PENGUIN WRECK.

Evening Post, Volume LXXVIII, Issue 107, 2 November 1909, Page 7

PENGUIN WRECK.

LOST LUGGAGE CLAIM. 'AN IMPORTANT JUDGMENT. UNION COMPANY NOT LIABLE. An important judgment in three cases arising out of the wreck of the s.s. Penguin last February was delivered by Dr. A. M' Arthur, S.M.,Wday. The plaintiffs — George Edward Perkins, Robert Alexander Ellison, and William Henry Green, who were passengers on the vessel on her fatal trip across Cook Strait— sued the Union Steam Ship Company of New Zealand, Ltd., for recovery of the value of their lost lug-, gage. Perkins claimed £29 18s lOd, Ellison £61 7s, and Green £29. In the statement of claim it was contended that defendant company agreed with each plaintiff to carry him with certain luggage and other goods for rewards from Picton to Wellington. In the course of the voyage defendant company's steamer was wrecked through the negligence and unskilfulness of the officers and. crew of the vessel, and thereby such luggage and other Goods which defendant had contracted to' carry were lost. NAUTICAL COURT'S FINDINGS. It was agreed that the cases be taken together. By agreement the findings of the Nautical Court and of the Supreme Court were binding on the "parties. It was also admitted by plaintiffs that defendant company exercised due dili-. gence to make the Penguin in all respects seaworthy, and properly manned, equipped, and supplied, except "so far as might appear to the contrary from anything in the evidence or findings of the Nautical Court. v The findings of the Nautical Court having special reference to the cases were to be found in the answers to questions 4, 5.. and 2, summaries of which appear below :—: — Answer 4 : That, in particular, the said casualty was contributed to by the default of the master. Answer 5 : That ... the casualty would have been prevented if the vessel's head had then (at 9.40 p.m.) been turned toward safety. Answer 2 : The master was guilty of a breach of article 160, "The Regulations for Preventing Collision at Sea." The finding of the Supreme Court affirmed that of the Nautical Court. The Marine Court found that the vessel was seaworthy and properly found. CARRIERS' LIABILITIES. Coming to the cases themselves, Dr. jVF'Arthur said no evidence was called except that of plaintiffs, the defence ' relying on section 293 of the Shipping and Seamen Act. Plaintiffs relied on sections 17, 18, and 19 of the Mercantile Law Act, which 'provided that carriers shall be liable tor the neglect or default of themselves or t^eir servants in the carriage of goods, notwithstanding notice to the contrary ; but a carrier may make such conditions with respect to carrying as are adjudged to be just and*reasonable by the court before whom any question relating thereto is tried ; and no special contract made between a carrier and any other parly respecting the carriage of goodc shall be binding unless signed by the party or the person delivering such goods for carriage. The essential of plaintiff's case was the neglect or default of the carrier -or his servants, and ior this counsel relied on the findings of the Nautical and Supreme Courts in reference to the wreck of the Penguin. These findings showed that the servant of defendant company v.-as guilty of negligence. The defence was that the defendants were not liable for the loss of the goods. . . They (the plaintiffs) had made a case which the shipowners must answer by giving a good reason for their exemption from liability — a course which , was assented •to. The part of the Shipping and Seamen Act, which was relevant to' the case read : — "If the owner of any ship transporting merchandise or property to or from any port in New Zealand exercises due diligence to make the ship in all respects seaworthy, and properly maimed, equipped, and supplied, neither the- ship, her owners, charterers, or agents shall become or be held responsible for damage or loss resulting, from faults or errors in navigation or in tho management of the ship." THE STEAMER SEAW.OP.THY. Further, the magistrate remarked thai section 293 of the Shipping and Seamen Act, and section 17 -of the Mercantile Law" Act, seemed to be entirely inconsistent with each' other, and it was by no means easy to reconcile them. It was clear that the former section was intended to exempt from liability for damage or loss resulting from faults or errors of navigation, or in the' management of the ship. "What, then/ is the object of "the latter section:"' asked Dr. M' Arthur. "It appears to me to* refer to the cargo itself, such as improper loading, bad stowage, failuie in custody or care, errors in delivery, a,nd such j like. The way in which to reconcile the two is, I think, first; that the Mercantile 1 Act prevents exemptions in the case of I direct want of care in respect of the cargo, and secondly, the Shipping and Seamen Act permits a freedom from liability in respect of neglect or default primarily connected with the navigation or the management of the vessel: If my distinction is correct, plaintiffs' cases must fail, inasmuch as it has been admitted that the ship was seaworthy and properly manned, equipped, and supplied, and both the Nautical Court and the Supreme Court hate found that the ship was lost through the default of the master in the navigation of the vessel." ••MERCHANDISE" AND "PROPERTY." "Counsel for plaintiffs, however, it was mentioned, contended that in the expression "transporting merchandise or property" in section 293, the word "property" came under the class of ejusd,em, generis terms. "Surely not," commented the- magistrate. "One might be transferring his household furniture from one port in Mew Zealand to another. Such could not bo' called 'merchandise.' It is not the 'warehani disc' of the owner. It is th» 'pro- : perty' of the owner. • In the same way a passenger's luggage is not his 'merchandise,' it "is his 'property. 1 'Property' here, in my opinion, is used in a separate class from 'merchandise,' and represents another class of goods apart from 'merchandise.' " Going back to the main point, the magistrate said the dibtinclion he intended to draw then, and intended to draw now, was that the Mercantile Law Act provided as to want of care directly affecting cargo, and the Shipping and Seamen Act referred to want of care of vessel indirectly affecting the cargo. Tho meaning of section 293 was that if the shipowner^ by himself or his agents, used due diligence to make the ship seaworthy when she started, he should not be liable for what happened afterwards when the ship was at eea and he had no more control over her. Dr. M 'Arthur intimated that he* had read with great care the oases quoted by counsel. The principle, he said, that the shipowner was exempt from liability for loss or damage resulting on a fault in the management of the ship was fully illustrated by decisions in several

cases. "I now leave," he said, "that part of the defenco relying on section 293 of the Shipping and Seame.iv Act. and turn to other lines of defence taken by counsel. To my mind, it is clear that a condition which exempt* from negligence and default can, under the Mercantile Law Act, be effective only as far as it is signed by the passenger, and theij so far as it is considered just and reasonable by the fourt. I consider tliat Ellison sufficiently signed when he signed his application for a ticket, which* .'application contained the same conditiq&s as are embodied in the ticket. It was a request for the ticket, and formed 'part of the contract between him add the 'company, and he was 'thus bound by the conditions, provided they were just and reasonable in the opinion ofthe court. In my opinion, clauses 7 arid 17 are quite reasonable, although I do < not hold the same opinion of clause 14, which may be objected to as unreasonable on the ground of the general nature of the terms. Green clearly cannot- recover for the merchandise carried by him. Scott* v., Northern S.S. Co. is instructive and decisive in relation lo Green's claim 1 for loss of merchandise. It was there held that the liability of a carrier of passengers extends to gassengers' luggage,' but where a passenger ships merchandise as luggage without the knowledge of the carrier, and k without any special, contract for its carriage, the carrier is not liable for its loss. The fact that the package bears the appearance cf merchandise does not cast on the carrier the duty of knowing that if is so. Moreover, Green took his merchandise into his cabin with him, or allowed it to be placed there.' It was entirely in accordanco with commonsense that it is the duty of the passenger to declare whether what he ships as luggage, is really merchandise, and not to assume on the ignorance or inattention of the company's servants." Numerous other authorities were disposed of by the magistrate. ; "For the reasons which I think I have dearly indicated in" this somewhat lengthy judgment." concluded Dr. M'Arthmv "I am of cpinion that plaintiffs cannot succeed in their action." Judgment was accordingly for defendant company, with costs £7 ss. Mr. Trcadwell appeared for claimants, and Mr. Levi for the Union Company.