Mr. Schutt: There is nothing to show that we went out.
Mr. Justice Williams observed that if a new trial were allowed, the evidence would doubtless be forthcoming.
Mr. Schutt submitted that, as against Ponting, the defendants were perfectly entitled to raise the defence.
Mr. Justice Holroyd: Why? Because he nearly lost his life?
Mr. Schutt: No; because no representation was made to him that the vessel was a British ship.
Mr. Justice Holroyd: It is contrary to public policy that you should be allowed to say such a thing. I don’t care a straw what Ponting knew. Here you have taken advantage of the privileges afforded by the Imperial Legislature to our colony for years, to obtain certain advantages which would not otherwise have been conceded. You have sailed out and come into port under false pretences, and now you ask to escape from the liability imposed on you by the Act of our Parliament, on the ground that the vessel was never duly registered at all. It seems to me that is directly contrary to public policy, and a fraud on the statutes.
Mr. Schutt: It is not a fraud; no one knew it.
Mr. Justice Holroyd: It fortunate for you no one did know it, or you would have been fined £100 over and over again.
Mr. Justice Williams said that, although the Court had ordered a new trial on one ground, it had been urged that the new trial would be fruitless, as it could not be shown that the vessel was a British ship. It was said that the vessel was not a British ship unless owned by British subjects, and registered in the manner prescribed by the Merchant Shipping Act. The point had been ably argued by Mr. Schutt, and with great ingenuity; but he (his Honour) could not agree with him.
Mr. Schutt in reply.—The answer to interrogatories referred to stated as a matter of fact what was really a question of law, which the defendants were not bound to know. There was also no obligation on the defendants to re-register, and therefore they should not be estopped from raising this defence. They might be liable to certain penalties. A leading text-book says that a British ship means a ship which is registered and owned by British owners: Maude and Pollock on Merchant Shipping (3rd ed.), pp. 1, 2.