1890.

BANKING Co.

บ.

BURNS.

The C.J.

rent some little space, and then bored into the side of the rent, and found the mast unsound. In this he is contradicted by Captain AUSTRALIAN Newton, who says that this gimlet-hole was made where there was no sun rent, and that the mast was unsound. However, they all sign a document as follows:-"The Local Marine Board of Newcastle, July 31, 1888. Captain Valentine, ship Lark,-This is to give you notice that a survey has been held upon the foremast of your ship, and it having been found quite bad and unseaworthy, a new one will have to be supplied before she leaves the port.-A. BERTRAM, Inspector; THOMAS BROOKES, Shipwright Inspector; HENRY NEWTON, Inspector." On the receipt of this the master of the Lark obtained the services of two shipmasters then in port, who appear to have made a careful inspection of the mast with a hammer, and by boring into it in various places with an auger, and they made a report to the effect that the mast was sound and seaworthy, and this was forwarded to the secretary of the Marine Board on the 3rd of August. On that day the Marine Board met for the first time, and having Mr. Brookes before them, and the report of the two shipmasters sent by the master of the ship Lark, and being requested to have a survey made by some impartial person, they entirely ignore the provisions of the 45 Vic. No. 6, sec. 6, refuse to have any survey made, and direct their secretary to write a letter to the master of the Lark. The secretary thereupon wrote as follows:-" Office of the Local Marine Board of Newcastle, August 3, 1888. Sir, I have the honour, by the direction of the Local Marine Board, to own receipt of your letter of this date, and in reply thereto to inform you that the recommendation of the surveyors with regard to the foremast of the schooner Lark must be carried out before she can leave this harbour. I am further directed to draw your attention to clause 6 of the Navigation Law Amendment Act. I have the honour to be, Sir, your obedient servant, W. F. WETHERILL, Secretary." Some further protest was made, but without avail; the mast, which turns out to be perfectly good and sound, was taken out of the vessel, and a new one, not so good as the old, put in at a cost to the owner of the vessel of 461. That the mast was sound I entertain no doubt. No less than nine witnesses were called by the plaintiff to prove this, amongst them four of

BANKING Co.

v.

BURNS.

1890. the most experienced marine surveyors practising in Sydney, AUSTRALIAN who had examined the mast with care, and who all swore it was a sound, good mast, and perfectly seaworthy. Three working shipwrights were also called, who gave evidence to the same The C.J. effect. It appears that the mast is now at a shipbuilding yard in Sydney, and Captain Newton, one of those who made the so-called survey of the 31st July, 1888, saw it in company with Mr. M'Ritchie, the marine surveyor to the Marine Board, a few days before the trial took place. Mr. M'Ritchie then examined the mast, and strange to say Mr. M'Ritchie was not called as a witness. From this I infer that had he been called he would have given the same evidence as that given by the marine surveyors called on behalf of the plaintiffs. The defendant called no other witnesses than the three persons who made the survey of the 31st of July, 1888, upon whose evidence I place no reliance all the more so with respect to Mr. Brookes, inasmuch as he, without being asked, suggested that the mast now in Sydney was not the same mast as that he saw at Newcastle. He had not seen the mast in Sydney, and the suggestion was wholly unwarranted. . Captain Newton, who saw the mast in Sydney, swore it was the same mast. I have said that I entertain no doubt but that the mast was sound; what Messrs. Bertram, Brookes, and Newton saw defective in the mast were some longitudinal cracks called sun rents, which the evidence shewed to be common in all spars made of pitch pine. It appears that the Lark has been one of Her Majesty's ships, and had been sold. While belonging to the navy these cracks had been stopped with oakum and putty, partly for appearance sake and partly to keep the weather out of the timber. The evidence was, however, ample to shew that such cracks in no way interfered with the stability, strength, or seaworthiness of the mast. Either Messrs. Bertram, Brookes, and Newton were not persons of ordinary and competent skill, or if they were, then the examination they made was not such as to enable them to form any just opinion upon the state of the mast. It is quite clear upon the evidence that no competent marine surveyor making a proper examination of this mast could have come to any other conclusion but that the mast was strong, sound, and seaworthy.

BANKING Co.

v.

BURNS.

The counsel for the defendant advisedly declined to take the 1890. point that the defendant was not responsible for the total AUSTRALIAN disregard by the officers of the Local Marine Board at Newcastle, and by the Board of the provisions of the 45 Vic. No. 6, and admitted that if what was done at Newcastle was done wrongfully The C.J. and without reasonable and probable cause, then the defendant was liable. I have very carefully considered the 7th section of the Act, and I have come to the conclusion that although the wording of that section is not the same as the wording of the 10th section of the 39th and 40th Vic. cap. 80, yet the same construction must be given to both sections. I am clearly of opinion that the reasonable and probable cause mentioned in that section is not to be dealt with in the same way as reasonable and probable cause in an action for malicious prosecution. In an action for malicious prosecution the question of reasonable and probable cause is one of law for the Judge to decide, and this on the assumption that a Judge is more competent than a jury to determine the question how far it may have been proper for a person to have instituted a prosecution. Here the question is one of fact arising from the circumstances of the ship and as to how far those circumstances would cause a person of competent skill to form an opinion as to whether she was safe or unsafe within the meaning of the Act. It is also quite manifest that the reasonable and probable cause which is to justify the detention. of a ship cannot depend upon the bona fides of the Marine Board in acting upon information conveyed to them. If so, inasmuch as it must be assumed that the Marine Board will in all cases act with bona fides and on credible information, there would be no redress for a shipowner, no matter how much he may have suffered from an improper detention. The true interpretation of these words is that laid down by the Lord Justice Brett in Thompson v. Farrer (4), where he says at page 381, "The true interpretation seems to me to be that if upon the evidence given at the trial of what by all means of examination possible under the circumstances in which the ship then was and all reasonable inquiries might have been made known, though it was not, to the Board of Trade, a person of ordinary skill would have had (4) 9 Q.B.D. 372.

1890.

reasonable and probable cause so far to suspect the safety of the AUSTRALIAN ship as to make it reasonable to detain her for the purpose BANKING CO. of inquiry, the shipowner has no remedy given to him, although

v.

BURNS.

The C.J.

his ship was in fact a safe ship; but if upon such evidence a person of ordinary skill would have had no reasonable or probable cause to suspect the ship, then compensation is given to the shipowner, although the fact erroneously stated to the Board of Trade would, if correct, have given a person of ordinary skill reasonable or probable cause to suspect, and consequently detain the ship."

In this case there is no doubt that the facts which were in my opinion erroneously stated to the Local Marine Board would if they had been true have given that Board, if possessed of ordinary skill, reasonable and probable cause to detain the ship. These facts were, however, stated by persons who either did not possess ordinary skill, or, if they did, then they did not make all reasonable inquiry, but wrongfully abstained from so doing, nor had they, in fact, any reasonable and probable cause to suspect the ship. Accordingly, the plaintiffs are, in my opinion, entitled to succeed upon the ground that the vessel was detained wrongfully, and without reasonable and probable cause. All, however, that the plaintiffs are entitled to is compensation for loss or damage sustained by them in consequence of such detention, including the cost of or incidental to the detention or survey of the ship. Although the plaintiffs were compelled by the action of the Local Marine Board to substitute an inferior mast for one which was perfectly sound, and were put to the expense of 461. in so doing, yet this is not in my opinion costs incidental to the detention within the meaning of the section. The Legislature did not contemplate the occurring of that which has occurred here. That body assumed that the great and beneficial power given by this statute would be entrusted to persons capable of understanding and using them, and did not therefore provide for compensation to be given to a shipowner who was compelled unnecessarily to put new work into his vessel. There was no loss of earnings of the ship proved so far as the plaintiffs were concerned; the only loss was the wages and food of the crew during the detention, besides the fees of survey and some small incidental expenses. These amount in the whole to 41l. 18., and for

that sum I find a verdict for the plaintiffs with full costs of the action.

In conclusion, I may be allowed to say that should the very large power given by the Act continue to be reposed in the Local Marine Board of Newcastle, those gentlemen should be instructed to seek for legal advice as to their proper course of proceeding under the statute before they take the very serious step of detaining any vessel, and that the officers of that body be instructed that their duty is to report to the Board and not to act without instructions. The miscarriage of the Board and their officers has in this case put the plaintiffs to inconvenience and expense, for which they can recover no compensation, and has put the country to what must prove to be a very considerable loss.

Attorney for the plaintiffs: S. J. Bull.

Judgment accordingly.

Attorney for the defendant: Williams, Crown Solicitor.

1890.

AUSTRALIAN BANKING Co.

v.

BURNS.

The C.J.