. damages caused by steamer Charles Edward coming into collision with Bright street wharf, whereby certain quartz crushing machinery lying r on the wharf for facility of loading in up-river boats, had been submerged in the river and only recovered at the cost now sought to be obtained. Mr Home pleaded that the action could not be sustaiued as, by section 61 of the Harbor regulations, it was forbidden to leave goods on the wharf ' for more than 21 hours, which time had been exceeded by the plaintiffs. . The Court ruled that such regulations could only bo taken cognizance of if put in as evidence. Mr Eisher produced authority to act on behalf of the Band of Hope Company. Mr Home objected to the document on the plea that the seal affixed bad not been proved as that of the company. The Court after discussion made a note of the objection. Mr Eisher called Michael Organ, who deposed that the Gazette notice produced and certificate of Incorporation, referred to tho Band of Hope Company, tho plaintiffs in the action. Remembered on the 26th April, taking delivery from Thompson of Charleston"

agent of Langland's Company, Melbourne, of certain machinery, list produced:; then lying partly on tbe wharf and partly on Bright street. Arranged with Mr M'Leod the owner of wharf to allow the heavier pieces to remain for facility in putting them on board an up-river boat. On the night of the 15th May, the machinery was'Bafe. There had been a fresh in the rivor for 24 hours previously but it had nearly gone down. At daylight on the 16th, witness was called up, and then fonnd that the wharf had been carried away and part of the machinery sunk in the river. Afterwards called for tenders to raise it, but the tenderers after repealed trials could not succeed. Then sent to Christchurch for a diver, and agreed with him to pay £55 for recovery of the machinery. The receipt produced was for the contract money paid the diver. By Mr Home : Part of tho wharf had been cut adrift by McLeod on the 15th. The machinery was then lying on the shore end of the wharf. The part of the wharf cut away was an addition that had been built to the outward end. Had obtained permission from M'Leod to leave the machinery on tho wharf previous to the 15th. So far as M'Leod was concerned witness supposed that it was left there at the risk of the Band of Hope Company. Had told the Harbor Master that the machinery was 'eft lying by permission of the wharfinger. Captain Leech never referred witness to the Harbor Regulations, or gave him notice to remove it. There was a meeting between witness and others to arrange for forwarding the machinery up river, but not to discuss the propriety of its removal from the wharf. Paid no storage for the goods, but merely for the use of the wharf, llendered an account of money paid the diver, to Captain Whitwell, eight da} r s after the recovery of the machinery. Was appointed agent for the company on the 11th of May and received the authority to act on the 18th, two days after the accident. By Mr Fisher : The addition to the wharf had been made to allow vessels to moor in deeper water, and was cut away because the piles were hanging, and endangering the original wharf. George Jervis: Recollected the Charles Edward going out on the morning of the 16th of May. She had been moored at tho Bright Street Wharf. After letting go the bow-line she swung in the current, then running strongly. Captain Whitwell gave the word to let go the stern line, but it seemed to be fouled on board, and could not be cleared. He then called out to Captain Leech, who was on the wharf, to cut the line ; saying so distinctly three times. Just then the line either got clear, or broke, and the vessel was then nearly bow on to the bank, heading down stream. Witness ran down to Bright street wharf, and saw the steamer strike by the starboard bow against the wharf, and immediately afterwards with her paddlebox, and the whole wharf went dowu into the water. Before Captain Whitwell called out to Captain Leech he gave the word to his own men on board to let go, but they could not. There had also been some difficulty in geTting the bow line clear. The Hues were fastened by bights around the mo ring piles, the ends of both linos being on board the steamer. By Mr Home: Cap tan Whitwell distinctly said ' cut the line,' not ' let go.' Captain Leech afterwards told witness that it would not have been safe to do so, as the severed line would have sprung back, and probably broke his leg. There was at the time a more than usually strong current in the river. By Mr Fisher: There was a loud crash at the time of the collision. The piles of the wharf were broken off and the flooring fell into the water. Witness and Captain Leech were the only persons on shore who witnessed the accident. By Mr Home : Part of the planking of the wharf floated flat on the water, with the wharfinger's offi.ee and lamp standing. Daniel M'Leod: Had built the Bright street wharf three or four years ago. Subsequently made an addition therto which he cut away on the 15th, because the piles, which had not been driven so deep by ten feet as the piles of the original wharf; had been scoured underneath by the current. After this outer part was cut away the wharf left standing was in first condition. After the collission with the steamer the three inshore piles of the wharf were left standing, They were from twelve to fifteen feet in diameter, but the tenons were spli; off and the timber smashed. Had received compensation from Mr Symonds for damage done to the wharf. By Mr Home: The receipt produced for £l5O, bears my signature, and purports to be a discharge in full for " all claims and damages done in carrying away Bright Street Wharf, Westport, by the steamer Charles Edward." The weight of the machinery with some tanks of malt then on the wharf would be about five or six tons- Considered that the pressure of the weight tended to keep the piles well down and prevent the wharf swinging by the current. The machinery lay thereon at the risk of tho owners. Don't know that the Harbor Master suggested its removal or that some of the owners consulted as to doing so. Knew previous to the accident that the Harbor Regulations, stipulated the removal of goods within

twenty-four hours, and witness as ' wharfinger only charged dues for such time ; the goods afterwards remaining at risk of owners. The receipt given to N. Edwards and Co. did not in his opinion include the lobs of machinery. The. Band of Hope Company had not asked him for compensation. By Court: The shingle bed of the river, round the piles of the outer portion of the wharf, which had been cut away, had scoured, and the piles were loose, but the centre piles of the inner wharf, 1G in number, had been driven from 28 to 30 feet and were perfectly safe. Benjamin Oxner, wharfinger, deposed that at the time of the accident the wharf was perfectly sound. Had given verbal notice to A. Thompson, who had paid the wharf dues, to remove the machinery, because it was in the way of other goods being landed. Witness afterwards gave Michael Organ similar notice, simply because the machinery was in the way. The day previous witness had assisted with others to remove some of 'the machinery to clear a space for cutting away the outer portion of the wharf. Knew nothing of the arrangement with M'Leod for the goods 'remaining on the wharf. Witness was on duty from 8 a.m. to 6 p.m , but after that time was not compelled to assist in casting off lines of vessels leaving port. By Mr Fisher : It is usual at night to pass lines with a bight round the mooring piles,andt'ieendsare made fast on board, so that the crew may let go on board. They having all control over the lines. Thomas Bailie, shareholder in the Band of Hope Company, had on the day previous to the accident helped to remove some iron from the wharf, as also machinery belonging to the Wealth of Nations Company, but nothing belonging to the Band of Hope Company. The removal was made merely to clear space for cutting away the outer wharf. Had on the 15th removed some tanks of malt to the shore end of the wharf. If he had deemed the wharf unsafe he would have taken them off altogether. By Mr Fisher: Had left two iron centres and a case of iron belonging to the Wealth of Nations, on the wharf. By Mr Home : The machinery was left on the wharf to save expence in shifting it. The Harbor Master had suggested to witness the advisability of removing the machinery as the fresh in the river waß heavy. Mr Home put in the Harbor Regulations, referring especially to sec. 61. Mr Fisher objected thereto, no proof being given that the by-laws had been G-azetted. The Court overruled the objection - Mr Fisher then pleaded that the wharf did not come under the Harbor Regulations ; protection having been granted by the Superintendent under the 13 Sec. of the G-oldfields Act, which gave no power to inflict a penalty for breach of the by-laws produced. There was also no evidence before the Court that the Harbor Master had insisted upon removal of the machinery in pursuance of the alleged power given him by such by-laws. Again the by-laws (only referred to public wharves sot apart for public use by the Crown, and the wharf in question could not be deemed a public wharf, being under the sole control of the lessee. The Court pointed out that one of the conditions of the protection granted to M'Leod was that the wharf should be subject to Harbor Regulations. Mr Fisher pleaded that the Superintendent had no power to make such stipulatiou under the Act, whereby protection was granted, and that the leaving of the goods on the wharf had in no wise contributed to the accident. Mr Home explained that he was debarred from producing material evidence owing to the absence of Capt. Whitwell, and Harbor Master Capt. Leech. The Court, referring to the facts adduced, said it was a matter of regret that the evidence on the part of the defendant was not more complete, especially as to the incidents connected with getting the vessel clear from her moorings. An attempt had been made by defendants counsel to show that the wharf wa3 unfit to carry the goods, but the evidence was not clear. There was some evidence to show that clanger was apprehended, but none that the wharf was in a peculiarly bad or rotten state. The principal points raised for the defence were:—That the Harbor Regulations had been disregarded, and that damages could not be claimed. That the accident had not been caused by any negligence on the part of the defsndant, and that the goods were on the wharf at risk of owne.'s, who, leaving them there, had contributed to the accident. That the owner of the wharf had received compensation, and that such was in full for all damages. Upon the first plea the Court ruled that the Harbor Regulations made any persons leaving goods on the wharf for more than twenty four hours, liable to a penalty, but did not preclude action for damages sustained. Secondly the evidence showing that tire wharf was fit for its ofEce as a wharf, it did not follow that it must, of necessity, be strong enough to bear collision with a steamer. Then as to contributory negligence, the evidence showed none. The plaintiffs took their own risk of any accident as far as concerned their relations with the owner of the wharf but not necessarily with outside parties.

Then as to the cause of the accident, it appeared that the lines were foul on board the steamer, and that the accident was not altogether unavoidable. The vessel being unmoored deliberately, and the accideut occurring from some hitch on board, and not by reason of the fresh in the river. Hence the owners could not escape the responsibility, although there was no evidence as to want of skill on the part of the Captain of the vessel. As to the position of the goods wharf, it had not been shown that they had been placed in any peculiar position exposing them to danger, but had been placed on a properly built wharf, and so far as defendant was concerned he had no legal right to maintain that they should not have been so placed. Then as to the owner of the wharf having apparently given a clear receipt for all damages arising from the collision, that was a matter between himself and the defendant, and did not concern the plaintiff. Judgment was therefore given for the full amount claimed and costs. Mr Home intimated that his client would appeal.