RESIDENT MAGISTRATE'S COURT.

Westport Times, Volume II, Issue 322, 12 August 1868, Page 2

RESIDENT MAGISTRATE'S COURT.

Mokdat, August 10. (Before Chas. Broad Esq., E. M.) Dennis ITlannery and another, were charged on an information laid byMessrs Rimmer and Forder, the livery stable keepers, with maiming and wounding a certain bay gelding, but Mr. Home, who appeared on behalf of complainants, having stated that the information could not be sustained in its present form, the case was dismissed. Skoglund v. Limbrick—-Judgment given by default for the sum of £llos. "Walsh v. Morris—-Judgment confiessed for £9 13s 6d, with immediate execution. Baillie and Humphrey v. Green— This was a shipping caseof some importance wherein the plaintiffs sought to recover from the defendant, who is captain of the cutter Volunteer, the sum of £74 12s 2d, loss sustained owing to damage done to a certain cargo of oats. Mr O'Neill appeared for the plaintiffs, defendant being represented by Mr Home. The evidence of Mr Thomas Baillie, one of the plaintiffs was, in substance, as follows : The Yolunteer was chartered in Dunedin to go to the Molyneux, and there load a cargo of oats for us at "Westport. The bill of lading, produced, is dated the 20th June and the vessel showed up off the Buller about the 15th July ; after some days the Captain came on shore for provisions and was unrble to return for two or three days. Afterwards I sent him a note to say we would give him £25 if he would deliver che cargo at Charleston, and accordingly the vessel went on there. I sold the cargo to Allen Brothers at 4s 7d per bushel provided it was in good order. The cargo was found to be damaged, on discharging, and Mr. Allen caused a survey to be held; 131 bags out of 340 were damaged, and rejected by Allen, and were sold by auction realizing only about 7s per bag. Iwas on board the vessel when she was discharging ; the bottom was dunnaged with wood, green flax and scrub, the scrub coming a little way up the sides of the vessel. In several places the scrub was rotting and there was no dunnage about the mast, and I do not ciosider the vessel was properly dunnaged. The damaged bags were mostly taken from the sides and about the mast. The decks were leaky. I attribute the damage done o the want of sufficient dunnage. I

Cross-examined:—The weathor was bad about the time of the Volunteer's voyage. Several vessels sailed into the Buller, while the Volunteer was out side. There were two surveys held, the first on 3lst July the second on 4th August. Philip Allen said he took delivery of 209 bags but rejected the remainder as damaged, and caused a survev to be held by Messrs Russell and Waterman. Mr. Russell identified the survey certificate handed in, and confirmed the evidence or Mr Baillie as to the insufficiency of dunnaga about the sides and masts. Joseph Waterman and John Allen gave evidence of an unimportant character, aud Thomas Dwan proved the account sales of the damaged cargo, sold by auction. Mr Home having without success moved for a nonsuit, on the ground uf of the faulty wording of the survey certificates, which merely considered some of the cargo damaged, and did not express ar. opinion as to the cause, called the defendant

Fred. Green, who said:—The vessel was passed by a Government surveyor before cargo was taken in, having just been overhauled. The shippers were on board while the vessel was damaged and found no fault, and they saw the hatches well fastened down and secured. Experienced frightful weather during the passage round, the sea making a clear breach on board and sweeping away bulwarks and provisions, causing the vessel to strain very much and her seams to open. Afterwards had to man the pump every half hour. I could not enter the Buller the weather at being first too bad, aud afterwards the wind, was unfavorable. When the first survey was held Capt. Beyeridge and Capt. Bonar attended on my account, and gave the certificate produced, stating the damage in their opinion was caused by the straining of the ship in bad weather. I consider the cargo was well dunnaged. Cross-examined—Did not make any protest on my arrival, because I did not know the cargo was so much damaged. Ee-examincd —■ When I told the agenta at Westport of the bad weather they did not advise me to take out a protest. The vessel was not insured but the cargo was.

Two seamen were called to show that the vessel was properly dunnaged. Mr Home said the fact of thevessel being un nsured rendered it optional for the captain to enter a protest or not, but the whole matter rested on the question of dunnage, and he contended that the evidence for the defence on that point was infinitely more reliable than that offered on the other side, and that the loss sustained arose simply from the ordinary perils of the sea. Mr O'Neill having replied, His Worship said it was clearly the duty of the defendant to have made the usual protest. Although the evidence as to sufficiency of dunnage was conflicting, it agreed in one point, namely, that there was none placed about the mast, where a good deal of the cargo was damaged. He should assess the loss by giving a verdict whereby onethird would be borne by the vessel, and two-thirds by the owners of the oargo. Judgment accordingly for £25 and costs.