DAMAGE TO CARGO.

New Zealand Herald, Volume LXV, Issue 20076, 13 October 1928, Page 16

DAMAGE TO CARGO.

WIRE RUSTED ON STEAMER.

AUCKLAND COMPANY'S CLAIM. DISALLOWED BY APPEAL COURT. [JIY TELEGRAPH —PRESS ASSOCIATION.] WELLINGTON. Friday. The Court of Appeal today delivered judgment in the caso of John Burns and Company, Ltd., of Auckland, v. the owners of the steamer Canadian Explorer. The Court upheld the decision of the Judge in tho Court below and dismissed tho appeal. In delivering the Court's unanimous judgment the Court said : "It is common ground that sea salt could have reached tho wire through tho condensation of sea moisture. In our opinion, in view of tho evidence that no soa water got into tho hold, tho experiments conducted by Professor Worley wero not extensive enough to exclude the more probable explanation that in spito of tho quantity of soa water found it was due to condensation and tho subsequent evaporation of sea moisture.

"It might well be that there would be successive condensations and sulhcient moisture might be condensed to causo tho water to drip from tho top coils on to lower ones. Tho coils had been roughly sprayed with oil by tho manufacturers just before shipping, which seems to have boen an innovation, and also implied an admission by the manufacturers that tho coating of zinc was not sufficient by itself to protect the wire from rust during tho voyage. It may well be that tho closeness with which tho wire was coiled and the presence of oil would cause the lower portions of at least somo coils, which wero stowed at an angle, to retain half a cup of water, which would drip from the coils higher up on tho pile. This quantity of water on evaporation would leave as much sea salt as was found by Professor Worley. "We think that this is much the most probable explanation of the excess of sea salts found and wo are confirmed in,, our opinion by the fact that Mr. Page, who is an expert as highly qualified as Professor Worley, was of tho opinion that this was tho best explanation of the damage in sight. Wo therefore think that tli-e judgment of the learned Judge in the Court below was right in holding that respondents, having proved prima facie that tho damage caino within tho exception of rust, the appellant company did not discharge the onus of proof, which then shifted to it, of proving that either the damage was not within tho exception, or that tho ship had been guilty of negligence. The appeal will therefore bo dismissed, with costs on the middle scale as from a distance."

The case was an appeal from the judgment of Mr. Justice MacGregor, delivered in July of this year. lu September, 1926, a consignment of 3240 coils of iron wiro was shipped on board the Canadian Explorer at Sydney, Nova Scotia, consigned to tho appellant in Auckland. On the arrival of the ship at Auckland in February, 1927, it was found that the wiro was badly corroded and danfaged. Appellant thereupon brought an action against tho respondents, alleging negligence on tho part of respondents, that tho wire was damaged by sea water, and claiming £350 4s damages. Respondents admitted that tho wiro was damaged, but denied that they wcro legally liablo under the bill of lading. In delivering an oral judgment in favour of respondents Mr. Justico MacGregor said: "Tho plain truth concerning tho wholo matter in my judgment is that all that has been proved in this case is (1) that the daniugo to tho wiro arose from rust, and (2) that this rust was consequent upon the wiro coming into contact with moisture. How that moisture arose, what was the precise causo of it, in what way it came into contact with tho wiro in the hold—all these questions in effect remain unsolved, and lengthy export cvideneo regarding them resolves itself into spallation rather than proof. Beyond the two outstanding facts that I liavo stated all else, in my opinion, is theory and conjecture. "Scientific -evidonco on both sides is in tho result largely inconclusive, and leads me nowhero with any certainty. In these circumstances I am thrown back once moro on tho legal doctrine of tho burden of proof. Tho appellant hero has proved his loss. The respondents havo proved that tho loss apparently falls within an exception in tho bill of lading. Thus tho final burden of proof in this caso rests on tho appellant, who has in my opinion, failed to discharge that burden. His action must therefore fail."

Judgment was entered for respondents with costs. Tho appellant appealed from this decision, contending that tho judgment was erroneous both in fact and in law.