SEALING AT THE AUCKLAND ISLANDS.

Evening Star, Issue 8117, 17 January 1890, Page 2

SEALING AT THE AUCKLAND ISLANDS.

TAKING FUR SEALS DURING THE CLOSE SEASON.

At the Police Court yesterday, before Mr Carew, Resident Magistrate, Walter Powell Lewis, master of the Janet Ramsay, was charged on the information of Mr Chamberlain, Collector of Customs, with taking sixteen fur seals at the Auckland Islands on the sth December last, during the close season.

Mr Haggitt appeared on behalf of the Collector; Mr Fraser for defendant. Mr Haggitt said that the information was laid under the Fisheries Conservation Act of 1884 and its amending Act of 1887. The sections to which it was material His Worship’s attention should be called were section 5, subsection 2, headings A, B, C, and sections 6 and 7 of the Act of 1884, and sections 3 and 4of the Act of 1887. He would also call attention to the ‘ Gazette ’ of 1888 containing two proclamations prescribing the close season for seals until the Slat December, 1889, and an Order-in-Council farther extending the close season to the 31st December, 1890. The facts of the case were these : In September, 1889, the Janet Ramsay, a vessel of which His Worship would have heard in connection with other cases, cleared out from Port Chalmers for the Macquarie Islands, nominally on a voyage for the procuring of seals and oil. She arrived at the Macquaries about the Ist October. She remained there for some time, but did not get any sea-elephant oil or anything else. While there five of the crew went ashore in the dingey of the vessel, with one or two of the dogs. After being ashore some time they started to go off to the vessel, The boat proving to be overloaded she began to fill with water. Two of the men jumped off the boat and walked ashore, and the three others went on board the vessel. The two men who went back to the island were followed by the dogs. These men thought the boat would come back for them, or, if she was considered unsuitable, that the whaleboat would be sent for them. The weather was not rough. But no boat was sent to the island for them, and the vessel sailed away, leaving them there without any provisions. These two men had, previous to being left on the island, refused to have anything to do with the killing of seals, which was talked about on board the vessel. They were left behind, as he (Mr Haggitt) had said, and had it not been for the Awarua being there they would not have had any provisions. They, however, got some provisions from the crew of the Awarua, and were finally brought by the Awarua to the Bluff. The Janet Ramsay never came back for them. Having left these men behind, the vessel—although the weather was at the time suitable to run round to the western coast of the island, where the best sealing was to be found—went off to the Auckland Islands ; and on or about the Bth December her crew killed sixteen fur seals and took the skins on board. The Janet Ramsay after this met with bad weather and came back to Port Chalmers. On arriving there she was boarded by Mr M'Donnell, a Customs officer, in the usual way. He inquired whether there was anything on board, and was told there was nothing excepting stores which she had taken away, and which, having been cleared for foreign consumption, were sealed' Up. He left the vessel without any suspicion that there were skins on board. That was on the 27th December. Later in the day Mr M'Donnell received q message saying that Mr Mill, owner of the vessel, wished to see him. He went over and saw Mr Mill at his office, where he found the captain of the vessel and Camp (the man against whom an information was also laid). Mr Mill said to Mr M‘Donnell, in the presence of the master, that he had given the master instructions not to kill seals during the close season, and that the master had disobeyed instructions and taken sixteen seals, the skins of wfcich were on board. Mr Mill said tp the master: “Is it not a fact that I gave you instructions not ito kill seals 2 ” To which the master replied; “ Yes, but I did not think you meant it.” The master afterwards added that the seals had been killed without his knowledge, and that he (the master) knew nothing about the skins being brought on board. Mr M'Donnell then went on board the vessel, and found the master and Kemp on board before him, and that the vessel was underway. He asked where the skins were, and was told they were on the deck. He found them in a barrel, took possession of them, and sent them up to Dunedin to the Collector of Customs, in whose custody they now were. The case against the master was that the skins were found on board his vessel, and he (Mr Haggitt) submitted in his possession within the meapipg of the Jth section of the Fisheries Conservation Amendment Act of 1887. r

Evidence on behalf of the prosecution was given by George Godfrey, John Mill'and C. W. S, Chamberlain. *

Mr Fraser directed attention to this: that practically there could be no finding whatever under the Acts relied upon ; that was, the penalties could only be inflicted by regulation. That would be seen by the fifth section of the 1884 Act, which contemplated_ that the Governor by Order-in-Council might make regulations under that section. Then by section 3 of the Act of 1887 the same matter was dealt with.

His Worship : It fixes the amount. Mr Fraser : The amount was previously fixed—that was, the margin was fixed by section 5. By section 3 the law on the subject was amended—that was to say, the offence was the same as that contemplated by the Act of 1884, but the punishment was different in degree. But the two Acta had to he re'ad into bile another; and the penalty named by regulation. Under section 5 such regulation might impose any penalty not exceeding LSO, and also appoint a minimum penalty for a breach of such regulation. His Worship: That is, there is a clear maximum, and there may be a minimum ? Mr Eraser said'that’was so. The effect of section 3, imposing a penalty varying in degree from section 5,’ appeared to him to be that section 3 "repealed the' penalty elapse pf _ section' 5. The two could not co-exist. A plan cpuld hot be punished twice for the same offence. That was bis reading qf the Act. Jt simply repealed the penalty. He submitted, therefore, first, this point 5 that inasmuch as there was a punishment varying in degree inflicted by the later Act, so far as the penalty was concerned, it must be deemed to repeal the penalty portion of section 5, Fixing the minimum formed part of the penalty, and removed the matter from the discretion of the Court. He maintained that there was no power to fix a minimum since the coming into force of the Act pf 1§87; and qupted ‘ Maxwell on Statutes ’ as showing that where a punishment op penalty is altered in kind the later provision would be held to supersede the _ other one. He was aware that sections 3 and 5 must be read together, but not in cases where one was repugnant to the other. His first point, on which he relied, was, to put it shortly, that practically the regulations were ultra vires— that they could not he severed; and, secondly, he contended that the regular tions should have provided for the recovery of the penalty before Justices of the Peace, That was his technical defence to the case. The facts were extremely simple. It had been attempted to be shown that the mapooming—for that was what was really alleged—at the Maequaries was a deliberate preparation for subsequent events.' . That was a string of nonsense. Before going on shore the men were warned not to go. They went for their own gratification. THe wind was shifting, there was a nasty sea rolling in from the east, and indications of a gale, which gale was felt the same afternoon.

The Janet Ramsay was lying on the eastern side of the island, where she could not remain with an easterly wind and swell. So the anchor was hove short, and signals made to the men to come on board. With an easterly wind there would be some head-reaching to get clear, and, the Janet Ramsay’s sails being rotten, there would have been danger to both the vessel and the men in remaining longer where she was. The necessity to get away was so pressing that had the boat not come off when it did the master would have cleared out leaving all five men behind. It was his duty to go, and he knew that the Awarua’s men were there and would look after the men left ashore. Well, then, the schooner ran for shelter, and there was only one place that he could run to. It might be said that this statement was too thin, but he (Mr Fraser) could not help it. This might be a case in which the truth had two sides. If defendant had gone to the Auckland Islands forthedeliberatepurposeof takingseals, could it oe reasonably contended that he would have come away with only sixteen? He (Mr Fraser) did not think so. It would have been a case of “in for a penny, in for a pound.” The skins were taken, but not by the master, and he was not responsible. The shore party went on to the island for the ostensible purpose of getting wild pigs. When they got ashore they found in a cave the whole appliances for carrying on sealing. The fact was that all these prosecutions were a farce. Men from New Zealand, who got a precarious living by fossicking about the islands, got into all sorts of trouble, while men of other nations, who seemed to be there all the year round, carried on successfully. There was absolutely no control there. That could not be helped. But these prosecutions would not stop the trouble. These skins were not brought on board the ship openly. They were brought there in bags, and defendant was not privy to their being brought on to the vessel, either at the time or afterwards. It nught have been that a moral duty was oast upon him to give these men up at the first port they called at. It might be that that was so, but not one man in a hundred would do a thing of that kind, and personally he (Mr Fraser) would not care to know that one man after he had done it. However, it was not done. He submitted that defendant could not be convicted.

Evidence was then given by defendant, who said that Mr Mill had told him not to take the vessel to the Auckland Islands.

Mr Haggitt having replied, His Worship said that he thought the point raised by Mr Fraser was ingenious but not sound. The object of the Act of 1887 was simply to raise the amount of the penalty. He would not fix the penalty now.

_M r Fraser said that defendant was charged with taking, and that was a distinct offence under the regulations, and it would be necessary before securing a conviction to prove that defendant had been actually concerned in the taking. After argument, His Worship said he was satisfied that defendant knew the skins bad come ou board, but he was not satisfied that he had in any way participated in taking, and therefore he could not be convicted under the present information. Mr Haggitt then had a fresh information drawn out, charging defendant with having the skins in his possession. Mr Fraser consented to that being substituted for the original information, and asked for an adjournment. His Worship granted an adjournment until Thursday next. ANOTHER C4SE. _ William Camp was then charged in similar terms to the original information against Lewis. Mr Fraser agreed to the information being also amended, and pleaded guilty, urging in mitigation of penalty that the offence was more aa act of stupidity than a scheme for profit. Mr Haggitt proved a previous conviction. Defendant was fined LlO and 42s costs, a week’s grace being allowed for payment.