APPEAL COURT.

Press, Volume LXVII, Issue 14098, 18 July 1911, Page 5

APPEAL COURT.

A CHRISTCHURCH CASE. | (I'KISS ASSOCIATION TELEGRAM.) ] WELLINGTON, July 17. The Court of Appeal (Sir Robert Stout, Chief Justice, and Mr Justice Williams, Mr Justice Denniston, Mr Justice Edwaids, and Mr Justice Chapman) sat to hear the adjournment in a case removed from the Supreme Court in Christchurch of Dammer and another v. the Shaw, Savill and Albion Company. The case is in the form of a motion for judgment pursuant to the verdict of the jury in the Court below. Tho action arose from personal injuries sustained by Florence Louise Dumraer whilo a passenger from England by the s.s.'Tainui. Mrs Dummer was caught by a wave which broke on board and was washed down a hold which hud been temporarily opened and was not protected by guard ropes or other safeguards. It was also pleaded that no warnings had been given to passengers. The jury' found that tho bunker hatch was opened for the purpose of supplying light for the purpose of supplying coal for steaming purposes, but that it was kent open longer than was necessary for that purrose. They al*o found that the Defendant Company had been guilty of negligence in not warning passengers of the open hatches and in not keeping them off that part of the ship, and awarded £1250 damages to Mrs Dummer nnd £750 to her husband.

Mr T. W. Stringer, K.C., with him Mr J. J. Dougall, appeared for plaintiffs, and Mr George Harper, with him Mr E. T. Harper, for tho defendant Company. The qu?.'t'on for the Coin is' consideration is whether the injury arose from negligence in navigation, from which the Company were protected by the conditions of the passenger ticket.

Mr Stringer submitted that although tho act of obt«.ining coal for steaming purposes was an act of navigation, and tho opening of the hatch for the purpose of putting the light down was incidental to the purpose of obtaining coal and part of an act of navigation, yet directly the light was down the hatch could, and should, have been replaced, and the opening of the hatch as part of an act of navigation ceased. Leaving it open, therefore, after the light was put down was not part of an act of navigation, and was an act of negligence in the safe carriage of passengers, for which the Company were liable.

Mr Dougall followed Mr Stringer on behalf of plaintiffs. He submitted that the condition which excused the Company from negligrnc? in navicrntion was ultra vire-. of the Company as bei g in contravention of the Merchant Shippine Act, 1894 (Imperial), and therefore bad, and not binding. 'Mr George Harper, for the Shipping Company, submitted that the negligence was in the act of navigation, and the Company was excused by the condition on the ticket. He further contended that the condition was valid, there being no. statutory provisions "taking away the right of freedom of contract. • , „ '■..,. , ... Mr Stringer briefly replied, and: the Court then reserved its decision.. ;