SHIPPING COMPANIES' LIABILITIES

Otago Daily Times, Issue 14380, 25 November 1908, Page 11

SHIPPING COMPANIES' LIABILITIES

CARRIAGE OF GLASS. A TEST CASE. In tbo Magisl rate's Court yesterday,- before Mr T. Hutchison, 831., an action was brought by Andrew Lojs (Dunodin) and Henry Brooks and Co. (England) against the New Zealand Shipping Company for the recovery of the sum of £4 19s 2d, damage alleged to liavo been sustained to glass carried to New Zealand by the defondant company's s.s. itakaia. Mr Burnarcl appeared for plaintiffs, who were respectively consignee and consignor, and Mr Hoslciug, K.C., appeared for the defendant shipping company. Tho case was brought as, a test case to 'determine the liability of shipping companies in respect to the breakages ol glass. Tlio facts in the case were admitted— namely, that the goods wore accepted by the company as being in good order and condition; that on arrival here certain portions of the glass were found io be broken; end the extent of the damage sustained by The defendant company relied on certain stipulations contained in its bill of lading, and ihe question for the oourt to consider was whether these stipulations were just and reasonable. It was admitted that under the bill of lading'the shipping company was relieved - of liability for damage done by breakage to glass in transit. The claim, however, was based on section 300 of the New Zealand Shipping and Seamen Act. which it was submitted over-rides the conditions of a bill of lading. Section ZOO of "The Shipping and Seamen Act, 1908," is as follows;— Where any hill of lading or shipping document contains— (a) Any clause, covenant, or agreement . whereby the manager, agent, master, or owner of any ship., or the ship itself, shall he. relieved from liability for loss or damage arising from the harmful or improper condition of the ship's hold, \iegligcnce, fault, or failure in proper loading, storage custody, care, or proper delivery of any and all lawful merchandise committed to its or their charge; or (b) Any covenant or agreement whereby the obligations of the owners of the ship to ••'exorcise due diligence to properly erjuip, man, provision, and outfit the ship, to make the hold of, the ship fit" and safe for the reception of cargo, and to ninke her .seaworthy and capable of performing her intended voyage, or whereby tlio obligations of the master, offlc3V6, agents, or servants Io carefully handle and stow ,her cargo,. and to care for and properly deliver the same, are in any wise lessened or avoided;— ;' Such clause, covenant, or agreement bImII be null and void and cf no effeot i)nless tbo court before which any question ' relating thereto is tried adjudges tho same to be just and reasonable. It was also admitted in course of argument that the New Z-M.lo.nd Shipping Company was incorporated in Now Zealand, and that its ships were registered in England. Negligence was r.ct alleged, and .'it WHS agreed that, though tho goods were originally shipped in Antwerp the defendant company took responsibility as from first shipment. The only evidence called was as to the custom of shipping companies in regard to bills of lading. \ . G. B. Bullock (manager of flie New Zealand Shipping Company) said that in tho bills of lading of his company tlio oxoinpiion of liability by reason of leakago or improper stowage had been included for as many years as ho could remember. It was the samo with sailing ships as with steamers. Glass was 'stowed in a special manner, and it was understood that a reof the consignor was present in London when the goods in question were shipped, and when they were discharged • in Dunedin a representative of the consignee was present or.d saw 'it done.—To Mr Burnard: Tho consignee's representative had not, complained about the manner in which the glass had been stowed; all be complained of was that it was not stowed in the most convenient manner for discharging purposes. ' John Galbcaith (superintendent of the Shaw-Savill Company) said that, exercising tho very greatest care, it was almost, an impossibility to bring out r, cargo of glass without some breakages occurring. Five per cent, of the oases were cracked, this being due, as a rule, to tho heat of the hokl or tho nails used in closing the casas. The eases mads in England were of e much superior quality to (hose made in Germany or other foreign countries. In packages of 'Continental make shipping companies had to take more care to protect themselves than was the case with English-packed goods. Mr Burnard's main contention was that any clause must bo considered lo be unreasonable if its effect would bo to protect the shipping company from the result of its own negligence. He submitted that the exemption of breakage without any words qualifying it would so exempt the company, and wag therefore void. Counsel quoted numerous legal authorities in support of his contention. Mr Hosking, in tho course of his aigumont, submitted that, on the authority of the cases, stipulation must be read into the bill of lading excluding liability for negligence on the part of the compa-ny or its servants, and that tho clause, therefore, must ho liold to be good. Ho also, submitted that section 300 of the New Zealand Shipping and Seamen Act did not apply to tne contract unde'r consideration, inasmuch as it was entered into' in Antwerp, ,Md had to be construed with reforonco either to tha law of the place where it was made or to that of the ship's flag; and the place of the ship's flag, he contended, was England. The New Zealand Legislature wojild be going beyond its powers if it purported to bind parties who entered into a' contract outside of the Dominion, and the presumption must be that, the Legislature had no such intention. Mr Burnard, in reply, submitted that section .300. of tho New Zealand act. imposed upon the intention of the parties an additional liability, and did so quite irrespective of that intention and of -the law by which they intended their contract to •bo governed. He also submitted that any stipulation in the bill of lading must, for the purposo of considering its reasonableness, be construed according to the ordinary moaning of its language, and that no stipulation ooukl be read into it. In that case tbo condition relied upon was toO wide, and must be held to bo unjust and unreasonable. His Worship his judgment. .