CASE OF S.S. DURHAM.

Dominion, Volume 4, Issue 1185, 21 July 1911, Page 6

CASE OF S.S. DURHAM.

TRADING COASTWISE. HIGHLY IMPORTANT DECISION. CONFLICT OF LAWS. WHAT WAGE RATE.MUST,BE PAID i A decision'of. particular importance to 6hip,o«'ncrs and seameu was given yesterday' by Mr. J ustico Chapman in a- case iiivwhich the, 1 master and owners of the steaiuer Durham applied to too Court under the Declaratory Judgments Act "for an"' interpretation ot Section 75 of - the Shipping aud'Seamen Act, as. to whether thoicurrent rato of .wages, tor the time being ruling in Now Zealand, is payable to .bcameu employed upon a snip arriving ironi abroad and loading and discharging cargo in iyew Zealand.. . The' Durham commenced her voyage in ' '"'England unu snipped her crew ac tne " rates or pay runng cuere; She arrived at ,'AucKiana on jauuary itf with gen'"eral cargo. .Having uiscnargea, '• sue '• procecued. to load ior West ui England, ironi AiiciUand sue prvceeucii :.tus.i to Wellington, und ineu to i-yt-leitou aiiu, at each ot these pons, uis- ■■ cnargKl nirtner English ■ curgu. Un January li'J sue lelc .Lytieitoii ior Port .-'Chalmers, seal carrying part; of her •Eiigusn cargo, wuitu ohu duly uis'charged.' At'l'on cnaliners sue loaded cheese and general cargo uesriucu ior west ot •jCiiigiand. x-art ot tins, cheese, hud .Cxonie fcu'iis'tivik'.iroin ihe'Biuu'uy'local trauing.'steaiiier and ' on'this tuo Durham uacl paid .li-eiglit to iho Union Wiupany. Un 'icoiuury 1!, nlli, tne 'Durnam lelc i'urv Chalmers ior tne Diuu, ana there discuuvgeu lurtrier Home cargo. Before sho had commenced to load Honic- • ward cargo at tUoHiutt. (ieDruaiy 3, l'Jil) instructions 'were received by came message ironi iiondon varying tue steamer s destination in Enguiiiu ' . to London in hen of the \Vest 61 rJn'g- •■. land ports. ■ 'After, this change of destination, some • cargo which, the shippers had intended 10 forward. by- the Durnam to ! tue West of England was' loaded at, tne ' BluJf, and this," together with what sho had collected, was carried by her Vo Wellington wliero she arrived.. on . Eebruary il, 1911. 'i'hero she discharged tne whole of her cargo into tlio 15'ussex—a steamer belonging to the same owners, and destined for dispatch to West of England.

The First Law Point. riaintiffs admitted'that,', in the circumstances mentioned, they were liable to .pay coastal rates to their seamen "witn 'respect to the voyage from tho Bluff to Wellington," owing, as they say, to tho fact that when cargo was received 'at the Bluff it was intended to carry it to' "Wellington, and not abroad. The Col- 1 'lector of Customs claimed that her voyage was a coastal voyage, not within the protection of the proviso to Section 75 from the time tho Durham left Auckland until she arrived for tho second tini-e at Wellington. The matter (according to plaintiffs' contention) depended upon tits"intended destination of the ship," she. not being engaged in coastal traue until her destination was changed by the cabled order. The question depended upon the proper interpretation of Section 75 of the Shipping and. Seamen's Act, 1908, which had to -be construed with reference to. Section 2 of the same Act, and,'Section 73G of tho Merchant Shipping Act, 1891.. Earlier Imperial Acts reserved the whole subject of shipping legislation to tho Imperial Parliament. Section 736 declared that: "The. Legislature of a British possession may, by any Act or ordinance, Tegulate the coasting trade of that British possession" subject to certain conditions— the raaterialono of which was "(b) The Act or ordinance shall treat all British ships (including the ships of any other British possession) in exactly tho. same'.manner as'-ships of the British pos-,. session' in which it is made." That, his ■ Honour took it, meant at least that Brit tish ships generally should not be worse treated by any local legislation than the ships.upon the register of the possession were treated. The Conflict of Laws. Shipping Acts formed a branch of the law, .as to which conflict of laws between sovereign States might well arise, and similar conflicts might arise between the enactments of several Legislatures within the Empire. To avoid such conflicts, as between: the Legislatures of,. N.'.Z.. and the Empire, Section 2 of the Shipping and Seamen's • Act, 1908 (joriginajly enacted in 1903), had been passed. It declared that, with certain-named exceptions, the Act should apply to all British ships registered at, trading with, or being at any place within the jurisdiction of N.Z. and. to the , owners, ■ masters, and crewp thereof. It further declared that tho , provisions of this Act should bo so construed as not to exceed the legislntiva powers conferred on the General Assembly . by the Constitution Act. It might be assumed that that reference, to the. Constitution Act included a reference to Section. 736 of the Merchant. Shipping Act, IS9J, as. that section modified the Constitution Act by enlarging its scope, and so enlarged the ambit of the expression "the peace, order, and good government of New Zealand." The result of theso enactments wa« that, when the Legislature of New Zealand deemed it desirable , to. go and intended to go as far as the limits of its powers would admit in a particular direction, the Court must give. to its legislation, the .maximum scope that ap-' peared -' possible. A'Protective Enactment. The question argued turned mainly on the. terms ■of the second proviso to Section 75 of the Shipping and Seamen's Act, 1908.' The section must bo regarded as a protective enactment passed in the interests of. shipowners trading in New. Zealand, and of rcamon employed by them. Apart from the proviso, the operative words relevant to the question under consideration would rum-

"It is hereby declared that, when tho master, agent, or owner of any ship (a) engages seamen in New Zea- . land; or. (2) having engaged them abroad employs them in New Zealand, those seamen, while so. employed, shall be paid, and may recover, tho current rate of. wages foT the time being ruling in New Zealand." Standing alone, this sentence, would he •nltra vires, as it did not. relate exclusively to the coasting trade of NewZealand. For this reason the proviso had been enacted. It ran:—"Provided also that'this section shall not apply to ships' arriving from abroad with passengers or cargo, but. not trading in New Zealand, further or otherwise than for the purpose of discharging such original passengers or cargo in New Zealand, and there shipping fresh passengers or 'cargo' to be carried abroad. , These'two provisions divided ships into two classes.:—Namely, ships . trading coastwise, and ships which do not so trade in ■ New' Zealand. 'A ship, which merely passed from port to port for tho purpose of iinishing-'tho voyage, or preparing for.a new voyage, abroad was expressly, brought into tho/latter, class. In a sense, a'ship. which was navigated from port to port for the purpose of discharging its cargo or picking up cargo for its onfward voyago was' employing seamen in Nov Zealand, but .it was at least doubtful whether, such a vessel was engaged in the coasting . trade ' which tho Dominion Parliament was alone empowered to regulate, though it certainly was doing work which coasting vessels otherwise would do. His Worship referred to this as doubtful because—to deal with the language of the Imperial Act exhaustively—it might be necessary to . contemplate conditions which might not exist in New Zealand, but might exist in other parts of the Empire, and consider whether it might not in some cases be necessary.to impose on all British ships such duties as that of carrying pilots, or taking' a tug, or doing other things which enter into tho regulations of a coastal trade, nowever this might be, a vessel operating coastwise in this limited reitso only was clearly within the protection of the proviso. The exact question which arose now, however, was whether, in the particular circumstances here' narrated, a vessel was within the proviso. It seemed to his Honour that the proper .timo to'niako, tho

inquiry as to which class a vessel belongs was shown bv the Statute itself to be when the Collector of Customs had to consider whether or not ,it was his duty to detain the final clearance of the ship. AVhen he came' to consider Unit it was for the purpose of making the inquiries: First, whether the ve-sel hud carried cargo coastwiso (par. -). and, secondly, whether the crew, had.been paid tho wages required by tho Statute. The Crucial Question. Tho crucial question to be determined, was as to which class Ihq vessel belonged. If she was not within tho da-ss protected by tho proviso, nnd had carried cargo coastwise, then she belonged to the class to which. the obligation of the statuto applied. Here it was admitted that, at the dale of her final cle»rance, the Durham was not in the protected class. Dint was to-say she was not free of the obligation of tho statute. Upon this, the plaintiffs argued that the obligation and tho proviso were distributive, and that a vessel carrying cargo coastwise might' be at one time within and, at a- later time, without tho protection. That argument, however, 'seemed' to his Honour to ignore the true question and also to ignore tho actual-language of the proviso.

If it were competent for the legislature to say that a vessel which had on this particular voyage, traded coastwise in New Zealand should not avail itself of tho protection, it seemed to him certain that it hod done its best to. say so, and had said so. He was of opinion that it Was within the competence of the legislature to say.so. Mr. Blair' had argued that the bona-ndc intention either-of the master, the owner, or the agent (formed and acted on) should detorinino when t'ho vessel censed to bo within the proviso. His Honour did not think that the "Legislature had' intended that tlio matter' should' depend on the intention of an owner in a distant country, while it could not bo said to depend on the intention of the persons subordinate to the owner which might bo at i variance with those of the owner- without their being-aware of the fact. The ■ Legislature has made the question turn \ solely upon tho use of the ship. His Honour did not think that any assistance . could lie derived from a consideration ' of exceptional cases such as that of a ! vessel meeting with an accident and re- '. turning. Such cases were not actually • contemplated by the Legislature. Any other test thaii was involved in the inquiry which he had suggested would lead to very inconvenient results, some of which might with advantage bo considered. ' Thus a vessel, going from port to port gathering her cargo, might pick up :n litjfclo local cargo at Oisborne, and drop :it at Napier, and- it might be suggested that the Collector (or possibly a Court of law) should inquire for how many hours the vessei had been employed in the coastal trade, and then ascertain for what' proportion of n. month her crew were entitled to recover wages at the coastal rate. This phase of the subject of regulating coastal trade afforded the, best example of the futility of limiting tho inquiry to a part of the period during which a vessel, passing coastwise, was performing some act of trading. If the period of her stay on the coast could bo thus cut up, a vessel visiting New Zealand might (while waiting for her outward cargo) make a few profitable runs between ports, and then commence or resume the operation of collecting cargo for her outward voyage, and all this might be quite outside the original plan of her owner when he sent her to New Zealand. This, however, would, in'his Honour's opinion, mark her as engaged in the coastal trade, and attributes,her to that class of vessel from the timo'she arrived until the time when she received her final clearance. That case seemed to him to be merely an extension of this case. Other cases might be adduced illustrating tho object of the.Legislature in taking tho time of the final clearance as the moment for determining not what was in the mind of tho owner, but what use had been made.of tho ship. Thus, taking the ordinary case'whero a vessel had gathered her outward cargo' at six or seven ports, and had . arrived at her port of departure, and then tho owner had determined to send,her away in ballast or placc.'her cargo'oh board another of his vessels, in such a case his Honour would be prepared to say that, in fact, she had . traded ;coastwijip,., ; i'h.'.J<ew,'.Zealand, and had dono nothing else!' That, again, was re-stating the present case in its simplest form, but such a re-statement showed to his Honour's mind that the solution did not depend on the bona-fide intentions of the owner, but upon the facts of the case. If a vessel on a voyage could thus fall out of the protection of the proviso from a given moment, he did not see why sho should not similarly fall into it, and vice versa. In his opinion, however, such inquiries.were not those which tho Legislature prescribed. It referred to two classes of vessels and the ascertainment of those classes marked the limits of tho proper inquiry. That it was within-its power so to ascertain the respective classes ho saw. no reason to doubt. "For the reasons given," said his Honour, in conclusion, "I do not think that the plaintiffs sbow tho s.s. Durham to bo within tho proviso,. and I am of opinion that the coastal rate of wages is payable from January 20, 1911." Mr. A. W. Blair appeared for plaintiffs and-Mr. J.-W. Salmond for tho Collector of Customs, ivho was joined as defendant.