1860.

METCALFE

v.

HETHERING-
TON.

to the owners, who have been necessarily put to great exin and about the repairs, &c.

penses

Plea.-Not guilty.

The plaintiffs, joined issue, and the issues in fact came on to be tried before Byles, J. at the Liverpool Spring Assizes 1859, when a verdict was found for the defendant, subject to the opinion of the Court on the following case :—

The plaintiffs, at the time of the alleged grievances, were the owners of the vessel called the "James." The defendant is clerk to the trustees for carrying into execution the 3 & 4 Wm. 4. c. cxiii. (a). In May, 1854, the vessel, being

(a) "An Act for better preserving the harbour of Maryport, and for lighting and otherwise improving the township of Maryport in the county of Cumberland."

Section 7 enacts, that Humphrey Senhouse, Esq., or the lord of the manor of Ellenborough for the time being, and certain other persons therein named, shall be the first trustees for carrying into execution the several powers of the Act.

Section 8 provides for the appointment of new trustees every fifth year, four to be appointed by the lord of the manor of Ellenborough and eight to be elected by the inhabitants of the township.

Section 21 provides that the trustees may elect a harbour

master.

Section 25. That the trustees may sue and be sued in the name of the clerk or of any of the said trustees, and that every clerk or trustee in whose name any action or proceeding shall be instituted or defended, "shall always be reimbursed, out of the money to

arise by virtue of this Act, all such costs and expenses as he shall incur or become chargeable with by reason of his being so made plaintiff or defendant, and shall not be personally answerable or liable for the same unless such action or proceeding shall have arisen in consequence of his own wilful neglect or default, or been instituted or defended without the order or direction of the said trustees."

By section 30 the trustees are to levy tonnage rates on vessels using the harbour.

Section 47. The harbour master may "direct any person having the command of any vessel entering into or being within the said harbour, to moor, anchor and place the same in such situation within the said harbour as the harbour master shall direct," &c.

Section 48 imposes penalties for throwing rubbish into the harbour, or, after notice given by the harbour master, neglecting to remove any thing tending to interrupt the free navigation and use of the harbour.

EASTER VACATION, 23 VICT.

a vessel liable under the said statute to the tonnage and harbour dues of the harbour, entered the harbour, and from thence until she was damaged, as hereinafter mentioned, was lawfully using the harbour according to the provisions of the statute.

On the 3rd of June, 1854, by the direction of the harbour master appointed under the statute, but without the knowledge of the trustees, the vessel was placed in a certain berth in the harbour. Before the vessel was placed in the berth, some coals had been inadvertently shot by strangers into the said berth without the privity of the trustees, whereby it was rendered unsafe for a vessel to lie in. The trustees, at a board meeting held after the coals had been so shot, and before the vessel was so placed, had notice of the state of the berth, and gave directions to the defendant, who at the time was the clerk duly appointed and acting under the said statute, to cause the coals to be removed, and the coals were partly, but not sufficiently, removed at their expense. After the coals had been so insufficiently removed, at the time of the vessel being placed in the berth, and being damaged, the berth without the knowledge of the trustees continued unsafe for a vessel to lie in. The harbour master had notice, when he gave directions for the placing of the vessel in the berth, of the original unsafe state of the berth, and of what had and what had not been done; but at the time when he gave such directions, he did not know that the berth was then unsafe. The vessel was so directed and placed by the harbour master without the knowledge of the trustees. After the trustees gave directions for the removal of the coals, they had no further knowledge or notice of the state of sufficiency or insufficiency of the berth. After the vessel had been so placed in the

Section 135 gives power to the trustees to mortgage the tonnage rates; and section 140 provides

for the application of the tonnage

rates.

1860.

METCALFE

v.

HETHERING-
TON.

1860.

METCALFE

v.

HETHERING-
TON.

berth, and while she was lying there, she sustained damage in consequence of the berth being unsafe as aforesaid.

The Court to have the same powers of amendment as a Judge at Nisi prius.

The questions for the opinion of the Court are:Whether, on the facts of the case, the plaintiffs are entitled to a verdict entered for them on any, and which of the issues in fact. Secondly, whether, on the facts stated in the case, the trustees are liable to the plaintiffs for the damage sus. tained by them. If the Court shall be of opinion that the first question ought to be answered in the affirmative, a verdict is to be entered for the plaintiffs, if not, the verdict for the defendant is to stand. If the Court shall be of opinion that the trustees are liable to the plaintiffs, on the facts stated, for the damages sustained, and that any amendment in the pleadings can or ought to be made, the pleadings are to be amended accordingly, and a verdict entered thereon for the plaintiffs.

The case came on for argument in the Court of Exchequer in Trinity Term, (June 6, 1859,) when a judgment pro formâ was given for the defendant, it being agreed that the Court of Exchequer Chamber should have the same powers as the Court of Exchequer with respect to the special case.

Quain (with whom was Kemplay) argued for the plaintiffs. --First, if it is necessary to shew that the trustees had funds available for repairs, there was evidence of that, because it appears that they ordered the coals to be removed at their own expense. [Byles, J.-The only evidence was, that they had expended some money for the purpose.] Secondly, it was not necessary for the plaintiffs to prove that the defendant had funds; the want of funds, if relied on, should have been set up by the defendants. Thirdly, there was evidence of negligence on the part of the trustees, apart from the negligence of the harbour master. Having had

notice that the berth was unsafe, they merely gave their
clerk directions to get it cleared. It does not appear that
they took any care to see that their order was carried out
and the work properly done. Having chosen to entrust the
matter to their servants, they are responsible for the negli-
gence of the servants. They should have put up a notice
to prevent vessels from being taken into the berth, and kept
such notice up until they knew the berth was safe. [Black-
burn, J.—I find nothing in the case to lead to the inference
that they did not take every possible care. It is true that
the berth was not safe for vessels, but it does not appear
that the trustees knew it, or that they neglected to make
any proper inquiries on the subject.] The trustees are not
exempt from liability because they are a public body. In
Ruck v. Williams (a), Pollock, C. B. says, "I see nothing in
the character of the commissioners as a public body, or in
the fact that they are discharging a public duty without
any remuneration, to exempt them from liability to com-
pensate a person who has suffered by their carelessness or
want of due regard in the performance of their duty.
They are entitled to reimburse themselves out of the funds
over which they have control." The only negligence
charged in that case was the omitting to put a penstock at
the mouth of an old sewer. The Southampton and Itchin
Bridge Company v. The Local Board of Health of South-
ampton (b), was a similar action. [Crompton, J.-Those
were cases of parties constructing sewers in such a manner
as to create a nuisance]. In Gibbs v. The Trustees of the
Liverpool Docks (c) the negligence complained of was a
mere nonfeasance. [Cockburn, C. J.—It was alleged in
that case that the trustees knew of the dangerous condition
of the dock, and yet left it open and allowed ships to enter
it.
Here it is found that the trustees did not know of the
(a) 3 H. & N. 308.
(b) 8 E. & B. 801.

1860.

METCALFE

v.

HETHERING

TON.

(c) 3 H. & N. 164.

1860.

METCALFE

v.

HETHERING

TON.

dangerous state of the berth.] At least the cases establish that a public body, such as these trustees are responsible if they are guilty of negligence. To remove coal rubbish from a berth in a harbour is not a matter requiring skill; therefore, to shew that it was not done sufficiently is to prove negligence. [Byles, J.-The trustees did that which it was their duty to do; they gave orders for the removal of the rubbish, which were acted upon. There is nothing to shew that they employed an incompetent person. Blackburn, J.-Not only did the trustees not know that the berth was unsafe, but even the harbour master, whose duty it was to attend to the berthing of vessels, and who knew what had been done, was not aware of its insecurity. Can it then be said that the trustees were necessarily guilty of negligence? Byles, J.-No negligence appears on the part of the harbour master; he knew that coals had been removed, and if he came to a wrong conclusion it is not shewn that he did so negligently. Crompton, J.-Unless the trustees are bound to keep the harbour in order in the same sense that the inhabitants of a township are liable to keep their roads in repair, the plaintiffs have no case.]

Temple (with whom were Overend and Milward) for the defendant, was not called upon to argue.

COCKBURN, C. J.--We are all of opinion that the verdict on the plea of not guilty to the third count is rightly found for the defendants. A body of persons such as the defendants cannot individually superintend the work, but must act by their servants. Assuming it to be made out that there was some negligence on the part of the harbour master, can it be said that there was such negligence on the part of the trustees as to make them responsible? If called upon to decide the question as a matter of fact, I should answer it in the negative.