CLAIM AGAINST SHIPPING COMPANY.

Gisborne Times, Volume XXXV, Issue 3944, 29 May 1913, Page 3

CLAIM AGAINST SHIPPING COMPANY.

JUDGMENT GIVEN FOR PLAINTIFF. LEAVE TO APPEAL CRANTED. INTERESTING POINT RAISED, Mr R. S'. Florence, S.M., yesterday morning gave judgment in the case of J. W. Tustin, painter, Gisborne, and Keep Bros., of London, glass dealers (Mr Burnard) v. The New Zealand! Shipping Co., Ltd., Gisborne (Mr Burke). The plaintiffis’ particulars stated (1) that by bill of lading dated September 11, 1912, the Shaw, Savill and Albion Co. agreed with tno plaintiff, Keep Bros., to carry from the port of Antwerp by J. D. Tusin, 36 eases of window glass: that by arrangement it was agreed that the goods should be carried: by the defendants’ vessel s.s. Rotorua instead of the Shaw,''Savill s.s. Tainui; tho said goods were duly delivered, but six eases were damaged to the extent of £9 4s, and the plaintiffs claimed £9, the contention being that the goods wore so damaged on account of the negligenco of; tho defendants and their servants, and on account of improper storage and handling. The defendants denied liability and any negligenco as alleged. His Worship reviewed the evidence at great length and summed up as follows:

“It will appear, therefore, that apart from the proof of negligence, I consider the condition in tho bill of lading exonerating . the defendant company from all liability as therein detailed is unreasonable, both here and in England, and as such his is an insufficient ground of defence. It must be remembered that although the bill of lading was issued in a foreign country it was made between British subjects, and was to take effect in British dominions. There only remains therefore tho two questions of acceptance and negligence. With regard to the first I must say at once that I do not think there was any acceptance of these goods in tho strict meaning of the term, although there was. delivery and removal from the Harbor Board sheds into tho storeroom of plaintiff’s agents—the Gisborne Farmers’, and ultimately into the hands of the consignee—the plaintiff Tustin. Reasoning simply by analogy to a sale of goods and without basing the argument upon the particular custom of this port it will bo found by reference to “The Sale of Goods Act, 1901” (consolidated), section 33, “that unless otherwise agreed where goods are delivered to the buyer, and he refuses to accept them, having the right so to do, he is not bound to return them to the seller, but it is sufficient if he intimates to tho seller” (as was done in this case) that ho refuses to accept them. Section 36 also reserves to the buyer his right to examine the ‘goods to sec whether he can accept them or not. Now it appears to me that in such a congested port as Gisborne, with comparatively small storage capacity, a consignee should not bo prejudiced by taking delivery of goods consigned to him at. a convenient and safe place, provided lie reserves to himself the right to accept or refuse tho goods or repudiate his liability to pay for the same if the goods within a reasonable time thereafter prove not to be in conformity with contract. “From my notes of the remarks or counsel I don’t think much stress was sought to be laid down on this feature of the case, and I therefore pass on to the consideration of whether negligence was proved against the defendant company in the handling of the goods in question. Under this heading I find the evidence was rather contradictory, hut without detailing it individually I must conclude from it that there was conclusive evidence of rough handling. In Abbot on Shipping, page 590, the learned writer remarks: ‘Where a loss is undisputed, and the question is whether the loss was caused by an accepted peril, or by something else, the burden of proving that the loss was caused by such peril is oil the shipowner. But where the loss was primarily occasioned by one of the accepted perils, and the merchant contend-' ed that the ship-owner should not be allowed to avail himself of that exception on the ground that the loss would not have happened without the negligence in other fault of the shipowner or his servants, it was decided that tho burden was shifted and the merchant must prove the negligence. Appeal Cases p.c. 318-326, it is stated page 591, Moore v. Harris (1876), 1 appeal cases p.c. 318-326, it is stated that it is a pure question of evidence, and depends on the circumstances of each case how far such proof is necessary, and the case is to be regarded as inconclusively proved without it. These cases of glass were so far as I cah glean, properly packed and secured at the date of consignment. They arrived in a damaged condition and £6 worth of glass was broken prior to the consignees’ receipt of same. Where else could the damage have been done than in tho transit between Antwerp and here? It has been asserted that such damage is of cony mon occurrence in similar cases, and that there is anything between 5 and 25 per cent of breakages always allowed. The question arises: Has there been such due care and diligence displayed in saving these goods from injury whilst in transit or in the ships as every common carrier is bound to give to the goods placed under his charge for transmission. If the goods have been injured through no fault of the shipowners or thenagents, or by unavoidable accident, it is for the shipowner to prove tins. On page 598 of Abbott the law is thus summarised: ‘lt thus appears that at common law a shipowner, like a common carrier, insures the goods he carries against all events, but the vice of tho goods themselves, the act of God or the King’s enemies • unless the loss has been occasioned without the shipowners’ own fault or will therefore be for the plaintiff for the amount claimed, solicitors’ fees, fees of court and witnesses’ expenses according to scale, Mr Burke asked leave to appeal and His Worship allowed tho application. , . Mr. Burnard asked that as the case was of more importance to the shipping company than to-tho defendants, leavo to appeal should only ho granted on tho condition that defendant paid plaintiffs’ costs in any event,.. Counsel stated that lie had an English authority in support of such an application, although it was not at hand for the moment. His Worship said that such cases were very rare indeed. Everyone had the right to appeal. In a small .case like this he did not see that it should have such a provision as this. He would grant leave to appeal in this case on the deposit of £7 7s, and the amount of the,claim and costs. Costs on the judgment were allowed as follows:—Court costs (£1 4s), , solicitor’s fee (£1 6s) and witnesses expenses (£2 7s).