Zealand passed an ordinance containing the following provi sions : 66 "§ 17. Be it enacted that from and after the 1st day of July next, there shall be raised, collected, and paid unto Her Majesty, for the public use of the said colony, upon goods, wares, and merchandizes imported into the Colony of New Zealand, the amount of duties of Customs, as the same are respectively marked, described, and set forth in figures in the table annexed." In that table five shillings is declared to be payable upon every gallon of spirits. By § 18, after reciting as follows, "Whereas in and by a certain Act of the Governor and Council of New South Wales, made and passed in the fourth year of Her Majesty's reign, intituled 'An Act to regulate the payment of the duties of Customs in Her Majesty's dominions in the Island of New Zealand, and which has been adopted and is intended still to be in force within the said Colony of New Zealand,' it is provided, etc.," certain amendments are made, not material to this case, and the section concludes thus, "And the said Act, in all other respects, is and shall be in force within the said Colony of New Zealand and its dependencies." The goods of Messrs. Rogers, therefore, being in the island subsequent to the 14th July, 1841, without having paid duty, were, under the 8th section of the said Act of New South Wales, 4th Victoria, No. 19, liable to forfeiture; and the placing the goods in the Government warehouse after that date, which is represented as a grievance, instead of confiscating them, appears to me to have been an indul gence which there is no reason to suppose would have been accorded to a British subject. The instances which have been collected of other spirits having been landed in New Zealand without payment of duty prior to the 1st of July, 1840, have no bearing on the question, because it will be seen that by the law then in force it was not necessary to pay the duty on them immediately; it was only necessary that a licence should be obtained for their importation or sale, and the duty would only be payable after the 14th of July, 1841. Unless, therefore, it could be shown that any spirits found in the colony after the 14th July were not subjected to duty, no proof would be supplied that the law was unequally applied to the claimants' property. On the other hand, we have the positive statement of Governor Hobson and the Collector, that the law was impartially applied to British subjects, as well as the claimants. The third proposition, that the law was enforced against the claimants before it came into operation, is also disposed of, inasmuch as the laws of New South Wales of 18th June, 1840, 13th October, 1840 (rendered specially applicable to New Zealand), and that of New Zealand of 17th June, 1841, were continuous in their operation, and made provision with reference to all spirits imported into the colony from a time long anterior to the first importation of Messrs. Rogers down to the time when the duty was levied upon their goods. The fifth proposition, that the goods were imported before the territory was within the jurisdiction of the Government imposing the duty, is also shown to be without foundation, inasmuch as the Islands of New Zealand, immediately on their cession, became dependencies of the Colony of New South Wales by virtue of the sovereign Act of the Crown of the 15th June, 1839. It is also shown that, even if it could be admitted, which it certainly cannot, that the payment of duty could not legally be required in respect of goods which had passed into the hands of the consignee without payment of the proper duty, such an admission would have no bearing on the present case, since the law of 13th October, 1840, did not require the duty to be paid until after the 1st of July. The proposition also, that the British dominion was not complete till ratification by the English Crown of the cession of sovereignty, is met by showing that the cession was accepted by Governor Hobson and Sir G. Gipps, in pursuance of instructions previously given by Her Majesty; at the same time it cannot be doubted that, according to the well-known maxim of law, a subsequent ratification would have given equal validity to the Acts of the Colonial Government, even if there had been no previous authority for them. It is, however, possible, and perhaps it is also to be considered probable, that the first two cargoes were shipped without knowledge of the assumption of the sovereignty of the Islands of Great Britain, and certainly without knowledge of the laws of the 16th of June. The claim, therefore, so far as regards the first two cargoes, is evidently one on the indulgence and sense of equity in the British Government, and in that character I feel inclined to give it a favourable consideration. The next matter, therefore, to be considered is the amount of compensation to which the claimants may appear to be entitled. Now, the obvious rule, as it appears to me, to be adopted in awarding compensation as a matter of indulgence is, that the party should not be compensated for the loss of profits, but be simply held harmless from positive loss; in other words, rendering this rule applicable to the circumstances of the present case, be put in the position of not having sent the cargoes, which the claimants may be held as not likely to have done had they known of the tariff charges. In fairness, however, the claimants cannot be said to be entitled to compensation for leakage or for cost of storeage in the Government store, inasmuch as it is PROVED beyond all doubt that the leakage was occasioned by the removal to the Government stores, rendered necessary by Mr. Mayhew's surety having given notice to the Government to cancel his bond. Until that time the Government had allowed the rum to remain in bond in Mr. Mayhew's own stores; and it thus appears to have been his conduct in the matter which necessitated their removal and consequent damage. So far as facts are concerned, it appears from Mr. Davis' statement, that the rum was bought in Boston at less than 1s. 2d. a gallon, and it was actually sold for 1s. 6d. in New Zealand, showing a profit, exclusive of freight and charges, of 4d. a gallon. If then the freight of rum per gallon from The R United States to New Zealand in 1840 did not exceed 4d. a gallon (and from inquiries I have made it does not appear that the freight would exceed this sum), the claimants have suffered no loss at all, as, for the reasons I have alleged, they cannot claim as for loss by leakage caused in the removal to the Government stores, or expense of storeage there. From the gross amount also of gallons imported, 1,823 gallons have to be deducted as leakage, unavoidably occasioned by this removal. If then, on the residue of 16,8224 gallons the freight and charges can be properly said to have exceeded 4d. a gallon, I am willing, as a matter of indulgence, believing the decision to be in accordance with that spirit of justice and equity contemplated by the two Governments, to allow the claimants the excess amount of freight and charges over and above that sum. As my colleague differs from me, and seems to think that the result, on this calculation, will not be sufficiently favourable to the claimants, the case must go to the umpire. So far, however, as I am concerned, if the umpire should, from his experience and knowledge, declare the freight in 1840 to have exceeded 4d. a gallon, I think they should be compensated to the extent of this excess; but if, on the other hand, the freight and charges did not exceed the sum of 4d. a gallon, which I believe will be found to be the fact, then it is clear, beyond all dispute upon the figures, that the claimants have not suffered any loss for which the British Government can, with any pretence of justice, be made answerable. The American Commissioner did not deliver any judgment in this case, but simply dissented from the view taken of it by the British Commissioner. |