PENGUIN WRECK.

Marlborough Express, Volume XLIII, Issue 144, 16 June 1909, Page 6

PENGUIN WRECK.

THE LEGAL POSITION. PASSENGERS' RELATIVES HAVE NO REDRESS. NO LIABILITY FOR CARGO. (N.Z. Times.) Ever since the wreck of the Penguin speculation-has been rife as to the legal liability of the Union Steam Ship Company, and since the decision of the Supreme Court respecting Captain Naylor it has generally been regarded that the relatives of passengers drowned in. the ill-fated steamer had the right to legal redress. Mr P. J. O'Regan, who has been acting for a number of relatives, bath of seamen and passengers, lias given a detailed opinion, the effect of which is to place matters in a light very, different from the general view, and on account of the grave importance of the issuesjjinvolved we have been permitted to publish the document. Dealing first with the position of PASSENGERS' RELATIVES, Mr o'Regan says: If passengers' relatives can claim at all they can claim only under the Deaths by Accidents Compensation Act (called in England, Lord Campbell's Act), for the remedy under that Act does not depend on the relation of roaster and servant. It has been settled that the relatives of a passenger drowned in a shipwreck due to the negligent navigation of the captain can claim under Lord Campbell's Act (The Bernina, 13 App. Cas., 1., 1888). That case, however, does not end the question by any means, and in this connection we must consider the case of Haigh v. Royal Mail Steam Packet Company, decided by the Court of Appeal in England as far back as 1883. In that case it was held that the relatives of a deceased passenger could not maintain an action for injuries received. The deceased had taken a ticket upon which were printed conditions exonerating the owners from liability for loss or damage in the following terms: — The company will not be responsible for the maintenance of passengers, or for loss of time or any consequences arising therefrom. . . nor for any delay arising out of accidents; nor for any loss or damage arising from the perils of the sea, or from machinery, boilers, or steam, or from any act, neglect, or default whatsoever of the pilot, master or mariner. The Court of Appeal held that the words, "loss or damage arising from the perils of the sea," as set out on the ticket, exempted the defendants from liability for the injury or death; of a passenger; in other words, that! the deceased had contracted himself out of his right to claim damages, if he had been injured, but not drowned, and that hence his relatives could not claim under Lord Campbell's Act. Now, if we examine the tickets issued to passengers by the Union Steam Ship Company, we find them to contain a number of printed conditions, comprising some eighteen in all, and clause 14 reads as follows : — The company is not liable in respect of the passenger or of goods for the consequences of the act of God, perils and accidents of the sea or rivers, or machinery, boilers, or steam navigation, or other accidents, whether of a like nature or otherwise, or of default or error of judgment or negligence of pilot, master mariner, engineers, stevedores, servants, or others employed by the company, whether in the navigation or management of the steamers or otherwise; or of any breach of warranty of steamer or equipment, or of fire afloat or ashore, delay or detention on the voyage, steamers not meeting, compulsion by the King's enemies, princes, rulers, or people; quarantine, riots, strikes, or other labour disturbances, piracy, robbery, or theft by land or sea, whether by the servants of the company or otherwise; or of effects of climate, heat of holds, vermin on board, coaling on the voyage, or of breakage of glass, china, earthenware, cast-iron, or other brittle or fragile goods or risk of craft or transhipment. In the face of this clause, I am of opinion that the effect of a passenger taking a ticket is to contract him-

self out of any right of action in respect of injury, even though it has been caused through the negligent action of the company's servants, and should the injury cause death, the relatives of the deceased can be in no better position than he himself would have been if death had not- ensued. Every passenger who buys a ticket from the company virtually agrees by implication to. the terms and conditions printed thereon, and he is consequently bound by them. Hence it is clear, in my opinion, that, notwithstanding the negligence of the captain of the Penguin, the relatives of passengers drowned can maintain no action under Lord Campbell's Act. I pass next to consider the company's LIABILITY IN RESPECT OF CARGO. Section 25 of the Mercantile Law Act, 1908, reads : — Every common carrier for hire by land or by sea between any ports in New Zealand is liable for the loss of or injury done to any horses, cattle, or other animals, or to any articles, goods, or things, in the receiving, forwarding, or de- | livering thereof, occasioned by the i neglect or default of such carrier lor his servants, notwithstanding any notice, condition, declaration, or contract given, made, or entered into by such carrier contrary thereto, or in anywise limiting such liability, in the same manner and to the same extent as if .no such notice, condition, declaration, or contract had been given,, made, or entered into. This clear statutory provision considered by itself admits of no doubt. Its effect is to make carriers liable for loss of or damage to goods notwithstanding anything to the contrary on the face of any ticket or bill of lading ; and, in fact, this has been decided by the Supreme Court of New Zealand in several reported cases. Further consideration, however, makes it practically certain that these cases are no longer authoritative, for the law as to the liability of common carriers by sea has evidently been radically altered by section 293 of the Shipping and Seamen Act, which reads as follows : — If the owner of any ship transporting merchandise or property to or from any port in New Zealand, exercises due diligence to make the ship in all respects seayorthy and properly manned, equipped, and supplied, neither the ship, her owners, charterers, nor agents shall become or be held responsible for I damage or loss resulting from the faults or errors in navigation, or in the management of the ship, nor shall the ship, her owners, charterers, agent, or master, be held liable for losses arising from dangers of the sea or other navigable waters, acts of God or public enemies, or the inherent defect, quality or vice of the thing carried, or from insufficiency of package or seizure under legal process, or for loss resulting from any act or omission of the shipper or owner of the goods, his agent or representative, or from saving or attempting to save life or property at sea or from any deviation in rendering such service. Both the Mercantile Law Act and the Shipping and Seamen Act have been included in the Consolidated Statutes of 1908. But the Consolidated Statutes do not alter the law, and, as the Mercantile Law Act was passed1 in 1880, it seems obvious that its provisions in respect of the liability of common carriers were altered by section 293 of the latter Act, passed in 1903. lam of opinion, therefore, that the Union Company is under no liability for the loss of good 3 by the wreck of the Penguin. With respect to the DEPENDANTS OF SEAMEN who were drowned in the wreck, those domiciled or resident in New Zealand have a choice of remedies— they may claim under the Workers Compensation Act, 1908, or they may sue under the Deaths by Accidents Compensation Act (Lord Campbell's ...Act). The liability under the Workers Compensation Act attaches quite irrespective of the question of negligence, but the amount recoverable is limited to £500 or three years' average weekly earnings, whichever

is the greater sum. To maintain an. action under Lord Campbell's Act, the plaintiff must prove negligence, and. in view of the finding of the Court, negligence can, of course, be proved. The remedy under Lord Campbell's Act is made available by section 62 of the Workers Compensation Act, 1908, by which the defenceof "common employment" has been abolished. The case of dependants of workers who are not domiciled or resident in NeW Zealand is somewhat different. Their rights under the Workers Compensation Act, 1900, have been expressly taken away. They can claim, however, under Lord Campbell's Act, for that statute, in my opinion, -has extra-territorial application, and,-in view of the provisions of the Act of mst year dependants outside New Zealand have no alternative. CONCLUSION. To summarise my opinion, it seems clear: — , 1. That relatives of passengers drowned in the wreck have no claim for compensation and can maintain no action for damages • 2. That owners of goods and merchandise lost in the wreck have no legal redress; 3. That the dependants of workers drowned in the wreck, who are domiciled or resident in New Zealand, may claim either under the Workers Compensation Act or under Lord Campbell's Act: and 4. That dependants of workers domiciled or xesident beyond NewZealand can claim only under Lord Campbell's Act. >• -