AN INTERESTING JUDGMENT.

Otago Witness, Issue 2856, 9 December 1908, Page 34

AN INTERESTING JUDGMENT.

LIABILITY FOR DAMAGE.

SHIPOWNERS HELD RESPONSIBLE.

At the Magistrate's Court on the Ist inst. Mr T. Hutchison, S.M., delivered judgment in the case Andrew Lees and Co. and Henry Brookes and Co. v. New Zealand Shipping Company. The ease was heard before his Worship on Tuesday week and was brought as a test case to ascertain whether certain stipulalations in the bill of lading, exempting the shipping- company frbm liability for damage done in transit, would hold good, in view of the statute law of New Zealand, contained in section 300 of the Shipping and Seamen Act of 1903, which provides that any such stipulation shall be null and void unless the court holds it just and reasonable. The amount claimed was £4 ISs 2d, for damage done to part of a shipment of glass consigned from Antwerp by Brookes and Co. to Andrew Lees, of Dunedin, which arrived by the s.s. Rakaia. The defendant company admitted the facts, and relied on the conditions in the bill of lading to relieve them of legal liability. Tn giving judgment, his Worship, after reviewing the facts and admissions, said that the defendant company's ships were common carriers by eea, and that there did not appear to be any exemption on the bill of lading on account of negligence of defendant's servants beyond the statutory exemption No proof of such negligence had been offered by plaintiffs, nor did they infer that it had existed. There was a stipulation in the bill of lading that all articles of glass, or containing glass, were to be taken at the 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 Zealand Shipping ami Seaman Act, 1903." If that section were to be applicable to tho contract between the parties it was clear that the stipulation mentioned must be held to be null and void unless it could be judged to be a juet and reasonable stipulation under the particular circunvsfcances of the case. It had beeai contended by the defendants that, as the contract was made outside of New Zealand, the New Zealand Shipping and Seamen Act did not apply ; or, if the court held the act to a Pply» that the stipulation was just and reasonable. In regard to the first contention, he thought the New Zealand Shipping and Seamen Act did apply to the present caae, for section 2 of the Act indicated that the act should apply to all British ships registered at, trading with, or being at any place within the jurisdiction of New Zealand. The n<?xt question was: Is our law to be applied to a contract made out of New Zealand? A 9 it ■was clear that the contract applied to an aot, part of whioh was to be performed in New Zealand— i.e., the delivery of the goods— he thought the answer must be in the affirmative. Then as to the alternative contention that, in the event of the New Zealand aot applying, the stipulation in the bill of Lading, absolving the defendant from all liability, was just and reasonable—he thought the general test to be laid down was this: Does the party claiming ft restrictive liability offer tb* *iterna-

tive 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 this lay on tSje "defendant company. He assumed, therefore, .that there was no alternative rate which 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 claimed. i Mr Cook, who, in the absence of Mr Hosking, K.C., represented defendants, - ! asked for and was granted leave to appeal. Mr Burnard, who appeared for the plaintiff companies, said that he had an understanding with Mr Hoaking whereby, in th» event of an appeal, neither side should apply for coats of the appeal. ' _ I His Worship said he had no jurisdiction over that. ! Costs for the action were fixed at £♦ I IS* ■ * *

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