SHIPPERS OF FRUIT.

Lyttelton Times, Volume LXXIV, Issue 9173, 5 August 1890, Page 3

SHIPPERS OF FRUIT.

.AN IMPORTANT; CASE. The following case was heard in the E.M. Court, Christchurch, yesterday : Nancarfow v, the Union Steamship Company of New Zealand, Limited.—The plaintiff, who is • a fruiterer in Christchurch and a regular consignee of fruit from Sydney, sought to recover from the defendant Company .£3 (Is 6d, the value of three cases of oranges shipped in Sydney about Dec. 6, 18S9, which cases of oranges the defendant Company had failed to deliver in breach of its contract. The evidence of the witnesses, which had been taken by consent at Lyttelton, was read, and showed that the plaintiff was the consignee of thirty-seven cases of oradgea by the Waihora, and out of .that number three. cases were empty, and one case partly empty, when received at Christchurch. All the cases, so far as sealing was concerned, were in first-class order on receipt by the consignee, and had not the least appearance of having been tampered with. The tally-clerk on the railway at Lyttelton proved that the empty cases addressed “ Nancarrow, Christchurch,” had been taken from the Waihora, and put ou the railway truck along with the cases containing fruit. The plaintiff, on discovering the pilferage, made a claim against the defendant Company, but the latter refused to acknowledge the claim, and Mr Lambie, the Company’s agent, said it was not responsible for fruit stolen on board its boats. The chief officer of the Waihora stated that he remembered the Lyttelton fruit being put oa board the Waihora at Sydney, and its having been covered with canvas aud lashed down and nailed on the teak rail until a shipper came on board and requested that the' covers be taken off the fruit, although the officer warned him that it would bo pillaged if his request were complied with. On cross-examina-tion, however, the chief officer admitted that he did not know who the shipper was, and could not identify the plaintiff’s cases of fruit.

The law points in the action came on for argument yesterday afternoon before the R.M., Mr Beebbam. Mr Wilding appeared for the plaintiff, and Mr Nalder represented the defendant Company. Mr Wilding said that the plaintiff relied on the shipping note produced, which showed that on Dec. 6 last the Company’s agents received twenty-seven cases _of oranges, and the tally-book and evidence of the railway official at Lyttelton proved that three of the cases were empty on arrival at Port. Mr Wilding submitted that the first clause of the shipping note which protected the Company from robbers or thieves did not apply to pilferage on the part of the Company’s servants Obviously the oranges had been stolen either by some of the Company’s servants, on board or passengers by the Waihora. There was no proof that there were any passengers. The fact of loss cast the onus upon the defendant Company. Angel on Carriers, Kay on Shipping, Chitty on Contracts, were cited; also the cases of De Rothschild and others v. The Royal Mail Steam Packet Company, 31 L.J., ex. 373, and Vaughton v. L, and N. W. Railway Co., 43, L.J., ex. 75, The clause that fruit and perishable cargoes were carried at “ owners’ risk,” applied only to the condition of the perishable property. In case of decay caused by heat and salt water, or sun, or by sweating in the hold, the Company would not be responsible ; but the clause would not enure to protect the Company from pilferage. The decision in Davidson v. Gwynne, 12 East, 381, was the origin of the “ owners’ risk ” clause. In reply, Mr Nalder contended that there was no evidence that the cases were full of fruit when delivered on board the Waihora at Sydney, and that the condition as to the fruit being received by,the Company at “ owners’ risk,” was a reasonable one; also, that the Company had taken all necessary precautions. Ho quoted from Robinson v. The Great Western Railway Company, and Dark v. L. and N.W. Railway Company, 9 L.R. C.P., p. 329. His Worship held that the Company having signed the shipping note acknowledging to have received the fruit, had the control of it, and was bound to account for its absence ; and he did not think that the clause that perishable property should be carried at “ owners’ risk ” would protect the Company from liability for pilferage. He therefore gave judgment for plaintiff for the full amount claimed and costa.