TAINUI DISASTER.

Star (Christchurch), Issue 19889, 4 March 1920, Page 5

TAINUI DISASTER.

CHARGES OF NEGLIGENCE DISMISSED. By a reserved judgment delivered.by Mr \V. R. M’Keau, of Timaru, at the Magistrate’s Court this morning. The charge of negligence arising out of the Tninm disaster against Frederick John Needham, shipping manager of the New ■Zealand Refrigerating Company (owners of the Tainui) and Claude Smellie, shipping dork of the same company, was dismissed, 'tile defendants were charged That they did, by a negligent act, to.wit, by loading on board the Tainui certain benzine in leaking receptacles and improperly stowed, endanger the safety of the said ship,” contrary to the War Regulations. Mr A- T. Donnelly appeared for the Marino Department, which ; laid the charge, and Sir John Findlay, K.C., of Wellington, for the defendants. Iho Magistrate said that it was no part of the duty of either of the defendants to make himself familiar with the condition of the cargoes carried on the company's vessels. 'Needham made the commitment that bis duties took him only occasionally to Lyttelton. Smcllie’s duties, however, took him to that port to check incoming cargoes with the ship’s manifest, and m the case of outgoing vessels to arrange for iho cargo to be at theoship’s side and to make up _the ship's papers. On September 15 last Needham was not at Lyttelton, but Smellio was performing his ordinary duties in connection with the Taimu. The bulk of the cargo consisted ot benzine, and the evidence, shewed conclusively that it was leaking and in sonic instances actually running from the cases, and that cases in that condition were taken aboard. Some of the cases had on September 12 been discharged from the Tainui by order of the Assistant Superintendent of Marine Lyttelton, who found that benzine was escaping through a break iu the liter bold. The petrol thus discharged was placed in railway trucks marked “ Shipment Tainui, ex Tainui.” Smeldenied that he had given this infit ruction and ho saw no reason for disbelieving him. The Tainui made a trip to Timaru, and returned to Lyttelton and loaded ior W anganui on September 15. . The after hold m the meantime had been efficiently repaired. On September 15 the captain and mate of iho Tainui wore about the vessel and the wharf whilst the leaky cases weft being loaded and must have known of the ccmdUigu of the cargo that was being taken on board. The captain had asked for 200 dry cases tor alter hold, and the mate also knew of the condition of the cargo, because he gave instructions that the cases were to be tested for leakage. The cargo discharged from tho after hold on September 12 was taken on hoard in the morning, but how it came to be sent in had not been shown. A consignment note for this discharged cargo should have been given by the owner (the Vacuum Oil Company! before further shipment, but this was not done. A consignment note tor the quantity required for shipment to W anganu; on September 15 had been given, and tin cargo was on the wharf ready to be taken on board. However, tho cargo discharged on September 12 was taken on board and about 600 cases intended for Wanganui were loft.on tbe wharf. The fact that this discharged shipment went on board did not greatly affect tho position of the defendants, because, although it had received more handling and was on that account in worse condition than the rest, the remainder of the cargo was also in bad condition, Smoliio was net in Lyttelton when the previous-ly-discharged cargo wenton board, but after be arrived he noticed the leaky condition of sumo of the other cases Ho did not comment or report on the fact that these cases were being taken on board because he thought it was a, matter for the captain or the mate. Needham was not shown to have ha,l any knowledge of the condition of the cargo. The Tainui was in the hands of a. master who was n. capable and competent officer. . Although it was hard to imagine why a careful master should have accepted such a. car-go tho Magistrate considered there was no .ground at all for the suggestion made by the prosecution that some limitation had been imposed by the owners on the captain’s authority. Ho accepted without hesitation the emphatic statement of the managing director that no instructions were given by him or by any employee of his company to accept this cargo or to hasten the loading. It was quite possible, the Magistrate added, that the captain, knowing tho construction of his ship, thought the risk of danger was small. As the holds were waterproof the risk of benzine escaping, except in the form of vapour through the hatch, was small. The evidence of experts went to show that tho explosion was due to fumes from tho hatch coming in contact with a naked flame on deck. Sir John Findlay suggested that it was not negligence to stow easdl of benzine in a hold that was benzine and vapour proof, but he did not. think it necessary to decide this point. Ho was doubtful whether the regulation under which the charge was laid was intended to apply to the loading of leaking cases of benzine. It was not contended by the defendants that the War Regulations did not apply, and lie would therefore assume that the stowage of benzine in leaky receptacles was an act which endangered the safely of the Tainui and that if either of the defendants was responsible for the stowage he had committed a breach of tho regulations. He was of the opinion that neither of the defendants was in any way responsible for the stowing of the cargo and that' no duty was cast on either of them to make himself familiar with tho condition of this particular cargo. The defendant',; employers had provided a vessel that was seaworthy and better adapted to carrying a benzine cargo than wore many other wooden vessels. They had appointed a capable and competent master and they and their employees were _ entitled to assume that tho master would carry out his duties properly. That it was customary to recognise the responsibility of the master in tho acceptance ol cargo was proved by tbe evidence ot witnesses called by tho defence and also of some of those called for the prosecution. A civil responsibility, of course, attached to the owners of a ship for the negligence of ibeir master, but the wide personal responsibility with which tho master was fixed could not be extended to every other person employed by tho ovynors of the vessel. Tho question of liability for negligence could not aviso at nil until it was established that the man who had been negligent owed soma duty to the person "who sought to make them liable, and as a general rule no penal consequences were incurred when there had been no personal neglect or default. Jf he coulci hold that tho persons charged had committed an offence ho would have to hold that tho men who stowed (ho cargo' were equally guilty of an offenre. Neither of the defendants was guilty of the offence charged, and the informations roust therefore he. dismissed.