Day v Yates [1931] HCA 5

Dixon and McTiernan JJ.

HIGH COURT (19.

[HIGH COURT OF AUSTRALIA.]

DEFENDANT, AND YATES . 3 t 5 2 3 2 2 . RESPONDENT. TnFoRMANT,

Shipping—Attempting to take vessel to sea with insufficient crew—U1 members of crew not re-engaged—' Calls" made at recognized " pick-up" place —Only discharged members offer services—Not accepted—Embargo by Reasonable efforts to obtain full complement—Engine-room staf}—Firemen trimmers—Conviction—Prohibition—Navigation Act 1912-1926 (No. 4 of 1s —No. 8 of 1926), secs. 43, 44.

Sec. 44 of the Navigation Act 1912-1926 provides, by sub-sec. 1, that "The owner of a ship to which the last preceding section applies shall not suffer her to go to sea and the master shall not take her to sea without carrying the crew prescribed or specified in the last preceding section. Penalty : hundred pounds" ; and, by sub-sec. 2, that "If a ship proceeds to sea being short in her crew of not more than one-fifth of her engine-room staff, or one+

of her deck complement, the master or owner shall not be liable under this _ section if ay is proved that the breach was not occasioned through any fault of his own." 5

Held, (1) that the excuse contained in sub-sec. 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, and (2) that firemen and trimmers form — part of a ship's engine-room staff within the meaning of the sub-section.

OrbER NIsI for prohibition.

An information was laid by Robert Walter Yates against Percival — Henning Day under the provisions of the Commonwealth Crimes — Act 1914-1926, sec. 7, and the Navigation Act 1912-1926, sec. 44 (1). The information alleged that Day, on 8th November 1930, at Sydney _

45 C.L.R.) OF AUSTRALIA,