“Law was design’d to keep a state in peace,To punish robbery, that wrong might cease;To be impregnable: a constant fort,To which the weak and injured might resort,But oft, perverted minds its force employ,Not to protect mankind, but to annoy;And, long as ammunition can be found,Its lightning flashes and its thunders sound.”Crabbe.
“Law was design’d to keep a state in peace,To punish robbery, that wrong might cease;To be impregnable: a constant fort,To which the weak and injured might resort,But oft, perverted minds its force employ,Not to protect mankind, but to annoy;And, long as ammunition can be found,Its lightning flashes and its thunders sound.”Crabbe.
“Law was design’d to keep a state in peace,To punish robbery, that wrong might cease;To be impregnable: a constant fort,To which the weak and injured might resort,But oft, perverted minds its force employ,Not to protect mankind, but to annoy;And, long as ammunition can be found,Its lightning flashes and its thunders sound.”Crabbe.
“Law was design’d to keep a state in peace,
To punish robbery, that wrong might cease;
To be impregnable: a constant fort,
To which the weak and injured might resort,
But oft, perverted minds its force employ,
Not to protect mankind, but to annoy;
And, long as ammunition can be found,
Its lightning flashes and its thunders sound.”
Crabbe.
When I wrote the word “Amen” on the last page of the second edition of this book, I believed that my task had come to an end. Fate, however, has decreed otherwise; and in view of surrounding circumstances it is absolutely necessary that this (the third) edition should be considerably enlarged. Moreover, to have kept silent with regard to the after-transactions—which hinge on the events already related—would have been, in my estimation, a sort of moral cowardice, displaying a lack of duty to my readers, and also to myself as a faithful chronicler. Having given the above brief remarks by way of preliminary, I now proceed to relate the incidents in the order in which they took place.
Mr. Robert Ponting sued Messrs. Huddart, Parker & Co., shipowners, for £500 as damages for loss of health and property caused by, as alleged, the sinking of theS.S.Alertthrough unsea-worthiness; and on July 26,1896, law proceedings were commenced in the County Court, Melbourne, before Judge Chomley and a jury of four. Mr. J. Ebsworth, solicitor, conducted the case for the plaintiff, and Messrs. Coldham and Schutt, barristers (instructed by Messrs. Malleson, England & Stewart, solicitors), acted on behalf of the defendants. The trial lasted four or five days, and the evidence on both sides was almost a repetition of that given in the two previous trials of “Kilpatrickv.Huddart, Parker & Co.” At the close of the case on Monday, August 3, the jury brought in a verdict in favour of defendants, and accordingly judgment (with costs) was entered against Ponting. In all probability the case would have ended here but for a singular circumstance which ultimately completely altered the position of affairs. It came about thus: I (the present writer) took a good deal of interest in the case and attended the court daily. During the address of Mr. Coldham to the jury—on the Friday prior to the conclusion of the trial—I heard one of the jurymen (McGregor) call out to Mr. Coldham these words, “Your argument is absurd.” I know not whether the judge heard the remark. I only know that he did not rebuke the juryman. After adjourning the case till the ensuing Monday the Court rose, and as I passed out of one of the Little Bourke Street entrances I heard Mr. Coldham remark to Mr. Stewart, as they left the doorway, “I promised to meet him (or them) at Menzies’.” No attention was paid by me to what I deemed a casual remark until a few minutes afterwards, when an acquaintance said to me, “If you want to see Huddart Parker’s barrister and solicitor talking to the jury, just go into the bar of Menzies’ Hotel.”
Though believing my friend had made a mistake, I, out of curiosity, went into Menzies’ bar, and there saw, sure enough, Messrs. Coldham and Stewart and three of the jurymen (including McGregor) drinking, smoking, and talking together in the most friendly manner, so far as appearances went. The matter seemed so incredible that I, on reflection, deemed it best to go and bring in some person, as a witness, to the bar. Accordingly I went out, and happening to meet Mr. Ebsworth (solicitor for Ponting) on the street, Isucceeded in getting him, somewhat reluctantly, to go with me to the bar. It is almost needless to add that, the moment the five gentlemen saw Mr. Ebsworth, they did not wait for a ceremonious introduction; but, on the contrary, took a hasty departure at once. Immediately after their disappearance I asked Mr. Ebsworth, “What are you going to do about this affair?” “Oh,” he replied. “I can do nothing. Mr. Coldham is at the top of the profession; I am only, so to speak, a new beginner, and it would be against professional etiquette for me to take any notice of these people having a drink together.” To this I rejoined, “And so, rather than break through ‘professional etiquette,’ you would stand by and see your client, Ponting, suffer an injustice. If this be the view you take of what I call a serious matter, I may as well tell you what I will do. In the event of this jury bringing in a verdict in favour of the defendants, and of your drawing no attention to what you, as well as myself, have seen, I will, in the public press, expose the whole affair, including the conversation I have had with you on the subject.” This had the desired effect; and when the jury brought in their verdict against Ponting—as before related—Mr. Ebsworth ventured to draw the Judge’s attention to the hotel bar proceedings. Judge Chomley, however, “pooh-poohed” the incident, and remarked that “in all probability the gentlemen concerned had met by chance in a public bar, and were only taking a friendly glass together.” Nevertheless, he added that if affidavits were brought to him showing that serious wrong had been done, he, the Judge, would consider the matter, and give a decision at a future time. Affidavits were taken by myself and others detailing the whole of the circumstances, and these sworn statements were considered by Judge Chomley about six weeks after the trial; but he saw nothing serious in them, and finally refused to grant a new trial. Notice of appeal to the Supreme Court was at once given by Mr. Ebsworth; but, notwithstanding this notice, a demand for costs was served on Ponting, and because it was returned unsatisfied, the defendants’ lawyers applied for, and obtained, an ordernisito make Ponting compulsorily insolvent. Mr. Justice Hood, however, refused tomake the orderabsoluteuntil after the appeal case had been heard.
Matters remained in this state of suspension till March 3, 1897, when the hearing of the case commenced. The following is an abridged report, culled from the columns of the MelbourneAgeof March 4 and 6:—
LAWYERS AND JURORS—THE PONTING APPEAL CASE.
Conduct of Counsel and Solicitor“Highly Indiscreet and Imprudent.”Majority of the Court favour a New Trial.
The Full Court, consisting of Mr. Justice Williams, Mr. Justice Holroyd, and Mr. Justice A’Beckett, yesterday commenced the hearing of an appeal by the plaintiff in the suit of Pontingv.Huddart, Parker & Co., Limited, against a decision by Judge Chomley refusing to grant a new trial of the action. The first ground of the appeal was that the jury, or some of them, did not act fairly and impartially; but were biassed or influenced by reason of the fact that they, or the majority of them, had had conversations with defendants’ senior counsel, Mr. W. T. Coldham, and the defendants’ solicitor, Mr. Gordon R. Stewart, with reference to the action and the matters in dispute therein. That three of the said jury were for a period of at least fifteen minutes drinking and smoking with defendants’ senior counsel and solicitor at the bar of Menzies’ Hotel, and conversing with them with reference to this action, such interview having been made by arrangement and appointment. That a written communication passed between one of the jury (McGregor) and Mr. Coldham, and the contents thereof were discussed at the Law Courts, and afterwards at Menzies’ Hotel, such communication having reference to a point in connection with the action, as to which McGregor had from the jury-box expressed himself as being unfavourable to defendant. That the learned Judge exercised a wrong discretion in refusing to grant a new trial onfacts as detailed and set forth in the several affidavits filed in support of and in opposition to the summons. The other ground on which the appeal was based was that certain documents were improperly admitted as evidence at the trial.
Mr. Leon, instructed by Messrs. Ebsworth & Wilson, appeared for the appellant plaintiff; and Mr. Box, Mr. Coldham, and Mr. Schutt, instructed by Messrs. Malleson, England & Stewart, for the respondent defendant. It will be remembered that in July last Ponting, the sole survivor of the wreck of theAlert, brought an action against the owners of the vessel, Messrs. Huddart, Parker & Co., Limited, to recover damages for injuries sustained by him as the result of the disaster. The case was tried before Judge Chomley and a jury of four, and resulted in a verdict for defendants. On August 20 last plaintiff applied for a new trial on grounds similar to those of the present appeal, but his summons was dismissed with costs.
Mr. Leon, in support of the first ground of appeal, read the affidavits that were used at the application for a new trial made to Judge Chomley, full particulars of which have already been published. The effect of the affidavits made on behalf of the plaintiff was that on July 31, while Mr. Ebsworth, in the course of his address to the jury, paused for a moment to look at some documents before him, Mr. Coldham came into court, leant on the railing of the steps leading to the jury-box, and smiled and winked at the jury. Mr. Mitchell, one of the jurors, gave him a significant glance, and smiled in return. Immediately after the Court adjournment, at 4 o’clock, and while the case was still part heard, Mr. Coldham was heard to say to Mr. G. R. Stewart, “I have promised to meet them at Menzies’ Hotel,” and about the same time was seen to run, with his wig and gown on, towards Goldsbrough’s Lane. He called out to a juryman, Mr. McGregor, “Don’t go away, McGregor, I want to see you. I will meet you at Menzies’.” About 4.20 p. m. the foreman, Mr. Hopkins, and Messrs. Mitchell and McGregor, two other jurors, were seen standing before the bar at Menzies’ Hotel with Messrs. Coldham and Stewart, talking earnestly and drinking and smoking. Itwas also said that as the jurymen left the box on the afternoon in question, one of them (McGregor) handed Mr. Coldham a written communication. In answer to these allegations affidavits were filed denying that Mr. Coldham told Mr. Stewart that he had “promised to meet them,” or that he had said anything to that effect. While standing at the barristers’ table immediately after the adjournment, Mr. Coldham was handed a piece of blotting-paper, on which was a sketch and figures relating to theAlert’sfunnel, concerning which the juryman McGregor had spoken in the box while the case was proceeding. He ran after McGregor to give it to him back, and on meeting him accidentally at Menzies’ handed it to him, saying, “Here is your beautiful production.” He, with Mr. Stewart, then accepted McGregor’s invitation to have a drink. Nothing whatever was said about the case, and the allegation that counsel winked at the jury was false, and a grotesque invention.
Mr. Boxsaid the whole point of this matter was whether there was any pre-arranged meeting at Menzies’. His client said there was no pre-arrangement, and that the meeting was purely accidental. Who cared twopence about a glass of wine?
Mr. Justice Williams: I would say it was very imprudent, to say the least of it, of counsel and solicitor, to go drinking with three of the jury during the hearing of the case.
Mr. Box: Whether they had a drink or not, it was not by pre-arrangement. Mr. Coldham swears that he made no such statement as that alleged relative to a promise to meet any of the jurymen.
Mr. Leonsaid he did not care whether there was a conflict of evidence on that point or not. He did not rely on that. In his opinion Mr. Coldham supported Mr. Reid’s statement, because he said in his affidavit that he called out to McGregor that he wanted to see him. The main feature of this affair was the agreement of all the deponents, and the admission by Mr. Coldham and Mr. Stewart that they were drinking with three jurymen in the bar of an hotel before the case had been concluded. He had not got to prove that there was actual impropriety, but there couldbe no doubt about the principle that even the appearance of wrong-doing must not be shown in the administration of justice. In the first place, it was a gross impropriety on the part of these three jurymen to drink and smoke and converse in a public bar with counsel and solicitor for one of the parties in a case being heard by them. It was very improper for counsel and solicitor to be seen with members of the jury in a public bar in the presence of people who knew that litigation was going on, and that the judges of the facts in that litigation and the advocates for one of the parties to that litigation were “hobnobbing” together. He had no hesitation in saying it was most indiscreet and improper, and if there was the appearance of impropriety in connection with the case the trial must be void. The public must feel satisfied and rest content in their minds that not even the shadow of suspicion could be cast on the administration of justice. That principle had been laid down by the Court, and such being so, this occurrence was such an impropriety as would vitiate the proceedings. It was admitted that the juryman McGregor was a friend of Mr. Coldham’s, and had passed him a paper relating to the case.
Mr. Box: In open court.
Mr. Leondid not care whether it was in open court or not. It was a most improper thing to do. Communications had no right to be passed between the judge of the facts of the case and the advocates of one of the parties in the case. Nothing of that kind could be tolerated, because people would say, and be justified in saying, there was a very fine understanding between defendants’ counsel in the case and that juryman; that they seemed to be on excellent terms with each other. To allow such a thing to pass would be intolerable, and bring the administration of justice into contempt, The principle for which he contended had been laid down by Mr. Justice Hood in a considered judgment.
Mr. Schuttsaid that before the Court proceeded to deliver judgment on the first ground of appeal, he would like it to consider a point of law raised as a defence at the trial of the action in the lower Court, but not then argued, as the jury found in defendants’ favour. He believed thepoint was absolutely fatal to plaintiff’s case, and even if the Court were of opinion that a new trial should be granted, it would be useless in the face of this point to order a new trial to go on.
Mr. Justice Williamssaid the Court would deliver judgment, and the point could be argued after.
Mr. Justice A’Beckettsaid he had the misfortune to differ from his learned brothers as to the course which should be taken with regard to this appeal. The ground on which he thought a new trial should not be ordered, was that beyond all question it would inflict a great hardship on the defendants, who had succeeded in the action, and who were in no way to blame for the indiscretion which had occurred. He thought the duty of the Court in dealing with litigation between the parties was to do justice between the plaintiff and defendants, and not to make an order subjecting to injustice one of those parties in vindication of a principle, unless it was absolutely necessary that they should proceed to that vindication; nor should they make it for the mere purpose of marking strongly their disapproval of that which had occurred. Viewing the case in that aspect, it appeared to be that they were not called upon to vindicate any principle, or to express their disapprobation of what had occurred (disapprobation that both sides admitted must be expressed), in a way which would produce the very serious results that would follow the granting of a new trial. What occurred was done openly, and, as Judge Chomley had said, it was the very last mode of approaching a jury improperly that any man in his sober senses—in his “glass of wine” senses—would attempt. The evidence did not show that there was the slightest attempt made to influence the jury, and when it was known what really occurred, he did not think the conduct would convey to a rational mind any cause for suspicion. The drinking of this glass of wine at the invitation of one of the jurymen was a matter which people might observe upon. They might say it did not look well to see counsel treated by that juryman. He thought that observation would be quite right; it was conduct which the Court would not sanction or countenance, and if the Court had called upon those engaged in this matter for anexplanation, it would express its disapprobation and make them pay. But he did not think they should go beyond that, particularly as the judge who tried the case thought it was not a matter in which it would be right to order a new trial. Being convinced that the jury were not influenced, and that the fact that counsel and solicitor had accepted sixpennyworth of hospitality from one of the jurymen would not induce anyone to suppose they would be influenced, he thought this new trial should not be granted. The impropriety, such as it was, did not require such an expression of disapprobation by this Court as would be expressed by granting a new trial.
Mr. Justice Williamsthought there should be a new trial. It was said that they should not grant a new trial, because their so doing would be a hardship upon the defendant. That such was not an objection to the granting of a new trial was decided by authority. In the case of Costav.Merest (3 B. and B., 272), some one, a stranger to both the parties, circulated in the Court handbills reflecting on the plaintiff’s character. Defendant was absolutely innocent of any connection with the distribution of these handbills, and the Court that heard the application for a new trial assumed that the jury had not been unduly influenced. But, taking the defendant’s statement as true, the Court made the rule absolute for a new trial. If any case would be a hardship on a defendant he thought that would have been. There was a defendant entirely innocent, yet because it might be alleged with reasonable suspicion or belief that the administration of justice had been influenced by the distribution of the handbills, the Court on that ground granted a new trial. In this case, so far as the question of hardship was concerned—with which he thought they had nothing to do—the defendant was not so entirely innocent. The parties to litigation lost their personality in their counsel and solicitor, and the persons who did these acts which gave rise to reasonable suspicion in the minds of plaintiff and others who witnessed them, were the defendants’ own counsel and legal adviser. Therefore, in the circumstances, he did not think the argument of hardship applied. Then it was said the learned Judge of the County Court hadalready decided the matter of this application; that in the exercise of his discretion he refused a new trial. In his opinion, however, the learned Judge had not dealt with the application on the grounds upon which it now came before the Court on appeal. He had apparently gone on the aspect of what was the intention of the defendants’ solicitor and counsel, whether they were actuated by any corrupt motive, and whether the jury were in point of fact influenced by what they did. Those were the grounds on which Judge Chomley dealt with the case; and, speaking for himself, he did not differ from the view taken by the learned Judge on that aspect. The principle upon which the Court should exercise its discretionary power in granting a new trial on an application of this kind was, that if from the acts of the jury or the legal advisers of one of the parties in connection with the jury, there were reasonable grounds for suspicion that the administration of justice was being improperly influenced, the Court should, in order to preserve the administration of justice from that stain or taint, grant a new trial. It appeared to have been established on authority that where acts had been committed such as to give reasonable ground for suspicion, in the minds of the litigating party and his advisers or the public, that there had been an attempt to bias and influence the proper administration of justice, the Court, for the purpose of placing the administration of justice as far as possible above reasonable suspicion, would grant a new trial. Another case had been cited (Hughesv.Budds, 4Jurist, p. 156), where some of the jury managed to get out of their room on more than one occasion while considering their verdict, and two of them went to an hotel, where they were seen drinking beer and eating bread and cheese in the company of the plaintiff’s attorney. The Court there held that these were acts of impropriety on the part of the jury sufficient to awaken a reasonable suspicion that the administration of justice had been tampered with. In the Victorian Court the same principle seemed to be observed, according to decisions by Mr. Justice Hood and the Chief Justice. He accepted every word of Mr. Coldham’s affidavit, and from the undisputed facts it was apparent that he knew the juryman (McGregor) before. This was all the more reasonwhy he should have kept him at arm’s length. It appeared that McGregor handed Mr. Coldham a piece of paper just as the Court had adjourned. That fact alone would be calculated to excite suspicion. The learned counsel thoughtlessly and indiscreetly took this piece of paper, and looked at it, when his proper course would have been to hand it back at once, and say to the juryman, “You must not communicate with me.” This piece of paper contained, in the shape of a drawing, the juryman’s views on the construction of a portion of the vessel. That was an improper act. Mr. Coldham ran out into the street, and called out that it was of no use to him. Getting as a response “That’s all right,” he shouted out that he intended to take it down to him. Learned counsel could not remember whether he said “at Menzies’ Hotel,” but what was present in his mind was that he would bring it to the Menzies’. Therefore, he must have known the juryman was going there. He did meet the juryman there, and together with the defendants’ solicitor had a drink with him after handing the paper back. Such conduct on the part of both the counsel and the solicitor was highly indiscreet and highly imprudent, or, as Mr. Box admitted, “heedlessly indiscreet.” Coming back to the principle he had enunciated, what would these undisputed facts give rise to in the minds of the plaintiff and the public generally? They would naturally give rise to the suspicion that plaintiff’s case, so far as the administration of justice was concerned, was not receiving fair play. He would go further and say that the facts would reasonably give rise to the suspicion that there was some underhand work going on which was calculated to influence the jury in favour of the defendant. Upon that ground, and acting on the principle he had referred to, he thought there should be a new trial, and in coming to that conclusion he did not think it was in the slightest degree contrary to that on which Judge Chomley relied. Upon these grounds, and the principle he had named, and with the view of keeping the administration of justice free from reasonable suspicion or taint, he thought this Court was acting wisely, if he might say so, in following authorities, both ancient and modern, and saying that there should be a new trial.
Mr. Justice Holroydsaid he concurred with his learned brother, Williams. He considered Mr. Coldham’s affidavit, on the very face of it, bore the stamp of truth; but he felt that he was absolutely constrained, by authority, to arrive at the same conclusion as his brother, Williams. He would be directly contravening English decisions, and decisions of this Court, if he were to decide otherwise. No doubt it was a great hardship to the defendant that he should lose the fruits of his victory because of an indiscretion upon the part of jurymen or his counsel or solicitor. At the same time that was a necessary condition of the relationship which existed between counsel and solicitor and client. Some people, not familiar with the great caution that both bench and bar, he believed, exercised in maintaining the pure administration of justice, might fancy that the Court in coming to this decision suspected some foul play. Speaking for himself—the other members of the Bench had spoken for themselves—he suspected none, but he cordially agreed that the administration of justice must be free from suspicion. Therefore he concurred in the judgment pronounced by his brother, Williams.
Mr. Leon: Then your Honour will make an order allowing the appeal, with costs?
Mr. Justice Williams: Before doing so we will hear what Mr. Schutt’s law point is.
Mr. Leonsaid he was not instructed as to the point, and the Court, therefore, adjourned the case until Thursday next, the understanding being that subject to the point of law involved a new trial should be ordered.
The Menzies’ Hotel incident, as a matter of course, created a good deal of stir in the Melbourne Press. It is impossible in these pages to give all the comments; but the following well-argued article front the leading columns ofThe Ageof March 10, 1897, is worth quoting:—
“‘A highly indiscreet and highly imprudent act’ on the part of Mr. Coldham, the barrister, has involved Messrs. Huddart, Parker. & Co., and Mr. Ponting, in pretty stiff law costs. So says Mr. Justice Williams; and Mr. Justice Holroyd adds his verdict that this is ‘a necessary conditionof the relationship between counsel and client.’ If counsel blunder clients necessarily suffer, while the advocates may reap advantages from their own mistakes. This is one of the delightful aspects of the administration of the law, as distinguished from every other kind of profession. The ship captain who commits a ‘highly indiscreet and highly imprudent act’ runs the risk of being disrated for his rashness or carelessness. The surgeon who carves his patient like a butcher may be sued for improper and unskilful treatment, and if unsuccessful in his defence loses cash and credit at the same time. The carpenter or plumber who builds unskilfully must repair the damages of his default. But the lawyer who gives unsound advice, or conducts his case with imprudence and indiscretion, may simply shunt the consequences on to his client, and is as merry as before.
“Mr. Coldham’s case necessarily raises the question of what ought to be a lawyer’s responsibility in the management of his client’s concerns. Mr. Ponting, the sole survivor from the wreck of theAlert, sued the owners of that steamer for damages. The case was tried in the County Court before a judge and jury. Mr. Coldham acted as counsel for the defendant shipowners. One of the jury, a man named McGregor, was a personal acquaintance of the barrister. During the progress of the trial, according to one set of affidavits, certain winks and nods and smiles and by-play were indulged in between counsel and this juryman. Mr. Coldham denies the winking part of the business. However, there is something that he does not deny. This juryman of his acquaintance handed to him during the trial a private paper connected with the case, and subsequently he met his friend at an hotel bar, and had some drink and talk with him. This almost inevitably gave rise to the suspicion that the jury had been improperly influenced. A new trial was applied for, principally on that ground; and though Judge Chomley refused to grant it, and sustained the jury’s verdict, the Full Court judges have done otherwise, on the ground of the ‘highly indiscreet and highly improper’ conduct of Mr. Coldham.
“To the man of law the interest that centres in this casewill be the grounds on which the judges differed from each other. To the ordinary citizen it will rather lie in the fact that the verdict of the Court mulcts the client for the lapse of the lawyer. Mr. Justice Chomley refused to disturb the jury’s verdict on the ground that, though Mr. Coldham’s conduct had been wrong, it had not corruptly influenced the jury’s minds. Mr. A’Beckett held the same opinion. Mr. Coldham, he holds, had done an exceedingly foolish act in hobnobbing with jurymen in an hotel bar during the progress of the trial. He said ‘it was conduct which the Court would not sanction or countenance; and if the Court had called upon those engaged in this matter, it would express its disapprobation and make them pay.’ But as the conduct in question was not corrupt, he refused to inflict the hardship of a new trial on Messrs. Huddart, Parker & Co. That is one view of the case. Justices Williams and Holroyd take quite another. They hold that Mr. Coldham’s acts gave rise to reasonable suspicions in the minds of onlookers. They no more say that the barrister acted corruptly than do the other judges, but they are clear that his conduct was such that any reasonable man might have entertained from it a suspicion of corruption. Mr. Justice Williams says that it was apparent that he knew the juryman (McGregor) before. This was all the more reason why he should have kept him at arm’s length. It appeared that McGregor handed Mr. Coldham a piece of paper just as the Court had adjourned. That fact alone would be calculated to excite suspicion. The learned counsel thoughtlessly and indiscreetly took this piece of paper, and looked at it, when his proper course would have been to hand it back at once, and say to the juryman, “You must not communicate with me.” This piece of paper contained, in the shape of a drawing, the juryman’s views on the construction of a portion of the vessel. That was an improper act. Mr. Coldham ran out into the street, and called out that it was of no use to him. Getting as a response “That’s all right,” he shouted out that he intended to take it down to him. Learned counsel could not remember whether he said “at Menzies’ Hotel,” but what was present in his mind was that he would bring it toMenzies’. Therefore, he must have known the juryman was going there. He did meet the juryman there, and together with the defendants’ solicitor had a drink with him after handing the paper back. Such conduct on the part of both the counsel and the solicitor was highly indiscreet and highly imprudent, or, as Mr. Box admitted, “heedlessly indiscreet.”
“On these grounds Justices Williams and Holroyd have upset the jury’s verdict, and granted a new trial. There were other reasons alleged, and there may possibly have been other reasons in the minds of the judges. The Ponting trial is almost precisely on the same lines as three or four previous trials arising out of the same wreck. The widow of a drowned sailor named Kilpatrick sued the owners of theAlert, and got a verdict in two separate actions, on the ground of the vessel’s unsea-worthiness. On an appeal to the Full Court she was again successful, and the action was then carried to the Privy Council, where it now remains. Ponting’s case came before a County Court jury, and was dismissed. This might possibly have supplied an additional ground for suspicion that the jury had been improperly influenced. That suspicion may be ever so ill-founded; but there it was, and there it is. Mr. Coldham’s imprudence caused a miscarriage of justice, and a wrong to both the parties to the trial. The point of immediate interest to the litigating public is as to whether in a case like this the innocent client ought to pay, and the inculpated practitioner escape. Clearly, says Mr. Justice A’Beckett, the Court has power in cases like this ‘to make the lawyer pay.’ And we know this from the action of the Chief Justice on June 28, 1894, when he dismissed a jury in a part-heard case because Mr. Field Barrett, solicitor, had been seen speaking to one of the jurymen. The Chief Justice said that if he discovered the expenses of the Crown in the suit he would order Mr. Barrett to pay them. The excuse put forward that Mr. Barrett was a personal friend of one of the jury was declared by the Chief Justice to be an additional reason for ‘keeping him at arm’s length.’ Mr. Coldham could not have been ignorant of this case nor of the strict rulefrom which it had its rise. He therefore offended with open eyes against one of the canons of justice. The argument arising out of this act ought to have a strictly impersonal, and not a personal, bearing. It is that when an officer of the Court commits an improper and unprofessional act which entails cost on the public at large as well as on the litigants in the trial, he should be the chief sufferer, and not go scathless whilst others carry the burdens of his culpability. It is all very well to be tender of Mr. Coldham’s feelings; but the ordinary ethics of daily life demand that every wrong-doer ought as far as possible to bear the penalty of his own wrong, and it seems something like an outrage on equity if a lawyer is to be permitted to commit ‘improper’ acts against the dignity and sacredness of justice, and then lightly throw the penalty on others.”
Notwithstanding the seriousness of the “Bar” episode, there was a good deal of the comic element involved in it, and therefore the journal (quoted below), which is edited and conducted by and for barristers, evidently for once at least, carried out Pope’s advice:—
“Eye Nature’s walks, shoot folly as it flies,And catch the manners living as they rise;Laugh where we must, be candid where we can,But vindicate the ways of God to man.”
“Eye Nature’s walks, shoot folly as it flies,And catch the manners living as they rise;Laugh where we must, be candid where we can,But vindicate the ways of God to man.”
“Eye Nature’s walks, shoot folly as it flies,And catch the manners living as they rise;Laugh where we must, be candid where we can,But vindicate the ways of God to man.”
“Eye Nature’s walks, shoot folly as it flies,
And catch the manners living as they rise;
Laugh where we must, be candid where we can,
But vindicate the ways of God to man.”
JURISPRUDENCE IN MELBOURNE.
Concerning the fact of the barrister and the solicitor for the defendants having been seen drinking in an hotel bar with the jurymen during the progress of a County Court case, the following comments appeared as a leading article inThe Australian Law Timesof March 20, 1897:—
“A Question of Propriety.
“Pontingv.Huddart, Parker & Company.
“When Ponting, the plaintiff, escaped from his watery grave when theS.S.Alertfoundered so suddenly, and wascast upon the back beach at Sorrento, he, no doubt, thought himself a fortunate man. Most solitary survivors from wrecks would so think themselves, and would settle down to a quiet life. Not so Ponting. He started to voyage on a sea hitherto unknown to him—bestrewn with far more wreckage than sweeps to and fro in the cross seas that wash our southern coast. Ponting went to law and sued his owners for damages. Now, law in the Supreme Court is not always without its risks, but law in the County Court and before a jury is never without its perils. We all know the result—verdict for the defendants. Of course, in a case of this kind there was the inevitable new trial application, and that unsuccessful, the still less inevitable (to use the phrase) appeal. And all because the counsel for the defendants was observed, after winking at the jury—in itself a venial offence—to go across to Menzies’ Hotel during an adjournment and have a ‘glass of wine’—that is the euphemism for whisky and soda—with the gentlemen, or some of the gentlemen, of the jury.
PONTING AND “VICTOR HUGO” IN 1899.
PONTING AND “VICTOR HUGO” IN 1899.
PONTING AND “VICTOR HUGO” IN 1899.
“The counsel in question was, undoubtedly, very foolish to do so. Counsel remarked, in arguing the point for the respondents, that he was ‘heedlessly indiscreet’; instead of being, we presume, merely indiscreet, or, at worst, indiscreet with a certain amount of discretion; or, as it might be put, he should have gone to Menzies’, being discreetly thirsty, and have drunk at discretion by himself;i. e., failing the proximity of some fellow-counsel, whom he might have invited to drink with him, or failing such counsel accepting such invitation—two eventualities as uncommon in Melbourne as our old friend Fearne’s ‘Contingent Remainders’ are in the Mallee.
“Instead, therefore, of going ‘hatting,’ or indulging in a ‘Johnny Woodser,’anglicédrinking by himself, he, heedlessly indiscreet, or heedless and indiscreet—as one with a keen scent for good English would prefer—hobnobs with the jury. He should have known better. That is to say, he knew better and should have acted better—but did not. In the first place, the jury was probably a common jury; or, if a special jury, they were probably still more common, with whom no eminent counsel should foregather;because special juries generally consist of publicans, ex-publicans, or retired gaol-warders, or a proportion of each; worthy citizens, doubtless, good fathers, good husbands, and so forth, who paying so much rates per annum for their ‘bits of property’ are thereby and therefore pre-eminently qualified by law, reason, and common sense to decide in a jiffy all those subtle points of tort or contract in which ordinary bodies, from the Full Court to the Privy Council, find so many difficulties.
“The jury having given in their verdict in favour of the defendants, the majority of the Full Court have decided that this drinking business was a good ground of appeal. Now, although, as a rule, what everybody says must be untrue, we are inclined to agree with the majority in this case, and to disagree with the minority, consisting of A’Beckett, J. That learned Judge said ‘he had the misfortune to differ from his learned brothers as to the course which should be taken with regard to the appeal.... What occurred was done openly, and it was the very last mode of approaching a jury improperly, that any man in his “sober glass of wine” senses would attempt. They might say it did not look well to see counsel treated by jurymen.... Being convinced that the jury were not influenced, and that the fact that counsel and solicitor had accepted a sixpennyworth of hospitality from one of the jurymen would not induce anyone to suppose that they would be influenced, he thought this new trial should not be granted.’
“That is all very well, but Mr. Justice A’Beckett seldom practised on the common-law side of the Court, and, as Ulpian says (we translate):—
“‘Equity’s an evil, but common law’s the devil.’Pandecta, tom. ccix., p. xviii,passim.
“‘Equity’s an evil, but common law’s the devil.’Pandecta, tom. ccix., p. xviii,passim.
“‘Equity’s an evil, but common law’s the devil.’Pandecta, tom. ccix., p. xviii,passim.
“‘Equity’s an evil, but common law’s the devil.’
Pandecta, tom. ccix., p. xviii,passim.
And although jurymen are sworn to give their verdict according to the evidence, and, as a rule, observe their oath so sworn on a tenpenny Bible, yet evidence seen through the medium of a tumbler full of grog with, it may be, a little lemon and sugar in it, and in company with an advocate for one of the parties only, becomes a somewhatlop-sided affair. Hospitality is a most excellent, and we fear, in these times of depression, too rare a practice, and we should be the last to say anything to discourage it; but when administered in sixpennyworths by jurymen to counsel—of one of the parties only—during the progress of a case, and before a bar counter, it is, to say the least, somewhat out of place.
“It is to be observed also that the majority of the Court uttered noobiter dictain their judgment. They read out no homily on the evils of drink, as they might well have done in view of the numerous young gentlemen just called to the bar, and who in the dearth of law may easily fall into evil ways; and they carefully avoided asking for such further and better particulars of the stimulants used by counsel and jury as might have given a huge and cheap advertisement to some particular brands. So far so good. Justice now takes breath. The ill-fatedAlertis still lapped in the sounding depths. Ponting, the plaintiff, has succeeded on his point; at the bar of Menzies the glasses are still a-clink, and the P. and O. Steam Navigation Company is building a new steamer of 12,000 tons to carry the papers in the appeal case home to the Privy Council.
“On the same subject Mr. J. Arbuckle Reid—who was an eye-witness of the entire transaction—gives his version thus:—
“‘Mister Hoteggs, in addressing the jury,Lashed himself into a terrible fury;Talked wildly concerning the funnel and mast,Till Mac—from the jury-box—spoke out at last.Cried he, “Your rubbish is getting much stronger,And I cannot hold my tongue any longer;I will sum up your speech, sir, just in a word:It is utternonsense. Your talk isabsurd.”Hoteggs looked glum, being quite taken aback.Thought he, “I must go on a different tack;This man is against me, that’s plain to be seen,But I know how to managehim—he is green.”Quick to act on the thought, Hoteggscalledout,“At Menzies’ Hotel I am going to shout;Mac, come on, bring your mates, and over a gill,I will make each one convinced against his will.”To Menzies’ they went, and, quite needless to say,Hoteggs, after that, had it all his own way.’
“‘Mister Hoteggs, in addressing the jury,Lashed himself into a terrible fury;Talked wildly concerning the funnel and mast,Till Mac—from the jury-box—spoke out at last.Cried he, “Your rubbish is getting much stronger,And I cannot hold my tongue any longer;I will sum up your speech, sir, just in a word:It is utternonsense. Your talk isabsurd.”Hoteggs looked glum, being quite taken aback.Thought he, “I must go on a different tack;This man is against me, that’s plain to be seen,But I know how to managehim—he is green.”Quick to act on the thought, Hoteggscalledout,“At Menzies’ Hotel I am going to shout;Mac, come on, bring your mates, and over a gill,I will make each one convinced against his will.”To Menzies’ they went, and, quite needless to say,Hoteggs, after that, had it all his own way.’
“‘Mister Hoteggs, in addressing the jury,Lashed himself into a terrible fury;Talked wildly concerning the funnel and mast,Till Mac—from the jury-box—spoke out at last.Cried he, “Your rubbish is getting much stronger,And I cannot hold my tongue any longer;I will sum up your speech, sir, just in a word:It is utternonsense. Your talk isabsurd.”Hoteggs looked glum, being quite taken aback.Thought he, “I must go on a different tack;This man is against me, that’s plain to be seen,But I know how to managehim—he is green.”Quick to act on the thought, Hoteggscalledout,“At Menzies’ Hotel I am going to shout;Mac, come on, bring your mates, and over a gill,I will make each one convinced against his will.”To Menzies’ they went, and, quite needless to say,Hoteggs, after that, had it all his own way.’
“‘Mister Hoteggs, in addressing the jury,
Lashed himself into a terrible fury;
Talked wildly concerning the funnel and mast,
Till Mac—from the jury-box—spoke out at last.
Cried he, “Your rubbish is getting much stronger,
And I cannot hold my tongue any longer;
I will sum up your speech, sir, just in a word:
It is utternonsense. Your talk isabsurd.”
Hoteggs looked glum, being quite taken aback.
Thought he, “I must go on a different tack;
This man is against me, that’s plain to be seen,
But I know how to managehim—he is green.”
Quick to act on the thought, Hoteggscalledout,
“At Menzies’ Hotel I am going to shout;
Mac, come on, bring your mates, and over a gill,
I will make each one convinced against his will.”
To Menzies’ they went, and, quite needless to say,
Hoteggs, after that, had it all his own way.’
“‘Moral for Barristers.
“‘If with a jury you have any bother,Just shift the case from one bar to the other;At the court bar your talk may do your side harm,The pub. bar’s the place, with a dram and a yarn;But be cautious and mind what you are about,Otherwise “Be sure your sin will find you out.”’”[4]
“‘If with a jury you have any bother,Just shift the case from one bar to the other;At the court bar your talk may do your side harm,The pub. bar’s the place, with a dram and a yarn;But be cautious and mind what you are about,Otherwise “Be sure your sin will find you out.”’”[4]
“‘If with a jury you have any bother,Just shift the case from one bar to the other;At the court bar your talk may do your side harm,The pub. bar’s the place, with a dram and a yarn;But be cautious and mind what you are about,Otherwise “Be sure your sin will find you out.”’”[4]
“‘If with a jury you have any bother,
Just shift the case from one bar to the other;
At the court bar your talk may do your side harm,
The pub. bar’s the place, with a dram and a yarn;
But be cautious and mind what you are about,
Otherwise “Be sure your sin will find you out.”’”[4]
Finding that the Full Court decision was against them, Messrs. Huddart, Parker & Co.’s lawyers changed their tactics. With the object of quashing the whole proceedings, they raised the point that theAlertwas not a British ship within the meaning of the Merchant Shipping Act. This point was fully recognised on March 24, 1897, before the same Supreme Court Judges who decided the appeal case. Mr. Schutt (barrister) appeared for Huddart, Parker & Co., and Mr. W. H. Williams (barrister) appeared for Ponting. As the matter debated is of great importance to all concerned in shipping interests, it has been deemed advisable to adhere to the authentic verbatim reports of the proceedings as given in theHeraldnewspaper, March 24, 1897, and theArgus Law Reportsof May 11th, 1897, hereto annexed:—
“What is a British Ship?
Schuttfor the respondents.—The plaintiff brings his action under sect. 103 of the Marine Act 1890. That section comes within Part VI. of the Act, and therefore has to be read with sect. 98, which says that the provision of that Part “shall apply to all British ships registered or being at any place within Victoria and to no others.” Thus, although sect. 103 only uses the word “ship,” it can only apply to a “British ship.” The Imperial Act, 39 and 40 Vict., c. 80, sect. 5, corresponds to our sect. 103; but this question could not arise in England, because there is no equivalent to sect. 98 in the Imperial legislation. We have, however, to refer to the Imperial legislation to find out what is a “British ship”; and we find that, by sects. 18 and 19 of the Merchant Shipping Act 1854, 17 & 18 Vict.,c. 104, which two sections it is submitted are to be read together, a British ship must be owned by a British owner, and must be registered. By sect. 17 of the same Act, Part II. of the Act, under which sects. 18 and 19 are, is to apply to the whole of the British dominions. Again, if any alteration of the ship be made, re-registration is required by sect. 84et seq., which, if not done by sect. 87, the ship shall not be deemed duly registered, and shall no longer be recognised as a British ship. In this case theAlert, when originally registered, had three masts. The number of her masts was subsequently altered, but she was never re-registered; she is, therefore, not now a British ship, and the plaintiff has no cause of action. [W. H.Williamsreferred toChartered Mercantile Bank of India, London and Chinav.Netherlands India Steam Navigation Co., 10 Q. B. D. 521; 52 L. J. Q. B. 220, per Brett, L. J., as to the meaning of “British ship.”] That case is distinguishable, the question there being whether a certain rule of the Admiralty Court as to the equal liability of the two ships should apply, and, accordingly, whether Dutch or English law was applicable. The ships were there held to be English because owned by English owners, although registered in Holland. The question was not whether they were British ships within the meaning of the Merchant Shipping Acts. He referred also toLearyv.Lloyd, 3 E. & E. 178;R.v.Clark, 5 V. L. R (L.) 440; 17 and 18 Vict., c. 104, sects. 106, 547.
W. H.Williamsfor the appellant.—Our local Parliament has put its own meaning on the words “British ship” in sect. 98. The Marine Act 1890 says nothing about recognition or non-recognition, according to whether a ship is registered or not. A British ship means a ship owned by British people. Registration has nothing to do with the British character of the ship. The case in 10 Q. B. D., and Lord Esher’s observations there, are exactly in point here. In addition, it does not lie in the mouth of the defendants to now take advantage of their own wrong. They have continued to sail in and out of port for years, and in their answers to interrogatories they admit that their ship was a British ship, and that they were the registeredowners. To allow the defendants to raise this point now would be against public policy. The alteration to theAlerthad, according to the Act, to be made under the supervision of the Marine Board. Yearly certificates have been granted by that Board to her for the last sixteen years, and during that time she has been continuously travelling under the British flag. Her owners thus are estopped from saying she is not a British ship. In addition, the alteration effected was not a very material one; it did not alter her identity.
Mr. Schuttargued in support of the view that the vessel was not registered as a British Ship.
Mr. Justice Holroyd: Suppose, on the consideration of this statute of ours, your view is correct, can you possibly take advantage of it? You, as owners, have for years enjoyed all the privileges possessed by the owners of a duly registered British ship, and you have availed yourselves of them over and over again. You have sailed from port to port, and obtained your clearance papers in that character. Can you now turn round and say that the vessel was not duly registered?
Mr. Schutt: It seems to me that you are assuming that there was evidence that we did enjoy those privileges, whereas there is not the slightest evidence that we ever did fly the British flag.
Mr. Justice Holroyd: You got your clearance papers from port to port.
Mr. Schutt: There is no evidence that we did get them.
Mr. Justice Holroyd: How did she get out?
Mr. Schutt: There is nothing to show that we went out.
Mr. Justice Williamsobserved that if a new trial were allowed, the evidence would doubtless be forthcoming.
Mr. Schuttsubmitted that, as against Ponting, the defendants were perfectly entitled to raise the defence.
Mr. Justice Holroyd: Why? Because he nearly lost his life?
Mr. Schutt: No; because no representation was made to him that the vessel was a British ship.
Mr. Justice Holroyd: It is contrary to public policy that you should be allowed to say such a thing. I don’t care a straw what Ponting knew. Here you have takenadvantage of the privileges afforded by the Imperial Legislature to our colony for years, to obtain certain advantages which would not otherwise have been conceded. You have sailed out and come into port under false pretences, and now you ask to escape from the liability imposed on you by the Act of our Parliament, on the ground that the vessel was never duly registered at all. It seems to me that is directly contrary to public policy, and a fraud on the statutes.
Mr. Schutt: It is not a fraud; no one knew it.
Mr. Justice Holroyd: It fortunate for you no one did know it, or you would have been fined £100 over and over again.
Mr. Justice Williamssaid that, although the Court had ordered a new trial on one ground, it had been urged that the new trial would be fruitless, as it could not be shown that the vessel was a British ship. It was said that the vessel was not a British ship unless owned by British subjects, and registered in the manner prescribed by the Merchant Shipping Act. The point had been ably argued by Mr. Schutt, and with great ingenuity; but he (his Honour) could not agree with him.
Mr. Schuttin reply.—The answer to interrogatories referred to stated as a matter of fact what was really a question of law, which the defendants were not bound to know. There was also no obligation on the defendants to re-register, and therefore they should not be estopped from raising this defence. They might be liable to certain penalties. A leading text-book says that a British ship means a ship which is registered and owned by British owners: Maude and Pollock onMerchant Shipping(3rd ed.), pp. 1, 2.
The following authorities were also referred to during argument:—Bellv.Bank of London, 28 L.J. Ex. 116; Union Bank of Londonv.Lenanton, 3 C. P. D. 243.
Williams, J.—This is an application for a new trial. The Court has already delivered judgment upon a point which we need not further refer to, ordering that a new trial should take place upon the ground there dealt with. But now Mr. Schutt, counsel for the defendants, says that there is an objection which would be a fatal objection to theplaintiff’s case, that it is an objection which could not possibly be got over, and that the Court ought not to send a case for a new trial when the trial would be futile. The Court saw the force of that contention of Mr. Schutt, and so we have heard arguments on that point. Now, that point was this—that this action was an action brought under sect. 109 of our Marine Act, 1890, and that that section only applies to the case of a British ship, and that therefore the plaintiff, before he could bring his action upon the implied contract created by sect. 103, must show that theAlert, the ship in question, was a British ship. So far Mr. Schutt’s contention appears to be correct, because sect. 98 of the same Act says, “The provisions contained in this part of this Act”—i. e., the part dealing with the safety of ships and prevention of accidents, in which sect. 103 is included—“shall (except where it is otherwise specially provided) apply to all British ships registered or being at any place within Victoria, and to no others.” Therefore it is perfectly clear, so far, that sect. 103 only applies to British ships. Well then, Mr. Schutt further contended that a ship could not be a British ship unless it was owned by British subjects, and unless it was registered in the manner provided by the Merchant Shipping Act, 1854, 17 and 18 Vict., c. 104. Now, there is no doubt that those provisions of the Merchant Shipping Act, 1854, as to registration, and as to what constitutes a British ship, apply to this colony, because sect. 17 says, “The second part of this Act shall apply to the whole of Her Majesty’s dominions.” Now it is upon that point that Mr. Schutt seems to have based his contention—namely, that to constitute theAlerta British ship, it must be proved not only that she belongs to British subjects, but that she was registered as required by the Merchant Shipping Act, 1854. He certainly argued the point very ably, and displayed great ingenuity in his argument, but, unfortunately, I cannot agree with him on that point. Sect. 18 of the same Act provides that “no ship shall be deemed to be aBritishship, unless she belongs wholly to owners of the following description, that is to say,” and then the subsections proceed to give the description of the persons to whom she may belong—viz., natural-bornBritish subjects, persons made denizens by letters of denization, or naturalised by or pursuant to any Act of the Imperial Legislature, or by or pursuant to any Act or Ordinance of the proper Legislative authority in any British possession, and bodies corporate established under, subject to the laws of, and having their principal place of business in the United Kingdom or some British possession. Well, that section, if it stood alone, says that a ship shall not be a British ship unless it belongs to owners of a certain description, and if so, it would follow by implication that she was a British ship. Sect. 19 then goes on to say, “Every British ship must be registered in manner hereinafter mentioned,” with certain exceptions. It assumes there that the ship is a British ship. It is not “every ship claiming to be a British ship,” or “seeking to be a British ship,” but it is “everyBritishship must be registered in the manner hereinafter mentioned, except”—and then it goes on to provide for the exceptions to registration, and then having done that, it goes on to say “and no ship hereby required to be registered shall, unless registered, be recognised as a British ship.” It is upon those words that Mr. Schutt so strongly relies. Now, I desire to draw attention to the marked difference of language. Sect. 18 says, “no ship shall bedeemedto be a British ship, unless she belongs wholly to owners” of a certain description, while sect. 19 has “no ship required to be registered shall, unless registered, berecognisedas a British ship,” and then it goes on to say in that section, “and no officer of customs shall grant a clearance or transire to any ship hereby required to be registered for the purpose of enabling her to proceed to sea as a British ship, unless the master of such ship, upon being required so to do, produces to him such certificate of registry as is hereinafter mentioned; and if such ship attempts to proceed to sea as a British ship without a clearance or transire, such officer may detain such ship until such certificate is produced to him.” I think, in the first place, that sect. 19 recognises the fact that a ship may be a British ship without registration; but then it says if you are a British ship you must also be registered, and, if not, certain consequences will follow, some of which are enumerated, one being that she shall notbe recognised as a British ship. What is the meaning of “shall not be recognised” is given by sect. 106, which says “whenever”—apparently equivalent to “wherever”—“it is declared by this Act that a ship belonging to any person or body corporate qualified according to this Act to be owners of British ships shall not be recognised as a British ship, such ship shall not be entitled to any benefits, privileges, advantages, or protection, usually enjoyed by British ships, and shall not be entitled to use the British flag or assume the British national character; but, so far as regards the payment of dues, the liability to pains and penalties, and the punishment of offences committed on board such ship or by any persons belonging to her, such ship shall be dealt with in the same manner in all respects as if she were a recognised British ship.” Well now, I think—I am taking an extreme case that the ship has never been registered at all, I am not giving my judgment on the view that she was registered and then partially altered, I am taking a bald case of a ship not being registered at all—that the effect of the consequences is pointed out by sect. 106. These are the consequences: namely, that she shall not be entitled to any benefits, privileges, advantages, or protection, usually enjoyed by British ships, and shall not be entitled to use the British flag or assume the British national character, and that because she has not been registered she loses those advantages, and though she loses them there shall be still attached to her all the pains and penalties and punishments for offences as a recognised British ship. I see that is the view taken by a learned writer on shipping—MacLachlan onMerchant Shipping(4th ed.), at p. 96—and it appears to me, though it was not necessary for his judgment, that Brett, L.J., in the Chartered Mercantile Bank of India, London and Chinav.The Netherlands India Steam Navigation Co., Ltd., 10 Q. B. D. 521, takes exactly the same view. It is true that he speaks of a contract outside of the statute, but he is speaking of the statute. He said that it was contended that the ship was not a British ship, and was a Dutch ship because registered in Holland; but he says he does not think the contention has any foundation at all. If the ship is owned by a British subject, that makes it a British ship,and the flying of a flag and the registration, wherever made, are not material. The question is, who is she owned by? The fact that she is not registered deprives her of advantages, and leaves her open to pains and penalties. On that ground alone I am prepared to overrule this point, because this ship, theAlert, was owned by British subjects, and that being so, I feel tolerably clear that she was a British ship, and a British ship within the meaning of sect. 103. I think it absolutely immaterial whether she was registered or not. That is the main ground for my judgment.
There are other grounds which it is difficult for the defendants to get over. For the purpose of saving expense, an interrogatory was delivered to the defendants asking, “Were you at the date of the accident the registered owners of theAlert?” and the defendants on their oaths said “Yes, we were”; and in addition to that there is no doubt about the fact that for years since the alteration of her three masts to one, theAlerthas been going in and out of port and enjoying every advantage as if she were a British ship; and now at a very late stage, and for the purpose of defeating an action, they say we were not. But I do not base my judgment so much on that ground as on the main ground. I think the new trial should take place.
Justice Holroyd: I concur that there should be a new trial. I do not differ, I think, in any respect from the judgment that has been delivered, although I entertained some doubt as to a portion of it, on which my brother Williams has mainly relied. I have doubted whether sects. 18 and 19 of the Merchant Shipping Act, 1854 should not be read together as containing a definition of what should be regarded as a British ship, and whether so reading those two sections, the true construction of them was not that a British ship meant a ship belonging to any of the persons described in sect. 18, and registered under the provision of sect. 19. My doubt, however, is not sufficiently strong to induce me to differ from the judgment just delivered. I think that judgment is supported by a reference to the previous Acts relating to registration, particularly the Act 8 and 9 Vict., c. 88, to which I have just directed my attention. It is called, “An Act for the Encouragementof British Shipping and Navigation,” and it speaks of the conditions which are to attach to a British registered ship, and draws clearly a distinction between a “British registered ship” and a “British ship.” I think that throws some light upon, and gives support to, the judgment of my brother Williams. But, in my opinion, it is too late for the defendants now to turn round and set up this ground at all. For years past the defendants have represented themselves as the owners of a duly registered British ship. They have, by so doing, up to this time avoided payment of the penalties prescribed by sect. 53 of the Act for not informing the registrar that the ship had ceased to be effectually registered, and, of course, they avoided it if the argument maintained by Mr. Schutt is correct. I think still it would be contrary to public policy to allow them to come now and declare that during these years they were not the owners of a duly registered British ship. There is a case which I think supports the view I am taking. It is Tabramv.Freeman, 2 Cr. & M. 451. In that case an attorney, to whom an insolvent was indebted, and who held acognovitas a security for the debt, and who was employed by the insolvent to prepare his schedule, and acted as his attorney in procuring his discharge, agreed with the insolvent to omit the debt out of the schedule, and that thecognovitshould be suspended until after the discharge, and then revived. The insolvent obtained his discharge, and the attorney two years afterwards entered up judgment on thecognovit, and issued execution. The Court, on motion, set aside the judgment and execution, and upon the ground as stated by Gurney, B., at p. 455, that “the plaintiff was the attorney employed by the insolvent, and must be held responsible for the preparation of the schedule. How can he, who prepared the schedule falsely, take advantage of it? It is an act of oppression on the debtor, and a fraud on the law, on the Act, and on the creditors.” The principle of that decision is precisely the same as the principle on which I rely in this case.
Justice A’Beckett: I wish only to add a few words to say that I think that, without the answer to the interrogatory, and without considering the conduct of the defendants,it cannot be said, on the construction of the statutes, that theAlertdoes not come within the meaning of sect. 103, and that her owners do not come within the liability imposed by that section; and in approaching the subject, I think we have first to consider that the Marine Act 1890 is a Victorian statute, and we have to ascertain what was the meaning of that Victorian statute in saying in sect. 98 that the provisions contained in Part VI. of the Act “shall ... apply to all British ships registered or being at any place within Victoria and to no others.” We must find a meaning for these words, and of course may refer to the English Act for the purpose of interpreting them. One thing required is that the ship shall be a British ship registered in Victoria. Primarily, those words would mean a ship of British nationality. TheAlertwas a British ship so far as nationality is concerned, and she was at the time of her wreck registeredde facto; but Mr. Schutt says that, by reason of a defect in her registration, we are not to regard her as duly registered, and that consequently she has ceased to be a British ship. It seems to me, having regard to what Part VI. deals with—viz., “The Safety and Prevention of Accidents,” that, when a particular obligation is cast upon the owner of a registered ship, it would be an altogether unwarrantable construction of that section to read it as equivalent to “duly registered,” in such a way as to allow an owner to escape its provisions by omitting to do something which the English Act required to make a valid registration. He could not, by his own default, put himself in a position to say that he was not registered, by altering his ship after registration and neglecting to register that alteration. I think, having regard to the object of this legislation, that a registrationde factois sufficient to bring a ship within the provisions of sect. 98. If theAlertwas within the section, the only question is whether her owner would be subject to the consequences of not being recognised as the owner of a British ship. What are those consequences? They are defined in sect. 106 of the Merchant Shipping Act 1854, and, as my brother Williams has pointed out, there is nothing in that section to alter the civil liability imposed on the ownerby sect. 103 of the Marine Act 1890. I therefore think, on the words of the Act alone, that the defendants have no case on the point raised.
Justice Williams: This appeal will be allowed, with costs, and there will have to be a new trial before a Judge of this Court.
Appeal allowed. New trial ordered before a Judge of the Supreme Court.