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Wednesday, 4 October 1911
Page: 1008

Senator PEARCE (Western AustraliaMinister of Defence) (Minister for Defence) . - This clause and the following one deal with the question of who shall be made liable in the event of a ship which is in charge of a pilot meeting with an accident and damage being done to property. The Bill iri its present form practically makes nobody liable. That is to say, the pilot is made liable only to the extent of .£100. The Government are not made liable, and clause 348 sets out that -

The owner or master of a ship shall not be answerable, to any person whatever -for any loss or damage occasioned by the fault or want of capacity of a pilot when the employment of a pilot is compulsory.

When this clause was last under considers^ tion it was pointed out by the Leader of the Opposition that the condition of affairs was entirely unsatisfactory and that somebody ought to be made liable. Just at the time we were discussing the question the Government received f rom the Board of Trade a memorandum in which that body dealt with this very subject. It had been referred to a Committee of that body, and that .Committee has dealt with this same difficulty which arises under the Merchant Shipping Act. The consensus of opinion of the Committee was that the shipowner should be made liable. The Committee point out that, whilst the pilotage is compulsory, yet in cases where it is patent to the master of a vessel that the pilot is either negligent or in such a condition that he is not able safely to navigate the ship, the master would be justified in breaking the law by taking charge of the vessel himself. In other words, his action would be justifiable if the pilot were incapacitated, either as the result of drink or from any other cause. The question of the culpability of the master in breaking the law in respect of compulsory pilotage would be one of fact, upon which the former would be entitled to call evidence. Senator Millen. - It might be largely a question of opinion.

Senator PEARCE - It is quite obvious that in ordinary circumstances the master of a vessel would not be justified in' taking charge .of it by simply saying, ."In my opinion this pilot is not competent." But "there are circumstances, such as drunkenness, or. some other physical infirmity, which may render a pilot unfitted to navigate a ship. The Committee of the Board of Trade point out that it is very difficult to determine where to. lay this liability for neglect on the part of a pilot. But obviously it would hot be right to lay it upon the community. Nor would .it be right to relieve the owner or master of any liability that they may incur as common carriers. After perusing the Departmental Committee's report, the Government have decided to lay this liability upon the shipowners. In order to accomplish that - as the Chairman has permitted us to deal with this clause and the following one together - I propose to ask the Committee to agree to. clause 347 without amendment. Senator Millen. - Did the Board of Trade Committee make a specific recommendation? . .

Senator PEARCE - No.

Senator Millen - They merely point out the facts ?

Senator PEARCE - Exactly. On the last occasion that we discussed this clause, I quoted a number of extracts from the Committee's report, and the bulk of them pointed to the desirableness of making the owners of vessels liable. Then, in clause 348, I intend to ask the Committee to leave out the words " answerable to any person whatever," with a view to inserting in lieu thereof the words "exempt from liability," and to ask the Committee to leave out the word " when" with a view to inserting in lieu thereof the words " by reason of the fact that." I quite admit that the amendments which I have indicated seem to inflict a hardship upon shipowners. We place a pilot on board a shipowner's vessel,, we give him absolute control over it, and yet if an accident occurs, we propose to make the owner liable for compensation.

Senator Vardon - The Minister proposes to include the master too?

Senator PEARCE - Yes.

Senator Vardon - He may not be the owner of the vessel.

Senator PEARCE - No; but we may not be able to get at the owner. The master is therefore included as the representative of his employer. Senator Walker. - What authority certifies that a pilot is properly qualified?

Senator PEARCE - This Bill authorizes the pilot to take charge of a vessel.

Senator Walker - Who appoints the pilot, and certifies that he possesses the requisite qualifications ?

Senator PEARCE - The Commonwealth Government. Under this Bill there are provisions by which a pilot, is subjected to supervision with a view to insuring that he is efficient. But this clause deals with cases in which pilots may suddenly become inefficient by reason of drunkenness or some other physical infirmity. There is no doubt that, in ordinary circumstances, pilots will be able effectively to discharge their duties. But there may be occasions upon which, through carelessness, negligence, or inability, they may bring about an accident. In all the circumstances, we think that the best thing to do is to maintain the liability of the owners of vessels. The Committee of the Board of Trade point out that even :if the Merchant "Shipping Act were silent upon this point of liability, it would be -open to any person who had goods carried on board a vessel to recover damages for the loss of those goods, in case of accident, under the common law. I should think that that would be the case. In the Bill as it stands, there is an express prohibition which I think would set aside the common law on the subject. As I have said, I shall ask the Committee to pass this clause as it stands, and I shall then propose the amendment of clause 348 in the way I have indicated.

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