Fowles v Eastern and Australian Steamship Company Limited [1913] HCA 31

Fowles v Eastern and Australian Steamship Company Limited [1913] HCA 31 - HCA 1913 case summary — Zoe

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The Governor in Council has made "' Regulations relative to the Supervision, &c., of the Queensland Government Pilot Service," and also " Regulations for Inner Route and Torres Strait Pilot Service." By these he has authorized the Board to exercise as to port pilots and coast pilots respectively, the powers defined in sec. 128, sub-sees. (1) and (2). No authority was shown for the Board to make regulations for the purposes set forth in sub-sec. (3) - that is to say, for the proper conduct of such pilots and the pilot service, and the punishment of breaches of the regulations ; but the Governor in Council has himself made regulations for those purposes. There is not among the regulations any scale of fees for port pilots, nor has the Governor in Council fixed under this section any general rate of remuneration for port pilots, such as Maxwell. Nor does it appear that the practice is to fix the salary to be paid to such a pilot by the Governor in Council who appoints him to his port. Such salaries are provided for on the Estimates. But the licensed pilots for Torres Straits and the Inner Route, who are in some of these regulations termed "coast pilots," are paid fees fixed by regu- lation, and the rates, dues and charges to be paid into the Con- solidated Revenue, under sec. 8 of the Port Dues Revision Act, are those only which are " paid or levied within the several ports of Queensland," and do not include the fees of coast pilots. By one of the regulations applying to coast pilots (No. 12) they are to " find their own boats and vessels, and pay all expenses incurred in carrying out the pilot service." There is no such regulation as to port pilots, i.e., those appointed by the Government, who, as we have seen, are supplied with boats, crews, &c., at the public cost. Thus the contrast between the positions of the two classes of pilots, in that the merely licensed pilots of the coast subsist on fees from the shipowners and the licensed pilots appointed by the Government for the ports subsist on a salary from the Crown, is accentuated. This difference is of importance in the light of the authorities. Assuming that the Government is not responsible for the default of a coast pilot, seeing that he is merely licensed to exercise his calling by the Gov- ernment through its agent, the Marine Board ; that he conducts his

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pilots" and " port for which a pilot shall have been appointed." By sec. 16 "all sums collected under this Act and not otherwise specially appropriated shall go to Her Majesty Her heirs and succes- sors for the public use of the said Colony." I think this Act did specially appropriate the pilotage rates to the use of the licensed pilots. So that, so far, the pilotage rates had not become public revenue ; and this position is emphasized by the Act 14 Vict. No. 37, both sections of which show that the pilot was then entitled to the pilotage rates and dues, as well as to detention fees. The Act 22 Vict. No. 4, passed in the year before separation, recited that the pilotage rates were insufficient to maintain "the pilotage service" of New South Wales, and by sec. 8 all rates and dues were to be paid to the Collector of Customs or the pilot, and to be accounted for to the Treasury and paid into the Consolidated Revenue. The Governor in Council was empowered to make regulations prescribing how any pilots to be appointed under the Act should be remunerated, and whether by fixed salary, or partly by salary and partly by any and what proportion of rates and dues authorized by the Act, or wholly by the receipt of such rates and dues. So that the rates and dues now became part of the revenue, by sec. 8, while the remuneration of the members of " the pilotage service " became the affair of the Government. There was no pro- vision for pilots to take fees from shipowners for their own use. By this Act the Governor was again empowered to grant licences to pilots. The first Act on this subject passed by the Parliament of Queensland after separation was the Marine Board Act of 1862, (26 Vict. No. 2), which repealed 22 Vict. No.4. By sec. 2 the word "pilot" was defined to mean " any person not belonging to a vessel who has the conduct thereof." The expression " licensed pilot " was defined to mean "any person duly licensed by the Marine Board to conduct vessels to which he does not belong." The Governor in Council was now empowered to incorporate a Marine Board (sec. 4). By sec. 6 this Board was subjected to the " general supervision control and direction " of the Treasurer of the Colony, and was to fulfil and carry out any directions which might from time to time be given in writing by the Treasurer touching any

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There was neither a voluntary promise nor a voluntary considera- tion, and of course the owner is not responsible for the pilot's de- faults when pilotage is compulsory: The Maria (1). If, indeed, there is a contract at all, the parties to it are the plaintiffs and the Government, and if there is a contract the case for the plaintiffs becomes the stronger. But does the absence of a contract, if it does not exist, relieve the Government of all duty to the plaintiffs in respect of the manner in which they execute the power given them by law? Surely they were under one of two duties, either that of seeing that the person they put in charge was a competent and qualified pilot, or that of seeing that the navigation of the ship by their agent was performed with due care and skill. If neither of these duties existed, it was competent to the Government to run the plaintiffs' ship aground without incurring any responsibility. If the duty of the Government was merely to supply a competent and qualified pilot, and they have in the present case performed that duty, the plaintiffs are without remedy. If, on the other hand, the Government took upon itself the business of pilotage and forced the plaintiffs to accept their pilot for the performance of that business, then the Government is responsible if in its performance the negligence of its agent or servant, the pilot, has damaged the plaintifis' ship. If on such an assumption this were not so, the case of Farnell v. Bowman (2) would have been decided otherwise. Now, Maxwell was not acting as an independent pilot employed by the ship master or the owners, and merely licensed by the Govern- ment. He had long been a servant of the Government, employed by it alone, and paid a salary by it alone, a member of its civil service in the capacity of a pilot. We have seen that the port pilots were at one time a body of men who, being licensed by the Governor to ply their vocation, undertook the business of pilotage by way of private enterprise and received fees for their trouble. These fees were afterwards turned by Statute into pilotage rates, but were paid nevertheless to the pilots for their private emolument. While that state of things continued, a mere licence did not turn them into agents of the Government, but later Statutes took the pilotage

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fix the remuneration of the pilots. The Statutes also provided for the constitution of a Marine Board acting in the execution of its powers and functions under the control of the Crown. The same Statutes regulated the pilots in their duties after the manner of public servants, and provided for a pilotage service, and indeed, as was admitted, the Government supplied the port pilots with the instruments of their calling in the shape of boats maintained, and crews paid, at Government cost, while the admissions and the Regulations show that on the other hand the coast pilots were allowed to receive fees for themselves and had to find their own boats and crews. The port pilots were made regular officers of the Government service, paid from the public funds, though the depart- ment called the Marine Board managed the pilot service under the immediate control of the Government. The port pilots were classified under the public service laws according to salary as professional servants of the Government. Taking all these facts and provisions together, can one resist the conclusion that the Government under- took the business of pilotage into and out of the ports, and became responsible for any injury caused by the negligence of its agent in that business? The position is in my view described, mutatis mutandis, in the following passage from the judgment of Lord Gifford in the case of Holman v. Irvine Harbour Trustees (1) : - "The short ground upon which I rest my opinion may be stated almost in a single sentence. I think, upon the evidence, and looking to the whole of the circumstances of the case, including the terms of the various Statutes under which the Harbour Trustees acted, that Jeremiah McGill, on the occasion in question, was not acting as an independent pilot employed by the ship master or captain of the Gertrude, and merely licensed or authorized by the defenders, but was acting solely and simply as the servant of the defenders, _ employed by them alone, and paid by them alone, and acting within the limits of the defenders' harbour in discharging a duty which the defendants themselves had undertaken to perform. Now, if this be so, I can see no reason for departing from the general rule which makes a master who undertakes any piece of work liable

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common room, and while she was carrying out this order her clothes caught fire and she was seriously burned. The Court of Appeal held, first, that the relation of master and servant existed between the defendant corporation and the teachers they employed; and, secondly, that the act of the teacher was within the scope of her employment, which was not strictly confined to teaching alone ; and that therefore the defendant corporation were liable to the plaintiff for the consequences of the teacher's act, which a jury had found to be negligent. Farwell L.J. (1) summarized the statutory provisions governing the case, under which the corporation had powers and duties which included the duty of providing sufficient accommodation in their schools, the control and management of such schools and their maintenance and efficient keeping by the corpora- tion. The teachers under these Statutes were appointed by the corporation at such salaries, paid by the corporation, as the corpora- tion thought fit, and were removable at their pleasure. The cor- poration were bound by certain regulations of the Board of Educa- tion, but no regulation appeared which was material for the purposes of the case. Farwell L.J. went on to say (2) : - ' Under these circumstances all the incidents usually relied on to show the existence of the relationship of master and servant exist in this case: the teacher was engaged by the corporation and paid by them; she was under their control, and could be dismissed by them. The two cases relied on by the corporation (Evans v. Liverpool Corporation (3) and Hillyer vy. St. Bartholomew's Hospital (4)) are entirely different." In principle, Smith v. Martin (5) resembles the present case. It seems to me that the real test is whether the relationship of master and servant exists. It did not exist in the two cases mentioned by Farwell L.J., and it did not exist in the full sense in Hall vy. Lees (6), for there the nurses were not, in nursing the female plaintiff, acting as the servants of the defendants. It is true that the question of this relationship may in some cases be determined according to the nature of the duties to be performed by the alleged "servant. But this is not so in a case like the present, where you

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Judgment (486 paragraphs)