NOT REASONABLE

Evening Post, Volume LXXXVII, Issue 152, 29 June 1914, Page 6

NOT REASONABLE

A HARBOUR BYLAW QUASHED BY SUPREME COURT SHIPPING COMPANIES HELD NOT LIABLE. His Honour the Chief Justice (Sir Robert Stout) delivered judgment this morning in a motion under section 12 of the Bylaws Act, 1910, to quash bylaw No. 188 of the Wellington Harbour Board, on the ground that the bylaw is invalid, being ultra vires of the board and unreasonable. Mr. M. Myers appeared at the hearing for the New Zealand Shipping Company in support of the motion, and Mr. T. S. Weston for the Harbour Board. The bylaw is as follows : — "The board's cranes, jiggers, capstans, plant, and machinery (hereinafter and in the next two succeeding bylaws referred to as appliances) are, with the drivers and other persons (if any) required to work the same, hired to persons desiring the use of same upon the express understanding that the hirer shall be responsible for, and that the board shall incur no responsibility or liability for or in respect of the design, condition, nature, or state of repair thereof, or for any damage or injury occasioned to any person, vessel, or goods whatsoever through the use of an appliance hired, or through any act or omission of a driver or other person hired therewith, and also that the hirer shall, on demand, pay to the board the cost of making good any damage or injury to such appliance or to any property of the board whatever, caused by 01 arising out ol the use of such appliance by the hirer, or any act or omission of the driver or other person hired therewith, and shall indemnify and hold harmless the board against any claim, action, or demand made by any person or body corporat& whatsoever for or in respect of the design, condition, nature, state of repair, or use of such appliance, or any act or omission of the driver or other person hired therewith in connection with such user." H»> Honour said it was not necessary to consider whether it was ultra vires, if it was unreasonable ; and if it was a reasonable provision it would, in his opinion, be very difficult to show -it was ultra vires of the wide legislative powers that tho board had. ' As Mr. Weston clearly pointed out, said his Honour, there were four ways in which an accident may happen through negligence : (1) The design or construction of the board's appliances, cranes, jiggers, capstans, etc., may be faulty ; (2) the appliances may be in a. bad state of repair 5 (3) an incompetent manager of the crane may be appointed ; (4) the manager of the crane may be negligent. The bylaw made the shipping company, the goods of which were dealt 'with by the boaid's machinery, liable for any of these negligent acts. It was argued that it was optional for the shipping companies to have their goods lifted out of their vessels by the board's machinery, and consequently the board had a right to make any conditions it pleased. Though the use of the machinery was optional, it had to be remembered that it would be impossible for private persons to put such cranes on the wharves, even if the board would permit, cranes to be erected on its wharves, which was not likely, for that would not be workable. Cranes must be used to unload cargo, else the large expense in erecting them would not have been incurred. And that they were necessary for tho shipping is further proved by the fact that they were used in preference to the appliances on board the best-equipped steamers. Was it then a reasonable rule that those whose goods were being loaded, or unloaded, by Harbour, Board machinery should be liable for the possible negligence of the Harbour Board, first in the construction of the machines, second in the maintaining of the machines, third in the appointment of officers, and fourth for the possible negligence of the board's officers. His Honour, however, did not think so. The carriers or bailees of goods who wished their goods unloaded were not consulted as to the design of the maclunery, nor as to its upkeep, nor as to the appointment of officers,, nor could they dismiss any officer nor control any. It was, therefore, unreason able that they should be held liable for any possible neglect of duty of that character of the Harbour Board. After quoting various legal authorities and traversing the arguments, his Honour said he must allow the motion. He added that it would be unreasonable to exempt the Harbour Board from liability, even if the negligence were that of the manager of the lift, and hence he could not amend the bylaw. The bylaw was declared void and, therefore, quashed. Costs (£7 7s) and disbursements were allowed.