1903 BOARD OF V. LIMITED. Port Adelaide wages to a greater amount than the amount of the expenses incurred in respect of their maintenance and "distressed seamen passage home were within the meaning of s. 193 of the Act of 1894 and s. 4 of the Act of 1898; that SAILING SHIP "GLENPARK," the distress contemplated in those sections had reference to the fact of shipwreck abroad, and when that event happened it was immaterial whether or not the shipwrecked seaman had in his possession from any source money or property of his own sufficient to maintain him and provide him with a passage home. Secondly, that on the true construction of s. 193, sub-s. 3, of the Act of 1894 the production of the account of the expenses furnished in accordance with that Act, and proof of payment of those expenses by or on behalf of the Board of Trade, were conclusive evidence of their right to recover. Danckwerts, K.C., and Leslie Scott, for the defendants, contended that a shipwrecked seaman did not become "distressed within the meaning of the Acts so long as he had in his possession from whatever source sufficient money of his own to provide for his necessities for the time being; that the statutes referred to pecuniary distress, as was indicated by the nature of the relief provided for by the Legislature and the scheme and provisions of those statutes. On the second point they contended that s. 193, sub-s. 3, of the Merchant Shipping Act, 1894, only meant to make the production of the account, and proof of payment, sufficient evidence of the fact that the expenses had been incurred and paid, and did not preclude the shipowner from disputing that they had been legally incurred and paid, and from disputing his liability to repay them. [They cited, as to what was meant by the term "sufficient evidence," Barraclough v. Greenhough (1), Northard v. Pepper (2), and Reg. v. Fordham. (3)] May 12. Cur. adv. vult. BIGHAM J. read the following judgment:The first question which I have to determine in this case is (1) (1867) L. R. 2 Q. B. 612. (2) (1864) 10 L. T. (N.S.) 782. (3) (1873) L. R. 8 Q. B. 501. 1903 BOARD OF TRATE whether those men who received wages in excess of the expenses incurred on their behalf were "distressed seamen within the meaning of the Merchant Shipping Act, 1894. The SAILING SHIP defendants say that they were not, upon the ground that the LIMITED. Act was not intended to assist men who are in a position to Bigham J. assist themselves. It is necessary, therefore, to look at the "GLENPARK," terms of the Act. Part 2 deals with the rights and duties of owners, masters, and crews of seagoing ships registered in the United Kingdom. Qne sub-division of this part is headed "Distressed Seamen," and it comprises ss. 190 to 193 of the Act inclusive. By s. 190 the Board of Trade is empowered to make regulations for the relief, maintenance, and sending home of seamen found in distress abroad; and the section enacts that no seaman shall have any right to be relieved, maintained, or sent home except in the cases provided by those regulations. In pursuance of the directions in this section, the Board of Trade has made regulations, and by No. 86 it is declared that the persons to be relieved shall include seafaring persons who, having been engaged in merchant ships, are shipwrecked and found in distress in foreign ports. No relief, however, is to be afforded to shipwrecked seamen who refuse to work their passage home, or who refuse to accept reasonable employment (regulation No. 90); nor are shipwrecked seamen who stand by the wreck to salve property to be considered as distressed seamen during the time they are so earning money (regulation No. 95). Thus the regulations mention who are and who are not to receive relief. Then s. 191 of the Act directs how distressed seamen are to be relieved. The duty of affording the relief is cast upon governors, Consular officers, and others who are named in the section, and who are referred to in the Act as "the authorities." This section directs such authority to find a passage home for, and in the meantime to maintain, any seamen who, by reason of having been shipwrecked, are in distress in any place abroad, and enacts that the authority shall be paid, in respect of the expenses incurred, such sums as the Board of Trade may allow. Sect. 193, as amended by s. 4 of the Merchant Shipping Act, 1898, directs that the amount of such expenses shall be a debt to the Crown from the ship "" of Trade on These are all A 1903 BOARD OF v. "GLENPARK," LIMITED. Bigham J. owner, and shall be recoverable by the Board behalf of the Crown by ordinary process of law. the material provisions, and there is nothing in any of them which in terms excludes from the category of distressed SAILING SHIP seamen those who, being shipwrecked, happen at the date of the disaster to be entitled to arrears of wages. Nor do I find anything from which I can imply such an intention. In a sense, no doubt, a shipwrecked sailor who happens to have money in his pocket, or a valuable ring on his finger, or a right to arrears of wages, is not in so bad a plight as his shipmate who has none of these advantages; but both of them are, in my opinion, seamen who by reason of having been shipwrecked are in distress" within the meaning of s. 191 and of regulation No. 86. If the Legislature had intended to exclude from the benefits of the Act men who had means of their own at their command, I think it would have said so. In the connection now under consideration the definition of distress is not to be found in the man's slender purse, but in the fact that he has been cast from his ship in a foreign country. I therefore come to the conclusion that all the men mentioned in this case were 66 distressed seamen " within the meaning of the Act. Another question was raised during the argument, namely, whether the production of the account of the expenses, together with proof of payment thereof by the Board of Trade, was not of itself conclusive against the defendants. Having regard to the view I take on the first point, it is not necessary for me to decide this question; but I think it better to do so, for I may thereby save difficulty in future cases. By sub-s. 3 of s. 193 of the principal Act it is provided that in any proceedings for the recovery of the debt "the production of the account (if any) of the expenses furnished in accordance with this Act or the distressed seamen regulations, and proof of payment of the expenses by or on behalf of the Board of Trade shall be sufficient evidence that the expenses were incurred or repaid under this Act by or on behalf of the Crown." I think "sufficient evidence" here means conclusive evidence, and for these reasons: The authority who makes the payments in the first instance acts in the 1903 BOARD OF TRADE v. "GLENPARK,' LIMITED. Bigham J. interest of the shipowner as well as in that of the seaman. This is shewn by such regulations as the 91st, 96th, and 97th, which direct the authority to confine the relief to what is SAILING SHIP, actually necessary. And by sub-s. 4 of s. 191 the Board of Trade has a right to revise the account, and to disallow in favour of the shipowner such items as it may think fit. The authority abroad and the Board of Trade at home are both to protect the shipowner from any undue burden. With provisions such as these for his protection, I do not think the Legislature meant to allow the shipowner to dispute either the propriety of the demand made upon him or its amount. The production of the account and proof of its payment are therefore, in my opinion, meant by sub-s. 3 of s. 193 to be conclusive of the right of the Board of Trade to recover. Judgment for plaintiffs. Solicitor for plaintiffs: The Solicitor of the Board of Trade. Solicitors for defendants: Rowcliffes, Rawle & Co., for Hill, Dickinson & Co., Liverpool. W. A. [IN THE COURT OF APPEAL.] MCDOWALL v. GREAT WESTERN RAILWAY Negligence-Liability-Intervening Act of Third Party-Trespassers, The defendants' servants shunted some trucks and a brake-van, all coupled together, on to a siding which was on an incline running down to a level crossing over a highway. The siding had a catch-point to prevent vehicles, if set loose, from running down the incline; but, for the convenience of their shunting operations, the defendants' servants did not place the trucks and van beyond the catch-point, but screwed down their brakes, and left them in a position in which they would not have caused any damage if not interfered with. Some boys, trespassing on the siding, uncoupled the van from the trucks and released its brake, so that it ran down the incline and injured the plaintiff, who was lawfully passing along the highway over the level crossing. The defendants were aware that boys were in the habit of trespassing on the siding and meddling with vehicles placed upon it. At the trial of an action by the plaintiff, the jury found that the van was in a safe position as and where left by the defendants, unless interfered with afterwards; that the accident would not have happened if the van had not been interfered with; that the interference was the act of trespassers, who acted negligently; that the danger of interference causing injury was known to and could have been guarded against by the exercise of reasonable care on the part of the defendants; and that the negligence of the defendants in not placing the van beyond the catch-point was the effective cause of the accident. Upon those findings the jury assessed damages, and Kennedy J. gave judgment for the plaintiff: [1902] 1 K. B. 618. On appeal by the defendants : Held, that the evidence did not support the findings of negligence on the part of the defendants; and, therefore (applying the rule in Engelhart v. Farrant, [1897] 1 Q. B. 240, 243), as negligence on their part was not the effective cause of the accident, they were not rendered liable through the interference of trespassers. APPEAL from the decision of Kennedy J. (1) The facts are sufficiently stated in the report of the case below. The appeal was heard on June 16, 1903. (1) [1902] 1 K. B. 618. C. A. 1903 June 16. |