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Lyttelton Times, Volume IV, Issue 195, 13 September 1854, Page 7

op Ships for Damaged Cargo. —A case recently occurred in the port of Melbourne where compensation was claimed for damage done to a cargo of sugar imported by the " Rebecca;" and reference being made to counsel learned in the law, the following opinion was obtained, which may be useful to the mercantile and shipping interests of this port, if made public. The opinion runs thus :" I have given the best consideration to this case that

time will admit pf> '^d. in my opinion the owners are \\swiov the loss occasioned by the leakage ..•-'erred to in the surveyor's certificate. XJ,^ owners have constituted themselves common carriers by hire; and, as such, they were bound to deliver the goods safely and' in the same condition as when they were received. In an action against a carrier by water, it was held to be no defence that the ship was tight when the goods were placed on board, but that a rat by gnawing out the oakum had made a small hole through which the water gushed. The pumps were used, and everything done to preserve the cargo. (Dale ».|Hall, 8 Wils. 281.) The Trent Navigation Company had undertaken to carry goods from Hull to Gainsborough, and the vessel on board of which the goods were placed drove against an anchor in the river H umber and sank; it was held that the carriers were liable for the value of the goods, although it was proved that the accident was occasioned by the negligence of persons on board a barge on the river, who had not put out a buoy to mark the place where the anchor lay: and although no negligence was proved, yet negligence in law was sufficient. (Trent Navigation Company v. Wood, 8 Esp., N.P.C. 127.) The case of Lyon and Another v. Mell, 5 East 482, is still more in point. There the owners of a lighter conveying goods from Hull to ships in the dock had given public notice that they would not be answerable for any loss or damage to any cargo which should be put on board their vessels, unless such loss or damage should be occasioned from want of ordinary care in the master or crew, &c.; and that if any merchant was desirous of having goods carried free of risk, extra freight should be paid. It was held that the owner was answerable to the full extent of the damage done to the goods by reason of the leakiness of the lighter ; although the merchant was acquainted with the notice before he sent the goods on board—Lord Ellenborough observing: "In every contract for the carriage of goods between a person holding himself forth as the owner of a lighter or vessel to carry goods for hire and the person putting goods on board, or employing his vessel or lighter for that purpose, it is a term of the contract, on the part of the carrier or lighterman, implied by law, that his vessel is tight and fit for the .purpose or employment for which he offers and holds it forth to the public. It is the very foundation and immediate substratum of the contract that it is so. The law presumes a promise to that effect, and every reason of sound policy and public convenience requires it should be so ; and the Court considered the insufficiency of the lighter as a personal neglect of the owner, and a non-performance of his contract to procure a fitvessel for the purpose. Under these circumstances the querists had better make the best settlement they can with the owners of the sugar—perhaps a compromise might be effected, or a reference to arbitration. If any actions are brought against the [querist it might be arranged that one action should determine the others. Although the opinion I have arrived at would imply that the claims should not be contested, yet if the querists should try the question in one case, a jury may take a different view. I fear, however, they would be coerced by law to find a verdict for the plaintiff, in such an action. If the sugar was insured at the Mauritius to Melbourne, perhaps the underwriters would be liable, and this would take off the burthen from the querists." The author of this opinion is Mr. Smyth, of the Melbourne bar. We believe it to be a sound one of the case in question ; and a proper understanding of the law on this point may prevent much litigation, and do good otherwise both to the shippers and carriers of goods.— Argus, June 16.