MISSING FROM CARGO

New Zealand Herald, Volume LIX, Issue 18202, 22 September 1922, Page 4

MISSING FROM CARGO

SHIPOWNERS' LIABILITY. JUDGMENT FOR CONSIGNORS BILL OF LADING CONDITIONS Reserved judgment waa given by Mr. W. R. McKean, S.M., in the Magistrate's Court yesterday in a claim made by the New Zealand Express Company, Ltd. (Mr. West) against the Blackball Coal Company, Ltd. (Mr. Holmden), for £31, the value of portion of a package of belting delivered to the defendants for shipment from Wellington to Auckland in August, 1919, by the steamer Ngahere. When plaintiffs' foreman called for the goods one package was missing, and defendants' delivery clerk was notified. Some days later plaintiffs' foreman was notified that the missing package had been delivered in error to another firm but had been returned. Between the time of shipmont and the time of delivery one piece of belting was extracted from one of! the packages. The magistrate was of opinion that defendants were responsible for v-rongfully allowing delivery to be mado to a firm to whom the package was not consigned. The bill of lading for the shipment of the goods, including the package in dispute waa headed with the name of another company, and contained ■ the conditions usually contained in documents of that kind. Defendants resisted the claim on three grounds, all relating to the bill of lading. The first was that the contract was on its face one with the other company, and that- oral evidence was not admissable to vary the terms of that contract. The bill of lading did not purport to be signed by or on behalf of the other company. After dealing with this point, Mr. McKean held that there was ample evidence of defendants' ownership of the steamer and of admissions by the company of receipt of the packagesThe second defence was that the defendant company was protected by clause 6 of the bill of lading, which provided that the company would not be responsible in any circumstances if goods were missed or lost unless a claim was made within seven days after the goods were landed. The magistrate said the evidence before him was sufficient to cast on the defendants the onus of establishing that the claim was not made within the time specified. It was through the neglect of defendants that another firm was allowed to take delivery of a package consigned to plaintiffs, and for that neglect defendants were responsible. r The third defence was that the liability of the company waa by clause 7 limited to a sum of £5 per cubic foot. The magistrate said this was a limitation of a liability which by section 309 of the Shipping and Seamen's Act, 1908, was null and void unless the Court before which . any ' ouestion relating thereto was tried adjudged the same to be just and reasonable. On the evidence before him, Mr. McKean held that the limitation was unreasonable. In any case there was no evidence of the cubic capacity of the missing goods. However, as the clause itself appeared unreasonable the amount which plaintiffs were entitled to recover was the value of the goods. Judgment was for plaintiffs for the amount claimed with c<sts. Security for appeal was fixed at £10 10s. ■