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Thursday, 14 September 1911

Senator PEARCE (Western AustraliaMinister of Defence) . - At the first glance there seems to be something in Senator Millen's contention. But it must be remembered that the pilots will be Government servants. It may be argued that we are dealing with this particular class of public servants differently from any other class, inasmuch as we are making them liable to the extent of £100. The reason for rendering a pilot liable to this extent is that he is placed in a position of such responsibility that it is necessary to make him feel that he must exercise especial care. As Senator Millen has observed, however, even if the pilot were made liable for the whole of the damage that might be done, it is practically a certainty that no one would be able to recover against him, because he would not be a man of sufficient substance. Nor do I think it could be argued that the Commonwealth should be liable in such a case.

Senator Millen - The pilot would be a Commonwealth servant.

Senator PEARCE - The Commonwealth supplies the owner of the vessel with assistance to carry out his business. But the Commonwealth, in this respect, is not a common carrier, as the States are in connexion with their railways, and as the Commonwealth itself would be if it owned ships. Not only, however, is the pilot made liable up to £100, but there is a further deterrent in clause 350, under which, if any accident occurs by reason of the neglect or drunkenness or wilful breach of rules of the pilot, he becomes guilty of an indictable offence. Therefore, we place very serious obligations upon the pilot. What, however, is to be the position of those who wish to recover damages? I admit that the position is not a very hopeful one. But in this we are simply following the practice of other countries'. The marginal note to clause 348 refers to section 633 of the British Merchant Shipping Act of 1894, which reads as follows -

An owner or master of a ship shall not be liable to any person whatever for any loss or damage occasioned by the fault or incapacity of any qualified pilot acting in charge of that ship within any district where the employment of a qualified pilot is compulsory by law.

Quite a number of decisions have been given under that section in the English Courts. It has been held that where there is contributory negligence on the part of the master of a ship, he does not escape from the ordinary consequences if a claim for damages be made.

Senator Millen - If my memory serves me rightly, the general tenor of the decisions is to support my .argument - that there would be a. period when nobody would be liable.

Senator PEARCE - I think so. But if there were negligence on the part of the master or owner, he would still be liable, according to the cases quoted in the textbook on the British Merchant Shipping Act which I have before me. We took this clause from the Merchant Shipping Act, where, also, there is a similar section which exempts the pilot. It provides that -

A qualified pilot appointed by the Trinity House, who has executed a bond under this part of this Act, shall not be liable for neglect or want of skill beyond the penalty of the bond and the amount payable to him on account of pilotage in respect of the voyage.

We are, therefore, following established precedent. We have to decide whether we ought to make the Commonwealth liable for neglect or want of skill on the part of the pilot. I say that we ought not to do so, because the Commonwealth is not acting as a common carrier. Ought we to make the master of the vessel liable? Certainly not, because 'the moment the pilot boards a ship the control of that vessel passes from the captain to him. Nor do I think we can make the pilot liable for any damage which may be occasioned by his neglect or lack of skill to a greater extent than £100, for the simple reason that he would probably not be a man of substance. I admit that this is not a very satisfactory solution of the problem with which we are faced, but I contend that no other solution would be more satisfactory.

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