SHORT DELIVERY OF GOODS.

Auckland Star, Volume LII, Issue 159, 6 July 1921, Page 2

SHORT DELIVERY OF GOODS.

CLAIM AGAINST SHIPPING COMPANY. POSITION' OF HARBOUR BOARD. U « The responsibility of harbour boards in * respect of goods landed at ports was die- | * cussed in an important judgment de- I n livered by the Court of Appeal at Wei- jl> ling-ton on Monday. The case 'had been t! heard by their Honors Mr. Justice Sim ;t. Mr. Justice Hosking, Mr. Justice Herd- ■c. man, and Mf. Justice Salmond. It was 1 B one in which Charles Lyons had sue- j b ceeded in the Court below, receiving j judgment against the United States and;* , Australia Steamship Company for dam-; a ages for the non-delivery of part of goods I a covered by two bills of lading. In the' Supreme Court it was proved Chat out * of the total consignment 153 bundles did t not come to hand. The appellants in the ." present case contended that the goods"* were duly landed in Wellington, and. v were received into the custody of the' Wellington Harbour Board, as the agent of the consignee, in accordance with thi 1 " bill of lading. The appellants contended they had no liability for any loss or non-delivery of the goods. * His Honor Mr. Justice Salmond held there were two distinct questions for consideration: (I) Were the goods ever I anded on the Wellington Wharf? and;! (2) if so, were they then rrceived by the 7 Wellington Harbour Board, as the agent of the consignee; or was the Harbour ? Board, on the contrary, the agent of -J the shipping company to deliver to the f consyrneo? He was not satisfied that the missing goods were ever landed in Wei- ,\ lington. The goods were landed by a I process known as '"dumping," and "the !, only tally or record was one of the total ' j number of bundles discharged from the j ship; and tliis total number included i, separate consignments for different con- i signees. The shipping company endea- J voured to prove that all the respondent's ] goods, with the exception of-the admitted shortage of 78 bundles, were landed, . by showing that the total number of , bundlrf "anded was only 78 less th.-in the ] total number in the ship's manifest. ; That was not conclusive proof that the . goods of any particular consisnee had i been discharged. The burden of proving i non-delivery, however, lay with the con" , Slgnee. It could not be said in the pre- ' t sent case that the respondent consignee |, had proved that the missing "oods were , not landed on the wharves at Wellington, and all that he had proved was that • there had been no delivery either to 1 himself or to any ag-ent other than the Harbour Board. HARBOUR BOARD'S DUTIES. His Honor dealt with the functions ■ of a harbour board, and said that in . practice the harbour board acted as the . intermediary between the shipowner and , the consignee. It was contended by the appellant that the Harbour Board ' rcecived the cargo at the ship's side as '. the agent of the consignee, and there- . fore that the landing of the cargo at the wharf constituted a delivery, exempting the ship from all further . responsibility for delivery and custody of the goods. His Honor ruled that the company could not rely on the Mercantile Law Act in support of its conten-!. tion that the Harbour Board was the i \ agent of the consignee to accept delivery under the bill of lading, and that there had been no effective delivery to the Harbour Board as the agent of the consignee. The appellant company also contended that the Harbour Board was by the custom of the port constituted the consignee's agent to accept delivery from the ship, and that delivery was therefore complete as soon as the goods had left the ship's slings. He was of opinion that no such custom had been proved, but thought, on the contrary, that the proper inference to be drawn was that the Harbour Board, carrying on business as a wharfinger, was in respect or inward cargo the agent of the sliip to receive cargo from the ship'!, slings, to hold it for the ship, and to deliver it to the consignees on receipt of delivery orders issued by the ship. Conversely, in respect of outward cargo, the board was the agent of the shippers to receive the goods .upon the wharf, and to deliver them to the ship. It was not until delivery orders had been issued in respect of inward cargo that the goods passed out of the ship's possession into that of the consignees. It was not until then that the Harbour Board became the agent of the consignees. OPERATION OF BY-LAWS. His Honor said he could not understand how the by-laws of the port could operate so as to constitute of themselves a relation of agency between the consignees and the board. He added: "I think, therefore, that even if the missing goods were landed on the Wellington wharves the Harbour Board did not become the agent of the consignee until the ship had issued a delivery order in his favour. By that time the goods had disappeared. They were never available for delivery to the consignee under the order." The appellant company, therefore, could not succeed on its plea that it did not deliver the goods to the consignee or his agent. It was, concluded the Judge, for the shipping company to justify the non-delivery by I proving the loss of the goods through some cause for which the company was j not responsible. In the present case there was no evidence as to the fate of the missing goods. The appellant company therefore had established no jus- j tification for their non-delivery, and, must pay for them accordingly- He was of the opinion that the judgment j appealed from ehould be affirmed. OTHER JUDGES' VIEWS. ' His Honor Mr. Justice Sim signified his agreement with Judge Snlmond's opinion. He stated, also, that Mr. Jus- ] tice Herdman had asked him to express j the same view on his behalf. i Mr. Justice Hosking agreed with the view expressed by the oner Judges. "On the evidence," he said, "it appears to mc that the true conclusion is that the respondent's goods were not put on board, rather than that they were delivered on the Wellington wharf. At any rate, the ship has not rebutted the ease for .the consignee. . . . For these reasons I hold that the judgment should be upheld, and the appeal dismissed. - ' Mes-rs- Chapman, Skerrett, Tripp, and Blair appeared for the appellants, and Mr C S. Thomas for the respondent.