GOODS IN TRANSIST.

Timaru Herald, Volume XIIIC, Issue 13708, 24 September 1908, Page 7

GOODS IN TRANSIST.

)CLAIM AGATSST THE UXIOX \ t'OJMPANI. I IMPORTANT COURT CASE. J?c*se s«d to be the first of the kind heJd here, and involving a T«ry uupo&nt point as to the liability or otherwi# of shipping companies for the_safe calage of wal heard bdfore Mr Wray, S.M., atjihe Magistrate's Court here yesterda#i when W. JL N.isbet, plumber, of 'innaru, brought a claim for fo o* against the Union Steamship Company, for|? damage to some pipes when being coopered oa one of the defendant comtA from Dtoedin to Thnara. M r S. G. Raymnod appeared for plsiotifffeand Mr W. E. Kinnerney for defendant. ]|r Raymond said that on February 4tliilasfc Umi thaf receded a. con.ipM' «m ?pipe« w the a.s.*iCorinna from Dnnedin. The goods were materialy damaged, and for this plaintiff claimed £6 3a, (1) f°t breakage to. tlif.gWKfcii tuul (2l for. the of"-the broken parts.. ilr H Jjg. Williams was chief officer of Corfiina at the date M "qnesiion, and in jus evidence, given at Auckland, he stated thai there wax. no.protmiota round Jhe. or spo ntiSß not" hj& memoljr "*in this particular had played him false. The -Kwif officer said that the goods- were w. n JW by reliaUi men and so far as Jm -,was aware they were not broken on the It would contended that jhesegoods tww Drblen' and whether they were so broken or not th«f companjr- 5 *£»• ii»h¥>s • u ?>der; the "-'Act 1880, section 21, had a right to *oe. Section 25 provided that every common carrier, whether by «a or by land waa liable for«injury done to articles, goods, or tUus, occasioned by the neglect of .such carmr, nqficiMwCaialing any cwiditions thai| might Biave been agreed upon betwe«4i the parties.. Section 27 provided for Special contracts, *®d Stipulated that no Special contract for the delivery of goods ahould it binding npon the confrtgnjf or consignor onlesss it was signed bf flun. It was established beyond auT~doubt that in ordinair circnmatancea, insurer of the goods he carried, 'ihere ho jpAial contract in this case and the company .was - not exempt" from' liability, if tittle was a special contract, nnder no ciretuMtances would; the company Lj exempt- from negligence. "The onus 4*l proof of due care rested npon the company, and the presumption was against the bailee who received goods into his possession as thb company revived them. If the goods were broken and the company was treed from liability lor breakage it wa* still its duty to deliver the whole;of the goods, and tliat. not beetl done in this case. Counsel then called

W. U>e plaintiff, who aaid that on February 2 A- and T. Burt, of liunedin, consigned the "jpods in question to -witness. They put goods on the Connna at Dnnedin, and w"Jtpe«a paid the freight at this end. ~ When th<*-$F > °de arrived here he fonod 7 lengths iof spooring and 6 cast iron pipe* broken. A>* ihe ptecwi were not there and all the goods' were not delivered. Witnets made a claim on the company which did not recogni»e it. Witness's aolicitors then inado a claim for him. The spouting was packed with a band of straw. The spouting wa* valued at 2s per foot (£4 4*l and the cast iron pipes at £1 19*. The cast iron pipes were not easily broken. It would require a good deal of violence to hreak then. - Ordinal; bandling in a ship would not break them. To Mr Kinnerney: Witness had read the condition* on the back of the shipping sheet. Noticed on one side of thi*. the tetters "onptd" (unprotected), but

th* pipe* wer» protected with straw bands. Broken fragment* of the iron pipes wera - Tbes« were of value for working in. in odd place*. They would .ia*» cutting a good pipe- VVit ne*« did not state anything in his original statement of clahn about short delivery. It did sot strike him then that it wa» n«CM«rT. JBc had amended the claim on the advice of hi» solicitor*. Witi n«m had not used any of the broken gut tering *o far a.< he knew. He had recrittd a shipment of spoutinp from W.-I-lingtoa recently and it was not br*>krii. though it waa protected in precisely ihe S3o3i< way as thai from Dunedin. To Mr Raymond: Th- " »n |wvt«*«.'ted" «<n the »h>ppintf *h«t, rei<i;«*>i «>nHr to p.»rt of thf goo*!*, t haiaitcr- «»f them bung in a <"i*? pa<k«-tl with straw. The' " unprotected " tef<:r»:<l to the only. J. firsney. t*l'v clerk for th- Tt.iitvriy Department. laid he tallied »1»" t'orinrn w February 4th. He lad marked «Jowti IT>1 T > fvtrt* of th*- goods in question. a« bmk«-ii. They were broken whm th<y ranv mi. -.f th* fthip. Wit Be* i M« nothing «<f the

broken fragment*. - To Vlr Jtvmneruev: Witness had oeen separate lengths oi' .pouuug »n,pp~l £ straw bands, but he did not tllluK thero. was anv protection in ihia case - -M® written oh the receipt wtiieh he buu given " at owner's risk,". because the good& vrne unprotected. So far a* he cou.d remember none of the goods were iu a cai*e. _ J. Davidson, carrier, said that be cartea these goods to Mr Xisbet's shop and drear his attention to the, it «.a> impossible to ftt fet. wfetter all pieces, wefer delivered or not a» the gooj» were bo badlv fractured. i. To Mr Kinnerney: With ordinary and reasonable handling there was no reason ■why cast iron goods should be broken. J. Storrier, proprietor of Storrier's foundry, said he had seen the pipes in que~:ioa, and would say that they ought t» stand ordinary handling. • iSome of the broktii pipes and Spouting were here put- in as a. sample- of the damage done.? It would take 6cwt. to 80wt. to break the pipttf, and a knock to break them must be 4 very violent one. : ' * To Sir Kinnerney: The damage might, easily be done accidentally. T." Malcolm son, an employee of the plaintiff, said that the broken pieces of spouting; and piptS produced in Court were" fair samples of the whole. Some of the bro?ken pieces were missing. " This closed the evidence For the plaintiff. " In opening the ca« for the. defendant, MrKippesoey 6aid;tbatnegHgcnce was not* a feature of the plaintiff's case and in order to succeed be would require to prove that; 'it whs an <sseiitiai element of plaintiff*a case, and it had not and could not be proved. There were 72 lengths of cast iron pipes and 26 lengths of spouting and guttering in the consignment in question, and it was admitted that some of them,were broken, but not through any negligence on the part of the company. Spouting was particularly fragile, and in this caw it was wholly unprotected and wan *0 marked on the shipping note. This clats of goods was always treated ;ts fra--gile good*, both by the Railway Department. and the Shipping Companies, i The Railway Department absolutely refused to accept liability for such good*. and the Vniou Company did likewise so far ;is tiie law would allow them to do so. The company could not contract itself out of liability for damage through negligence, and that was all it was Iktble for. I nd»r sections 26 and 27 of tlie Mercantile' Law Act- the .company ex- j etnptiog itself from liability from break- I age and that would hold good ax a dt* fence fur everything except negligence, is the company had a special conuuct signel by the shipper of the gooc!t>. The conditions on which thi defendant ccnnpuny relied were 011 the back of the shipping document produced by the plaintiff. On this it was printed that the company "khatl not be liable for breakages to gh'b*. china, earthenware, or any cast iron good*, packages, or other cs«sas of a fiugiie nature, froin whatsoever cairse or iesu»on." Insufficiency of packing absolved the company 1 from liability in this case. Jn order to make carriers liable, negligeuce must be proved, there must be evidence of some actual act of ouik*>ion. It might lie iu this cane that the goods were broken apartfrom negligence altogether, and in any case there had been n<> negligence on the part of the company. Mr Kinneniry then called, J. T. Steven, who said be was hatchman on the Corinna when tliio cargo was discharged. It was on top of all the othtrr cargo and witness noticed that come of {t was broken. The goods wt r- c:u> fullv dK'-hsrgwl. but the gmwiing bioke in the sling*.- appeared to be very brittle. The gtNtit would not have been broken had they bee."? lacked or protected with straw. To Mr Raymond : They woidd not take out only four or lire piews of guttering from tin- ship at a time. The ve>svl h.td to be discharged. Witness could not b? Mire whether the pip<s and guttering were iu the ."ding at- oik- and the *aine time. \\ i'. would not suggest that the pijHt. were broken iu the sling. K. Hatton, iron founder. of 26 year*' experience. said that the goods jn question were very brittle and liable to break in a »hip'» hold, with the motion of jhe ves»el, m Ik-avv weatln-r, unle»s they wete sweured in oome way. If they wsre not properly packed they would be very liable to break. The broken pieces would only be of value as old iron. To Mr Raymond: The pi|>e* would *t a ml more knocking about than the guttering. Wit ties* considered that if lb* pijjen and guttering were discharged from the »hip. in sling*, there would b* a »etiou» rink, of breakag '. l-nless p<" tected. they should not be put in sling*. 1 hev should b»* taken "ut «il the ihip by hand, if unprotected. 'Hubert ('uthlwri. shipping •» tb« N'ational Morrgag- ;md Ag» i» y v.'oinj>*ny. •aid lie had bad twniv year*' txpeiklice .»#, Mich, C.ut iMti trfXKl. ..irrie<l .tvvi).r«' r«k No 'diip atcepN'd t>»p<>n»i hiUty (or c.i*tiroii good* or unprr.te»:t»«l artirl«-». 'Hi«* Kail way lVj>»r:roent re fraed to carry «ttch except ;»t owner* i'.f- i««ii iv-irk-ige* l w«te being broken almooi every bat hi* com p-inv M'ktiowle Iged M" in r. • pci-s «•! tln*---. Wito'ts dsd not <-oi«;d«r that

the broken bits of plaintiff's pipes -were of any value:. Witnees produced A. and T- Hurt's acknowledgment of the fact that Nisbet's goods" had been shipped subject to the. conditions Set forth'on-the back of the shipping "note.. Sometimes these goods were protected. The plaintiff in this action, had had a shipment of pipes from a. drm in .Wellington, which had protected the pipfS with straw, when shipping them. . To Mr Raymond : Later on Xisbet had received another shipment from the Wellington. firm,'and the goods in thss case were marked "unprotected"' by witness's company. Straw was only a partial protection. This was all the evidence. Mr Kinnerney submitted that the defendant company bad no ease to answer, as all it could be" held liable for was negligence, and this had not been proved. The* ease was a most important one, owing to the far-reaching consequences of a judgment for plaintiff on fcueh evidence. Such goods, in order to be safe from breakage, should either be packed in -cases or at least, tied with straw bands, bat shippers preferred to take the risk of loss rather than incur the cost of packing. On account of the fragile nature of the goods, the company, by the conditions endorsed on the back of the receipt given by them, made exception with regard to liability in respect of them. Tlie-ie conditions "were accepted by the shippers signing a memorandum to that , effects on the shipping note. The company* was justified in doing this, under section* 26 and 27 of "The Mercantile law Act, 1880," so far as such exceptions were reason able. It had been held by the courts in this colony, and also ixi England, Avitb regard to carriers by land, that such exception could be lawfully made, provided that careers were not excused from loss arising froni negligence or" dishonesty. In no case had ' a- carrier been held liable on mere proof of the proportion of locs incurred. The onus was. on the plaintiff, of proving negligence on; the part of the carrier. A breakage might- , occur through accident or error of judgment, and in that case the carrier would not be liable. In some casts the risk of break-, age wa* very much greater than in otbets. ,ur Kiunerney , cited v numerous* authorities in >mp port of'his contention. In the ca.*e; uf the Union Steamship Company v. Dalioh <3 N.Z. Jur. X.S., p. s f), goods on chipboard had been damaged through oil getting on to them. The principle involved in the case cited waa precisely the &xine as the principle involved in the case now before the court, and on appeal it had; been decided, and had been* law ever since, ; that the carrier was liable for negligence, - but not in any other respect. The onus of proof rusted with the plaintiff, who musoestablish negligenceas an essential element in his case. The English case, Phillips against Clark (26 Law Journal, Common Rleas, 168, p. 170), was quoted, couifcel stating that here there were excepiini£ sumlar io those in the case now before ihe court, the defendant stipulating-that he should not be liable for leakage or breakage, and Mr Justice Crowder had held that the defendant was not Jiahtle. The position -under "The -Mercantile Act" ;in New Zealand to-day, wa>® that for excepleakage or bre&kage, a carrier was not unless, - as h* -hftdU#*id before,'negligence on: the' part of the carrier could l itself vafi not Evidence of negligence. -Other cases cited by Mr'Kinnerney were: —Czech v. the General Steam Navigation Company (L.K., 3 C.l'., p. lb and ly), and Ortiloif b. Brixall (L.R., 1 P.C., p. 2311 in which it was held that the mere fact that gooc» weie extensively injured or even destroyed, was not in itself evidence of negligence. Another case was. Barbour v. the South Eastern Railway <34 L.T., N.S., p. 67). Here it was a case of damage tofurniture in transit, and it had been held that the furniture had not been properly packed, and that a 6 the damage, had arisen through the plaintiff's own neglect, he was not entitled to Tecowr from the defendant. On the facts in the present case, Mr Kinnerney said there was: absolutely no evidence of negligence. The goods were handled by careful and experienced men, who worked after the methods followed for the . last twenty years, and plaintiff had uo real ground upon which to base a ' claim. - :o the non-delivery of tlie broken piece 6, a common-sense view must be taken of thai. Ihe pieces were oi no value, and' the company could no more be expected to go round gathering up bit** of iron than to gather up wheat which might fall truui the tacks of thi* cereal which .they.handled. Mr Raymond replied.. He contended that negligence on the. part of the company had been proved. Here goods ■were piuctd in the custody of a bailee—goOtrt which, with ordinary handling, should not haw b.en injured—.uid in .the absence of some reasonable explanation as to how the goiKi/j wetv damaged, the presumption was that the .damage bail Wen occabioned through the negligence of the company. 'lhe referred to by his learned liiend showed '-hat the main qißtstiun was one of fact. The good's would not have been broken without some great violence. ihe chief officer, in h*» evidence, said that the goods were all right on arrival at Timaru, (hough the \viu>e.-*s SUVeris said he saw them broken in the hold of;the wssei iSoriH-one was evidently making a mistake, but at all events the goods were broken when in the truck on the wharf. The evidence of Stevens -seemed to indicate that> >ht-y had probably b en broken through putting too much in the sling at one time, ■ and Mr Hatton in his evidence t«iid vhat, there wm> a bcrious risk of breakage in., putting such good® in a sling or all. Here •hen w«t» evidence of negligence on the part of the company, and they hud evidence to show that the pip>t> could only have b.-en broken with tiandliiig oi a violent nature. It \vai> incumbent on the company to adopt some method by which the goods would b:- delivered in ax pood order as that in which they weie received, even though this might involve an iucren.>e in tlie earning lates. The company undertook to deliver these good«. and was under an obligation to take ordinary care with them. Mr Raymond quoted the cane of I'hipp.t against she New Claridgo Hotel Company, (" Time»,'' L.R., p. 49), to bhow that whvre goods ate given into the bole cusUnly of a jk j.Hiin. and accepted by him as baili-e, and such goods arc lu>t or dauiaif -d while in his custody, the onus is ujhju him of proving that such damage or !on» wrih not tlie result of negligence on his part. Thi- has Ik-en laid down bv M r .Justice Hi ay, and it titood good to day. hi the case now before the court, there was evidence of negligence, and the company mtfc>t h- held responsible. Coun>>i also quoted Mr Reven's book. on "Negligence," p. 132, to show that negli j gcnce is there defined as "something which 1 Jjap|>eia> through lack of proj>er cure." and i t.(i nellt on to say that Mr Justice Cooper j endorsed the view he war, now putting bej fote tlw rutin, when. in May last, the h.aniel Judge decided th- c;«e. Oldhitin v. I l.roiu (27. N.Z.1..11.. j». 535j. Here it | w:»* held that '.h«- i>tiri> wax on th- bailee, i of proylug tlut hj» had not been guilty of | negligence. In the of llaui aguinrt i Strong, a ia»«> Ih-uid in th- >'cottir-h 'Court*, tint fcajiip principle had been upj h.-!d, and Mr .lur.!ii.-« Jltay had laid iljdiiKfi. w lien «leali»g with th- Cluiidg- ! fiote! i3«-. that where goods collie into i I the sole lu.r.itty of a bail-?. th<- oi:ii» «: ! ptoviug the alr-eni e ni |h g!ig' iji e was tiJ>* >u j him in the event of a i iaiin !/■ ifig madi< i for d.mi.iy x. Mr Havinond aU-» quoted 1 o'.h-r ca«v n U* the MJiif <lT*ct. and , , »aid tli.n (Ji'ix weiv .ill th- latest au:li.>:-. i li-r. on the poiiu i lie «J>"t i.i! cotiditiotn , Mvt forth on -h" f.liip|'iiig m win. h til# toTllpallV *.lld th-V UouM liol le- I* , -•jxiiiPib'.-- I"f "i iiina, gl.irtiwjre. hfII : ware ca»t it«.n pnekage*," etc., did not help thrill ill till" ijv, a» th«*y «.J,- twain* [' to lonttin*: tin-inv!ve» out liability ; when «. gl.«-n«-e «a« pi«v. d aKai»*>t :h> m. - ' The c,«i)dit itirm (ii-i ii<»t r ti* , aiid in'viliC'-ii' r ii.- i lircn .ih'.iti'! ititiv proved. f Hi. Wot .hip. in sivmi! ju.irfin-n!. «>-»= d : i: »»ui J to him that :!<«• •.

Jteelf into a question, as to whether there had or had not been negligence on tire pan of the company. ;: The goods in.question were of so fragile a nature as not ta tje capable- of being carried in: a stiramer without breaking, unless proper c-aTe was exercised in dealing with them. 1: seemed to His. Worship, after hearing the evidence; that thi&e goods were not handled with sufficient- or reasonable c-are on board the steamer. They were not packed or disguised-in any way, they were known to be brittle, and should have been handled with moTe care than ordinary goods. The court had not had a very fml-description of the way the goods were discharged from the steamer, but from the evidence it appeared «bat they were nqt handled in a manner suitable to such goods. . With regard to the onus of proof, he thought that under the circumstances the defendant company should have shown that they exercised "all due and reasonable care in handling the goods. They had not done that, and the conclusion he drew M'as that proper care had not been taken. Sufficient care w;.s not exercised in handling goods of this particular kind, and the company would be held if sponsible for the damage which had occurred. There was no dispute its to the amount claimed, and judgment would be for that: amount. Mr Kinnerney asked leave to appeal. His Worship said it was tinder the amount, and he saw no reason for putting the plaintiff to the expense of an appeal. Mr Kinnerney said it was a most- important case, and the company desired to take the matter to a higher court. His Worship said the law seemed quite clear on the ]>oint to him, and be j?aw na reason for sending such a case to the Appeal Court.