NEW ZEALAND MEAT MARKS.

Otago Witness, Issue 2456, 10 April 1901, Page 8

NEW ZEALAND MEAT MARKS.

AX IMPORTANT JUDGMENT.

(Feom Ouk Own Cohrespondext.)

LONDON, February 23,

Marking of New Zealand meat, the multitude of marks r!?ed, and consequent difficulties arising at London and other ports of discharge, have caused no end of discussion in trade circles. Now they have led to a most intricate trial, or, rather, trials, in the Royal Courts of Justice. And the final result, though unanimous on the part of three judges of appeal as to the actual legal decision, shows so many ways in which almost endless trouble and litigation may be caused that shippers would do well to be careful. The case in point was that of Parsons v. the New Zealand Shipping Company, though the latter appear to have been more nominal defendants than anything else, the shipment of lambs which gave rise to the dispute having been made in the s.s. Fifeshire. , Originally the claim was for short delivery of 153 carcases of lambs shipped at Timaru under a bill of lading signed by the defendants. The latter paid into court a sum which represented the value of 23 carcases. As to the remainder, they said they had tendered to the plaintiff when the ship was discharged, the actual lambs shipped under the bill of lading, although there was a "slight" difference in the marks. The plaintiff's marks were Sun brand 28& X" and "Sun brand 622 X. The defendants tendered "Sun brand 388 X" and "Sun brand 522 X," and alleged that the first of the three letters was immaterial, as it simply indicated the date of killing, for the private information of the shippers and to enable them to trace the goods. The plaintiff alleged the defendants were not entitled to rely upon this plea, having regard to section 5 of the Bill of Lading Act. The case was firsi heard nearly a .year ago before Mr Justice Kennedy, who held that the first of the three figures was immaterial. Hence the plaintiff appealed.

Some weeks ago I sent you* an account of the arguments placed before the Master of the Rolls and Lords Justices Collins and Romer. They hai c since been considering their decision, and so important did they apparently consider it that, contrary to the somewhat general custom by which one member of the bench gnes the judgment, the -others simply expressing concurrence, on Tuesday, when the judgment in Parsons v. the New "Zealand Shipping Company was delivered, each of the three Lords Justices read his own individual decision. These, though in agreement in the last sentence. " I think the appeal should be dismissed with costs," showed how divergent are the views held by the highest legal authorities as to the law relating to frozen meat and other produce. For the benefit of the New Zealand shippers I send you the full text of the judgment' given by the Master of the Rolls, a3 follows : —

The Master of the Rolls read the following judgment yesterday — This is an action by an endprsee for valuable consideration of two bills of lading signed by the defendants to recover the sum of £124 193 Id for short delivery thereunder m the Port of London of 154 carcases of frozen lambs ex steamship Fifeshire, and the question is whether the plaintiff was" bound to accept vi fulfilment of the contract contained in these bills of lading carcases of frozen lambs which not only did not bear the marks and numbers upon the bills of lading of which he was endorsee for value, but bore maiks and numbers which were different from, and not those upon, the bills of lpding. It is sufficient to trace what took place in respect of one of these bills of lading, for by so do ng the case will be freed of many details, and the point will thus become more conspicuous. On Maich 30, 1899, the defendants signed a bill of lading, which, so far as material, is as follows — ■ Shipped in good order by lhe Christchurch Meat Company (Limited) on board the steamship Fifeshire, now lying in Timaru, 1076 carcases frozen lambs, being marked and numbered as in margin, to be dehveied in like good order and condition (subject to exceptions not material to this case) at the port of London unto order or assigns. The marks and numbers in the margin of the bill of lading weie as' follows — The Sun Brand, Canterbury, N.Z., Lamb 622 X, 608 carcases, 722 X, 468 caicases, weighing 33,8061b. Ihe meaning of these maiks and numbers, apart from special meanings unknown to the plaintiff, was that 608 carcases of Sun Brand, Canterbury, New Zealand, lambs marked 622 X, and al?o 468 carcases of similar lambs marked 722 X — i.e., 1076 carca=es in all, and so marked and numbered — had been shipped under the bill of lading upon the steamship Fifeshire, which caicases so maiked and numbeied, and not, in my judgment, maiked and numbered with other and different marks and numbers, weie contracted to be delivered in like good order and condition, subject to exceptions, at the port of discharge. Before dealing with what these marks and numbers further indicated, I will stite what took place. On June 16. 1599, the plaintiff purchased the lambs co\ercd by this bill of l^diiig from the agents of the .shippers — the Christchurch Meat Company, — and apon such puiclnse lecciveJ an imoice from them. By this mvoiee the pL'-i'itifi was debited With 1070 carcases marked C 22 X and 722 X, and for those carcr.scs lie pp.d the turn of iS2O lls Id. Upon the puic'ia&a the b.ll of lading was en-doi-eJ and ha.idcd to fl-o plain' if, s.\d he also the'i ic-ce it' 1 f on: the \ cr<lo:_- cemfkate of iji~uiv ice- win 0 !"" covcc'i G^-! (<nc,i t o'- maiked GO2 X avd 4C 3 "r . i-r, v, . l.cd ":3 X foi t\ o in'), it'""; fiOi'i fie C. t? ol tho tuinrl oT the felctuiusiiio rjlv;»i«iiiS iii uosk; viicu Ivm^ tLe

premise? of the Lea^.enhall Market Storage Company and other places. It will thus be seen that these carcases were shipped under specific marks and numbers. They were taken

on board by the ship as being carcases to marked and numbered, and were to be, m my judgment, as I have said bofoi c, dehveied, subject to exceptions not matenal to the point m hand, under these marks and numbei=, and certainly not under different marks and numbers at the port of discharge. There is no question m the case of marks and numbeis being obliterated by sea penis or otherwise. These carcass were purchased by the plaintiff from the shippers undci the specific marks and numbers, and, as before stated, the plaintiff held a certificate of insurance covering carcases so specifically marked and numbered and none other. Upon the plaintiff having thus become endorsee of the bill of lading and purchaser of the carcases above-mentioned, application was made on his behalf for delivery, together with others, of the 608 carcases maiked 622 X and of the £f*S caicases marked 722 X, when deliveiy of the 468 carcases maiked 722 X was duly made, but delivery of the whole of the 608 carcases marked 622 X was refused upon the ground that the defendants could r\jt deliver the whole of these COS carcases, for, it was said, they had not all been shipped on board; but the defendants were willing to deliver to the plaintiff 507 of the 60S carcases marked 622 X, as in my judgment they were bound to do, but this was 101 carcases short of the bill of lading Quantity, and m res>pect of this shortage of 101 caicases they subsequently tendered 101 carcases not marked 622 X, but carcases marked 522 X. These, the plaintiff lefused to accept in fulfilment of his contra-ct with the defendants, and Mr Justice Kennedy has held that he could not refuse and was bound to take these 101 carcases not marked according to his bill of lading, but marked m an altogether different way, for 622 X is certainly not the same mark and number as 522 X; and the plaintiff appeals. Before I come to section 3 of " The Bills of Lading Act, 1855," I wish to consider whether the marks and numbers 622 X, which aie the marks and numbers whereby to identify the plaintiff's carcases and without which they could not be identified, were maiks and numbers which were material to the plaintiff either as regards the identity of the carceses which the plaintiff was entitled to receive tmder his bill of lading or as regards his dealing with the carcases after he received them, for if material to the plaintiff I cannot agree with Mr Justice Kennedy that the plaintiff was bound to accept the carcases tendered in fulfilment of the contract contained in the bill of lading. If the marks and numbers were not material to the plaintiff other considerations would arise, and, in my opinion, that case would not be the present case. Now, first of all, why are marks and numbers of identification placed m the ordinary course of businesß upon goods and also upon a bill of lading? In my opinion, in the first place, to identify to the holder of the bill of lading, whoever he may be, the goods which that holder is entitled to demand and take delivery of ex ship upon its arrival. In the present case there were in the hold of the Fifeshire many thousands of carcases tinder different bills of lading with different marks and numbers. If a holder of a bill of ladmg has, for instance, a bill of lading for carcases or for other goods, take it for corn in sacks, in a, ship containing different shipments of carcases or corn, with no marks at all thereon, a very improbable contingency, what is he to- demand ex ship upon rts arrival ? It seems to me- he can demand nothing, and he must wait until all the holders of other bills of lading with marks and numbers thereon have been satisfied and then take what happens to be left in the hold of the ship, and it may be thus lose the market in the meantime ; and, again, if he has a bill of lading with marks and numbers on it and no goods with like marks and numbers come up out of the hold of the ship, the same thing must happen. Again, suppose a bill of lading holder weie to take ex-ship goods not marked in accoidance with his bill of lading, say, goods maiked as in this case 522 X, instead of goods

marked 622 X according to his bill of lading, what would be his position if and when the holder of the bill of lading for goods marked 522 X came and demanded his goods from the bill of lading holder, who had taken the goods marked 522 X under a bill of lading only covering goods marked 622 X. The answer is obvious. The peison who has thus taken the goods would have to give them up. Surely these matters have only to be stated to show the materiality oi marks and numbeis of identification m commerce and the importance necessarily attaching to them in carrying on of daily business. In my judgment the marks of identification m this case are very material, although there may

be some cases in which certain identification

! marks may be superfluous or for some other Treason immaterial. But this remark has no

place in the present case. Again, if in the nresent case the plaintiff could be forced to take the carcass marked 522 X, as Mr Justice Kennedy has held that he can be, what becomes of his insurance which only covered carcases marked 622 X and not carcases marked 522 X? In my opinion if the plaintiff had had to make a claim against the insurance company if the goods were burnt, the company, under a defence that their insurance covered carcases

marked 622 X and not carcases marked 52? X, would stand well 'for judgment, oi at the very

least there would obviously be protracted litigation. With these remarks as to the materiality of marks and numbeis of identification I come

to " The Bills of Lading Act, 1855. ' In my opinion section 3 of this act prevents a person who has signed the bill of lading from attempting to show m a case such, as this that of the carcases marked 622 X lOl were not shipped, but that carcases marked 522 X were shipped in thoir place. In any opinion the Bills of Ladmg Act was passed to shut out a person who signs the bill of lading from a controversy such as this with a holder for value of a, bill of lading. This section enacts that " e\ery bill of lading in the hands of a consignee or endorsee for valuable consideration representing goods to have been shipped on board a vessel shall be conc'uaive evidence of such shipment as against the master or other person signing the same, notwithstanding that such goods or some part thereof may not have been so shipped, unless such holder of the bil lof lading shall have had actual notice at the time of receiving the same that the goods had not been in fact laden on board; piovided that the master or other pel son so signing may exonerate himself in lespect of such misrepresentation by showing that it was caused without any defaiilt on his part, and wholly by the fraud of the shipper or of the holder or some person under whom the holder claims." No question arises upoi. the latter part of this section. What then aie the goods in this case represented by the bill of lading to have been shipped on board the steamship Fifeshire? In my opinion the lepj-esentation is net that 608 carcases not marked or numbered at all, nor that 60S carcases marked 522 X have been shipped, but th.it 60S carcases marked G22 X have been shipped. That being in my opinion the representat cm of.the bill of lading, the Fills of Lading Act applies to this case and shuts out the present suggested defence from the ' defendants, and I do not think that the Bills of Lading Act is confined to marks of quality and quantity which aie comparatively rare when compared with maiks of identification, and winch quality maiks when used aie usually coupled v, ith a statement m the bill of lading " weight, contents, md unknown" In m) opinion ••eclion 3 of the "Cds of Lading Act applies v.o uluu is u--u.il il uqt uiiivetsal iv c£jjtaJ,eic©aa

namely, to goods as in the present case shipped under specific marks and numbers of identification, and so represented m the bill of lading. The above is my opinion independently of the special value found in this case to be attached to the marks end numbers themselves. It was proved that " Sun Brand X " denotes the quality of the carcases; the numbar 6 denotes the date when ihe animal was killed and put into ice ; the duplication of the numbers (2 2.) show where the animal was killed and frozen ; the final number 2 shows the grade. These numbers appear to me to be material, apart from identification, should disputes arise ss to the freshness or otherwise of or about the quality of the carcases. Moreover, if the plaintiff is bound to take carcases marked 522 X, as Mr Justice Kennedy holds hs is, instead of caicases marked 622 X, he will be bound to take carcases killed and frozen at a different date from that at which csreases marked 622 X in his bill of lading, which he has purchased, wero killed and fiozen. Can this be? I think not. Mr Justice Kennedy embarked upon the inquiry as to whether a carcase marked 522 X had any different value in the market for meat from a carcase inarlted 622 X, and as a commercial aiticle he found that it was absolutely unaffected in its character or value; but, with submission, it is not merely a question as to whether the carcases under the different marks wcio of the same value m the market, but whether the maiks and numbers were material or immaterial to the plaintiff. If I purchase cases of champagne identified by marks ABC, what answer is it, when I claim my goods so marked and identified, to say that the goods tendered, which are marked X V Z, are of the same value m the market, or even of greater value than those marked ABC? For the reasons above I thmk that the marks of identification in this case were of materiality to the plaintiff, and that the tender was not a good tender. Mr Justice Kennedy ako investigated the question whether 101 carcases marked 622 X were put on board at Timaru, and he came to the conclusion thpt they were not, and that the 101 carcases marked 522 X were put on boaid in their place; but this, m my opirion, for the reasons above, he could not go into as a defence by a person who signed the bill of ladmg, and I think that the plaintiff could not be forced by the defendants in this case to take the 101 carcases not marked according to his bill of lading; and if this case had lested here I could not have found for the defendants. For the reasons hereafter appearing I need say nothing about the damages. A very formidable point was next taken by Mr Carver for the defendant?, which was that even if the tender of the 101 caicases was a ba-d tender the defendants were protected by a clause in + he bill of lading from being sued in the circumstances of this case for incorrect delivery of 60S carcases marked 622 X. This clause is as follows : " The ship shall not be responsible for correct delivery or loss unless each package is distinctly, correctly, and permanently marked by the merchant before" shipment with the mark and number or address." What is the meaning of each package being correctly marked with the mark and number before shipment? In my judgment it can only mean correctly marked with the mark and number according to the bill of lading; for with what else ci r i the mark and number upon the packages rrentioned in this clause be correct? The°e rtaiks and numbers must also be distinct a »cl permanent. In nay opinion, this is the true rmfijing of this clause, and it was inserted to meet a case like the present, where the goods were not correctly marked according to the bill of lading. It must not be forgotten that the bill of lading is drawn by the- shippers, who ought to make the. marks and numbers in the bill of lading and on the goods correct with each other. Mr Justice Kennedy has found, and I do not differ from his finding upon this issue, though he has not applied the clause, for it was not necessary for him to do so in the view he took of this case, that the 101 carcases marked 522 X were not correctly marked, and should have been marked 622 X, m which case, and in which alone, in my opinion, they would have been correctly marked within the meaning of the clause. As. therefore, these 101 carcases were not correctly marked, this clause comes into play and exenrots the defendants from the present claim of the plaintiff. For this last reason I think this appeal should be dismissed, and with costs.