AN INTERESTING JUDGMENT

Otago Daily Times, Issue 14386, 2 December 1908, Page 7

AN INTERESTING JUDGMENT

LIABILITY FOR DAMAGE. SHIPOWNERS HELD RESPONSIBLE. At Ihc Magistrate's Court yesterday morning: Mr T. Hutchison, S.M., delivered judgment iti llio criso Andrew Less and Co. and Henry lkookos and Co. v. Now Zealand Shipping Company. Tho case was heard before his Worship on Tuesday wqelc and was brought as d lest case to ascertain whether certain stipulalations in tho,bill of lading, exempting tho shipping company fibni liability for (lanugo done in transit, would hold good, in view of tho. statute law of New Zealand, contained in section.3oo of tho Shipping and Seamen Act of 1903, which pro- / vides that any such stipulation shall be hull and void unless the court holds it just and reasonable. The amount claimed was £* 19s 2d, foi damage done to part of a shipment of glass consigned from Antwerp by Brookes and Co. to. Andrew. Lees, of Dunedin, which arrived by tho s.a. Kakoia. The defendant company admitted tho facts, / and relied on the conditions i n the bill o Jading to- rolipre them of legal liability. In giving judgment, his Worship, affor Z?T S w* f r s md •'•miMioni, said that-tho dofendant company's' ships were common carriers by sea, and that there did £' t0 l» any exemption on tho bill (Ju3° °" acC ? Unt . of nosl'Bo'ico of doexenption No proof of such negligence bl h T^ K * >y Plaintiffs, nor did they infer that ,t had existed. There, was a stipulation m the bill of lading "that all | articles of glass, or containing glass, were to bo taken, at tho shipper's risk. 'The question was whether this stipulation was valid in law That depended partly on the applicability of section 300, of the New /calami Shipping and Seaman Act, 1903." If that section were to be'applicable to the contract between _the parties it was clear that' the stipulation mentioned must lie hold to bo null and void unless it could be judged to be a just and reasonable stipulation under tho particular circumstances of. tho case. It had been contended by the defendants that, as the contract was made oiitsido of New Zealand, the New Zealand Shipping and Seamen Act did not oppy; or, if tho court held the, act to apply, that tho stipulation, was just and reasonable. Id regard to the first contention,'.lie thought the New Zealand shipping and Seamen Act did apply to- the present case, for section 2 of tho Act indicated that the act should apply to all British ships registered, at, trading with' or being .at any place within tho jurisdiction of New Zealand. The next question was: Is our law. to be applied to a contract made out of New Zealand? As ; t was clear that tho contract applied to an act, part of which was.to bo -performed in Aow Zealand—i.e., the delivery- of the 'goods-ho thought the answer must be in tho affirmative. Then as to tho aiterna-. v 1° nt , ent 'on that, in the event of tho tovt Zealand act applying, the stipulation in the bill of lading, absolving the defendant from all liability, was just and reason-able-he thought the general test to bo laid down was this: Does the party claiming a restrictive liability offer the' alternative of a higher (but still reasonable) rate, by accepting which the • customer may avoid the restrictive condition? On this point no evidence had been, given, but tho onus of showing thia lay on- tho defendant company. Ho assumed; therefore, that there . was no alternative rate which I the- , plaintiffs had the option of accepting. In giving judgment, he did not forget that-it had been shown that it'was almost impossible to carry glass from England to New Zealand without some breakages, • but that merely established a.reason for charging an; increased , rate. Judgment would be for plaintiffs for. the amount olaimed. Mr Cook, who, in tho absence of Mr Hoskin*, K.C.,. represented , defendants, asked for; and was granted leave to appeal. Mr Burnardi who appeared for the plaintiff companies, said that he had an understanding with Mr'Hoskirig whereby, in, the event of an appeal,' neither side should apply for costs of the appeal. His Worship said he had'no jurisdiction over that. , Costs for the action were fixed at £4 15s.