Lyttelton-December 10.

Press, Volume XII, Issue 1590, 11 December 1867, Page 3

Lyttelton-December 10.

[Before Wm. Donald, Esq., R.M., Captain F. D. Gibson, and — Hall, Esq., J.P's.] Eox-ahd Another v. Davie—Adjourned for one week. Cobb and Sawtell ». Grubb and Allen—Mr Duncan appeared for plaintiffs, and Mr Cowlishaw for defendants. In opening the case, Mr Duncan called Mr A. F. Gwatkin, who deposed that he was a commission agent in Lyttelton, and acted as agent for Cobb and Sawtell. He was also agent for the Rebecca ievy, being the appointed agent for the Canterbury Coasting Vessels Association, his duty being to procure freights for the vessels belonging to the association. He sometimes paid such freights over to the owners,'sometimes tomasters. Mr Grubb used to attend meetings of the association on behalf of the Rebecca Levy. Mr Cowlishaw objected on the ground that the register must be produced in order to prove Messrs Grubb and Allen owners. ■ Mr Duncan maintained that if ha ccaid prove Messrs Grubb and Allen were owners it was immaterial whether'it was from the ship's register or not. i Examination continued—He had received instructions from Messrs Grubb and Allen, as Owners, to get freights'for T;he. Rebecca Levy, written one, which he "produced, dated June last. [The paper was read, giving instructions for one-third of the freight to be gept back for paid Mr Allen a cheque. Since that he had always settled **with-"theToasteruf "the'vessel. XaaT riionth he entered into an agreement with Mr Sawtell to procure lighters ito deliver coals-at tihe Railway wharf at 8s 6d per ton. The. agreement was verbal. Witness Bdnt the Rebecca .Levy alongside the Hebe (amongst other crafts), to take in : coals. She was loaded with coals, -which' were consigned to Messrs Cobb and Sawtell. The receipt produced is signed by Scarenge, the master, who took the receipts to Cobb and Sawtell himself. The coals were not delivered, i By Mr Cowlishaw—l know this as I received a notice that the vessel had been : wrecked. T nave no knowledge as WthOs'ttttOof the ve>sel, amd had no 1 4nd Allen Or the ihastter Respecting; it. The contract was'made with MrSawtelL I agreed to procure lighters to deliver'the: coals. Some Of the belongiag to the'association Had sfru'ck'off their names, but Scarenge had 'Jot..' 5 " ■'• ;■ •' " j Henry .Sawtell deposed that he was a partner in the firm' of Cobb and Sawtell. They "had a shipment of coals by the Hebe. He with Mr Gwatkin to send the coals round to the Railway wharf at 8s 6d per ton. $0 -mention was made of any—particular barges. Mr Gwatkin was their agent for passing Customs entries, but witness considered he ' doted for the lignterers with respect to the '■ conveyance of-the coals- round. He said he dould obtain lighters. Witness went to him knowing he had command of a certain number of them. Ho' estimated the damages at 31s per ton. The market price in Lyttelton atthe time for the whole amount was £99 4s. j !By Mr Cowlishaw—-I knew Gwatkin had '"'lighters at'his command. He undertook to k . procure vessels and send the ooals round. In the event of breach of contract I should look ': to the owners, -but should *xpecfc to settle for • freight-wrt-brMr- Gwatkin if I did not receive , riotice to the contrary. ;'■ 1 A. F. Gwatkih recalled, said in answer to the • Bench that he had not yet been paid freight. 1 Should expect to be paid by Messrs Cobb and SawtelL He received freights and paid the [ money over to the master after deducting his commission. T. Scarenge deposed that he was master of ; the Rebecca Levy for about six months. Mr 1 Grubb appointed him as master. Mr Gwat-: ■ kin acted as agent, from whom he had reoeived '■, freights. He took two-thirds and the owners ■ one-third. He had to keep two men. He f settled last about two months since. He remembered taking a cargo of coals from the Hebe. The vessel sunk outside the Sumner ' bar. When loading her she sprung a leak. He put into Dampier's Bay, and Mr Allen r repaired it. After he discovered the leak he took in about one ton to put her down by the \ head, the leak being aft. When off the bar, at about four o'clock, the wind sprung up • from south-east, and a heavy long sea was 1 running. The pumps were kept at work all - night, and in the morning, finding they could not keep the water under, they deserted her. i He did not consider the vessel seaworthy in , rough weather. He threw about a ton over- . board to lighten her. He landed in his dingy 1 with his men. > For the defence John Grubb stated that he did not see the vessel before the last trip, but . was on board one month before. She had not been reported leaky to him.

Mr R. AJletf ffiavi'' evidence as Jo repairing theleas, which he considered quite safe. By Mr Duncan—There was no protest noted; the master promised to do so but failed. Several other witnesses were called, who gave evidence as to the state of the vessel. Mr Cowlishaw maintained that the vessel was seaworthy, and asked for judgment. Mr Duncan argued that the vessel was wrecked owing to neglect on the part of defendants in sending her to sea in an unfit state. He argued -thatrthe reason of her being wrecked on this occasion was her being then unfit to go to sea with such a cargo. It appeared the sea could *not have been as heavy as represented, as the men went on shore in a dingy. The Bench gave judgment for defendants, with 57s costs, £3 3s legal expenses, and witnesses 395.