RIGHTS OF A FISHERMAN

Taranaki Daily News, 10 June 1931, Page 2

RIGHTS OF A FISHERMAN

USE OF BREAKWATER STEPS MAGISTRATE'S VIEW CHALLENGED. JUDGMENT ON APPEAL RESERVED. As important matters had been raised be would reserve hi<s decision, said Mr. Justice Reed in the Supreme Court at New Plymouth yesterday after hearing the appeal on law' and fact brought by G. F. Loader against the decision of Mr. K. W. Tate. S.M., in favour of the New Plymouth Harbour Board. The magistrate had held that negligence had not been proved against the board or its servants and that the plaintiff was a trespasser and therefore could not succeed, on his claim for damages for injuries received when a Jog from the breakwater fell on him when he and. his brother-in-law Allen were about to land fishing gear from a launch at the breakwater steps. Mr. C. I-I. Weston appeared for the appellant and Mr. R H. Quilliam for the respondent. By very skilful arguments in the lower court, suggested. Mr. Weston, counsel for the board had stirred, the depths of very still waters, but the appellant, it was contended, was nevertheless entitled to regard the ease as very simple. On August 18 Loader and. his brother-in-law were returning in the latter’s launch from cray-fishing, and when coming alongside the steps at the root of the breakwater to land gear a heavy log fell on to Loader and injured him somewhat severely. It was not disputed that it was a mobile crane that pushed the log off while journeying towards the shore. The appellant asked that the doctrine of “the thing speaks for itself” should be applied and that it should be held the accident was caused by the negligence of the board s servants. CONSIDERED A TRESPASSER. His Honour: Apparently the magistrate considered the man was a trespasser. Mr. Weston admitted that had. been found by the magistrate, but Loader asked this court to hold, he was there in exercise of the right of the public to use tho steps. The accident occurred near the junction of the breakwater- with the Moturoa wharf, at a place used by the 'board to keep its launch, a diver’s boat and the dredge's dinghy. Two logs had been lying on the breakwater for some weeks, six or eight inches from the rails. They had been moved there from the Moturoa wharf. It was submitted the board’s servants were’ negligent in leaving them near the rails and that the driver of the crane should have realised there was a possibility of the log being swept over the edge. There had been a long-standing dispute between Allen, secretary of the fishermen's association, and the board. It was alleged by the appellant that this dispute concerned the right to moor only, and not the right to use the steps. With the exception of vertical ladders on the wharves for the use of divers and carpenters, there were only two sets of steps in the harbour. Therefore any passenger landing from a small craft must go either to the steps on the breakwater or those on the Moturoa wharf.

It was maintained that the right of the fishermen to use the steps, apart from being one of the public rights, had not been altered by by-law and -had, in fact, been distinctly admitted and acknowledged by the board when on February 20, 1928, it wrote to the secretary of the fishermen’s association. The board then said that the board could not see its way to erect a gridiron for the use of launches, the board being ot the opinion that as there were steps at the Aloturoa wharf and on the breakwater they were sufficient for all purposes. That letter, counsel submitted, confirmed the rights of fishermen to use the steps. There had been some suggestion that the following notice was effective:—“N.P.H.E.— Notice. — No launches or small craft are allowed at the wharves or in the fairway.—By Order.” His Hopour: Fishermen land their fish there. Is there no charge? Counsel. No charge has been made by the board. THE LANDING OF FISH. His Hqpour: Something has been said about landing fish on the beach? Counsel said that most of the fishermen landed their fish on the beach east of the Newton King wharf because their launches wore bigger than Allen’s, had dinghies, and could lie there safely in rough weather. Allen’s boat was a small one and had no dinghy, and it was considered it would be unsafe to moor it further eastward. It was admitted Allen had involved himself in a dispute with the board about mooring his launch Wjicre he did. ’His Honour: You suggest he had no right to moor there ? Air. Weston said he could not admit that. The launch was six or seven feet from the steps on his way to land gear when the accident occurred. Air. Quilliam: But they were afterwards going to moor neai- the steps. His Honour: It does not matter what the later intentions were. If he had the right to land gear there he could not possibly bo a trespasser at that time. Mr. Quilliam: We say that although Allen had the right he had admitted he would not have used the steps at alll but for the fact that it was his custom to moor where he did. His real object was to moor, the landing of the gear at the steps being He was going to moor there in defiance of the by-law. The magistrate has found that very strongly and it was, in fact, the whole burden of the case. Air. Weston said there had been some negotiations with the former harbourmaster (the late Captain "Waller), who was going to find another spot where tlie launch could be moored and a spot near the Newton King wharf had apparently been suggested. The board did not want the launch moored at the foot of the breakwater because it interfered with the board’s own small craft. These, craft used the Aloturoa steps and the objection was based on the ground that the board’s launch was prevented from getting out quickly in a moment of urgency. . The appellant maintained the right to use the place could only he qualified bv bv-law. It seemed to be old law that "the public had a right to use the environments of a. harbour. There was no by-law and Loader was therefore only exercising the rights enjoyed by the public. Air. Quilliam submitted the appellant had failed to prove any negligence by the respondent or its servants. Allen had habitually moored his launch there, in spite of strong. objection from the board; there was plenty of evidence of that. While the public had a right to ao on to the wharf for business connected with the haifcour, it had no such rights in connection with the breakwater. The Act actually gave the board a title to the land covered by the harbour waters. xxis Honour: That is somewhat unusual. is it not? You must have had

a good member to get that Act passed. Mr. Quilliam said some credit for the drafting of the Act and its passage through Parliament was takeu by his father. Counsel admitted there was a right of navigation, to the public that might be paramount to the ownership vested in the Crown; but submitted some difference must be made where the sea had been actually vested by Statute in a corporation. Who was to dispute the right of the Legislature to grant a certificate of title to the board? The magistrate made it clear in his findings that the one purpose of the men in going to the place was to moor their hunch, and it was submitted that their object in being there must be regarded, and that they were not there in exercise of their right of navigation. Counsel contended that the board’s by-law No. 1 was wide enough to cover the control of this launch. Even if Loader were not there as an actual tresj- scr, at best he was there only as a licensee. If danger existed these two men knew of it over a period of months; it vas not a concealed danger and if it were the board was not liable. The duty of the board to warn a licensee of danger was very much less than it would be to an invitee. Surely if the log had been recognised as a danger jfi-.en and Loader would themselves have moved it instead of allowing it to continue there for months.