DISTRICT COURT. —Tuesday.

New Zealand Herald, Volume XI, Issue 4044, 28 October 1874, Page 3

DISTRICT COURT. —Tuesday.

[lis Iluii'r'i 1 . Iteclihani, Ksq., District Jurigu.j As" adjourned sitting of the Court was held this morning. Gittos r.uoTHKiis v. Lamii.—Claim, £5G lis Sd. Mr. Joy for the plaintiffs ; Mr. Hcsketh for the defen lant. This was an action to recover for damage done to a cargo of tanner's bark. The plaintiffs are tanners at the Whau, and the plaintiff is the well-known mill-owner at Rivcrhcail. The facts out of which the dispute originated were as follow : —The plaintiffs shipped on board a river steamer called the Scotchman a quantity of bark, to be delivered at the Whau Bridge. When the baric was shipped it was alleged to be in good order and condition. Shortly after it was delivered it was found to have been damaged by water. Mr. John Gittos gave evidence of an arrangement with the defendant to convey the bark to the Whau Bridge at ~>s per ton, to be delivered in good order and condition. Tn the present case, according to the evidence of several witnesses, the vessel was found to be leaky. It was proved that a greater quantity of bark was taken 011 board the vessel. The consequence of this, it was alleged on the part of the plaintiffs, was that the vessel leaked, and although the vessel was discovered to be leaky, this overloading made her leak more. It was declared that even the engineer of the boat had said that GOO bags of bark were put on hoard instead of 400. Before the case proceeded an attempt was made to refer the matter to arbitration. Mr. Hesketh said his client had expressed himself to the plaintiffs perfectly willing to go to arbitration. Mr. Joy said that in the lirst place the defendant was, according to law, clearly liable. There could be 110 doubt 011 this point. Therefore the legal point as to the liability should be admitted. Mr. Ilesketli was instructed to leave all matters in dispute to arbitration, "according to equity and good conscience." Air. Joy did not see any reason to recommend liis clients, who liad a clear legal issue in their favour, to go outside the Court, and abide the risk of someone saying that they had 110 legal claim. His Honor : Surely 110 one of sense would say that if a person were to put another person's goods in a ship full of water, and damage was the consequence, there would b£ 110 claim for that damage? Mr. Joy thought the liability should be first admitted. That being admitted, then his clients were willing to leave the amount of damage to arbitrators, whether it should be more or less. John Hedges, the skipper of the boat, gave evidence and said that ho first discovered the leak just after the boat left the whnrf. He had not known the vessel to leak before. The tonnage of the boat was about thirty tons, in this case there was somewhere about fifty tons of bark shipped. —The witness, in cross-examination, said there was no neglect in putting the bark on board.—Evidence was given of the value of tho bark. The plantiifs had bought the cargo of the vessel Tien Sien. It was then in good condition. It was not after being taken to the Whau in the defendant's vessel and delivered there worth more than £2 a ton. Indeed, for the purpose of the plaintiffs' business it was of scarcely any use whatever.—Tho witness, in re-examinr.tiou, said that when the boat was lightly loaded, so that the copper fastening was above the water, she did not leak. When sli-o was loaded so as to be deeper than the copper she leaked more.—By the Court : She several times touched on banks on tho way up. That might, with a heavy load in her, strain the vessel. —Robert Little, the engineer, examined by Mr. .Joy, could not tell where the leakage was. He said to Mr. Gittos to send his men down as quick as possible, to lighten the vessel. Witness told Mr. Gittos that the boat was leaking fast, that she was below the copper. Witness recommended that two trips should be made with the bark, instead of one. He did so to save time and make the delivery quicker. James Morgan, an employee of the plaintiffs, stated that when engaged in unloading the vessel he had noticed that about ninety-seven of the bags of bark were damaged. Some of them had been quite covered with water in the hold. William Flail Hunter and Win. James Inskey gave similar evidence. James Gittos repeated the evidence given by other witnesses. He also deposed that the market price of the bark was £9, and by the damage austained it had deteriorated in value £7 per ton. John Lamb, the defendant, was called, and stated that they never took goods except when they had spare time, and they often

refused to tike goods. He believed that" the vessel leaked after she had touched on> the mud bank;. This concluded the evidence in the case.. Mr. Hesketh. said that the action was brought upon no special contract, but in every respect independent of any contract. Upon: the evidence the defendant was not a common earner, and he was not liable in the capacity as a common carrier. If the defendant was liable, it could only be upon some implied contract that would' necessarily compel him to the obligation to . carry the goods, and if he used ordinary skill; and diligence for the carrying of them, he was exempt from further obligation. Therefore ifc was incumbent upon the plaintiffs to■ prove negligence affirmatively.; not even for the defendant to show that ordinary care and diligence had been used. The ; plaintiffs had failed in establishing affirmative neglect, and as the defendant was no insurer, and-did not guarantee to take, at all events unless neglect was proved the plaintiffs' case must fail unless they broughti in the defendant as a common carrier. This had not been done, and he submitted that the plaintiffs should be nonsuited. Mr. .Joy replied fully. Ho considered that the mere evidence that the defendant had on two or three occasions carried goods for other parties,- was abundant evidence that ho ; was a cemmon carrier—a carrier for the public good. The questions were—was the diunago done entirely without fault of the defendant, or was rb the result of inevitable aceident ? There-was no evidence of inevitable aceident, and he-believed that the damage migilt have been guarded against by ordinary care and diligence. His Honor considered that the capacity the defendant really stood 1 in was a matter of importance. He said: that he would read over the authorities,.and deliver judgment next Court-day. The Court rose at 5.15 p.m.