COURT OF APPEAL.

Otago Daily Times, Issue 20690, 12 April 1929, Page 6

COURT OF APPEAL.

LIABILITIES OF SHIPOWNERS. Per United Puess Association WELLINGTON, April 11. The Appeal Court gavo judgment to-day in the case Coastal Shiping Company versus the W anganui Herald newspaper, dismissing the appeal and upholding the judgment of Mr Justice Smith iu the court below. Their Honors said: “ There can be, in our opinion, no question that the real, predominant, and efficient cause of the loss wag the unseaworthiness of the vessel, and not tho entry of sea water. No doubt the vice in the bottom of the vessel -arose in the first instance from the fact that there was what has been described as a capillary opening in the cement skin, hut the whole sequence of events may with propriety be comprehended in the term 1 natural causes ’ and lapse of time. We agree with Mr Justice Smith that the unseaworthiness of tue vessel was the real and efficient cause and the proximate cause to which the daiAage to respondent’s goods must be ascribed, and therefore that the loss was not loss by ‘ dangers of the sea ’ within th. meaning of section 3 of the Carriage of Goods Act.” The questions submitted to the court were then answered as follows: 1. (a) There being no modification or exclusion of common law warranty or seaworthiness in a contract of carriage, there is implied in that contract an absolute warranty of the seaworthiness of the ship; (b) section 3 of the Sea Carriage of. Goods Act does not in any wa: affect that warranty. 2. The loss or damage to respondent’s goods was caused by the unseaworthiness of the ship, and not by danger of the sea. Costs were allowed on the middle Seale to respondent. The Court of Appeal, consisting of Mr Justice Herdman (Acting Chief Justice), Mr Justice Adams, Mr Justice Ostler, and Mr Justice Kennedy, heard the appeal on Match 21. The facts briefly were that the appellant company in December, 1926, received from the respondent company 63 rolls of paper newsprint to be carried and transported by the appellant company iu the steamer Kapiti from Wellington to Wanganui. A loss of £320 to the goods occurred during the course of the voyage, occasioned by the steamer springing a leak in her hull. This damage, it was admitted by both parties, w r as not due to any negligence or fault qf the appellant company or the builder s of the Kapiti. A writ having been issued, it was ordered by the court that the questions of law arising between the parties should be argued before trial. Upon such argument it was held by Mr Justice Smith that the damage was not due to any “ danger of the sea,” which, under the bill of lading is an exception to the liabilities of shipowners, and, further, that the damage was due to the unseaworthiness of the steamer.