PILLAGED GOODS

Otago Witness, Issue 3594, 30 January 1923, Page 28

PILLAGED GOODS

CASE AGAINST THE CROWN. JUDGMENT FOR DEFENDANTS. LEAVE TO APPEAL REFUSED. A case of considerable interest to the business community was heard in the Magistrate’s Court by Mr J. R. Bartholomew, S.M., on Tuesday when Hallenstein Bros, proceeded aginst the King for the recovery of the value of six pairs of men’s Albert slippers valued at £4 14s 6d (landed cost). The statement of claim set out that on or about April 26 the Railways Department received at Port Chalmers a package of stioes ex the Tainui consigned to the plaintiffs, and that the department failed to care for and carry the package safely, whereby the goods mentioned were lost. The statement of defence set out that the department had not undertaken to deliver the package intact, denied that the department had failed to care for and carry the package safely, and claimed that the package rvas delivered by the department at Dunedin in the same condition and with the same contents as when received. It was also claimed that the suppliant was not a party to the contract for carriage of the package by the department. Mr H. Brasch, who opened for the plaintin, said that when a representative of the filaintiff firm went to the goods shed .he ound that the case had been tampered with, and investigation showed that some of the goods had been removed. Inquiry at the shipping office showed that the shipping company had received from the railway a clean receipt of delivery. The whole question in fhe case was the condition of the package when it reached the railway, and the point emphasised was that the railwayofficers had given the clean receipt. Counsel submitted that a reoeipt, while only “prima facie” evidence of the outward condition of a package, by virtue of a principle well established by litigation, threw the responsibility of proof upon the person giving the receipt. The magistrate was well aware that pillage had been rife on the ships in the dominion for a considerable time, and those concerned with the safe carriage of goods had been on the “qui vive’’ to detect any outward signs of tampering. Even a broken piece of hoop-iron or a bent nail might be considered sufficient to arouse suspicions. Arthur G. Monk, shipping clerk for the plaintiff firm, gave evidence that at the goods shed he had noticed signs of pillaging about the case of shoes. The shipping people refused to be present at an examination, but an examination of the contents in the presence of railwaymen showed that, according to the invoice, six pairs of shoes were missing. There were six empty boxes among the contents. No further evidence was called for the plaintiff, and the Crown’s case was opened by Mr A. B. Adams. The Crown Solicitor said that the opposing counsel had tried to impart into the liability in tort the extreme liability of insurer, which undoubtedly rested upon a common carrier. The liability was essentially founded on contract, and the measure of liability must be the same whether based on tort or on contract. To succeed, the suppliant must show that he was a party to the contract, ■which had not been done. If the Crown was to incur liability for conversion into an insurer the first proof to support the argument should be that the defendant had received the goods. It had not been proved that the goods were in the package when they were received at Port Chalmers, at had to be remembered that the mere fact that freight had been paid on the package did not establish a contract with the department and that the clean receipt • did not make any statement about the goods being in good condition such as was usually found on an ordinary bill of lading. Quoting cases in support of his case, Mr Adams mentioned that the damage to the package had not been such as to be readily observed ‘‘by a reasonably careful tally clerk.” Evidence was then given by railway and other officials. Addressing the court. Mr Adams submitted that it had been shown that there was no possibility of pillage the package was in the care of the Railway Department. Mr Brasch, in argument, held that the crux of the position was: Does the receipt from the railways mean anything or not? The responsibility must fall upon with the railways or the “shipping company, and if the court gave judgment for the defendant it would be tantamount to saying that the responsibility was on the ship. Then, if his client sued the ship, would the ship be entitled to plead that it had received a clean . receipt from the Department? The receipt placed die onus of proof that the package was pillaged before being put into the Department’s bands on the Department, but the Department had submitted no proof of this. On the other hand, a clean receipt had been given; but in Dunedin the damage to the package had been palpable enough to be noticed by the tally clerk at that end. If then in the event of his client suing the shipping company, the company should plead the issue of the clean receipt successfully, the position was no other than one of chaos. In common with all businessos, his client was in the position of having to receive its goods through the Railway Department, and it had to pay whatever freight was demanded. The Department said : ‘‘We shall take your money. five the ship a clean receipt for your goods. ut we will not accept any responsibility for your goods.” That was not an attitude, counsel subnjitted. contemplated by the Legislature when, by- the Railways Act, it placed the Department on the same plane as a common carrier. Mr Brasch wont on to contend that it was “grossly improper” Tor the Department to raise the defence that there was an absence of proof that the goods had been placed in the package. He had no doubt that if evidence from England was available it would lie that every care had been taken to protect the goods—on the lines adopted by the Railway Department. A receipt should be binding. It was apthat it was not a physical impossibility to examine all the packages when they were loaded on the trucks—it was but a question of expense. The _ Magistrate said that the case did not raise any questions that had not been tested by litigation on previous occasions. No doubt, at first sight, it seemed to the layman that it was something of a hardship that a department should be permitted to go back on a clean receipt, but which, in «B»ct, was not worth the paper on which it

was written. But when further thought was given to the matter it would be seen that the value of the receipt depended upon the circumstances it was given under. The mercantile community realised this. In the cases in which Lewis, Ltd., and Herbert, Haynes and Co. had taken action to recover 'damages this point had been made quite clear by the judge. The evidence for the Department in the present case showed the course of the procedure in connection with the handling of goods from the ships, making it evident that clean receipts were given by the tally clerks without their having had full opportunity to detect damaged cases. Damage such as that done to the case in question might very easily have escaped notice at Port Chalmers. That being so, he could not see any difference between the present and the two cases that had been quoted. It had been shown that the trucks were properly covered and that they were under close supervision while in the open, being subsequently locked in a shed which was visited regularly. From the circumstances of the pillage itself he was disposed to think that it did not occur while the package was in the possession of the railway. It seemed that the thief had had ample time in which to do the work, and such good fortune was unlikely while the goods were on the trucks. It was not probable that a man breaking into a case on a truck would be particular as to fixing it again so as to cover up the breakage as much as possible. Further, there was no legal evidence that the goods were ever in the package—that they had ever been placed on even the ship. Judgment would be entered for the defendants. Mr Brasch said that he realised that his Worship was to some extent bound by the decisions of a higher court, but he. asked that, in case his client should decide to take the matter further in order to test the legal value of the clean receipts, security for appeal should be fixed. Mr Adams remarked that he did not see why the Crown should be asked to stand the cost of an appeal in view of the Supreme Court decisions. Mr Brasch : Does that mean that we are unable to do anything to remedy the present position ? The Magistrate : It seems to me that it is a question of the Department’s policy. At present the Department is taking advantage of the law the same as any other body w-ould. He added that unless Mr Brasch could bring forward any points that had not been dealt with by a competent authority he could not allow an'appeal. Judgment was entered for the defendants with witnesses’ expenses (£8 ss) and costs.