PUBLIC RECORD OFFICE
TUITIT
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C.O. 885
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
PUBLIC RECORD OFFICE, LONDON
No. 79.
Passengers Act. Consul cannot
obtain payment for
passengers sent
back by him, on joint speculation
with the master of
the ship, with a
view to make profit
by the transaction But quære under the special circum stances of the Case
T
84
It is clear, I think, that his position would not have been affected if he had made a similar arrangement with any ordinary individual. But, it is said, the 1 do not captain was guilty of a breach of duty to his employers, the owners. quite see that this is necessarily so. The owners had lost their ship, and could not convey the passengers to their destination. They, too, must have hired or purchased a ship for the purpose; besides, non constat that the captain had funds of theirs for the purpose.
There is reason to think the funds he used were his own.
But assuming
the contrary, and that the captain was guilty of a breach of duty, he would be responsible to his owners; but this does not, as it seems to me, affect the position of the Consul.
The matter appears to me to stand shortly thus: A duty is imposed by the statute on the Consul; that duty he has performed; he is, therefore entitled to remuneration from the Government, and the Government is, therefore, entitled to call upon the owners.
It is immaterial that the Consul found the means of discharging such duty by secking assistance from one whose duty it might have been to convey the passengers for the benefit of the owners, especially as it must be taken as a fact that the captain would not have forwarded the passengers if the Consul had not done so.
Herman Merivale, Esq..
SIR,
&c.
&c.
&c
I have, &c.
(Signed) A. E. COCKBURN.
No. 79.
Cory of a LETTER from the SOLICITOR GENERAL to Mr. Secretary LABOUCHERE.
Lincoln's Inn, September 30, 1856.
I HAD the honour of receiving Mr. Merivale's letter dated the 20th March last, addressed to the Attorney-General and myself, in which, after transmitting an explanatory letter from Her Majesty's Consul at Pernambuco, and the copy of a report on the subject from the Emigration Commissioners, Mr. Merivale states that he is to request that, with the Attorney-General, I would take the papers into consideration, and with reference more especially to the remarks on the four concluding paragraphs of the Commissioners' report would state whether the facts and explanations then furnished led me to modify the opinion of the Attorney-General and myself, of the 13th August, 1855, or, whether, supposing that I still adhered to that opinion, I considered that the items for provisions and stores specified by the Commissioners, and amounting to 5381. Os. Ild, including a charge of 831. 18. Gd., for clothing, can be recovered from Gibbs & Co, notwithstanding that they may not be liable for the passage money.
In compliance with this request, the Attorney-General and myself have frequently considered the subject, and, I regret to say, we do not agree in opinion.
The question appears to me to be a very simple one, and with great deference to my learned colleague, I do not think it at all necessary to enter into any discussion of the propriety of Mr. Cowper's conduct.
The sole question is: have the expenses of forwarding the passengers, together with the cost of their maintenance, necessary bedding, provisions, and stores, become "a debt to Her Majesty, under the 50th section of The Passen- gers Act, 1852.'”
The 49th section enacts that if passengers are in a foreign country, under the circumstances therein described, and the master of the ship shall decline, or omit, within a certain time, to forward or carry them on to their original destination, it shall be lawful for Her Majesty's Consul to forward such passen- gers to their intended destination; and if so forwarded, then by the 50th section the expenses incurred by the Consul, including the maintenance, bedding, provi- sions, and stores, become a debt to the Crown.
In order that any debt-may arise to the Crown, the duty of forwarding the
85
passengers, &c., must, on the refusal, neglect, or inability of the master of the ship, be performed by the Crown's Agent, the Consul.
Now, in the present case, the question is: did the master decline to forward the passengers ? The answer is, that he joined the Consul in purchasing and providing a ship for the purpose. Then, were the passengers forwarded, and all the necessary expenses incurred and defrayed, by the Consul? The answer is, that everything was done, and every expense incurred by, and at the first risk, and on the joint account, and for the joint benefit of, the Consul and the master.
The Passengers Act is not applicable to such a transaction, nor ought to be construed as creating a debt to the Crown for anything but duties strictly fulfilled by the Consul, in his ministerial capacity.
I am, therefore, of opinion that no action ought to be brought by the Crown against Messrs. Gibbs & Co., under the 50th section, except for the expenses incurred under the 48th section. I subjoin a copy of the opinion written by me, and submitted to the Attorney-General, shortly after the receipt of Mr. Merivale's letter, and to which I still adhere, viz.: I do not find anything in the additional papers that alters or affects the opinion expressed in our former report.
We were then, and I am still, of opinion, that as the directions of the Act of Parliament had not been duly observed by the Consul, the charges made and expenses incurred by him and the master jointly, for forwarding the passengers of the ship "Condor" to their destination, had not become, and were not Passen- recoverable as, a debt to Her Majesty, under the 50th section of the " gers Act."
We did not give, and I do not mean to express, any opinion as to the right of the Consul, as an individual, to recover from the owners or charterers of the "Condor" the outlay he has made on their behalf.
The sole question is, whether the demand made by the Consul, or any part of that demand, is a debt to the Crown, recoverable under the 50th section.
The Emigration Commissioners suggest that the objection applies only to the charge for conveyance of the passengers, and not to the charges for their provision, clothing, and medical attendance; but the question recurs, whether, under the 50th section, an action could be maintained in the name of Her Majesty for expenses incidental to the conveyance of passengers, where such conveyance was not made under and in pursuance of the provisions of the
statute.
It appears to me that no such action could be maintained, for I think that the "provisions, bedding, stores, &c.," mentioned in the 50th section, must be taken to mean
"the provisions, stores, &c.," supplied by the Consul to and for the use of passengers conveyed to their destination under and in pursuance of
the statute.
The only remaining item is that of the expenses incurred under the 48th section, namely, the expenses of taking off the passengers from the "Condor," and conveying them to Pernambuco, which appears to have been paid by the Consul to the French Captain.
This item appears to me to admit of being separated from the rest of the demand, and that, under the terms of the 50th section, it may be made the subject of an action, as a debt due to the Crown.
I have, &c.
(Signed)
RICHARD BETHELL.
The Right Hon. H. Labouchere, M.P.,
&c.
&c.
&c.
No. 80.
COPY of a LETTER from the LAW OFFICERS of the CROWN to Lord STANLEY.
MY LORD,
Doctors' Comnions, March 27, 1858.
WE were favoured with your Lordship's commands signified in Mr. Meri vale's letter of the 13th March instant, in which he stated that he was directed
No. 80.
Divarer, power of Colonial Legisin- ture in respect uf.
il
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