DISTRICT COURT.

Timaru Herald, Volume XLI, Issue 3268, 18 March 1885, Page 3

DISTRICT COURT.

TTMARU, Tuesday, Mabch 17th. (Before His Honor Judge Ward.) CIVIL CABE. The Colonial Bank of Now Zealand v. the Timaru Fish Company— Claim, £142 2s. Mr C. T. H. Perry (of Messrs Perry and Perry) for the plaintiffs ; Mr J. W. White (of Messrs "White, Smithson and Raymond) for defendant Company. The legal argument on the issues found by the jury m tliiß case at the last Bitting of the District Court was opened by Mr White reading the notice of motion. Mr Perry objected to going into the second ground of notice of motion, on the ground that the implied warranty and the breach of the samo had not been pleaded. His Honor over-ruled the objection, but took a note of it. Mr White spoke at some length on the illegality of the contract by sending the vessel to sea m an unseaworthy condition. The vessel was unseaworthy within section 153 of the Merchant Shipping Act 1877, by the finding of the jury. Mr White then quoted from Pollock on Contracts, p. 260, Leake on Contracts, p. 761, Ritchie v. Smith, 18 L.J., C.P.. p. 9, Cowan v. Milbourn,2L.R., Exch., p. 230, Stevens v. Gourlay, 36 L. J., C.P. p. 1, Gas-light and Coke Company v. Turner, 9 L.J., C.P., p. 75. The finding of the jury that the vessel was unseaworthy -was conclusive evidence that the contract entered into for sending the vessel to sea m such a Btate was void. It was not to say that the plaintiffs were aware of her unseaworthiness, and there was nothing m the eridence to show the jury that they were aware of it. Plaintiff had set up a plea that he had used all available mean* of sending the vessel to sea m a seaworthy state, — Regina v. Freeman, Irish Reports 0.L., vol. ix., p. 527, Abbot on Shipping 12 cd., p. 283. On the question of implied warranty, Mr White cited Cogs v. Bernard, 1 L.0., 7th cd., p. 194, McLachlan on Shipping, Ist cd., p. 307, Smith v. Marrable, 11 M. and W., p. 6, Wilson v. Finch-Hutton, 46 L.J., Exch., p. 489. If the unseaworthiness had been known the defendants would never have entered into the contract. De fendants paid the first month's rent, and it was during the currency of that month that she became disabled, and it was only then that they found she was unseaworthy, — Readhead v. Midland Railway Company, 2 L.R., Q. 8., p. 412, Oliphant on Horses, p. 247, Chew v. Jones, 19 L.T., p. 231. Speaking of the charter party, Mr White quoted Kopitoff r. Wilson, 1 L.R., Q. 8., p. 377. The Bank received £2 2s per month m lieu of insurance, and so became their own insurers, and accepted all risks. The Bank refused or neglected to repair the damages caused to the vessel by the perils of the sea, and put her m such a condition that the Company could have further use of her. As the damage was caused by the perils of the sea, the defendants were exonerated from all liability. Mr Perry contended that plaintiffs were not parties to sending her to sea. The defendants provisioned her, provided a crew, and were the cause of her going to sea. The plaintiffs had no freight to earn, and would derive no benefit from her going to sea except receiving her rent. Presuming that they entered into the contract they were not partial to sending her to sea. There was nothing to prevent the defendants putting the vessel m a seaworthy state after their entering into the charter party. The Bank never had any intention of sending her to sea m an unseaworthy condition. He contended that the defendants could not substantiate their case on that particular point, and m support of such contention cited Waugh v. Morris, 8 L.R., Q. 8., p. 202, Edgeway Highway Board v. the Harrow District Gas Company, 10 L.R., Q. 8., p. 92, the Teutonia, 4 L.R., P. 0., p. 171. There was nothing m this case to prevent the defendants fulfilling their contract. All they had to do was to repair the vessel and the contract would not be void. On the question of illegality of contract the plaintiffs were not parties to sending the vessel to sea m an unseaworthy state, — Amazon Tug Company v. Robertson, 8 L.R., Q. 8., p. 698, Couch v. Steel, 23 L.J., C.L., Q. 8., ). 121, Keats v. Cardovan, 20 L.J., C.P, p. 76, Sutton t. Temple, 12 M. and W., p. 52 and Hart v. Windsor, p. 68, Barr v. Gibson, 3M. and W., p. 390, Leeds v. Chiltram,s L.J., N.S., Chan., p. 106, Digby v. Atkinson, 4 Campbell Reports, p. 275, Lees v. Whiteley, 2 L.R., Eg., p. 143, Rayner v. Preston, 18 L.R., Chan., p. 1, Edwards v. West, 7 L.R., Chan., p. 858, Gottleib v. Cranoh, 22 L. J., Chan., p. 912. Poole v. Adams, 33 L.J., Chan., p. 639, Lofft and others v. Denis, 28 L. J., Chan., p. 168. There was nothing m the contract to show that the Bank were to insure against total or partial loss, — Charles v. Orton, 23 L.J., 0.P., p. 195, Tucker v. Noil, 21 Chan. Div., p. 18. Mr Perry submitted that judgment be given for plaintiffs for rent, damages, et<J. The jury did not find that plaintiffs were parties to sending her to sea m an unseaworthy state. Plaintiffs were not called upon to insure her against total or partial loss, and there was nothing m the contract to that effect. While the vessel was ly ing at Wellington her captain asked for certain repairs and they were carried put at the plaintiffs' expense. Mr White m reply said thero was no assumption that the plaintiffs intended sending the vessel to sea m an unseaworthy state, and that the Company would make the necessary repairs if anything happened to her. In summing up, His Honor found that the contract was not shown to be illegal. Some repairs had been done to the vessel after she was chartered by the Bank, and they ÜBed every reasonable means to send her to sea m a seaworthy state. There was no specific warranty m the charter party although it was usual to have one. The Bank had accepted the risk and became their own insurers. Judgment would be given for plaintiff for £15, one month's hire, £2 2s m lieu of insurance, £10 10s solicitor's fee and Court cobU. bakkbuptct. Mr Perry applied on behalf of Mr Hainersley that the application for an order of discharge by M. Wightman be adjourned till next Court day. — Granted.