HOT COMMON CARRIER

Evening Star, Issue 18139, 1 December 1922, Page 4

HOT COMMON CARRIER

SUPREME COURT JUDGMENT. FURNITURE LOST IN WREOK. His Honor the Chief Justice (Sir R. Stout) gave judgment this morning in the matter of John Stewart Wilson (Air Ongley) against the New Zealand- Express Company (the Hon. J. MacGregor). It was a Jura ego ns for argument on a point of law. Ihe defendant company contracted in February, 1921, to remove plaintiff’s furniture and effects from Oamaru to Whakatane, but ihe goods were lost in the wreck of the Tasman in (May. Plaintiff claimed that the company was liable as a common carrier, and. in the alternative, that it had contracted to effect insurance against fire and sea risks and had not done so. Tho defence was, first, that tho contract did not make the company liable as common carriers, and, second, that the company had not contracted to take out fire and marine risks and had contracted insurance liability only to the extent o! £lO on each case in the case of -breakage. His Honor, in the course of his judg* ment, said: This is a case stated (prior to the trial of tho action) tinder rule 154. The questions asked are: (1) Whether the contract set. forth-in tho statement of claim imposes -upon the defendant the obligations of a common carrier or only those of a forwarding agent or a furniture remover, and what these obligations are. (2) Whether it is possible for tho plaintiff in any circumstances to get judgment for more than. £lO in respect of any one package. (3) Assuming that the alternative claim is admitted and that there was a written contract as stated in the statement of defence, is there-a cause of action! Whether q person or company is a common carrier depends upon the facts. In this case the only facto set forth are that the, work done by the defendant was in pursuance of a special’ contract.

To make a carrier a common carrier it must be shown that_the carrier undertake.? for hire to carry the goods of all persons indifferently; and if ho is a common icarrier be cannot charge what rate ire pleiascs. The rate must be reasonable, and it is subject to control of the court. Tho fact, moreover, that in some instances a man may be a common carrier does not prevent him not being so if there is a special contract. In this case there is no suggestion that the defendants were bound to enter into the contract. The company could have refused to pack and forward the furniture, and that is tha test that is to be applied to finding whether a person who carries is ni common carrier. I am of opinion that the contract set out docs not impose upon file defendants the obturation* of a common carrier. If the plaintiff can nhowj the loss of tho goods was caused by- the negligence of tho defendants, ho can re-* cover. As to the second question, this turns on whether tne contract made is not binding because oif section 19 of the Mercantile Law Act, 1908. In my opinion, as the tender of (ho company was accepted and the goods forwarded, or carried on that footing, the defendant is not in this transaction a common carrier, and (Section 19 of the Mercantile Law Act, 1 1903, does not .apply. If the alternative claim is admitted—that is, that the do* fondant contracted to insure the goodn and did not do so—an action would. lie ; but it seems plain that the insuring of the goods is not mentioned in tho contract set out in the defence, and I do not see how any opinion can be expressed about a contract not set out, and 0 f which the consideration is not expressed.