THE BARQUE GAINSBOROUGH.

Taranaki Herald, Volume XLVI, Issue 11021, 11 September 1897, Page 1 (Supplement)

THE BARQUE GAINSBOROUGH.

AN IMPORTANT DECISION. In the Queen's Bench Division, on the sth July, the \Ve3tport Coal Company, Limited, ot KW Zealand, sued the owners of the barque Gainsborough and Captain M Phail, who was captain and a part owner, foi damages for breach of contract. Defendants agreed to carry 1315 tons of plaintiffs' coal from Westport to San Francisco. On the 26th June, IB9G, the vessel left New Zealand, and encountered very heavy weather, and on the 3rd August it was found that two new water tanks had leaked out. The captain calculated that he would be short of water if he continued his voyage to San Francisco, and sailed for Honolulu to get a further suppiy of water. At about 5.15 a. m. on 29th August, when off Diamond Head, and nearing Honolulu, the vessel struck on a reef, and two days afterwards 3hip and cargo were sold for £374. The vessel was got off by the purchasers on the sth October, and taken into Honolulu. It was contended that the vessel was unseaworthy by reason of the defective tanks; that the captain or those in chirge of hor were negligent in navigation ; and that tho sale of the cargo was improper and without regard to plaintiffs' interests. It was stated that by jettisoning 200 to 300 tons of cargo the vessel could have been got off the reef, and that the cargo could have been taken out of the vessel by the employment of labourers. It was alleged, in defence, that the course set by the captain when nearing Honolulu was a safe one, and would have kept her clear of the reef if she hid not beea influenced by »n unknown current. The jury bad found that the cargo had been lo3t on the voyage owing to the negligence of the master, and that the sale of the cargo by the master after the stranding was unnecessary. His Lord ship (Mr Justice Kennedy), in giving judgment, said that it was impossible for the master to escape liability. The exception in the bill of lading was not, he Baid, meant to except parsons for their own neglect; it was meant to protect the owners for the acts of their servants. The co,owners were not liable for the acts of the master, and were entitled to the full protection of the contract. He gave judgment for plaintiffs as against the defendant Jl'Phail for £1050, being the -co3fc of the cargo plus freight and insurance, and costs, and judgment for the other defendants.