1884 HANSON V. NEWCASTLE STEAM NAVIGATION Cor. described; for the gangway being placed there as the means of access to all persons having business on board the ship, it amounts to an invitation to persons having business on board the ship to go upon it, as was held in respect to the record in Corby v. Hill. The case, then, comes within the principle that persons inviting others on to their premises are answerable for anything in the nature of a trap." It must be taken into consideration that a ship is not exactly like a house, in this respect, that the ship, while in port, is in a great measure the home of all persons employed in it, and at sea it is wholly the home of the captain, officers, and sailors comprising the crew. It is where they ordinarily reside. Some of them may be husbands, some of them may be parents, some of them may be the children of people residing at the ports they visit. These people, although some of them may occupy a somewhat humble position, have a right to communicate with their relations. The staging is put up by the ship-owners for the purpose of affording a mode of communication between the ship and the shore for all persons having lawful occasion to go on board. There is nothing unlawful for the relations of any person on board to go there in order to see him, or for any other lawful purpose, no matter how humble, except mere curiosity. Here the daughter goes on board the vessel to see a sailor who was in the habit of carrying parcels between her mother in Newcastle and her sister in Sydney. That was a lawful object. There is no evidence that any notification was put up that the seamen were not to have persons going on board to make inquiries, or warning people that after sundown the gangway was not to be used. The fact that the gangway was left there is equivalent to an announcement to persons having a lawful occasion to go on board the vessel that such gangway was in a safe state for them to use it. It is not enough to say that no previous case has gone the length of this. The principle of the decision in Smith v. The London and St. Katharine Dock Coy. (4) and the principle on which this Court decided the case of Trice v. The Clarence and Richmond River S. N. Coy. (5) is sufficient to support the ruling of the Court in the present case. The female plaintiff in this case went on board this vessel on lawful business; she went there to make inquiries as to a business matter between her mother and a seaman on board. She cannot therefore be put on the category of volunteers; and the defendants are liable for the accident, which happened through their negligence. 1884 HANSON v. NEWCASTLE STEAM NAVIGATION Coy. WINDEYER, J. I am of the same opinion. It appears to me Windeyer, J. that the staging was placed by the defendant, as a means of access to all persons going on board this vessel. The placing of it there amounted to an invitation to persons having business on board to make use of such staging. Any person using it in this way on the invitation of the defendants, about lawful business, would have a right of action against the company if, through any negligence on their part, it got out of order and caused injury to the person so using it. Mr. Stephen's argument amounted to this:-That the defendants would not be liable unless the plaintiff went on board on some business in which the owners of the ship were interested. I cannot adopt this argument. If it is once conceded that the principle laid down by Mr. Stephen is wrong, then the question arises whether the plaintiff was there on some lawful business, as Mr. Justice Byles says:-"These persons going out of the ship, whether passengers or crew, would have a right to safe egress, and I think that the same rule would apply to all persons coming to the vessel upon any lawful business." I am of opinion that the plaintiff went on board the ship on lawful business, and that being so, the defendants are liable in this action. SIR G. INNES, J. On the whole I concur in the judgments pronounced by their Honours, but with very considerable doubt, because it seems to me that this case carries the doctrine of the liability on the part of a shipowner for accidents happening to persons going on board his vessel further than any case which I have had the opportunity of seeing. It certainly goes further than Trice v. The Clarence and Richmond River S. N. Coy. (6), in which there was no question whatever that it was legitimate (6) L.R. 3 C.P. 326. Innes, J. 1884 HANSON บ. NEWCASTLE STEAM NAVIGATION Coy. business, in the ordinary acceptation of the phrase, which sent the plaintiff on board the defendants' vessel. He went there, as the Court pointed out, having clearly business to do which entitled him to go on board, and business in respect of which the defendants themselves had an interest, because he went there carrying the luggage of a passenger who had a contract with the company to carry her, and who was paying the company a consideration for their services. This present case, however, appears to me somewhat different from Trice v. The Clarence and Richmond River S. N. Coy. (7). I only concur in the judgment of their Honours on the ground stated by His Honour the Chief Justice at the conclusion of his judgment, that the plaintiff went on board the ship on a matter of business. I should hesitate very much to say that where a person goes on board merely on a lawful occasion, such a state of facts would create a duty on the part of the owners of the vessel which would make them liable in a case like this. For example, take the common case referred to in Trice v. The Clarence and Richmond River S. N. Coy. (7), where persons go on board coasting steamers for the simple purpose of drinking brandy and soda or whisky, to the great nuisance and manifest discomfort of persons having legitimate business there. These persons are on board on a lawful occasion, and yet I should be very reluctant to hold that their mere presence without any business occasioning such presence would raise a duty on the part of the owners of the vessel which would make them liable in an action like this. To this I have the assent of His Honour the Chief Justice, and he concurs with me in saying that there was no intention on his part that this decision should go to such a length. This case resembles somewhat the case of a creditor going on board of a vessel to demand payment from his debtor, or to make some arrangement with him for the liquidation of his debt. This would not be business in which the defendants, as owners of the vessel, would have any interest. The decision in Smith v. The London and St. Katharine Docks Coy. (8) would seem to that that consideration would make no difference. I have very considerable doubts as to the case now before us, which have not been (8) L.R. 3 C.P. 326. (7) Ante p. 137. say 1884 V. entirely removed. I can only say, in the words of Mr. Justice Keating, "I cannot say that my doubts have been altogether HANSON removed, and I shall only say that I do not feel sufficiently NEWCASTLE strong to dissent formally from the judgments of My Lord and my Brother Byles, and I therefore concur." Appeal dismissed, with costs. Attorney for plaintiff: R. W. Thompson, by W. M. Thompson. STEAM NAVIGATION COY. FORDYCE v. WORMALL. Nov. 17 Commons-Dedication under 25 Vic. No. 1, s. 5, and 25 Vic. No. 2, s. 29.-Appointment of Trustees under Commons Act (36 Vic. No. 23), secs. 2, 3 and 4— Martin, C.J., Common vested by proclamation in municipality-Power of council to make bye-laws Windeyer, J. -Municipalities Act (31 Vic. No. 12), secs. 153, 156. Secs. 153 and 156 of the Municipalities Act (31 Vic. No. 12) authorise municipal councils to make by-laws regulating commons. By secs. 2, 3, and 4 of the Commons Act (36 Vic. No. 23) provision is made for the appointment of trustees of commons, who, it is declared, shall be a body corporate with perpetual succession and a common seal. Held, that so much of the sections of the Municipalities Act as confer power on the council to regulate commons is repealed by the later enactment in the Commons Act. In 1877, trustees of the Bourke common (which had been previously reserved and dedicated under the "Crown Lands Alienation and Occupation Acts of 1861") were appointed under sec. 3 of the Commons Acts of 1873. In 1878 the Bourke municipality was proclaimed, with boundaries including the lands dedicated as a common. In 1879, a proclamation was made purporting to vest the common in the Bourke municipality, and the council of that municipality made by-laws for its regulation. Held, on appeal from the decision of a magistrate dismissing an information by the mayor of the municipality for a breach of the by-laws, that the council had no power to make such by-laws, as the proclamation of 1879, vesting the common in the municipality, was ultra vires, the common then being vested in the trustees previously appointed under the Commons Act and constituted by that Act a corporation having perpetual succession. APPEAL from the decision of Mr. Grant, P.M., of Bourke, dismissing an information by the mayor of the Bourke municipality against the defendant, for a breach of the council's by-laws, by and Innes, J. 1884 depasturing sheep on the Bourke common without having first FORDYCE registered the same. V. WORMALL. The facts material to the points argued were as follow: In 1871 the Bourke common was reserved and dedicated under The Crown Lands Alienation Act (25 Vic. No. 1), s. 5, and The Crown Lands Occupation Act (25 Vic. No. 2), s. 29. On 25th April, 1873, The Commons Act (36 Vic. No. 23) came into operation. On 22nd January, 1877, five trustees were elected and proclaimed under sec. 3 of The Commons Act (1). On 4th July, 1878, the Bourke municipality was proclaimed, with boundaries including the land then dedicated as a common. On 23rd September, 1879, by proclamation, the common was vested in the municipality of Bourke. On 18th January, 1881, the municipality, purporting to act under powers conferred by sec. 156 of The Municipalities Act (2), made the by-laws in question for the regulation of the common. Since the appointment of the five original trustees, no new trustees have been appointed. At the hearing in the Police Court, the attorney for the defendant took the objection that the information disclosed no offence. The police magistrate upheld the objection, but stated a case for (1) 36 Vic. No. 23, sec. 2, enacts"Before any general election of trustees under this Act shall have taken place, any trustees who may have been appointed by the Governor for the time being with the advice of the Executive Council, or who may hereafter be appointed in like manner, and their successors duly elected as hereinafter is provided, shall be a body corporate, under the name of the trustees of the common specified in any grant or dedication, and under that name shall have perpetual succession, and a common seal, and may sue and be sued in their corporate name in relation to the said common, and shall be capable of holding such common in perpetuity, upon the trusts and for the uses declared in such grant or such dedication.”—1 Ol. Stat. 255. Sec. 3. -" From and after the passing of this Act the first general election of new trustees for every common shall take place, &c. And not more than five Sec. 4.-"Trustees so elected or nominated shall . . hold office as trustees of such common until the next general election of trustees; and every such trustee shall be eligible for re-election at the next general election of trustees for every common, which shall take place in the month of January at the expiration of every three years. ."-ib. (2) 31 Vic. No. 12, sec. 153, enacts -"The council of any municipality may from time to time make by-laws for the following purposes general controlling and managing public reserves Sec. 156.-"The council may also make by-laws for regulating the rights and privileges to be enjoyed by the inhabitants of any municipality over any common or reserve already or hereafter set apart or dedicated for the use of such inhabitants."--2 Ol. Stat. 1521-2. |