SHIP OWNERS' LIABILITY.

Auckland Star, Volume LIII, Issue 99, 28 April 1922, Page 9

SHIP OWNERS' LIABILITY.

I » A reserved judgment by Mr. J. E. Wilson. S.M., was given by Mr. W. RMcKean, S.M., yesterday afternoon, in a case of considerable interest to the shipping and mercantile community. F. E. Jackson and' Co., Ltd., (Mr. L. P, Leary) sued the Commonwealth and Dominion Line, Ltd. (Mr. R. Bagnall) to obtain recompense for goods alleged ta have been lost in transit. Plaintiffs inp' ported from Antwerp in 1920, 33 caeee of glassware shipped on a through bill of lading to London, and thence to Auckland- That bill was issued acknowledging receipt of the 33 cases in apparent good order and condition. It contained a clause stating that it was iseued eubject to all clauses which might be added in the captain's copy in London, relative to the condition of the goods -when shipped in the "on carrying vessel." Mr. Wilson said ono clause of the bill of lading needed to *<• noticed. That restricted the liability of the defendant to the acte and defaults of its own servants and declared that any claim of the übipper ehall be made only against the carrier or warehousemen in whose actual custody the goods may be when loss or damage occurs. The effect of that clause in this instance would be to throw the liability, if any, on the owners of the vessel handling the goods before receipt on the Port Caroline. Plaintiff contended that, if, the restrictions avoiding liability of the defendant were not unreasonable, they had been waived by the tender of an amount by defendant in payment of the loss sustained, though that tender was not accepted, owing to a clerical error in the particulars on the shortage claimed, and it was afterward* withdrawn when the endorsement on the captain's copy was noticed by defendant. For the defendant it was contended that there wae no waiver, as it had been made without knowledge of the endorsement on the <?apt*iu'« copy; that there was no evidence the iuiesing goods were actually in the case when shipped at Antwerp: that the bill of lading evidenced two contracts for the carriage of the goods, and the clause paramount did not apply to the carriage from Antwerp to London; that the provisions of the Shipping and Seamen's Act 1908 does not apply to a •bill of leading issued outside of Kew Zealand, and that the restrictions on liability contained in the bill of lading are just and reasonable. His Worship held that defendant couM not now deny that the goods were actually shipped. He did not agree with the contention there .were two contracts. The contract was, he considered, the .defendants to carry from Antwerp to Auckland, and he held that the clause paramount wae referable to the whole journey; aleo that the provisions of the Shipping and Seamen's Act 1908 were expressly contracted into the bill of lading and made to apply to the contract. The only question in his opinion wae whether the restrictive clauses were 'just and reasonable. The position taken by the defendants was that, not withstanding their agreement to safely carry the goods from Antwerp to Auckland they were not liable for loss between Antwerp and London. Mr. Wilson held: "In my opinion the limitations of liability contained in the bill of lading on which the defendant relies, are not juet and reasonable, and the plaintiff is entitled to judgment, with coste.