FRUIT NOT SHIPPED.

New Zealand Herald, Volume LIX, Issue 18079, 2 May 1922, Page 8

FRUIT NOT SHIPPED.

.COMPANY'S UNDERTAKING.

DAMAGES TO BE ALLOWED.

AUCKLAND APPEAL CASES.

[JIX TELEGRAPH —TOESS ASSOCIATION.] WELLINGTON. Monday. The Court of Appeal gave judgment today in three cases—Wallabh Soma Moral, Charles William Raynor and Mary Harris —all versus the Northern Shipping Company. The three cases involved the same legal considerations, and were heard together.

The statement of claim in Moral's case alleged that by an agreement made between Moral avid the respondent company to carry 30 ciscs of bananas from Onehunga to New Plymouth the goods were delivered at the wharf in Onehunga, but were not loaded by respondent, with the result that the bananas woro rendered valueless.

The respondent company denied that there was any contract to carry the goods, but if there was a contract, then it was subject to special conditions endorsed on the shipping note, which exempted respondent from liability. In Kay nor's case the claim was in respect of 10 cases, and in Harris' case of three cases of bananas.

Mr. Justice Herdman heard the three actions, and gave judgment in favour of the shi —''ng company, and from this judgment the appeal was made At the hearing before the Court of Appeal, Mr. Myers, for the appellants, tiaid that, although only small amounts were claimed, the actions were test ones, and the Court's decision would be one if general importance to merchants. Counsel contended that the shipping company was a common carrier and was bound to carry goods which were delivered at a proper time to the ship's side for carriage. It had shown no justification for its refusal to carry the bananas. The company had taken motor-cars and racehorses and left perishable goods, to which preference should havo been given. Mr. Myers con tended that quite apart from the respondent's liability as common carriers to carry the cases of bananas concerning which the dispute arose there was a liability to carry goods under an express contract. This contract arose from the appellants accepting the pdvertised offer of tho respondents to carry cargo. Mr. A. H. Johnston also addressed the Court on behalf of the appellants. Mr. Meredith, for the respondent, dealt with tho facts of the case.

Mr. Skerrett, K.C., also for the respondent company, contended that no contract hnd ever been entered into by the Northern Steamship Company to carry cases of fruit for the appellants. What had taken nlace between the parties was merely preliminary to contract. Appellants, he said, had never tendered poods to the company for carriage in it? ship. Sir Robert Stout's opinion was that the parties were never at one in any such contract as was alleged by the appellants. In bis opinion, the appeal should be dismissed.

Mr. Justice Sim delivered the Judgment of himself, Mr. Justice StHnsrer. and Mr. Justice Adams. In their opinion the steamship company had undertaken that there was snfhV.ipnt space for fruit, and also had undertaken to carry. The reason wbv the fruit wps not carried was th*it the had boot-ed more space than it could fill in the time nt its disposal. Tn their oniiion the appellants were enti*l"d t-c damages. The apnea' was therefore allowed, and the raw? remitted to the Suprem» Court for the of damages. vrpr» one set of cr-sts on the middle scale ?« r.n n cse from a distance.