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Friday, 15 September 1911

Senator PEARCE (Western Australia) (Minister of Defence) - - This clause must be considered with clause 348, which we propose to amend so as to read -

The owner or master of a ship shall not be exempt from liability for any loss or damage occasioned by the fault or want of capacity of * pilot by reason of the fact that the employment of the pilot is compulsory.

That will absolutely reverse the effect of the clause as it at present stands. Of course, it will not alter the liability of the pilot up to £100. This clause has been considered by a departmental Committee of the Board of Trade, and the report of the Committee has just reached the Trade and Customs Department. I shall read a few extracts from it to show the way in which they deal with the matter. At page 75 of the report, they say -

A most important effect of compulsory pilotage, and one that has the most far-reaching consequences, is that resulting from section 633 of the Merchant Shipping Act 1894, which enacts that an owner or master of a ship shall not be answerable to any person for any loss or damage occasioned by the fault or the incapacity of any qualified pilot when the employment of a pilot is compulsory by law. It is also provided by section 74 of the Harbors, Docks, and Piers Clauses Act- 1847 (IO Viet., c. 27), which is incorporated in many local Acts, that the owner of a ship which damages the harbor, docks, piers, quays, or works, shall be answerable to the " undertakers " for the' damage done by such ship, or by any person employed about her. This section enlarges the common law liability of the shipowner, as its effect is to make him liable for the acts of a wrongdoer, whether the latter is or is not his servant, except in the one case where thewrongdoer is a compulsory pilot, for the section goes on to say " provided always that nothing herein contained shall extend to impose any liability for any such damage upon the owner of any vessel, whether such vessel shall at the time when such damage is caused be in charge of n duly licensed pilot whom such owner or master is bound by law to employ and put his vessel in charge of." It is difficult to exaggerate the hardships inflicted by these sections on innocent persons whose property nas received damage from a vessel in charge of a compulsory pilot. Evidence to this effect has been given before us by ship, wharf, and barge owners, which confirms the evidence given at previous inquiries; and, in fact, the hardship and injustice inflicted by this law to persons whose property is damaged is so universally admitted as to make it. quite unnecessary to multiply evidence on this point.

After dealing with the matter in a somewhat comprehensive way, they say -

We cannot help thinking that the state of the law as it at present affects the master is extremely unsatisfactory.'

They are dealing there with the fact of the ship being practically in charge of the pilot, although the master is still on board. Dealing with the question as it affects the pilots, they say -

It has been brought to our notice that it frequently happens that when the owner of a ship or a wharf which has been damaged .by the faulty navigation of a ship is unable to recover from the owner of that ship, he seeks to recover what he can from the pilot. Our attention has been called to -cases where the pilots have in consequence been made bankrupt.

Then they go on to show how the law enables pilots to meet these cases by giving a bond to the amount of his liability, and they say -

If the pilot is negligent his licence can always be dealt with by his pilotage authorities, and it is, in our opinion, wrong in principle that pilots should have in addition to the responsibility of their danger a financial ruin just because the profession which they follow entails the handling of property of great value.

Senator Chataway - Is no mention made of damage to passengers or seamen ?

Senator PEARCE - Not in this section. To continue the quotation -

The fact that owners of property should have been driven to look to pilots for damage done to a ship or wharf emphasizes the unsatisfactory state of affairs produced by the present state of the law.

We recommend that at all ports the pilotage authorities should have power to make by-laws requiring the pilots to give a bond, and that when such a bond is, given the liability of the pilot shall be limited to that amount, together with the amount of pilotage payable in respect of the vessel. A by-law of this nature should not be made unless it is desired by a majority of the pilots at the port.

Progress reported.

Senate adjourned at 4.2 p.m.

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