Day v Yates [1931] HCA 5; (1931) 45 CLR 32 (31 March 1931)

HIGH COURT OF AUSTRALIA

Day Defendant, Applicant; and Yates Informant, Respondent.

H C of A

31 March 1931

Gavan Duffy C.J., Rich, Starke, Dixon and McTiernan JJ.

E. M. Mitchell K.C. (with him F. P. Evans), for the applicant.

H. E. Manning K.C. (with him C. Evatt), for the respondent.

E. M. Mitchell K.C., in reply.

The Court delivered the following judgment:—

Gavan Duffy C.J.,

Rich, Starke, Dixon and McTiernan JJ.

We think that the conviction cannot be supported.

The Magistrate appears to have adopted one or other or both of two contentions of the informant's counsel, namely, (1) that because the master knew that the engine-room staff was deficient when he attempted to go to sea, the breach of sec. 44 (1) of the Navigation Act 1912-1926 was necessarily occasioned by the master's own fault, and (2) that firemen and trimmers are not part of the engine-room staff within the meaning of sec. 44 (2). We think both these contentions are wrong. The proviso expressed in sec. 44 (2), in our opinion, refers to fault in allowing the crew to be insufficient in number when the vessel sails. By conceding a deficiency of one-fifth of the full complement, the provision assumes that the vessel sails, and concerns itself with the question how it comes about that the crew is deficient in number. If the deficiency does not arise from the fault of the master or of the owner, as the case may be, the defendant is absolved. We think the excuse contained in sec. 44 (2) is established when it is proved that the defendant honestly endeavoured to obtain a full crew and that his failure to do so did not arise from his omission to do something which he reasonably ought to have done.

Upon the facts of this case, we think the master honestly desired to obtain a full complement and took every reasonable step to do so. He did not act unreasonably in refusing to reinstate two men whose services he had found unsatisfactory and dispensed with. In the circumstances of the case he was not, in our opinion, compelled to respond to the pressure put upon him to take them back upon the ship's articles.

Appeal allowed. Rule nisi for prohibition made absolute with costs.

Solicitors for the applicant, Ebsworth & Ebsworth.

Solicitor for the respondent, W. H. Sharwood, Commonwealth Crown Solicitor.