SUPREME COURT-CIVIL SITTINGS. This Day.

Evening Post, Volume XXI, Issue 13, 17 January 1881, Page 2

SUPREME COURT-CIVIL SITTINGS. This Day.

[Before his Honor the Chief Justice.]

chaß. holmwood v. mcbcantile mablne and Eire Insurance Company*. The following special jury were empanelled : Messrs. E. Gardner (foreman), Win. James, J. J. Casey, E. White, L. Blundell, C. W. Smith, J. L. Moffitt; J. Helloy, H. C. Wilson, T. Whitehouse, Wm. Dawson, and A. F. Hislop. Mr. Connolly, and with him the Hon. P. A. Buckleyi appeared for tho plaintiff; and Mr. W. T. L. Travers, and with him Mr. 8011, for tho defence. „ A Mr. Connolly opened tha one jßtr the plaintiff at considerable' letiphl -fid- said the case arose out of t&e loss' ,~oT t"WP Bhip Hydrabad, about 2 J years ajr6j' St'fiorowhenua, between Otaki pp&fosfyn.:: The claim was stated in several .diffwroiit ways, one count being for a,#eh6r*l'a^«rSke, a second for work and labour', "end a third for moneys expended. TM ctfcumstances of the case were fheie ! ! a -041 the 22nd June, 1876, the Hydrabadj * Vessel of 1350 tons, sailed from LyttSlWn' 'with a cargo of railway material Tor '* Adelaide, the New Zealand ' Go'verffment having sold the material. whi6h" 8 was valued at .£25,000, to the J Gfovietlfmont of South Australia. The carg<rw&B Injured for that Bum, .£6250 being in th6Marine~offioe of South Australia. On tho 24tttortlfejronth Captain Holmwood, finding that Hisfvessel was being driven ashore on the West Coast, and that his anchors did not hold, set sail and drove her bow on a sandy' beachtfl Tbe crew and passengers wereJanded the follow* ing morning, but most of the former refused to return to the. .«hip.\,TTho captain had a double duty Ttor , perform in this case, namely, to look after the interests of the owners of the ship; and the interests of the quasi-owner3 of tho cargo. He at once communicated with tho persons representing the insurers herev and they communicated with the South Australian Government, who at once abandoned the cargo to the insurers, who from that time forth (Mr. Connolly contended) "• nufslk bo looked upon as tho owners of thfeWcargo. When Mr. Simpson, representing the underwriters, visited the wreck two days afterward, it was arranged that -the captain should do the best he could for the cargo until hd should hear from the proper authorities what was to bo done The vessel was found to be making 6in of 'water per day, and it was necessary to keep tho pumps going to prevent the dettrucUun of the cargo. The captain procured a number of landsmen tc work at the pumps, and they were kept going for a period of about two months. The captain employed the men, acting in the interests of the insttrers, and with the full approval of Captain Gibbon, who visited the wreck on the 4tn Afcust. The report ot Captains Scott and fiJndall, who had also visited the vessel, showed that the ship did not appear to be in any danger. Mr. Connolly apprehended that the contention of the defendants would be, that what Captain Holmwood had done was done for the sake of the ship, but the jury would Bee the facts did not bear that out. The ship did not require pumping out until the car>;o should have been-rlitoved and a favorable opportunity presented itself of floating her off. Ihe water would have kept the vessel steady and less exposed to danger. Although no claim was made for the Bhip, he would be able to show in evidence that the destruction of the ship was solely caused bj the efforts made to save the cargo. Eventually tenders were called for, for floating the Bhip and to_,Bave the cargo, and an offer was made- to do -It in three months for J610.000, but the underwriters' surveyor eaid he could do it for £8000, and the tender was not accepted. The expenditure of the defendants had b- en most foolish and reckless. It wftjplhcn arranged that a person nam« I Boss should get the cargo put upon the beach, whence a second party would convey it to Foxton, to be taken from there to Adelaide. Boss

had the use of the ship's. tackle, winch* Ac, for the purpose, and yet the maurers Bay they should not be expected to pay for it. This action • rerotted. in a great measure in undoing the good, which Captain Holmwood had effected. ' Up to that time tho cargo Bad boen kept dry and uninjured, as would be shown in evidence; but when the cargo was handed over to Ross he, in order to steady the ship for his own con-^ tenience, deliberately knocked a hole in her, and thus let the Water in. The consequence was that very considerable damage was done to the railway material. Besides employing Bosb, the underwriters brought over from Adelaide the steamer Glenelg to tow off the ship and cargo, but the effort was unsuccessful. The steamer Wellington was then employed, but could not come near enough owing to rough weather, and the ship, having' been partially removed from her safe position by the Glenelg, drifted broadside on to the land, and became no doubt a total wreck. Captain Holmwood paid .£IOO for the Weilington, which had been telegraphed for by Captain Gibbon, and the underwriters do- H dined to refund that amount. Since that time no further efforts had been, made, to remove the vessel. The plaintiff temained. in charge of the vessel all this time, and th& mate also remained ori board, both doing sd distinctly for the advantage of tho underwriters. In April, 1879, Captain BendaTl and Praser made another survey of the ship, and reported that she was a total wreck, and that she might bo sold for the benefit of " whom it might concern." StiH, however,the captain did not sell her then, and he still remained -on board for. the benefit of the cargo. The plaintiff sued for the lots of ship's material, the large expenses of pumping, wageß of master and'&ate, and a general average, and the claim ttiade up was .£2315 ' 18s 2d. Assuming, however, that plaintiff was prevented from recovering a general average, plaintiff claimed for work and labor JJ2204, and there wa> a third count also claiming £2204. Of course, they could only lecover on one of theso counts. The action taken by defendants certainly entitled them to little consideration at the hands of the jury, for they carefully avoided putting anything in writing, and would, doubtless, use every effort to bring forward matters of law to defeat the claim. The other side said they would not pay anything, they would State no defence, but would let the plaintiff prove his oasfl and have the matter decided Evidence for plaintiff was being taken when wp went to press. , i ¦ ' " ¦ . { ',