A SHIPPING CASE

Evening Post, Volume CIII, Issue 83, 8 April 1922, Page 6

A SHIPPING CASE

CARGO THAT WAS HELD UP

DOES AN ACTION FOR DAMAGES LIE?

Argument was continued' before the Court of Appeal—the Chief Justice, Sir Robert Stout, and their Honours . Mr. Justice Sim, Mr. Justice Stringer, and Mr. Justice Adams—to-day as to the appeal of three consignors of cargo by the Northern Steamship Company against a decision of Mr. Justice Herdman.

On 23rd March, 1921, said appellants, Moral Bros., Charles William Raynor^ and. Mary Harris (plaintiffs in the Court' below), cases of bananas consigned on their behalf were wrongfully left behind when the company's steamer Rarawa sailed for New Plymouth, and that when the bananas were sent on, six days later, they were "in so bad a condition that they had to be destroyed.

Mr. Justice Herdman dismissed the claim made for £47 6s damages, on the ground that. the company had done everything reasonable to endeavour to forward tile cargo, but, under the circumstances, it was not possible for tho vessel to receive all cargo.

Mr. M. Myers, who, with Mr. A; H. Johnstone (Auckland), appeared for appellants, maintained that there had been a contract on the part of the company to accept and ship the cargo on the date, and in compliance with the conditions set out in the boat note.

In reply. Mr. C. P. Skerrett, who, with Mr. V. R. Meredith, appeared on behalf of tho respondent company, said that the company had no reason, from a business point of view, to refuse the cargo, and if the vessel had not been late in arriving at Onehunga on her former trip from New Plymouth the bananas would have been taken aboard, had the usual circumstances held. As it was the late arrival of the boat and the imperative duty of the captain 1 to sail not later than 5 p.m. to catch the tide, built up a special set of circumstances. A ship was bound to arrive or to sail as advertised, said counsel, unless there was reasonable excuse.

The Railway Department, as agent of the consignors, had sole control and disposition of the cargo, and had not actually tendered the cargo to the ship, and no document was presented to the officers of the ship. If anyone was responsible for the non-lading of the fruit it was the Railway Department., sincfe' there was delay in presenting the vans containing fruit and also because the fruit was contained in a' van of mixed merchandise from which ■ the fruit could not be readily selected.

Mr. Skerrett contended that no actual contract had teen made between the parties, and that the negotiations were merely preliminaries to the making of the .actual contract at Onehunga. If, however, the Court ruled that there was a contract, that -contract was merely one to accept the goods if tendered alongside the ship at Onehunga and to issue a bill of lading in the form annexed to the "please receive" note, unless it was prevented by "perils of the sea-, by weather, or by other circumstances which would reasonably justify it in so doing." /The contract contained or implied in the "please receive" note, counsel maintained, could not be interpreted except by reference to the advertisement of the company containing the words: "Weather and other circumstances permitting." & The consignors, continued Mr. Skerrett, had no right to claim preference for perishable cargo unless they had booked space ahead. _' Three main questions for consideration were suggested by counsol:— (1) Did the fixing of the stamp of the convpiiny to the "please receive" note create a contract between company and consignor? (2)" If it did, what was the nature of such contract? (3) Was there a refusal by the com: ipany, as •common carriers, without reasonable excuse, to receive the fruit from the consignor for shipment? Mr. Myers, in reply to Mr. Skerrett, maintained that the issuing ,of a please receive note was in. itself proof that the company had booked space. There was nothing to prevent tne_ ship's officers from asking that certain trucks should be brought alongside the boat, but, though the ship's officers presumably knew there was fruit in a certain truck or trucks, no such, request was made. The cargo was tendered according, to long-established custom.

The Court reserved its decision,