BALK V. EXPRESS COMPANY

Otago Daily Times, Issue 18171, 16 February 1921, Page 9

BALK V. EXPRESS COMPANY

JUDGMENT.' FOR DEFENDANTS. Yesterday Mr H. Y. Widowsoh, S.M , gave judgment in the case in which Wilson, Ealk, and Co. (Mr Sinclair) sought to recover £4 12s 6d from the New Zealand Ex press Company (Mr J. MacGregor) for the J? 88 of half a chest of tea, which was consigned through the Express Company from Dunedin to a purchaser at Cheviot. Mr Widdowson said: In this case I am of opinion that judgment must be for defendant, on the ground that there is no privilege .of contract regarding carriage. I) or the consignor to sue the carrier there must be a special contract, independent of the contract for the carriage or other circumstances amounting to the same thing. In this case there is neither. I have also grave doubts whether plaintiffs could succeed on the facts. “It appears that plaintiffs consigned four coses of tea and half a chest by the Stella to Lyttelton, through the New Zealand Express Company, the" freight to be paid by the consignors. Plaintiff sent the bill of lading to, the Express Company to be forwarded to the purchaser, who was to be debited with all the charges with the exception of the freight. It appeal's that the railways receive all goods, ex ships, and the Express Company handed the bill of lading to them. The company’s representative did not actually see the goods, but be saw the way bill. “ Months after, the purchaser discovered that the contents of one package were missing. Inquiries were made, and ultimately the Express Company at Lyttelton wrote to him expressing the opinion that it had never been landed. The way bill is not made up from the manifest, but from the transfer books in the sheds at Christchurch, and it seems that an entry of five packages was reduced to four. Half a dozen packages were short-landed from the Stella, and it was concluded that the chest of tea was. one of these. It appears to me, however, that it is quite as feasible that the chest was lost on the railways as on the ship. It was mentioned to the Express Company, however, that all charges were to be paid by the purchaser, and under these circumstances I am of opinion that there was no privilege of contract regarding carriage between plaintiffs and the Express Company. Plaintiff has an easy remedy, but it is not for me to say what it is.” Judgment was given for defendant, with costs totalling £3 8s 6d.