Ferrier v Wilson [1906] HCA 77

Ferrier v Wilson [1906] HCA 77 - HCA 1906 case summary — Zoe

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the Merchant Shipping Act 1876, was held not to be responsible for the act of the master so as to be liable to the penalty enacted by the section. The section read thus : - * Any owner or master of a British ship who allows the ship to be so loaded as to sub- merge in salt water the centre of the dise shall, for each offence, incur a penalty not exceeding one hundred pounds." The evidence was that the appellant was the owner of a British ship which sailed from Greece for Garston. When the ship left port she was loaded so as to submerge in salt water the centre of the dise to the knowledge of the master. The owner was summoned under the section for having allowed the ship to be so overloaded in breach of the section, and the stipendiary magistrate convicted him subject to a case for the opinion of the Court. The question was whether the responsibility was thrown upon the owner or the master. Cave J. said (1) : - " This case seems to me to be reason- ably clear," and after referring to the section continued : - " Then, did the appellant allow the ship to be so loaded? here is no evidence whatever that he did so unless the mere fact that he appointed the master who allowed it to be done amounted to an 'allowing' of it by himself. But I do not think that could possibly have been the intention of the legislature. Of course, there may in some cases be circumstances from which you may fairly draw the conclusion that the owner appointed a particular master knowing that he would overload the ship, and intend- ing that he should do so; but there is no evidence of any such circumstance here. There is nothing beyond the bare fact that the appellant appointed the master, and that is not enough." His Honor then dealt with the alehouse cases and pointed out that they were not analogous. I cannot see any escape from the reasoning of that short judgment. The owner could not possibly be there held to have even formed the intention to commit any act known by him to be forbidden by law. So here an owner has not himself, within the meaning of this regulation in which the words are pro tanto similar, allowed material to fall unless he has some knowledge of the matter. But that is not enough to save him, because the owner may be responsible under this by- Jaw for the act of somebody else who has allowed the material

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But if it has occurred within his knowledge or by his negli- gence, he has allowed it. I think that is the sense in which the term is used, and therefore the master may be responsible under this by-law. But is the owner responsible whoever may allow the thing to happen? There are two possible constructions: first that the owner is responsible even if a perfect stranger who is on board his lighter allows some material to fall from it into the water, even though the owner knows nothing of the matter. That is a construction so monstrous to my mind that it is not to be contemplated as the meaning of the regulation, and, moreover, if that were the proper construction, I doubt whether the statutory powers of the Commissioners would be an authority for making such a regulation. But if the owner is to be made responsible under this regulation, I agree with the Chief Justice in thinking that the person for whose act the owner is liable, must be some person whose action within the scope of his authority, would render the owner liable in a civil action for negligence. I think that is the sort of responsibility at which the regulation is aimed. It is contended that, where the person actually controlling the lighter is in the employment of the owner, or is one to whom the owner has delegated the control, or in whose hands he has placed the lighter, the owner is not divested of responsibility: that where a person acting under the authority of the owner is guilty of such default or negligence as results in the escape of this material into the water, then in that case the owner, and not merely the person actually guilty of the default or negligence, is responsible under this regulation. It is for the owner, that is to say, to see that he acts with care himself by placing a careful and responsible person in charge. If such person turns out not to be of that character, that is, if by his specific negligence or default he allows material to escape, it is the intention of this regulation to make the owner responsible. That is a reading of it which, as between the two readings which I have men-

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is within the scope of the powers conferred as to subject matter, it is reasonable beyond all question in the sense in which that term is applied to by-laws and regulations. In this connec- tion I refer to the case of Institute of Patent Agents v. Lock- wood (1). That was a case involving the construction of the Patents, Designs and Trade Marks Acts of 1883 and 1888, under which the Board of Trade had a general power to make rules for regulating the practice of registration, and the general rules when made were to be of the same effect as if they were contained in the Act. The rules were to be laid before both Houses of Parlia- ment, as under this Act, and if either House within a certain time resolved that any of them ought to be annulled, they were from that time to be of no effect. By the Act of 1888 it was provided that no person should describe himself as a patent agent without registration, under a penalty. A person was prosecuted for describing himself as a patent agent, against the prohibition. He claimed to have been practising asa patent agent before the passing of the Act and therefore entitled to registration, and he alleged that he was so entitled without fee and for ever. That claim was not sustained, and it was held that certain rules made by the Board of Trade known as the " Register of Patent Agents Rules 1889," which had been laid before Parliament and to which no objection had there been taken, and which provided, amongst other things, for the payment of an entrance fee, and an annual fee by all patent agents on the register, and for erasure from the regis- ter of the name of any person whose annual fee was not paid, were intra vires, and that, so long as such rules remained in force, it was not competent to question their authority, and, Lord Morris dissenting, that the Court could not interfere with their enforce- ment. And here, although there is so little similarity between the constitution of the Board of Trade and that of the Sydney Harbour Trust, it may be argued with great reason that it is not competent to question the authority of any rule made under the powers given to the latter body by the Act. But be that as it may, the by-law as we construe it does not come within the cate- gory mentioned by Lord Morris, in dissenting, as objectionable, : (1) (1894) A.C., 347,

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ing out the powers vested in the Commissioners by the Act. Those powers include the preservation and exclusive control of the port and its proper maintenance for navigation. I do not entertain any doubt that, so far as sec. 80 is concerned, it extends to such matters as form the subject of the regulation in this case. It is however contended that any primd facie authority of the Commissioners to regulate is cut down by necessary inference from sec. 86. The argument is that sec. 86 has expressly dealt with the subject of rubbish and other material getting into the port, and the legislature having taken the question into its own consideration and defined the conduct that is to be penalised, it is wltra vires of the Commissioners to extend the field of criminalty by making that an offence which Parliament has intentionally left innocent. But the powers having been conferred by sec. 80 in the widest terms and not anywhere expressly cut down, the inference relied on cannot arise except repugnancy is to be necessarily implied. See. 86 is a general provision, the primary intent of which is plainly directed to the prevention of pollution or obstruction, from the shore, and not to the operations of lighters or to materials fall- ing from them into the port, although its words may be large enough to include them in many instances. It is not, in my opinion, a reasonable construction of that section to hold that the legislature deliberately intended by its provisions to exhaust the whole category of injurious interference by this means and to seeure immunity to the introduction of all substances, however objectionable and in any quantity, into the port, provided only there was no contravention of sec. 86. But unless that is so, there is no implied prohibition against providing by regulation that lighters are not by the negligence or recklessness of their owners to be made the vehicles for discharging what the regula- tion describes as "ashes and other material" into the port of Sydney. The reasoning of Lord Campbell C.J. in Edmonds v. The Master &c. of Watermen and Lightermen (1) seems entirely apposite. He said : - "The by-law is not necessarily inconsistent with the provisions and directions of the Act, although it forbids (1) 24 L.J.M.C., 124, at p. 128.

At a glance

Court

Decision date

Before

Source

Judgment (74 paragraphs)